July 03, 2008
The worst Supreme Court justice?
Patterico has some pretty solid reasons for his choice (and mine, too).
Why did the Founders bother toiling in the summer heat of Philadelphia in 1787 writing a Constitution when they could have relied on the consciences of Supreme Court justices like Anthony Kennedy instead?
Kennedy is the Supreme Court’s most important swing vote and its worst justice. Whatever else you think of them, a Justice Scalia or Ginsburg has a consistent judicial philosophy, while Kennedy expects the nation to bend to his moral whimsy. With apologies to Louis XIV, Kennedy might as well declare “la constitution, c’est moi!”
Lowry’s sentiments find resonance in the statement of Justin Levine yesterday:
Kennedy has proven that he does not have the temperament worthy of the power afforded to those sitting on the nation’s highest court. I say this even though the practical results of his decisions will more often comport with my own views when compared with some other Justices of the Court. But if I had the power to vote one (and only one) Justice off the island, Kennedy would easily be the first choice.
I don’t know if I’d go quite that far — but he’s certainly the justice I respect the least. Kennedy is smug and patronizing; a toady to elite opinion. He is serenely indifferent to the chaos and turmoil his poorly reasoned decisions cause to the legal system.
His flowery and meaningless language provides litle guidance to lower courts, which are often thrown into confusion by his obtuse phrases — but no matter. The key is to be quoted in the New York Times, rather than to be understood by the judges who must carry out his diktats.
The ultimate clue to his result-oriented jurisprudence comes in the public reaction to the fact that Kennedy fundamentally misstated the extent of support for the death penalty for child rape. Linda Greenhouse says that Kennedy’s factual mistake related to “a central part of the court’s analysis.” Yet no legal observer believes, even for a moment, that Kennedy will change his mind, simply because a critical pillar of his analysis has been shown to be flawed.
Everybody knows that he decides on the result and reasons backwards from it.
Nobody thinks that the facts actually matter to him.
You want Kennedy to consider changing his vote? Show him that the editors of the New York Times decry his decision. But don’t bother the man with facts going to the essence of his analysis.
Yes, Lowry is right. Even though Kennedy very often gets the result right, he is the nation’s worst justice. He is a model of what a justice should not be: drunk on his own power, yet at the same time, utterly powerless in his groveling to the dictates of elite opinion.
You can despise the results reached by a David Souter or a Stephen Breyer, but at least you can respect them.
I can’t respect Justice Kennedy.
I don't think Patterico goes far enough. As I said when Kennedy granted habeas rights to brigands held by U.S. forces, decisions like these undercut whatever presumed legitimacy the courts hold in the eyes of the public.
When Kennedy decides to tell the Legislative and Executive branches of government, as well as the legislatures of the 50 states and their governors, that they're wrong, based upon his evolving standards of (in)decency and misreading of the national consensus and existing law, and then gets four of his colleagues to join in, he brings the entire institution down with him.
Posted by Mike Lief at July 3, 2008 07:13 AM
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Comments
Well, and sadly, truly said.
Posted by: ecmarm at July 3, 2008 11:26 PM