Justice Kennedy’s Naked Politics and the Hypocrisy of the Court
The flagrant duplicity of Justice Anthony Kennedy’s Supreme Court decisions this term should render his opinions as lawfully binding as a sermon from Barney Frank. In other words: they are bloviating examples of politics before the rule of law. He has exhibited a complete disregard for the fundamental rights Americans possess, or that are protected under a simple reading of the Constitution, because he lacks any coherent jurisprudence. His hypocrisy on federalism reveals a naked political motivation for specific, and often diametrically opposed, outcomes.
In 1997, there was a case before the Supreme Court, Washington v. Glucksberg, regarding physician-assisted suicide that mirrored the arguments proponents of homosexual marriage have asserted. Despite the fact that proponents of the right to assisted suicide offered stronger arguments than those recently seeking to overturn state marriage laws and redefine the institution from the federal bench, the Court still ruled in favor of the state 9-0. Three of the justices – Kennedy, Breyer, and Ginsburg – completely contradicted themselves with the ruling on marriage.
The respondents in Glucksberg, led by Washington physician Harold Glucksberg, asserted a “liberty interest” and fundamental right to assist terminally ill patients in committing suicide. They contended that state law banning assisted suicide violated their “substantive” due process under the 14th Amendment.
Interestingly, the word substantive is never mentioned in the Constitution, but has been created by usurpation of power and revisionist history, and has now become the porta potty of post-constitutional jurisprudence for those too cowardly to pursue their societal transformation through the democratic process. It is a legal fiction meant as a means to an end – that is, societal transformation via ‘judicial legislation.’ (See, U.S. v. Carlton, J. Scalia concurring.)
On paper, the respondents in Glucksberg had a much better case than those who sought to invalidate state marriage laws. They were asserting the right of self-sovereignty and were simply asking the state to not interfere with their act. In the Obergefell case, they were asking the court to redefine an institution that has been defined by natural law and all of history until just a few years ago. They were also asking for a state benefit and recognition, the opposite of the relief the respondents sought in the assisted suicide case.
Yet, in Glucksberg, the court completely shredded the idea that there is a fundamental right under the 14th amendment to assisted suicide. The litmus test the court used, based on decades of past precedent, in determining whether the Due Process clause of the 14th amendment protects a specific act is whether the asserted right is “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”
Chief Justice Rehnquist, writing the unanimous opinion (although the four liberals disagreed slightly in a concurring opinion), noted that bans on suicide were a part of Anglo-American common law for 700 years and that “by the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide.” So, rather than the asserted right having deep roots in history and tradition, Rehnquist observed that the state laws were rooted in history and tradition. This was similar to Scalia’s point in his dissent in Obergefell when he observed that every state defined marriage as between one man and one woman at the time the 14th amendment was ratified.
The second requirement the court established in Glucksberg was that those asserting the new right provide a “careful description.” This is especially important because, as Rehnquist noted, “by extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.”
Much like in the marriage case, Rehnquist observed that despite the centuries of iron-clad opposition to suicide for terminally ill, attitudes were changing. But it has no bearings on the Constitution, because those are political decisions and need to be dealt with in the states through the political process. That’s why in upholding the state ban on assisted suicide, Rehnquist made a point of declaring the following in conclusion: “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”
Now step back for a moment and ponder, in light of this court’s unanimous decision – including the votes of Kennedy, Breyer, and Ginsburg – to uphold the ban on assisted suicide, how irrational it is to overturn state laws defining marriage the way it has been defined for all of civilization? The notion that such a fundamental societal question – which was decided by 32 states directly by the people – could be overturned and all debate be shut off, based upon an asserted right stemming from an idea that never existed prior to this generation, is outrageous. Rehnquist observed that “most states” in 1868 banned assisted suicide. Well, all states, as Scalia noted in his Obergefell dissent, defined marriage as between one man and one woman.
But what is even more outrageous about Kennedy’s violation of the Glucksberg precedent is that the marriage case involves coercing states to provide the parties with benefits, not merely preventing the states from prohibiting homosexual acts, which was permitted nationwide in Lawrence v. Texas (2003) [in itself a reversal of precedent]. As Clarence Thomas asserts in his Obergefell dissent, “since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.” [emphasis added]
The fact that Kennedy signed onto Glucksberg, yet blithely overrules it in Obergefell, plus makes a huge jump from his own decision in the Lawrence anti-sodomy case, exposes a shameless policy preference that is pre-empted not just by our constitutional system of law but by the very liberal deities of stare decisis (court precedent) that Kennedy so fervently embraces. The only substantive due process that is being violated is the due process of the millions of citizens who voted to define marriage and are now being denied that democratic process through what Scalia aptly called “societal transformation without representation.”
Why are homosexuals given extra rights?
Kennedy’s transparently cloddish replacement of legal jurisprudence for perceived public opinion and personal social preference is even more apparent by, as Justice Roberts notes, his insertion of the adjective “two” into his edict redefining marriage as between any two individuals of the same or opposite sex. Once the premise is made that 5 black robes can redefine marriage like redefining gravity and bestow a constitutional right that is antithetical to the intent of the framers, it is indefensible to exclude polygamist marriages. Polygamists can procreate, and unlike homosexuals who didn’t even recognize their relationships as marriages until this generation, polygamy is “deeply rooted in history” and in some traditions.
Moreover, so much of Kennedy’s ruling is rooted in his fabrication of new constitutional rights; namely, the right to “dignity,” “nobility,” protect against stigmas, and “the right to define and express their identity.” If Kennedy believes it is his responsibility and prerogative to bestow those new post-constitutional rights on, perhaps, the most powerful and trendy class of people in the country, how much more so for a group that is still scorned, stigmatized, and denied their dignity to express their identity.
But again, Kennedy’s opinion is 100% politics, and the inclusion of a relationship that is not in vogue would undermine the acceptance of his political polemic.
Kennedy overrules himself on states’ rights
Nowhere is Kennedy’s modus operandi of ‘choose a political outcome first, backfill the legal rationale later’ – even when it is self-contradictory – more palpable than with his reversal of his decision in Windsor just two years ago. When writing the majority opinion in striking down the federal Defense of Marriage Act (DOMA), Kennedy dedicated seven pages to the importance of state control over marriage dating back to the founding of the country. “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” “[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”
Let’s put aside the fact that DOMA never interfered with the states that adopted gay marriage; it was merely a protection for the states that chose not to redefine marriage, in addition to defining marriage for federal purposes, such as immigration law. But how can Kennedy say that the federal government cannot define marriage for its own purposes because states have exclusive power and then, just two years later, create a federal constitutional right precluding states from defining marriage as it has always been defined by those very states he so recently observed had marriage laws since the nation’s founding? How can he say that state laws with regard to marriage are supreme and then force every state to redefine its very essence?
Answer: naked politics and lawlessness.
For far too long, we have casually sat back and accepted opinions of the Court to be the law of the land, even when they clearly violate the basic tenants of our Constitution.
Appalling hypocrisy on popular sovereignty
Just a few days after rewriting the Constitution and countermanding the preamble of the Declaration, Kennedy signed onto a majority opinion in a seemingly unrelated case (Arizona State Legislature v. Arizona Independent Redistricting) that reveals even more hypocritical legal analysis designed to net the opposite result when it suits his personal politics. This case involved the Arizona state legislature suing for control over the redistricting process in their state after voters handed over the power of redistricting to an unelected commission. Writing for the majority, Ginsburg ruled that when Article 1 Section 4 grants the “Legislature” control over the manner in which federal elections are conducted in the state, it really also means the people of the state through ballot initiatives. This, despite the fact that the Constitution mentions the word Legislature 17 times, and in most cases, it’s impossible to be describing anything but its plain textural meaning.
As Thomas observed in his dissent in Arizona State Legislature v. Arizona Independent Redistricting, the majority (of which Kennedy was a co-signer) extolls the virtues of ballot initiatives and allowing the people of the state to decide redistricting, even though this is one of the few things preempted by the plain language of the federal Constitution. Yet, these same justices, during the same term, gaily overturned ballot initiatives of 32 states dealing with one of the most foundational and contentious societal issues of our time – all for highbrow concepts that are never mentioned anywhere in the Constitution and are indeed an anathema to the 10th Amendment and to the concept of fundamental rights – rights that were solely based on nature’s God.
For far too long, we have casually sat back and accepted opinions of the Court to be the law of the land, even when they clearly violate the basic tenants of our Constitution. But what we have seen in recent years is such a naked pursuit of politics from the bench that the political justices won’t even remain consistent in their own legal analysis precisely because they are solely focused on preferred outcomes. What has occurred this term in general, and in the marriage case in particular, has crossed a line.
Based on the tradition of all civilization, the founding principles of liberty expressed in the Declaration, the system of government established in the Constitution, and precedents of the court established by some of these very same political hacks – this opinion is null and void and should carry no weight among the states.
This fight is far from over. (“Justice Kennedy’s Naked Politics and the Hypocrisy of the Court”, originally posted HERE)
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