Dead Kennedys

If the fate of the world rests on one elderly judge, we're in a bad place.

What is it about human nature that lets us be shocked at events which are not only predictable, but inevitable?

A few years ago, politics was thrown into turmoil at the death of 80-year-old Supreme Court Justice Antonin Scalia.  What, is it that unheard of for people of that age to abruptly die?  Had nobody given thought to that eventuality?

Now, politics is once again thrown into turmoil at the retirement of 81-year-old Supreme Court Justice Anthony Kennedy.  Is it truly shocking that the longtime colleague of the late Justice Scalia would look at the calendar, realize that he's a year older than his dearly departed colleague was, and decide he'd like to enjoy at least a few years of the kind of taxpayer-funded lavish retirement of which the rest of us can but dream?

Yet the Left is not only casting Kennedy's retirement as the end of the world as we know it, they're pillorying him for retiring.  What do they expect of him, exactly?  Living on forever?

Of course we know the answer these trolls are thinking of: Justice Kennedy, like the even more superannuated Ruth Bader Ginsburg and slightly-less-so Stephen Breyer, should have retired ten years ago, allowing President Barack Hussein Obama and a completely Democratic Congress to replace them with 30-year-old card-carrying Communists.

Instead, presumably President Trump will appoint a justice who will... well, cast votes that would have been viewed as completely ordinary and conventional back when President Trump was younger.  Is that really such a disaster for America?

Politics Is What We Make It

In fact, it may well be, though not for the reasons given.  Let's consider the worst plausible result of the most conservative possible replacement of Justice Kennedy: a ruling that strikes down Roe v. Wade which created an (un)Constitutional right to abortion on bogus grounds a half-century ago.

Will this suddenly throw abortionists and unwanted mothers into prison?  Of course not.  Yes, Alabama may outlaw abortions; New York and California certainly won't.  Worst case, a woman who wants an abortion might need to travel a few hundred miles to a neighboring state to get one - which, as a free American, she has a perfect Constitutional right to do.  The Left can stop donating to Planned Parenthood and start buying Uber gift certificates for pregnant Alabamans, while themselves remaining in New York City, Los Angeles, or a college town where everyone they'll meet agrees with them.

Which, aside from the "original sin" of slavery, is how America used to resolve these kinds of inherently irreconcilable differences: take advantage of our continent-spanning country and put some distance between divergent opinions.  Those of our readers who remember the original Roe v. Wade decision will tell you that that was precisely the soft of messy federalist solution towards which we were heading before the Supreme Court touched off a low-grade civil war.

No, the reason the Left is so outraged at the loss of the last significant person named Kennedy, is that it means they will stop winning at the Supreme Court.  It's not so much that their victories preserve their own liberties to live life their way; it's that creating new rights allows them to ram their political opinions down the throats of everyone else, when voters reject attempts to pass their agenda through the legislature in the proper way.

Justice Kennedy has been their primary tool to accomplish these ends:  Since his appointment, Kennedy has been the most important justice precisely because he is unpredictable and can side with either Left or Right.

He sided with the Left to create a right to homosexual "marriage"; he sided with the Right to uphold the Second Amendment right to keep and bear arms.

He sided with the Left on many occasions to defend abortion; he sided with the Right to defend free-speech rights in Citizens United.

Case after case found that the views of all the other justices were largely known in advance, but as weeping Democrat leaders pointed out on hearing the news, Justice Kennedy was "usually persuadable."

In a way that's good: justices are supposed to fairly listen to and decide a case.  They are not supposed to have judged it in advance; that's where we get the very word prejudice, meaning to "pre-judge" someone or something, and nobody wants that in a courtroom.

Yet a fundamental principle of the rule of law is that most cases ought to be generally predictable based on reading the law and comparing it to the facts.

It ought to be entirely unsurprising that a constitutional amendment stating "the right of the people to keep and bear arms, shall not be infringed." means, well, that individual people have the right to keep and bear arms.

It should be both shocking and horrifying for judges to find a right to abortion or homosexual "marriage" hidden in a document which discusses neither topic in any way and which was written by men who, history plainly teaches, unanimously would have found either suggestion ghastly.

In other words, reading the law should, nine times out of ten, tell you what the decision will be.  But with Justice Kennedy that wasn't the case: as the unnamed Democrat panjandrum truthfully pointed out, he was "usually persuadable" of made-up Leftist arguments no matter how far-fetched when compared to the written laws duly enacted by the people's elected representatives over the past three centuries.

The problem is that our modern Left believes neither in our Constitution nor in democracy itself.  Donald Trump won a minority of the electorate, yes, but he won a clear majority of electoral votes, which is how our system works as written.  The Republicans in Congress each won their individual districts.

That ought to allow the Democrats to at least grudgingly accept Donald Trump as their President, for now at least, but the Left believes that the Voice of the People should count only when it is saying what they want it to say and not otherwise.  Republicans have won at the polls and they have the right to appoint and confirm their selection of judges just as Mr. Obama and his Democrats did.  That is how our political system should work, and if the opposition respected the system, they'd simply be trying harder to win next time around instead of trying to break the system through violent and extralegal protests as demented reprobates like Rep. Maxine Waters openly advocate.

Really, the beliefs of our modern Left, which now controls the Democratic Party, were best expressed by Turkish President Recep Erdogan, now acknowledged as effectively a dictator:

Democracy is like a train; you get off once you have reached your destination.

When the Democrats win an election, that's democracy at work.  When they lose an election, they take to the streets to prevent the actual winners from accomplishing the platform they ran on, and that's democracy at work as they see it.

Black-Robed Proxies

What has this to do with judges?  In a sane world where the system was working as designed, absolutely nothing.  Chief Justice John Roberts explained the proper job of a judge:

It's my job to call balls and strikes and not to pitch or bat.

That's not what our modern Court does, and hasn't throughout Justice Kennedy's tenure: it pitches, bats, umpires, mows the outfield, and from time to time rearranges the bases.  For reasons unclear and which our Founders could not have imagined, somehow our Congress has willingly permitted the Court to take over its proper job of deciding what our laws shall be instead of impeaching the activist judges.

And perhaps that's the most frightening potential outcome of Donald Trump replacing Justice Kennedy with a classical conservative: A Court which believes in its proper limits will be a Court which is so unfamiliar to younger Americans to be unrecognizable.

Consider our earlier example: If a new conservative justice joins with the other conservative justices to strike down Roe v. Wade, abortion will not be outlawed.  It will simply be devolved to each state to pass whatever laws they see fit just as the Constitution provides.  If that happens, state politicians will, for once, have to stand up and be counted on a major practical issue.

The same is true with homosexual "marriage," immigration enforcement, and all manner of other things: The Constitution delegated authority over those areas to other branches and levels of government and not to the Court, and it's time for those branches which are truly responsible to step up and take responsibility.

Those who want open borders need to run on that as a platform, get elected, and pass a law making it so.  Those who want to make illegal to restrict what people with which sexual organs go into whose bathrooms need to pass a law to that effect.  And on and on down the whole panoply of leftist destruction of our culture and history, so much of which has been ordained from on high by courts without ever being voted on by the actual representatives of the people who sit in the legislature.

Given the vast and unaccountable power that's been foolishly granted to our Supreme Court, it's no wonder that the Left is panicking at the prospect of losing one of their number: it's ever so much easier to persuade one old guy than a hundred million voters, as Hillary Clinton was notoriously unable to do.

Maybe now they'll have to once again learn how to try - or, more likely, discover that it can't be done with the policies they truly believe in.  In which case, what exactly will happen when the pendulum swings back their way, as it always does, and they come roaring back into power thirsty for vengeance?

Read other articles by Hobbes or other articles on Partisanship.
Reader Comments

"...viewed as completely ordinary and conventional back when President Trump was younger."

That should be "when President Obama was younger"?

July 1, 2018 10:59 PM

.... Kennedy has been the most important justice precisely because he is unpredictable and can side with either the rule-by-fiat, George Three Gang -- or with the united States constitution.

.... He bent Left to fantasize a "right" to destroy the 1.7-million-years-old civilizational-cement, in more recent times called "marriage" and then turned back to our constitution to deign to find in it's Second Amendment its barrier to government infringement upon our God-given right to keep and bear arms.

.... Kennedy on innumerable occasions criminally sided with the fascist Left to defend the Shoah-reminiscent slaughter of more than fifty million unborn babies but as-capriciously flicked back to our constitution to roll back government restraint of free speech, in "Citizens United."

.... In case after case (but one, Partiegenosse Roberts) we knew the views of all the other justices in advance, except: as weeping Democrat leaders pointed out on hearing of his retirement; Tony Kennedy was "usually persuadable" ....

Truth is, though, that Kennedy is now and always was even more predictable than is the rule-by-fiat fascist Left claque and are the originalists.

He's a narcissist -- and always voted for the biggest "KENNEDY" headline.

July 1, 2018 11:08 PM

"A Court which believes in its proper limits will be a Court which is so unfamiliar to younger Americans to be unrecognizable."

Actually, the SCOTUS hasn't been truly independent since FDR scared the Hughes court silly with his court-packing scheme in the mid-1930s. That plot ultimately failed, but the court got the message loud and clear. New Deal legislation had a much easier time of it with the justices after that dust-up.

July 1, 2018 11:50 PM

... SCOTUS hasn't been truly independent since FDR scared the Hughes court silly ....

True. America will never recover from the depredations and degradations perpetrated by the traitor, Roosevelt and nor from his criminal expansions of the fascist power of the federal government.

Although, unlike the Other Great One: President Reagan; President Trump has never - before Clarke Kenting into the antiroosevelt rig - had to first fall out of like with the loathsome and fearsome Roosevelt.

Which reinforces my optimism and my hope.

July 2, 2018 1:07 AM

"what exactly will happen when the pendulum swings back their way, as it always does, and they come roaring back into power thirsty for vengeance?"

It will be swift and bloody - every single law that was struck down will be back before the SCOTUS in a heartbeat - in the first year they'll have wiped out half of the Bill of Rights alone, starting with the 2nd Amendment.

With any luck though, Ginsburg and Beyer will not live to see the end of the Trump presidency and he'll appoint two more young constitutionalists to replace them, meaning that we can put the left's vengence off for a quarter century or longer, meaning many of us wont be around to experience the horror that they'll inflict.

I hope and pray that some future generation will never be subjected to this horror but at age 46, I'm feeling tired and am simply happy that I'll escape it for now.

July 16, 2018 2:02 PM
Add Your Comment...
4000 characters remaining
Loading question...