EDITOR OF REDSTATE
Sinners In the Hands of Anthony Kennedy
The left cries foul as the right uses the federal courts to do as the left has done for years.
Yesterday the left descended into madness. The madness came early in the day. It happened shortly after 10 o’clock in the morning. Justice Anthony Kennedy opened his mouth and uttered his first question on the issue of the individual mandate. He asked, “Can you create commerce in order to regulate it?” The question, the second asked yesterday morning, bothered the left.As the clock approached 11, Kennedy spoke again, sending shockwaves through the legal community. He stated matter of factly,
the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.
It was the quote heard round the world. It is what the tea party movement, libertarians, conservatives, and so many private citizens have been saying. It was an expression of what every legal scholar on television has pooh-poohed as the troglodyte rhetoric of plebeians not educated enough to understand their own founding compact. That Justice Kennedy expressed something so obvious to so many Americans that so many well educated legal analysts have mocked for two years as an outmoded view of the constitution put forward only by hicks, rubes, and the racist middle class tea partiers not cool enough to defecate on police cars like the Occupy Wall Street hipsters should deeply, deeply trouble every radio station, newspaper, and television news network along with the American people.Just how out of touch are the people the news media relies on as legal experts used to help form both their and their audiences’ opinions? More so, is it not abundantly obvious that legal experts let their own partisanship shape their opinions?All of this, however, overshadows a more important issue — how the hell did a constitutional, democratic republic come to depend on the whims of one man in a black robe who nobody ever elected to anything?
Two years ago, Jan Crawford of CBS News noted the President, in his State of the Union, deviating from modern precedent in those speeches to lash out at the United States Supreme Court.
Mr. Obama, for the first time in modern history, took a direct shot at the Supreme Court in his State of the Union address, when he slammed the justices for their recent campaign finance reform decision. Six of them looked on — including the author of the opinion, key swing vote Anthony Kennedy — while Democrats jumped up to whoop and holler.
Shortly thereafter the Democrats, without a single Republican vote, passed Obamacare.That Justice Kennedy yesterday raised a point that has been raised by so many non-lawyers is irrelevant to how the Supreme Court rules. All that is relevant is the President’s insult two years ago. Why?This morning the New York Times reports that “many legal scholars, including some conservatives, have been predicting that the Supreme Court will uphold the 2010 health care overhaul.” In a profile of Randy Barnett yesterday in the New York Times, the paper reported there as well that “many of his [Randy Barnett's] colleagues, on both the left and the right, dismissed the idea [that Obamacare is unconstitutional] as ridiculous — and still do.” See also this Politico story also pushing the Democratic line that Chief Justice Roberts is in danger of his own Bush v. Gore. This is precisely the Democratic spin and you can see which outlets are mouthpieces for the Democrats by those so quick to push the partisan line against the Court.Legal scholars the media pays attention to — who are typically on the left, though with a few token like minded “conservatives” — all thought that, based on their jurisprudential biases, Obamacare would be constitutional. About the only left leaning constitutional scholar in America who agreed with the tea party movement and, consequently, with Anthony Kennedy was Barack Obama in 2008. Justice Kennedy, raising the same point raised by so many on the right going back to the 1990’s when Republicans originally suggested the individual mandate as an alternative to Hillarycare (yes, many conservatives and libertarians opposed it then too), stunned the legal community yesterday because he deviated from a liberal echo chamber.Consequently, his deviation can only be explained away by partisan politics, not legal jurisprudence. That so many liberal legal scholars disagree with Kennedy is proof he is a partisan. Already the White House and Democratic operatives are screeching that this is just like Bush vs. Gore all over again. They do not presume that the liberal justices are partisan — only the conservatives. On this argument of partisanship, as Steve Hayes notes, it is striking that the presumption in the Obamacare arguments is that one or more conservative justices will bolt left. In other words, the liberal justices are locked in and the conservatives are persuadable. How exactly does that make the conservative justices partisan and the liberal justices pure?In fact, it is both projection by the left, which makes everything from Trayvon Martin’s tragic death to a Supreme Court oral argument political, and an argument designed by the left to cook the books in their favor, calculating the GOP will not engage in a fight over the partisanship of the Supreme Court because the right does not want to revisit Bush v. Gore. The left is pretty sure if they scream partisanship loudly enough, no Republican will stand up and defend the Court as the left assaults its integrity.But they miss one thing. A sizable majority of Americans agree with Justice Kennedy. They are also not helped by widespread agreement on the left and right today that the Solicitor General of the United States had an atrocious performance and Paul Clement, arguing for the states, hit every ball out of the park assisted by some terribly insipid questioning from Sonia Sotomayor.As partisans on the left start screaming that the conservatives have politicized the federal bench in a way they did not by attacking Robert Bork or some such nonsense, they ignore both their partisan attacks on Robert Bork, Clarence Thomas, etc. and their intellectually dishonest legal progeny derived from Roe vs. Wade. That case, still a source of conflict in America, is no longer even defended as intellectually rigorous by Justice Ruth Bader Ginsberg. She may like its holding, but not how that holding was reasoned.Every time the left wins an argument expanding the meaning of the constitution, the Court somehow got it right. Every time the left loses an argument over the constitution, the Court somehow became politicized. And while the right says the same on the opposite cases there is a fundamental difference. The right’s position on constitutional jurisprudence boiled down to its essence is that every man and woman in America should be able to read the constitution and have a fair understanding of it and how government is supposed to work. One cannot read the constitution and legitimately understand exactly how an abortion right is extrapolated out of the Bill of Rights. Likewise, one cannot read the constitution and understand how a Congress of limited powers can compel any person to purchase a product he does not want.But liberal legal scholars so stunned at Justice Kennedy’s point favor a constitution where the public must hire them and their brethren to bow before men and women in black robes offering up prayers and petitions that our black robed masters divine from the text of the constitution some new right or government power no man on the street can see.We have complicated our tax code, our regulations, and our legal system. In each we must now pay self-appointed experts trained in the art of gobbledegook to parse words, divine intent, and lobby for exceptions that prove rules.Our nation is no longer a nation of laws, but a nation of elites who interpret those laws for us. It has all led to a very logical place.In placing our constitution in the hands of a black robed elite who can divine from thin air powers, rights, and duties neither contemplated nor easily extrapolated from the constitution, our republic has become a kingdom. Our king is Anthony Kennedy. Every argument advanced is advanced with him in mind. On every major issue he is the decisive vote. Put bluntly, the constitutional integrity of our republic has been ceded to one man in the third branch of our federal government. It makes him more powerful than the democratically elected Congress and President. It is not a sign that our system is too partisan. It is a sign that our system is broken in a fundamental way.But the dirty little secret is that while legal experts and scholars may agree the system is broken, they only think so when Anthony Kennedy disagrees with them.