In the event that this story is true, it would appear that President Obama’s classless low blow at the Supreme Court in this year’s State of the Union address may end up being significant for more than Alito’s silently mouthed rebuttal, after all:
Justice Kennedy, who turns 74 this month, has told relatives and friends he plans to stay on the high court for at least three more years – through the end of Obama’s first term, sources said.
That means Kennedy will be around to provide a fifth vote for the court’s conservative bloc through the 2012 presidential election. If Obama loses, Kennedy could retire and expect a Republican President to choose a conservative justice.
Without naming Kennedy, Obama was unusually critical of his majority opinion in the Citizens United case, handed down last January. That 5-4 decision struck down limits on contributions to political campaigns as an abridgement of free speech.
Obama called the ruling “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power … in Washington to drown out the voices of everyday Americans.”
He was so angry that he took the unusual step of blasting the decision in his Jan. 27 State of the Union address, with Kennedy and five other justices looking on.
In retrospect, it would appear that Obama’s decision to blast the Supreme Court in their presence may yet well constitute, in the words of Happy Gilmore, one of “your all-time backfires.” Under normal circumstances, it would be preposterous to suggest that a Supreme Court Justice would either change their vote or their decision about when to retire based on an insult (perceived or real) delivered by the man who would name their successor. In fact, the very suggestion is insulting to both the intelligence and integrity of the Justice in question, almost all of whom take a great deal of pride in being immune from allowing their personal prejudices and feelings to influence their decisions on the bench.
However, in Kennedy’s case, the suggestion is more than plausible; it is totally believable.
Recall that this is the same Justice, in Planned Parenthood v. Casey, who once argued that Roe v. Wade must not be overturned, lest the teeming masses of abortion protesters be encouraged to think that the almighty SCOTUS was subject to questioning:
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.
The country's loss of confidence in the Judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision's results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.
To an ordinary Supreme Court Justice possessed of some measure of humility, self-awareness, and respect for the rule of law, Obama’s direct frontal attack on Citizens United would surely be seen as nothing more than it was; the pompous grandstanding of a man desperately trying to appear “tough” on television.
However, as the above passage demonstrates, Anthony Kennedy is possessed of such a stunning level of arrogance and self-importance that he cannot help but view anyone who questions any of the sacred opinions issued by the Court as someone who must be subjugated to a proper understanding of the Court’s role uber alles as the final arbiter of Democracy and the Rule of Law itself.
By attacking an opinion that Kennedy himself authored while Kennedy himself was forced to sit stone-faced, Barack Obama may well have earned himself the right to be “tested by following” like so many who have dared to question Anthony Kennedy before him. And sadly (for Obama), it may yet be a version of Anthony Kennedy more adverse to his interests than the milquetoast and intellectually weak Kennedy would otherwise be; for even if Anthony Kennedy does not actually believe that, e.g., the Second Amendment is incorporated against the States by virtue of the Due Process Clause of the Fourteenth Amendment, the one thing he most certainly does believe is that no one should think himself to be above the Supreme Court of the United States. And right now, the person most in need of learning that lesson – hopefully repeatedly – sits in the White House.