Justice Anthony Kennedy and Our Schizophrenic Supreme Court
- From: jose <josefsoplar@xxxxxxxxx>
- Date: Sun, 29 Jun 2008 16:14:54 -0700 (PDT)
Justice Anthony Kennedy and Our Schizophrenic Supreme Court
By Larrey Anderson
Conservatives were, rightly, thrilled by the recent Supreme Court
decision that affirmed our constitutional right to keep and bear arms.
Not so fast. Of the four important decisions the court has rendered in
this term, three of them have gone the wrong way.
Let's first take a brief look at each of these four cases. Then let
us examine Justice Anthony Kennedy's thinking in these cases. Kennedy
was either the deciding "swing vote" or the determining factor in each
one.
The only case correctly decided was (1) District of Columbia v.
Heller. Justice Scalia wrote the Heller decision, which holds that an
individual right to keep and bear arms is guaranteed by the Second
Amendment. He is one of four conservative justices on the court.[i]
Justice Kennedy joined in this opinion.
But the four liberal judges[ii] all dissented -- and dissented
vehemently. They claimed, in effect, that the Second Amendment applied
only to state militias. Justice Stevens said in his dissent:
The Second Amendment was adopted to protect the right of the people of
each of the several States to maintain a well-regulated militia.
Your personal right to firearms was one vote away from being thrown on
the ash heap of history.
And it still is. Cities, like New York, with strict gun control laws,
will be sued in federal court using the holding from Heller. Justice
Kennedy could change his mind tomorrow.
Justice Kennedy was the author of all three of the wrongly decided
cases in this term. In (2) Boumediene v. Bush, Kennedy, and the four
liberal judges, gave enemy combatants access to federal civil courts.
This "right" had never existed in American law before the decision.
Next, in (3) Dada v. Mukasey, these same five judges allowed an
illegal immigrant the "right" to change his mind about leaving the
country voluntarily. This opinion is so convoluted that most
constitutional scholars are still scratching their heads.
In (4) Kennedy [no relation to the justice] v. Louisianna, the same
Justice Kennedy, and the same four liberals, overturned the death
penalty of a man convicted of brutally raping an eight-year-old girl.
"Brutal" is not nearly a strong enough word. This is taken from the
Court's opinion:
A laceration to the left wall of the vagina had separated her cervix
from the back of her vagina, causing her rectum to protrude into the
vaginal structure. Her entire perineum was torn from the posterior
fourchette to the anus. The injuries required emergency surgery.
But, according to Kennedy, the death penalty would have been
unreasonable in this case. Justice Alito summed up the majority's
reasoning in his dissent. (Kennedy's words are in quotation marks.):
First, the Court claims to have identified "a national consensus" that
the death penalty is never acceptable for the rape of a child; second,
the Court concludes, based on its "independent judgment," that
imposing the death penalty for child rape is inconsistent with "‘the
evolving standards of decency that mark the progress of a maturing
society.'"
Make no mistake, Justice Kennedy is running the Supreme Court. It is
his vote and his decisions that are making or breaking (mostly
breaking) our constitutional rights and our protection as citizens
under the law.
What is driving Kennedy's reasoning in these cases? It is not the
meaning of the Constitution; it is not an effort to enforce the law
and protect Americans; it is his one-man attempt to ensure that the
Constitution and the law conform to his "evolving standards of
decency."
There is no questioning his integrity. In all of these cases Justice
Kennedy was trying to do the "right" thing. The problem is "doing the
right thing" is not his job. We know that the four liberals on the
court are going to be, well, liberal; but Anthony Kennedy is just
trying to be decent.
Look at the situation of the claimants in each of these cases. In the
(1) Heller case, the District of Columbia had stripped its citizens of
any means of self-defense. In certain neighborhoods, armed hoodlums
(who ignored the gun ban) robbed and raped almost at will. That was
the factual situation in Heller. Kennedy voted to let the citizens of
D.C. defend themselves. He did the "right" thing.
Moving to (2) Boumediene, some of the terrorist prisoners of war have
been held at Guantanamo Bay for nearly six years without a trial. That
doesn't seem right -- does it? Kennedy admits in his majority opinion
that,
It is true that before today the Court has never held that noncitizens
detained by our Government in territory over which another country
maintains de jure sovereignty have any rights under our Constitution.
Later in the opinion he writes,
The detainees in these cases are entitled to a prompt habeas corpus
hearing.
Under the law and the Constitution enemy combatants have never been
allowed a prompt habeas corpus hearing. But now, under Justice
Kennedy's evolving standard of decency, they have.
Consider this summation of the facts in Kennedy's opinion in (3) Dada
v. Mukasey.
Petitioner Samson Taiwo Dada, a native and citizen of Nigeria, came to
the United States in April 1998 on a temporary nonimmigrant visa. He
overstayed it.
The Department of Homeland Security ordered Dada to leave the country
within thirty days. He volunteered to do so. Two days before his
scheduled departure he changed his mind and decided to sue the
government to allow him to stay in America. The Supreme Court affirmed
that an illegal alien who has broken the law has a "right" to sue to
remain in the country. You'll have to look long and hard to find that
clause in the Constitution or in the applicable laws.
But, once again, it was not a matter of law that drove Kennedy; it was
a matter of decency:
... as matters now stand the appropriate way to reconcile the
voluntary departure and motion to reopen provisions is to allow an
alien to withdraw the request for voluntary departure before
expiration of the departure period.
What Kennedy means by "appropriate way" is the "decent way." Even
illegal aliens can change their minds. The decision explicitly holds
that illegal aliens, who are ordered to exit the country, can
volunteer to leave, and then stay, and then sue for the right to
remain in the country. Go figure.
Finally, in (4) the Louisiana child rape case, Kennedy decided it was
cruel and unusual to execute a man who raped a little girl until her
bowels fell out. Maybe so. (On a personal note, I have always been
ambivalent about the various applications of the death penalty.)
But neither Justice Kennedy nor I live in Louisiana. Neither of us is
an elected state legislator who voted for the law condemning to death
the perpetrators of the heinous act of the raping of children. And
neither of us sat on the twelve-person jury who unanimously
recommended the death penalty in this case.
It is not Justice Kennedy's job to determine "evolving standards of
decency." It is his job to defend the Constitution and the protection
it affords its citizens.
He got it right in (1) Heller. That is once out of four tries. That is
not good enough.
Larrey Anderson is a philosopher and writer living in Idaho. He can
be reached at ldandersonbooks.com
--------------------------------------------------------------------------------
[i] The three other conservative justices are Roberts, Alito, and
Thomas.
[ii] The liberal justices are Stevens, Ginsburg, Souter, and Breyer.
.
- Prev by Date: CAIR's Mum on Al-Qaeda Guilty Plea
- Next by Date: Security and Freedom
- Previous by thread: CAIR's Mum on Al-Qaeda Guilty Plea
- Next by thread: Security and Freedom
- Index(es):
Relevant Pages
|
