Anthony Kennedy Denounces Anthony Kennedy’s Supreme Court Jurisprudence


Justice Anthony Kennedy thinks our political system should solve more problems on its own, instead of turning to the courts to solve them. Jonathan Adler is unimpressed:

In most cases, the Supreme Court intervenes not to help the democratic process to function, but rather to alter the way in which these questions have been resolved. Moreover, Justice Kennedy is more prone to support such intervention than most of his colleagues, having voted to invalidate DOMA, Section 4 of the Voting Rights Act, McCain-Feingold, the PPACA, the Stolen Valor Act, and so on. The only sense in which these questions were not “solved” before they came to the Court is in that the resolution was not that which Justice Kennedy would have preferred (or which Justice Kennedy believed is constitutionally compelled).

The Supreme Court, if it chose, could informally agree to overturn only those laws that are definitively unconstitutional. It has, needless to say, chosen nothing of the sort, with justices at both ends of the political spectrum routinely voting to overturn statutes based on wholly novel and often tortuous lines of reasoning. In recent years, this has been far more common among Kennedy and his fellow conservatives than among the liberal justices.

However, if Kennedy is serious, perhaps he should propose a constitutional amendment that would require a two-thirds majority to overturn an act of Congress. More prosaically, since Kennedy is so often a swing vote, he could personally decide never to overturn a law unless there were at least five other votes already in favor. But he pretty obviously hasn’t the slightest intention of doing so.

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is the first thing despots go after. An unwavering commitment to it is probably what draws you to Mother Jones' journalism. And as we're seeing in the US and the world around, authoritarians seek to poison the discourse and the way we relate to each other because they can't stand people coming together around a shared sense of the truth—it's a huge threat to them.

Which is also a pretty great way to describe Mother Jones' mission: People coming together around the truth to hold power accountable.

And right now, we need to raise about $400,000 from our online readers over the next two months to hit our annual goal and make good on that mission. Read more about the information war we find ourselves in and how people-powered, independent reporting can and must rise to the challenge—and please support our team's truth-telling journalism with a donation if you can right now.

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