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This Day in Liberal Judicial Activism—February 3



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1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell.  Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg.

Often misdescribed as a “moderate conservative,” Kennedy in fact embraces an aggressive view of judicial power.  While he sometimes deploys that power towards conservative ends, his misdeeds of liberal judicial activism are far more momentous.  Kennedy’s distinctive contribution to the Court is a series of inanities presented as profundities.  To cite but a few examples:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  Planned Parenthood v. Casey (1992).  Translation:  We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”  Roper v. Simmons (2005).  As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.”

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy.  Lawrence v. Texas (2003).  Translation:  We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”  Ashcroft v. Free Speech Coalition (2002) (emphasis added).  It’s odd (and perhaps explains quite a lot) that Kennedy would think that speech (including opinion-writing?) should precede thinking.  The notion is especially odd in a case concerning virtual child pornography.


Tags: This Day in Liberal Activism


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