The important end-of-term decisions handed down by the Supreme Court, including Hamdan and the Texas redistricting case, point to one regrettable conclusion: this Court is still a liberal, activist Court that issues decisions based on politics, personal preference, ideology, perceived international or humanitarian ideals – in short, on anything and everything except what should be its sole consideration: the law.
At the epicenter of this problem is Justice Anthony Kennedy, who manages to make the entire Court look like a totally political body. His concurring opinions of breathtaking lawlessness and irrationality, siding with the liberal activist wing of the Court, somehow taint the whole institution. No wonder the current erroneous tendency among press and public to evaluate judicial nominees in political terms.
Justice Kennedy has long been this way – Casey, Lawrence, the list goes on and on — but in the past he shared this “swing vote” pedestal with Sandra Day O’Connor, who at least wrote narrowing (if similarly unintelligible) concurrences a good deal of the time. With O’Connor gone, Kennedy appears even more unhinged from law and reality, and the broad “swing vote” brush with which he paints is covering over more and more of the Constitution.
The replacement of Justice O’Connor with Justice Alito has made a solid block of four whose stock-in-trade is the law: its text, its principles, and its history. But instead of four — the Chief Justice, and Justices Scalia, Thomas, and Alito — there could have been today a majority of six such Justices, if only well-intentioned former Republican Presidents, and their legal advisers, had inisisted on judicial nominees with a demonstrated public record of adherence to the law and fidelity to judicial restraint and the principles of the Constitution. Today’s decision in Hamdan calls to mind President Abraham Lincoln’s response when he was accused of violating the Constitution’s grant of executive power by suspending the writ of habeas corpus during the Civil War. The essence of Lincoln’s response was later articulated in another context by Justice Robert Jackson, who wrote that the Constitution cannot become a ”suicide pact.” How ironic that Justice Kennedy, in his Hamdan concurrence, cited Justice Jackson on the extent of executive power. How tragic that his analytical ability does not match Justice Jackson’s.
The hopeful sign is that Americans are now focused on the need for proven constitutionalist Justices, as they were not when Justice Kennedy and Justice Souter were nominated by Republican presidents. They know that the success of self-government is at stake, as President Lincoln said in his first inaugural address:
“If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”