In the Washington Post, Ruth Marcus has penned an unhinged column in which she insists that Anthony Kennedy’s retirement must provoke “another Bork moment.” There is much that is ugly about this sentiment — not the least of which is that Robert Bork was treated shamefully, and was hideously slandered to boot — but what stands out above all else is that, at best, Marcus doesn’t know what she’s talking about, and, at worst, she’s a hypocrite.
Marcus’s central contention is that Kennedy’s departure will be a bad thing for stare decisis — that is, for judicial precedent. Americans, she argues, should “insist on a justice who doesn’t simply want to ‘pick the winning side,’ as Kagan said, but who will understand, among other things, that respecting precedent is a true conservative value.” In a vacuum, this is a fair argument to make (personally, I’m closer to Clarence Thomas’s view, though I agree that his is not the only respectable approach). In the world as it exists, however, it is preposterous. For a start, Marcus seems to have no problem whatsoever with Kennedy’s having overturned precedents she personally disliked. Praising him, she writes that “Kennedy steered the court, and the country, to a nobler place on the rights of gay and lesbian Americans.” And that he did — at the expense of Baker v. Nelson and Bowers v. Hardwick, both of which were precedents, and both of which were overturned. Moreover, Marcus seems not to know that, compared to, say, John Roberts — whose new role as “swing vote” she predicts will make things “so much worse” — Justice Kennedy had no great respect for precedent per se. The obvious exception to this, of course, came in Planned Parenthood v. Casey, in which case Kennedy is held to have “saved” Roe v. Wade. Perhaps when Marcus writes “Constitution,” she really means “abortion”?
As my friend Jonathan Adler never tires of pointing out, the notion that the Roberts Court has been a bulldozer, knocking down milestones with reckless abandon, is a false one. Heretofore, Adler notes, the Roberts Court has “has overturned precedent at [a] significantly lower rate than Rehnquist, Burger, and Warren Courts.” Moreover, Roberts himself is an institutionalist who “likes stare decisis and narrow, minimalist opinions.” Put another way, this is a Court that seems to believe more than most that “respecting precedent is a true conservative value”; that is led by a man who is averse to sweeping judgement; and that is about to be stripped of the justice who, more than any of his colleagues, has been willing to substitute the plain text of the Constitution for his own personal philosophy.
It is hard not to conclude that, insofar as she’s examined the matter at all, what Marcus really means is that she wants the Court to do what she wants it to do: To knock down precedents that leave social questions up to the legislatures; to protect the invented right to abortion at all costs; and, above all else, to entrench the Constitution as reimagined during the New Deal and the Great Society, rather than as written in 1787 and amended many times since. That she chose Anthony Kennedy as her paragon of respect for precedent and horror at “picking the winning side” gives the game away in an instant. She doesn’t want consistency. She wants power.
Think that’s too harsh? Consider this paragraph, in which Marcus proposes that it is incumbent upon the president to decline to “radically alter the balance of the court,” the better to maintain the “overall balance of the institution”:
The court functions best — it tends to produce better-reasoned opinions, more acceptable to the public — when it does not tilt too decidedly in either direction. If regular order had been followed, Justice Merrick Garland would be sitting on the court, occupying a centrist role; his shameful absence offers another argument for insisting that Kennedy’s replacement display some of Kennedy’s qualities of moderation.
Given her desire for a “balanced” court that does not “tilt too decidedly in either direction,” Marcus was presumably horrified at the prospect of Merrick Garland replacing Antonin Scalia, and, in Eric Posner’s blunt words, ensuring that “the court [would] shift radically from the right to the left.”
Right?