This CNN report by Chris Cillizza, Anthony Kennedy’s retirement just confirmed every Republican’s dream scenario for Trump, is an example of the biggest news item today (June 27th, 2018). If Mitch McConnell manages Kennedy’s replacement just as was done for Gorsuch, we could be looking at a conservative majority court for the rest of our lives. Think
Roe v. Wade struck down.
Below is a post I had in the mill before learning about Kennedy’s announcement. There are two justifications Kennedy made for his positions on campaign finance and immigration to which I take exception. But I take no pleasure in bashing Kennedy considering what might be coming at us after his retirement.
Anthony Kennedy then: Citizens United
Justice Kennedy delivered the opinion of the Court. In it he said these things.
Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. …
Citizens United challenged these prohibitions on corporate electioneering. But SCOTUS, via Kennedy, found reason to lift the ban. He concluded:
… The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.
Kennedy had faith that Congress, or state legislative bodies, would control corporate dark money by enacting laws forcing disclosures. He was wrong then. Congress has done nothing, as far as I know, to insure transparency.
Anthony Kennedy now: Immigration Ban
CNN reports in Justice Kennedy reminds Trump he is not above the law.
In one of this year’s most-watched cases, Trump v. Hawaii, Chief Justice John Roberts on Tuesday authored a five-justice opinion upholding the latest version of the Trump administration’s so-called travel ban. While Roberts is the court’s formal leader, Associate Justice Anthony Kennedy is often its fulcrum – the proverbial swing justice – and its conscience.
In the Hawaii case, Kennedy penned a brief and high-minded concurrence, epitomizing his approach to being a good judge and a good leader.
Why … did Justice Kennedy vote to uphold the travel ban, given some of the nasty comments tweeted by President Donald Trump in the run-up to earlier versions of the order? Because there is a difference between what a President (or presidential candidate) offhandedly says, and what a policy adopted by an administration actually does.
… Justice Kennedy didn’t think the court’s job includes policing the President’s potty mouth.
And yet, Kennedy did feel the need to remind us all that even though the court is not in a position to censor or closely edit a President in the foreign affairs arena, the President himself should remember that he is not above the law, and is bound by oath to uphold constitutional values of religious tolerance and respect.
Well, Kennedy was wrong then and is wrong now. Trump has repeatedly scoffed at restraining norms and even at the laws themselves. Just as Congress failed to live up to Kennedy’s expectation in Citizens United, so will Trump fail to live up to Kennedy’s expectation in Hawaii.
But Justice Sonia Sotomayor was not about to let Kennedy and the four right-wing justices off without a blistering critique.
Here are excepts from the SCOTUS record at the Court’s web site.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 26, 2018]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting.
The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.
Then follows lots more of Sotomayor’s reasons, lightly edited, for her dissenting opinion. In brief …
Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States, 323 U. S. 214 (1944). …
As here, the Government invoked an ill-defined national- security threat to justify an exclusionary policy of sweeping proportion.
As here, the exclusion order was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate and desire to harm the United States.
As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. Compare Korematsu v. United States, 584 F. Supp. 1406, 1418–1419 (ND Cal. 1984) (discussing information the Government knowingly omitted from report presented to the courts justifying the executive order); Brief for Japanese American Citizens League as Amicus Curiae 17–19, with IRAP II, 883 F. 3d, at 268; Brief for Karen Korematsu et al. as Amici Curiae 35–36, and n. 5 (noting that the Government “has gone to great lengths to shield [the Secretary of Homeland Security’s] report from view”).
And as here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy.
Sotomayor sums up.
In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. See, e.g., Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq. (setting forth remedies to individuals affected by the executive order at issue in Korematsu); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citing Korematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laud able and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38.
Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.