What’s the most hated Supreme Court decision on the left of the last few years? Why, Citizens United, of course, which leftists blame for just about every bad imaginable. Aggrieved leftists often compare it to the Dred Scott decision—seriously, they do.
So if Justice Anthony Kennedy announces his retirement from the Court tomorrow, can we expect to see liberal headlines saying, “Left Celebrates as Author of Modern ‘Dred Scott’ Decision Retires”? Because it was in fact Kennedy who wrote the Citizens United opinion. And let’s not forget that he was also in the four-justice conservative minority that wanted to strike down Obamacare in toto in 2012 (it was Roberts that let us down on that one, as you’ll remember). I suspect Kennedy may also share the growing reservations among jurists about the Chevron doctrine of judicial deference to the administrative state.
The point is, Kennedy has been unreliable and inconsistent from every point of view—he totally botched property rights again (you’d have thought he’d learned a lesson from the 2005 Kelo case) with his opinion this last week in Murr v. Wisconsin—but there is a lot for the left to dislike about Kennedy, too. I actually doubt he’ll retire; I think he rather likes being the de facto Chief Justice once again, which he wouldn’t be if Merrick Garland had been confirmed last year and the Court had tilted decisively left. But with the arrival of Gorsuch, he’s back to being in the catbird seat on every important case.
But if he does retire tomorrow, watch for liberals to lose completely whatever little sanity they have left. Just take in the Washington Post‘s Ruth Marcus (who hates Citizens United, but omits any mention of Kennedy’s provenance of the decision in her plea for Kennedy to stay on):
The end of the Supreme Court term looms, and with it the prospect — the terrifying prospect — of a retirement. . . [H]is departure would be terrible for the court and terrible for the country. It could not come at a worse time. . .
Justice Kennedy, perhaps it is unfair to pile all this onto your shoulders, but is it really wise to subject an already divided country to even more turbulence? And to another nomination by this president, with his evident ignorance of the role of the judiciary and disdain for judicial independence?
Your career has been characterized by insistence on civility, respect for the dignity of all individuals and commitment to the rule of law — qualities absent in our president. Just read Trump’s tweets and ask yourself: Do I really want my successor named by this man?
This isn’t an argument. It’s a primal scream from someone who still can’t accept the outcome of an election. (Also missing: a note about Harry Reid going first in nuking the filibuster for judicial appointments, which will allow Trump more latitude in making a Court appointment. Thank you once again Harry!)
Let the terror begin. And if Senate Republicans are smart, they’ll add in hefty funding for mental health services for liberals in their Obamacare repeal/replace bill.