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OpEdNews Op Eds    H2'ed 6/28/18

Anthony Kennedy, a Swing-Vote, Seriously?

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November 9, 1987, the White House Residence, then Ninth Circuit Court of Appeals Judge Anthony Kennedy auditions before President Ronald Reagan for a job on the Supreme Court.
November 9, 1987, the White House Residence, then Ninth Circuit Court of Appeals Judge Anthony Kennedy auditions before President Ronald Reagan for a job on the Supreme Court.
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What is all this incoherent babble about Justice Anthony Kennedy being a "swing-vote" on the Supreme Court? I don't know which Anthony Kennedy they are talking about, but the Justice Anthony Kennedy I've been watching for decades is as reliably conservative a vote as has ever sat on the court.

Anthony Kennedy did not swing. He was a rock solid, dependable right-wing political operative who differed from Antonin Scalia in style but only rarely in substance.

From Bush v. Gore to Trump v. Hawaii, and virtually every issue of significant legal consequence in between, Kennedy put political considerations before legal judgement every time.

Both John Roberts and Neil Gorsuch have actually crossed the court's political divide more recently and with greater significance than Kennedy. Roberts in King v. Burwell (Obamacare) and Carpenter v. United States (Cell phone privacy) and Gorsuch in Sessions v. Dimaya (the immigration case the left won).

In each of those cases Kennedy, as he has in case after case of major legal importance throughout the decades, stood shoulder-to-shoulder with the mostly-white, all-male conservative majority and on the side of bad law.

Kennedy has crossed the political divide to be sure, but on the most important cases, he was reliably conservative and even more so during the Trump era. He is most often lauded by the left as being a defender of abortion rights, but the record is more complicated. He was cautiously supportive of abortion rights, sometimes, when the political fallout seemed manageable, as in Whole Woman's Health v. Hellerstedt. But even then he was condescending and offensive, writing:

"Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow."

Kennedy waited to retire until a conservative president was in office, assuring a conservative justice would replace him. In fact he visited with Trump in advance to tell him personally. The court is losing no moderate in Anthony Kennedy.

Trump can and will appoint another right-wing political operative to replace Kennedy, and his pick will likely be confirmed by the Senate Republicans and some Democrats. The ideological chemistry of the court, however, actually changes little with another conservative replacing Kennedy. The only way Trump could really change the court with this pick would be to pick a true constitutional moderate, and if he did that, Congressional Republicans might finally warm to the idea of impeachment.

The reality is that the court is moving inexorably toward illegitimacy and toward delegitimizing the entire judicial branch of government with it.

We go back to Jim Crow if we go, but not if we refuse.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

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Marc Ash is the founder and former Executive Director of Truthout, now the founder, editor and publisher of Reader Supported News: http://www.readersupportednews.org

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