Just as the word “retirement” left the mouth of Supreme Court Justice Anthony Kennedy, the heads of everyone left-of-center exploded in fiery antipathy, the DNC set their headquarters on fire, and those claiming to be SCOTUS commentators began tearing apart the soon-to-be-replaced justice. Of course, this is typical for progressives as the only item on the agenda the year and forevermore is resistance, which is built upon a thick, sturdy base of ignorance and general self-centeredness.
In a recent article from Salon (yes, the go-to authority for commentary on constitutional jurisprudence) the author states, quite correctly, that the, “liberal freakout over this situation only underscores the chronic problem of the American left, ranging all the way from the most centrist, ‘moderate’ Democrats to the performative red rose Twitter folks: The collective inability to realize how f**ked-up a situation is until it’s too late to do anything to unf**k it.” This pretty much sums up the reactionary nature of many resistance-happy progressives: freaking out and not understanding why, writers from lifestyle and pop-culture publications pretending to superficially analyze Supreme Court jurisprudence, the self-immolation of environmental lawyers, politically correct pronouns, and on, and on, and on.
“Kennedy was no friend to liberals,” says Salon. Nevertheless, according to Salon, Kennedy had “occasional glimmers of human compassion.” And, “On a handful of issues important to social-justice movements, he got it right. He voted to legalize same-sex marriage and struck down laws banning homosexual sex. With great reluctance, allowed that women still have the right to an abortion…”
The writer excoriates the justice saying Kennedy, “spent his career signing off on various ways to make that experience [abortion] more miserable, upholding a law that made medically necessary abortions more painful and emotionally wrenching.” Roe v. Wade (1972), as many fail to see, protected the right to privacy within the Fourteenth Amendment, and as not tried under standing as a “right to life” case, gives undue constitutional authority to a person which should be authorized to the state.
The author of the piece lists a few cases in which Kennedy was seen as stamping on the Constitution and being an “activist” judge, seemingly pounding the faces of progressive leftists.
Bush v. Gore (2000): “Kennedy voted to shut down vote recounts in the 2000 Florida election, siding with George W. Bush, who clearly worried that Al Gore would emerge the winner if the vote count proceeded.”
Amidst the recount, the question to be answered by the U.S. Supreme Court was: did the Florida Supreme Court violate the Constitution by making new election law, superseding Article II, Section 1, Clause 2?
The Court held that the Equal Protection Clause of the Fourteenth Amendment guarantees to individuals that a citizen’s ballot cannot be devalued by “later arbitrary and disparate treatment.” For the U.S. Supreme Court, “Even if the recount was fair in theory, it was unfair in practice.” When weighed by the Florida Supreme Court, it was found that different standards were applied to the recount from ballot to ballot, precinct to precinct, and county to county, even when identical types of ballots and machines were used.
Due to the fact that the days remaining to fully recount Florida’s votes would make the process violate the “safe harbor” provision, possibly leading to the disenfranchisement of the state’s six million voters, who are, “able to correctly cast their ballots on election day,” the Court reversed the state court’s opinion. Kennedy concurred with this decision because the “appropriate relief” to mend the wrongdoing would have taken far too long as, “federal deadlines for the Presidential election simply do not permit even such a shortened process.”
Progressives always engage in shouting matches when “their candidate” doesn’t win at the ballot box. For example, the 2016 presidential election when all the Clintonites were running about in the streets, setting fire to business, busting windows out of police cars, and showing that physical violence is the real engine of a working democracy in modern America. For them, the electoral college is a racist, arcane antiquity beholden to political yesteryear, all because they have no clue how it works. If elections in America were held on popular vote alone, a candidate would only have to campaign in a few of the most populous cities to win the election, forgoing “fly over” country and where most of “real America” lives outside the spheres of pseudo-influence. Of course, that is probably why they lost everything in middle America – they just don’t care.
Though, if they can’t control the election, they wish to control the funding of an election.
Citizens United v. Federal Election Commission (2009): The writer from Salon says, “[Kennedy] eviscerated campaign finance law by allowing wealthy donors and corporations to dump money into electoral politics without restraint…helped secure Republican control of all levels of government, from county governments and state legislatures on up.”
The issue here is the constitutionality of money in political campaigns and issue advertising, which progressives hate when more money is spent opposing their ideas.
In the Court’s majority opinion, Justice Kennedy found that the prohibition of Section 203 of the McCain-Feingold Bipartisan Campaign Reform Act (BCRA) violates the First Amendment protection of free speech, wherein all independent expenditures by corporations and unions are held. Kennedy wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
As well, the Court overruled a portion of McConnell v. Federal Election Commission (2003) that upheld BCRA’s restriction of corporate spending on “electioneering communications,” allowing corporations and unions to spend money both on issue advertising and to indirectly advocate in elections or for candidates.
Most importantly, the First Amendment does not distinguish between corporations and media outlets, leading to the BCRA restrictions on issue advertising to be improperly levied by Congress. The Freedom of the Press aspect of the First Amendment protects both individual speakers and associations of individuals, disallowing prohibitions of speech based on the identity of the speaker or speakers. Corporations, Kennedy held, as associations of individuals, have free speech rights under the First Amendment.
Furthermore, the Court looked to the jurisprudence laid out in Buckley v. Valeo (1975) wherein a governmental restriction of independent expenditures in political campaigns and the limitation on expenditures by candidates from their own personal or family resources violates the First Amendment.
This, however, does not matter in changing the narrative with the political left. an money spent by a fossil fuel-burning corporations is evil, whereas all the taxpayer money spent by Planned Parenthood is forwarding the righteous cause of disenfranchised women from sea to shining sea. The ethical scope of political campaign dollars is very narrow and only partisan when it comes to pleasing progressives.
Shelby County v. Holder (2013): “Kennedy voted to strike down Section 4 of the Voting Rights Act in 2013, which opened the door to the flood of voting restrictions in numerous states, which are clearly aimed at shutting out Democratic voters and specifically to target voters of color with onerous restrictions that limit legal voting rights for no valid reason,” the Salon author wrote.
In this fairly complex case, Section Four of the Voting Rights Act ensures that no one’s vote is, “denied or abridged on account of race or color.” The text of the section is on par with the text of the Fifteenth Amendment of the Constitution, ratified 95 years before the Voting Rights Act to protect African-American suffrage. The Act furthermore states that, “no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State.”
Section Five of the Act prohibits eligible districts – those which enforced a voting test as of November 1, 1964 and had less than 50 percent turnout for the 1964 presidential election – from enacting changes to their election laws and procedures without gaining official authorization. These changes were to be filed with the Attorney General or a three-judge panel of the Washington, D.C. Federal District Court, and ensure that the change, “neither has the purpose nor will have the effect,” of negatively impacting any citizen’s right to vote based on race or minority status.
In Shelby County, Alabama, a petitioner sought a judgment on both Section Five and Section Four(b) – test or device clause – claiming they are unconstitutional and a permanent injunction against their enforcement. The question for the Court here was if the five-year congressional renewal of Section Five, under the merits of Section four(b), exceeds congressional authority under the Fourteenth and Fifteenth Amendments, thereby violating the Tenth Amendment and Article Four of the Constitution.
The Fourteenth Amendment protects every person’s right to due process of law. The aforementioned Fifteenth Amendment protects citizens against discriminatory voting practices. The Tenth Amendment reserves all rights not granted to the federal government to the individual states. Article Four of the Constitution guarantees the right of self-government for each state and outlines the relationship between each state and the others.
The Court found that Section Five and Four(b) was unconstitutional because it imposes burdens that are no longer used to rectify the current conditions in the voting districts in question. Even though the stipulations within the Act allowed for historically disenfranchised minorities to vote and protected them, they do not any longer, thus representing an unconstitutional violation of the power to regulate elections that the Constitution reserves for the states. The Court also held that the formula within Section Four(b) for determining whether changes to a state’s voting procedure should be federally reviewed is now outdated.
Blatant discrimination against certain voters that Section 5 was intended to prohibit is no longer evident, even though progressives would like to think differently. In the minds of those “fighting for equality” there has been and never will be real reform in regards to voting in America.
A ballot cast is only good if the ballot supports one whom is instilled with the same inherent flawed nature that leads to progressivism: malcontentedness. If, however, such far-left ideals are not upheld, it is a war on humanity, regardless of the provisions laid out in the U.S. Constitution.
Janus v. AFSCME (2018): In explaining their vehement displeasure of Kennedy’s vote against forcing public-sector workers to pay union dues, the author stated, “Part of that is simply consistent with his [Kennedy’s] long history of siding with corporate interests against workers at every opportunity, but part of it is also likely due to his knee-jerk Republican loyalties. A major reason Republicans are so intent on dismantling union power is because unions are effective at organizing coalitions to support progressive policies and Democratic candidates. Take out unions, and not only can conservatives drive down wages, but they can increase the Republican stranglehold on power, even as increasingly large majorities of Americans want them out of office.”
The legal analysis from Salon is purely political when it should not be. Then again, we’re are talking about Salon, a lifestyle and entertainment editorial, not a jurisprudential publication.
The U.S. Supreme Court upheld a Michigan law in Abood v. Detroit Board of Education (1977) that allowed a public-sector employer, whose employees were represented by a union, to require those non-union employees to pay union dues because they benefited from the union’s collective bargaining agreement with the employer. In the current case, Illinois has a similar law, so a First Amendment lawsuit was brought insofar as government workers should not have been required to fund – and agree with – a private organization.
In the decision, the Court overturned Abood, claiming that forcing non-union members to pay union dues should not have been the justification of maintaining, “‘labor peace’ and eliminating the risk of ‘free riders,’ as was the case in Abood.” The majority held that, “requiring individuals to endorse ideas they disagreed with runs counter to First Amendment principles.”
Not only is it simple logic that people should not be forced to fund a private organization that is advancing government policies they oppose, it also violates the First Amendment as money is a form of expression, which is a form of speech.
During his 30 years on the Court, Kennedy’s jurisprudence reflected a unique mix of Libertarian and natural-rights elements, and just being right based on a contextual reading of the Constitution. People criticize Kennedy for sometimes being devoid of the time-honored judicial norm of stare decisis, insofar as respecting jurisprudence is concerned. For Kennedy, institutional consistency does not abide solely by tradition, but being right based on the founding document. If something was incorrectly decided in the past by a activist bench – fix it.
For example, Kennedy threw out the nearly two-decade-old ruling in Bowers v. Hardwick (1986), wherein consensual homosexual sodomy was unprotected by the Constitution, even if in the privacy of one’s home. In Lawrence v. Texas (2003), Kennedy said, “Bowers was not correct when it was decided, and it is not correct today.” He wrote, “It ought not to remain binding precedent,” leading to the overturning of Bowers.
Kennedy also supplied the critical fifth vote upholding the right to burn the American flag in Texas v. Johnson (1989), declaring, “It is poignant but fundamental that the flag protects those who hold it in contempt.” For the justice, just because something is disagreeable or offensive, that does not mean it is wrong.
The author says the justice should have waited until a Democratic president assumed of Office of the Presidency until he retired. Would that have made him a better justice, Salon? Would this have made Kennedy a progressive hero if he waited until Trump was out of office to retire?
For those who dislike activists judges, like the author of the Salon piece, whinging about Kennedy’s retirement during the Trump Presidency is business as usual because the main objective now is resistance at all costs. Most likely because the next associate justice won’t be William Douglas-like – a man who once said “trees have standing” to sue in court.
Of course, all of this depends upon putting logic above emotions, which progressives have shown they are most definitely unable to do. For them, being right is relative – the main objective is proliferate one’s feelings and opinions, not provide for a better America for all.
