Thinking Citizen Blog — Supreme Court Justice Anthony Kennedy
Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day
Today’s Topic — Supreme Court Justice Anthony Kennedy (served 1988 to 2018) — what should every thinking citizen know?
Appointed to the Supreme Court by President Reagan in 1987, Kennedy disappointed conservatives when he co-authored the plurality opinion in Casey v Planned Parenthood (1993) which upheld Roe v. Wade. He was also harshly criticized by conservatives for his opposition to the death penalty for for the mentally disabled (Atkins v Virginia) or for minors (Roper v Simmons) and his support of gay rights (Obergefell v Hodges). An additional complaint from the right was his championing of the use of international law as an aid in interpreting the Constitution. From the left, Kennedy was denounced for supporting the majority in Bush v Gore (2000) and for his decision in Citizens United (2000) to strike down various provisions of the McCain-Feingold campaign finance law as violations the free speech provision of the First Amendment. Experts — please chime in. Correct, elaborate, elucidate.
THE SWING VOTER ON THE ROBERTS COURT — but was he really a “moderate”?
1. Under the Rehnquist court (1992–2005), Sandra Day O’Connor was the swing voter. O’Connor retired in 2008.
2. “In the 2008–2009 term, he was in the majority 92 percent of the time. In the 23 decisions in which the justices split 5-to-4, Kennedy was in the majority in all but five. Of those 23 decisions, 16 were strictly along ideological lines, and Kennedy joined the conservative wing of the court 11 times; the liberals, five.
3. “In the 2010–2011 term, 16 cases were decided by a 5–4 vote; Kennedy joined the majority in 14 of the decisions.”
NB: While the New York Times called him an “equal opportunity disappointer,” the number crunchers at FiveThirtyEight concluded that to call him a moderate was a mistake: “An analysis of Kennedy’s voting record during his three decades on the court shows that he voted with the court’s right wing in the majority of cases — including controversial, closely decided cases — throughout his career.”
OBERGEFELL V HODGES (2015) — In defense of same-sex marriage
1. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were.”
2. “As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage.”
3. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
CITIZEN’S UNITED (2010) — putting the First Amendment first
1. “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
2. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. […] The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. […] By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”
3. “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….There is no such thing too much speech.”
NB: “The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations — including nonprofit advocacy corporations — either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.”
CITIZENS UNITED v. FEDERAL ELECTION COMM’N
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YOUR TURN
Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values. Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values. Or just some random justice-related fact that blew you away.
This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.
