Brett Kavanaugh Praises Anthony Kennedy's 'Legacy of Liberty.' Many Conservatives Won't Like the Sound of That.

"Justice Kennedy established a legacy of liberty for ourselves and our posterity."

C-SPAN

In his opening statement yesterday before the Senate Judiciary Committee, Supreme Court nominee Brett Kavanaugh took the opportunity to honor the man whose seat on the Court he soon hopes to fill. Justice Anthony Kennedy "is a mentor, a friend, and a hero," Kavanaugh said. "He fiercely defended the independence of the judiciary. And he was a champion of liberty." In fact, Kavanaugh stressed, "if you had to sum up Justice Kennedy's entire career in one word: liberty. Justice Kennedy established a legacy of liberty for ourselves and our posterity."

Many conservatives won't like the sound of that. Liberty, after all, was the watchword in Kennedy's landmark opinions securing the constitutionality of gay rights. The concept of constitutional liberty is simply inseparable from those parts of Kennedy's jurisprudence that many conservatives dislike the most.

Consider Lawrence v. Texas (2003). At issue before the Supreme Court was the constitutionality of that state's prohibition on what it called "homosexual conduct." Writing for the majority, Kennedy struck down the ban because it violated the Due Process Clause of the 14th Amendment, which forbids the states from depriving any person of life, liberty, or property, without due process of law.

"Liberty protects the person from unwanted government intrusions into a dwelling or other private places," Kennedy wrote. "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Because the state's Homosexual Conduct Act trampled on this bedrock guarantee of liberty, Kennedy led the Court in ruling it unconstitutional.

Writing in dissent, Justice Antonin Scalia took a very different view. Indeed, Scalia both denounced and ridiculed Kennedy's argument. The Texas law "undoubtedly imposes constraints on liberty," Scalia retorted. "So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to 'liberty' under the Due Process Clause, though today's opinion repeatedly makes that claim." (Extra credit if you spotted Scalia's swipe at Lochner.) As far as Scalia was concerned, "what Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand new 'constitutional right' by a Court that is impatient of democratic change."

Which brings us back to Brett Kavanaugh. As the SCOTUS nominee is surely aware, Kennedy's "legacy of liberty" centers on a series of cases that Scalia and other conservatives thoroughly despise. By praising Kennedy as a "champion of liberty," did Kavanaugh intend to distance himself from the Scalia stance on gay rights? Or was Kavanaugh just trying to say something nice about a retired colleague, with no deeper meaning attached?

Someone on the Senate Judiciary Committee should probably ask Kavanaugh to explain exactly what he had in mind.

Comments

[Conchfritters]

The Texas law "undoubtedly imposes constraints on liberty," Scalia retorted. "So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery.

If I want to make cupcakes while riding the white dragon and then spend my hard earned cupcake wages on a hooker, that's my own fucking business. I'm starting to think that Scalia spent too much time playing bridge with Ginsberg in his free time.

[John]

Where do you get the idea that the Constitution prevents the government from enacting bad laws?

[Leo Kovalensky II]

When it comes to individual liberty... the 9th amendment?

[John]

Did the 9th Amendment repeal all criminal law? Not last I looked. Moreover, the 9th Amendment was written and passed during a time which all kinds of laws like the ones described here existed and never once did the people who drafted it or voted to ratify it think it made those laws unconstitutional.

The 9th Amendment is an amorphous thing for sure. But whatever it means, it doesn't mean "you can't pass any laws I don't like."

[John]

The problem is that the 9th Amendment was never supposed to apply to the states. It is a restriction on the federal government. I think you absolutely should read the 9th Amendment to severely restrict the powers of the federal government to do much anything beyond directly regulate interstate commerce. I think there is a very good argument that the 9th Amendment prohibits federal labor laws and things like that.

But the 9th Amendment doesn't apply to the states and was never intended to apply to the states. None of the BOR was intended to apply to the states until the passage of the 14th Amendment. But the 14th Amendment says "due process of law" not "all of the BOR now applies to the states".

[Brett Bellmore]

" But the 14th Amendment says "due process of law" not "all of the BOR now applies to the states"."

But, if you read the Congressional debate on it, the "privileges and immunities" it guarantees were indeed the rights guaranteed by the Bill of Rights, and not limited to them, either.

The real problem is with reading the 9th amendment as a blank check for the courts to invent NEW rights, when it was really just meant to protect the many traditional rights that were too numerous to enumerate.

[John]

But you have to read those debates in the context they were being conducted. Why did they pass the 14th Amendment? To ensure that the South gave full rights and citizenship to the freed slaves. I don't think they intended to prohibit the states from regulating commerce to the degree the federal government is. They intended to ensure that whatever the states did, it was done in a manner that didn't deny freed slaves full citizenship.

[loveconstitution1789]

The whole issue of slavery and freed slaves was rushed.

The 13th Amendment was quickly passed during the Civil War to end slavery, except for duly convicted prisoners.

The 14th Amendment was quickly passed because the Democrats in Southern states were using state powers to prevent freed black folks from having the same rights and privileges as white folks.

The sloppiness of the language of those Amendments were not realized until years later.

The flip side was the 14th Amendment forced all federal Constitutional protections on to the states, even the 1st Amendment, as a basic standard.

[DarrenM]

The real problem is with reading the 9th amendment as a blank check for the courts to invent NEW rights, when it was really just meant to protect the many traditional rights that were too numerous to enumerate.

They aren't inventing *new* rights. They are "discovering" pre-existing rights that no one happened to be aware of before.

[loveconstitution1789]

The BoR was a basic standard that states to have in their Constitutions. All did at the time of ratifying the Constitution. The main exception was free speech of the 1st Amendment was limited to Congress only not the states. Which is why it says "Congress shall make no law...."

The other check to making sure new states had basic protections for US Citizens was whether Congress would accept their entry into the Union.

The 2nd Amendment does not limit that protection to Congress only. State also have to protect the right of the People to keep and bear Arms. States did have defamation laws which is a limit of free speech.

Furthermore, all state residents are also US Citizens which gives them double protections. Protections from federal violations of the Constitution and protection from states violating their respective state constitutions.

[John]

The only prohibition on the states found in the Constitution and the BOR is that the states must maintain a Democratic form of government. The Supreme Court held in Baron v. Baltimore in the 1830s that the BOR didn't apply to the states. The BOR was only applied to the states after the 14th Amendment and then only in pieces in accordance with the Incorporation Doctrine. Even today, the BOR only applies to the states to the extent the courts deem the rights necessary to ensure due process and equal protection. So, you don't get a right to a grand jury indictment in the states the way you do in federal court, for example.

[ThomasD]

The Constitution guarantees the citizens of every state a republican form of government.

[Juice]

The problem is that the 9th Amendment was never supposed to apply to the states. It is a restriction on the federal government.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

[MP]

That tells you just about nothing regarding the line between Federal and State lawmaking domains.

[Juice]

Then please explain to me how the supremacy clause does not apply to all parts of the constitution.

[John]

that is the Supremacy Clause. It is saying that the Constitution shall be the supreme law of the land and the state laws that say their constitutions are the supreme law of the land do not mean state constitutions are greater. That doesn't mean the BOR applies to the states. It means that the states cannot pass laws that are superior to or revoke the BOR.

[Juice]

It means that the states cannot pass laws that are superior to or revoke the BOR.

Uh ok. So a state couldn't, say, pass a law banning the private ownership of firearms, right?

[John]

No. I am saying the state couldn't pass a law granting the federal government the power to take firearms. The Supremacy clause did not apply the BOR to the states. No court and no drafter of the document ever interpreted it that way.

[Juice]

I am saying the state couldn't pass a law granting the federal government the power to take firearms.

When you read "the supreme law of the land" says that "the right of the people shall not be infringed" you interpret that to mean the right can be infringed as long as it's infringed by the state. So all state gun control laws are constitutional in your view, if the 14th amendment didn't exist?

No court and no drafter of the document ever interpreted it that way.

The courts didn't interpret it that way because it was convenient for them to ignore the Bill of Rights and to follow the precedent in Barron v Baltimore. John Marshall said that since the amendments themselves didn't explicitly say they applied to the states, then they didn't, which is nonsense. The constitution does explicitly say that they apply to the states via the supremacy clause. The courts have read all sorts of powers into the constitution that aren't explicitly there, yet it wants to deny rights to the people because it claims it didn't explicitly say that it's the supreme law of the land in the amendment itself? Absurd.

Why is the first amendment worded the way it is? To make an exception for state law. No other amendment does this. If the framers intended for the Bill of Rights to only apply to the federal government, they would not have needed to word the first amendment the way they did.

[Hank Phillips]

Leo is about to discover why Ayn Rand never wasted a minute arguing with mystics, let alone Trumpistas. Watch...

[Brett Bellmore]

It certainly prevents the government from enacting certain categories of bad laws.

But, bad laws generally? No, certainly not.

[John]

Scalia absolutely rejected Lockner. He may be wrong about that but he was at least honest and consistent about it. The same cannot be said for Kennedy. Sure if the subject of the case was something Kennedy liked, like sodomy or gay marriage, Kennedy was all about the "Liberty" guaranteed by the Due Process Clause. But Kennedy never fully rejected Lockner or applied this theory consistently to anything other than the odd social cause that appealed to him. Ogberfell is perhaps the most appalling example of this. The entire opinion is a giant rationalization for why gays have a special right to be with the one they love and have a government license to prove it but polygamists, people into incest, and anything else Kennedy finds objectionable do not.

Scalia may have had a flawed interpretation of the Constitution but at least it was not a tyrannical one. Kennedy will stand as one of the worst examples of results-driven judicial tyranny.

[Shirley Knott]

I disagree completely.
Scalia was consistent but wrong. Nothing in his list of "but these things..." ought to be illegal.
Kennedy was right but inconsistent. Had he properly held to the stance he took in the Texas Homosexual Conduct Act, he would have rejected most, if not all, claims to governmental control over the private acts of individuals.
No increase in freedom is to be opposed, partial or incomplete though it be. If you are not harmed, it is none of your business, approve or disapprove though you might.
Reducing the size of the boot on our necks is an inherently good thing.

[John]

Reducing the size of the boot on our necks is an inherently good thing.

Except that he just as often didn't do that. Moreover, the rule of law matters too. You think judicial tyranny is great because it has given you a few ponies you like. Well, without any rule of law or consistency, there is nothing protecting those things and nothing preventing the court from doing much worse other than the fashion and whims of the judiciary. If your rights depend on the whims of a judge, you don't have rights, you have charity.

[loveconstitution1789]

+1 John.

[Shirley Knott]

Rule of law or rule of legislation?
I will celebrate any and every increase in freedom, and excoriate any reduction.
"Judicial tyranny" is an odd phrase to apply to increases in freedom. (Sherri Tepper explored some of these issues in Sideshow.)

[John]

So if someone declared themselves a dictator, you would think that was great so long as they gave you what you wanted? Don't you understand that without the rule of law that there is no restraint on the dictator changing his mind?

The living Constitution is great when it is giving you gay marriage without having to win an election. Talk to me about it when it is destroying the 4th Amendment because technology and the threat of crime and terrorism has made such protections obsolete.

[Shirley Knott]

I understand the difference between "getting what I want" and freedom.
You apparently do not, or want to argue as if I do not.
Disingenuous at best.
A dictator who 'inflicted' freedom from government coercion would be fine by me.
But in what sense, then, is this a dictator?

[chemjeff radical individualist]

"Tyranny from the mob is preferable to judicial tyranny!"

[John]

Having a consistent rule of law is not tyranny of the mob. Your response is so dumb that it doesn't even qualify as wrong.

[Juice]

Scalia was consistent

Not really. Contrast his opinion in US v Lopez to his opinion in Gonzales v Raich. If he applied the logic he used in Lopez to Raich, he would have issued the opposite opinion. It just looks like he was ok with guns but not with weed, but he wasn't really consistent in his application of the commerce clause.

[John]

That is a different issue. Scalia not being perfect doesn't make Kennedy any better.

[Social Justice is neither]

Nothing in Scalia's response should be illegal, but everything he listed is illegal and is given cover by prior rulings.

In this case I think both quoted sentiments are correct but the justices involved will not actually make rulings that way and that completely on a consistent basis.

[Moridin]

John, you read my mind. Just like with Senator McCain, there is all this hype in the media about what a great Justice Kennedy was. I thought to myself, one need only read the Obergefell opinion to see the logical gymnastics Kennedy was willing to take in order to push through an invented "liberty" as a Constitutional "right" that is clearly nowhere in the text. Those are not the actions of a "hero" of liberty.

[Horny Lizard]

Well, I like hearing that. Fuck yes.

[Brett Bellmore]

"The concept of constitutional liberty is simply inseparable from those parts of Kennedy's jurisprudence that many conservatives dislike the most."

No, the concept of constitutional liberty is quite separable from decisions such as Obergefell, because they aren't actually based on the Constitution. The Constitution is just used as a pretext for imposing them.

I'm hoping it was just nice words about his predecessor. But even if it isn't, I console myself that he is almost certainly going to be better than whoever Hillary would have come up with.

[wreckinball]

Kennedy was Dr Jekyl Mr Hyde

Kavanaugh will just pick up the good side. Just vote today for the sake of sanity.

Even with Kavanaugh it's only 5-4 good guys. RBG and her merry band of communists don't give a fuck about law constitution or precedent. Give them a 5th vote and they will show you

[Hank Phillips]

Readers will observe that the hobgoblins invented by half the Kleptocracy always terrorize the other half in the future tense. But since the ones that voted in 2016 account for only 57%, each looter half hallucinates for a little over a quarter of the population. Each of those quarters wakes up trembling at the thought of the other 75% discovering and reading the Libertarian Party platform and voting conscientiously rather than out of cowardice.

[loveconstitution1789]

This was a passing of the torch for Kennedy.

Kennedy retiring now was contingent on him picking his successor. Kennedy is an asshat like McCain was, where he thinks the USA could not function without his delusional bureaucratic work. Kennedy would rather fuck over the USA than simply retire and let Trump pick who he wants.

Luckily, I dont think Kavanugh will be who Kennedy wants once he is on the SCOTUS. Kavanaugh has to kiss ass and play the game to get his lifetime appointment. Once he is on the SCOTUS he can decide cases as he wants.

Gorsuch also went more Constitutionalist once on the SCOTUS. Not that GOrsuch and Kavanaugh are exactly the same but Kavanaugh has a great record on most Constitutional issues except domestic spying for national security reasons.

[Rev. Arthur L. Kirkland]

A person could object to bigotry toward gays (or blacks, or women, or immigrants, etc.) on the basis that discrimination is unconstitutional.

A person could object to bigotry not for constitutional reasons but merely because one is a decent person and not a racist, gay-bashing, misogynistic, xenophobic jerk.

Or a person could refrain from objecting to stale intolerance because that person is a bigot, part of the vestigial stain on America.

Carry on, clingers. So far and so long as your betters permit, anyway.

[Jack Klompus Magic Ink]

Or a person, namely you, could give the human race cause for celebration, by buying a gun and shooting yourself in the face.

[John]

There will sadly always be ignorant hicks clinging to their 19th Century beliefs like socialism.

[Brian]

Enjoy the Trump administration, SJW.

[wreckinball]

Or they could be a fucking lunatic like you. Ridiculous post.

[Brett Bellmore]

"A person could object to bigotry toward gays (or blacks, or women, or immigrants, etc.) on the basis that discrimination is unconstitutional."

But they'd be at something of a loss to point to any language in the Constitution to pass this claim on.

[Tom Bombadil]

People recently said nice things about John McCain. Doesn't mean they meant them.

[creech]

But McCain undoubtedly loved his country. He just had a different view from us of what our country should stand for.

[Shirley Knott]

Loved his country the same way an abusive husband loves his wife.
A deeply contemptible human was John McCain.

[Mickey Rat]

His sense of honor and shame at being involved in the Keating 5 scandal led him to atone for it by attacking political speech and press rights. That proved McCain had character!*

*Somebody actually wrote words to that effect.

[The Laissez-Ferret]

Mccain cheated on his crippled wife a lot too. He's consistent!

[Hank Phillips]

"what Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed..."
Translation:
"Whomever hillbilly politicians have ordered their cops to shoot is well within tradicional Ku-klux target practice, and those service pistols should not be deflected...

[DWB]

"Brett Kavanaugh Praises Anthony Kennedy's 'Legacy of Liberty.' Many Conservatives Won't Like the Sound of That."

Because it's a lie?

As I am not a gay Nazi who like cake, should I be worried?

[antiestablismentarianism]

I'm loving the language in the dissent! I can't wait to see that language used in a case involving certain individual liberties that have been restricted.

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