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Sharp, Bitter Irony

by Tony M.

Some people might wonder, at one time or another, how a lawyer like Anthony Kennedy could be appointed to the Supreme Court by a president like Reagan. Though it was, surely, an accident of monumental proportions, there were some extenuating circumstances. He did, at times, look like a conservative.

For example, Anthony Kennedy, in 1986, wrote this passage:

One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.

The fact that the 1986 Kennedy himself soundly defeats the stance of the 2015 Kennedy (with vastly greater cogency) is too rich an irony to pass up. And Justice Roberts refuses to pass up the dig: the quote is in his dissent, with attribution, of course.

This is an invitation to all our readers to search through the opinions and dissent for other zingers, bon mots, and tasty tidbits. Post them so we can all enjoy!

Posted by Tony M. on June 29, 2015 8:38 PM | Del.icio.us |

Comments (9)

I could have some measure of sympathy for Kennedy if there were reports of the courthouses and liberal churches being flooded with gay couples when gay marriage became legal in a state. It would not actually justify it, but I could see him believing it equivalent to Loving v Virginia.

Ironically, it does bear a similar feature to Loving in that like loving, few people actually want to avail themselves of the legal right that the struck down law prevented. (Of course, unlike the case of Loving, in Obergefell the "marriage" being legalized is not a factual marriage)

Posted by Mike T | June 30, 2015 8:08 AM

Scalia's dissent is full of them (I could just copy and past the whole thing) but I particularly liked this one:

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not.

Posted by Jeffrey S. | June 30, 2015 10:08 AM

Correct me if I'm wrong, but wasn't Bork the first choice of Reagan and after his failure to be inducted, Kennedy then was chosen?

Posted by GRA | June 30, 2015 12:50 PM

Scalia's "I would hide my head in a bag" footnote is glorious.

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

While we are on the topic of irony, here is a bit from Elena Kagan's testimony to the Senate Judiciary committee when she was being considered for Solicitor General:

Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to same sex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

But hey, that was 2009.

GRA, yes, that is correct. We see here the long, long arm of history. I knew at the time that the Bork Borking was a watershed in America's history. Now we see its fruits.

Posted by Lydia | June 30, 2015 2:08 PM

Scalia's statement is absolutely glorious.

Posted by MarcAnthony | June 30, 2015 2:43 PM

The Kagan quote reminds me of the Islamic concept of lying being justified when it can advance Sharia.

http://www.thereligionofpeace.com/Quran/011-taqiyya.htm

Posted by Steve Willy | June 30, 2015 6:37 PM

Scalia's statement is absolutely glorious.

I agree, MarcAnthony. I surmise that however much these men might have felt the need to preserve a facade of decorous, polite nod toward accepting the judgment of the majority in the past, that's out the window now, at least as far as pretending that the majority is still engaging in anything like being judges rather than tyrants. Oh, wait, that's in Robert's dissent too:

The majority’s decision is an act of will, not legal judgment.

I don't have to surmise it at all.

Here's another in somewhat the same vein:

It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.

Here's another Scalia zinger:

The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners.

On a graver note, it is virtually inevitable that officials here and there throughout the land will note the truth that

The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.”

and that

The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” [quoting The Federalist 78]

They will note that this "judgment" is simply lawless willfulness, and refuse to accord it respect because it ought receive no respect. They will disregard the judgment and follow the actual laws of the state in which they reside. Thus will 5 liberals full of their own willfulness, not even bothering to attempt to cover their tyranny with a plausible pretense of reason, will have pushed people into what will end up being treated as civil disobedience and (eventually) criminal behavior. If we had been lucky, we might have had a situation where a president would exercise restraint and refuse to allow federal law officials to impose treatment as criminals on such law-respecting Americans. Woe to us, we have no such luck.

Posted by Tony | June 30, 2015 7:17 PM

We know the reality most states will just follow along - don't want to lose those federal subsidies, after all. Interesting that only Democrats have the cajones to actually Bork a candidate. When was the last time Republicans Borked any Democratic nominee? The GOP is worse than useless.

Posted by c matt | July 1, 2015 11:40 AM

C matt, you are right. Actually, it seems that the GOP is even worse than you say here, given what appears to be an Inverse-Bork" that Boehner aimed for last week to "deal with" the conservatives who voted against fast-track. It's not enough that conservatives have to fight off rabid attacks by Dems, now we have to do the same from rabid GOPs?

Posted by Tony | July 1, 2015 7:35 PM

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