Bloodless Coup

The Times Examines Justice Kennedy

Since today is the last day of the current Supreme Court term, I expect to write a number of posts tied to that today. So I will begin by noting this profile of Justice Kennedy in today's New York Times. It's a rather telling piece in that it gets at the shallowness of many of the complaints against him - reactionaries and right-wingers don't like the substantive results of some of his opinions. This illustrates the usual problem with taking the complaints that these people have about "culture war" cases seriously - the type of people who most rabidly dislike AMK don't care a bit about the law or legal reasoning or the meaning of the constitution, they just want their own preferences to be the law of the land, and don't care what they have to do to get that. Which isn't to say AMK can't be criticized. But it seems more appropriate to seriously consider the legal reasoning of a jurist when evaluating their behavior in office, not the specific outcome in a handful of cases.

A few other things strike me about this profile. First, the author gives scant attention to the many cases in which Justice Kennedy take positions that conservatives would cheer (and there are many of those since in several areas I'd say he's to the right of O'Connor and in some he's to the right of Rehnquist). Secondly, Jeffrey Rosen's complaint about Kennedy supporting judicial supremacy is strange. There's some truth in it of course, but he's far from the only justice who acts that way (look at Rehnquist, O'Connor and Thomas). And finally, the descent of Robert Bork has alternated between the sad and the pathetic, and it's too bad to see him fall into yet more simple sloganeering here. At one time it was very clear why the right thought of him as a great legal mind, but in the wake of his confirmation battle his work and arguments have gotten steadily (and considerably) less sharp.

UPDATE: What I found banal, peculiar and rather sloppy Chris Geidner found horrifying, slanted and close to mendacious. He's right, and he's insightful - so go read what he says about this article.