Kennedy made me do it!

The law, lawyers, and the court.
June 8 2006 4:35 PM

Kennedy Made Me Do It

How one Supreme Court Justice makes all conservatives stupid.

Kennedy. Click image to expand.
Supreme Court Justice Anthony Kennedy

Poor Anthony Kennedy is taking it in the chops again. A candidate for the Alabama Supreme Court more or less ran his entire campaign against Justice Kennedy's opinion in Roper v. Simmons—the 2005 decision that barred states from executing juvenile criminals. Then The Wall Street Journal laid the entire blame for the Senate's astonishingly futile and gratuitous gay-marriage debate directly on Kennedy's doorstep. And an excerpt from the new book by Ann Coulter's breasts suggests that he is somehow responsible for the ban on prayer in public schools.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Why is it that whenever conservatives behave stupidly, they blame it on Justice Kennedy? Liberals are equally capable of the stupidity. But they don't go around blaming Antonin Scalia for it.

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Consider Alabama Supreme Court Justice Tom Parker. * Apparently he didn't like Kennedy's majority opinion in Roper. Fair enough. But Parker didn't just express his disapproval, he urged his colleagues on the Alabama Supreme Court to ignore the Roper ruling altogether when they faced a substantially similar case last winter. He chose to talk to them about the matter in a January op-ed in the Birmingham Newsthat reads less like legal argument than Fox News talking points. Urging his brethren to bypass Roper because it was "the unconstitutional opinion of five liberal justices on the U.S. Supreme Court," Parker wrote: "State supreme court judges should not follow obviously wrong decisions simply because they are 'precedents.' ... [A] judge takes an oath to support the Constitution—not to automatically follow activist judges who believe their own evolving standards of decency trump the text of the Constitution."

Parker, who got clocked this week at the polls, was rendered this frantic because, he claimed, Kennedy "based" his opinion in Roper "on foreign law." Parker wasn't really discussing Roper,though. He was, in fact, declaring Alabama's independence from the U.S. Supreme Court, a court dominated by "establishment liberals" who "look down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state."

Roper was not actually "based" on foreign law. Kennedy was scrupulously careful to moor his (not always completely persuasive) case for a national change in moral feeling on executing juveniles on U.S. law. After which he looked to foreign laws and trends only, as he put it, for "confirmation" of the court's finding. Dissenting, even Sandra Day O'Connor agreed that the foreign legal precedents in question played only a "confirmatory role" in the court's decision-making. There's a difference between relying on external information and using it to confirm a decision already made. I read Dr. Spock. But he isn't raising my children.

When Parker made his decision to open fire on the "liberal activists" of the court, he ostensibly did so because, as he told Tony Mauro: "Polls show that public respect for the Supreme Court is falling." Surefire way to shore up that respect? Parker is recommending that from now on, any lower court judge who feels a Supreme Court decision is unconstitutional should just ignore it. The high court might as well stop issuing decisions altogether and just publish a list of discussion questions for the state courts to ponder: Affirmative action, good thing or bad? Discuss.

What would possibly prompt a sitting state Supreme Court judge to publish such a poorly reasoned, bilious screed? Anthony Kennedy.

For their part, the good folks at the Wall Street Journal claim that Kennedy should take full responsibility for "enabl[ing]" the Senate's pointless Kabuki posturing over gay marriage. Although the editors used to believe that marriage was a matter best left to the several states to sort out, "given the way activist courts have turned gay marriage into a national issue, it's no surprise that Congress joined the fray."

With a special sneer for Kennedy's "sweeping … privacy right" language in a 2003 case, Lawrence v. Texas, the WSJ editors suggest that the justice practically forced gay marriage down the throats of the nation. Although acknowledging the utter futility of the ban, they go on to note, "Supporters of the national ban say an amendment is necessary because willful courts won't honor those voter verdicts. They have a point. A federal court struck down Nebraska's ban on gay marriage last year even though 70% of the state's residents voted for it." Well, if 70 percent of the state's residents voted for it, it must be constitutional.

Just so we're perfectly clear here: Conservatives are bellowing at Anthony Kennedy because in Roper he ignored the Constitution and attempted to divine the will of the majority of the people. But they also hate him because in Lawrence he ignored the will of the people as he attempted to divine what was constitutional.