Will the federal judiciary start supervising elections by taking over the reapportionment process?
Despite President Obama having the opportunity to remake the U.S. Supreme Court with one nominee, Donald Trump will need to wait for the same opportunity. Not because Congress will confirm Judge Garland, and not because Congress won’t confirm Trump’s nominee, but because of the ideological configuration of the Court, and where Justice Scalia fell in that current configuration in relation to the other justices.
Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recognized so-called “disparate impact” claims under the Federal Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.); created a constitutional right to same-sex marriage and struck down contrary state laws (Obergefell v. Hodges); and re-wrote the “elections clause” of Article I, section 4 to allow non-legislative redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission).
Many things will be said in the coming days about the Supreme Court’s holding in Obergefell v. Hodges, better known as the same-sex marriage case. I don’t think I can in general improve upon the dissents written by the four Supreme Court justices—who object to the sweeping and poorly reasoned argument offered by Justice Anthony Kennedy as the “reasoned judgment” of a “bare majority” of his colleagues. But I think I have something to add to the discussion regarding Kennedy’s understanding of his role as a Supreme Court justice.
In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.”
The federal preemption of state law is a subject that only dorks could love. Four of them (Jon Klick, Mike Petrino, J.P. Sevilla, yours truly) have just published an empirical analysis of preemption decisions in the Rehnquist and the Roberts Courts. Preemption is the Supreme Court’s daily diet, with three or four cases each Term. So you can actually do the numbers. What the numbers show is that the once-humdrum preemption issue has become a matter of intense ideological contestation. Preemption cases are less likely to be (nearly) unanimous than the general run of decided cases; and in contested cases, the…
As Richard Reinsch notes, Justice Scalia's dissent in Windsor is a powerful response to Justice Kennedy's majority opinion, which "put the stigma of implicit bigotry around anyone who disagrees with his emancipated individualism." It occurred to me that the Supreme Court has rarely expressed such comprehensive and prominent disdain for whole classes of citizens. True, Justice Kennedy had leveled a similar accusation in Roemer and Lawrence. But the law at issue in Roemer resulted from a discrete act of the people of Colorado, and Lawrence involved a largely unenforced statute. In those cases, the target of his disdain was selective, involving citizens…
So Justice Kennedy did what he usually does, put the stigma of implicit bigotry around anyone who disagrees with his emancipated individualism. If you’ve read Romer v. Evans or Lawrence then you’ve seen this show, more or less. Kennedy, I think, only deepens the application of his own philosophy and attempts to vindicate why he must appeal to it to decide that DOMA is unconstitutional. Coming soon, of course, is the use of the majority opinion to throw out the state prohibitions. Some notion of self government, some republic.
The demise of Intrade.com (link no longer available) has deprived degenerates who will gamble on anything—and other degenerates who link to them—of the opportunity to wager on the outcome of Hollingsworth v. Perry, the case testing the constitutionality of California’s Proposition Eight, which banned same-sex marriage. But had it remained in operation, the odds likely would have run about even, with all eyes fixed on the great unknown: Justice Kennedy. Both facts—the even odds and the unknown on whom they rest—are problems. The even odds imply unpredictability in the law, and the unpredictability of Justice Kennedy’s jurisprudence, in turn, suggests a false complexity of constitutional jurisprudence that places it beyond the grasp of mortals and in the hands of a mysterious priesthood whose decisions require divination. However one wants the case resolved, it should not be decided like this.