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Our View: Kennedy is no hero on the Supreme Court

Justice has been the swing vote on many contentious issues

Published on July 2, 2018 10:43AM

Supreme Court Associate Justice Anthony Kennedy in 2015.

AP Photo/Manuel Balce Ceneta

Supreme Court Associate Justice Anthony Kennedy in 2015.

As if national politics needed another contentious issue, appointment of a U.S. Supreme Court justice to replace the retiring Anthony Kennedy might make Ultimate Cage Fighting look tame as a Victorian cricket match.

In recent decades, by means both fair and foul, presidents and U.S. senators have tended to replace departing justices with men and women viewed as likely to maintain a rough balance between the court’s liberal/moderate and conservative wings. Kennedy, appointed by President Ronald Reagan in 1988, has been the justice most likely to bridge the gap between the sides.

Though he has in no sense been a liberal, his belief in the legal principle of stare decisis — standing behind the court’s past decisions — meant that Kennedy served as an impediment to efforts to roll back reproductive rights and other elements of modern civic freedom. On a nine-member court, decisions made on a 5-4 basis often have relied on Kennedy for that fifth vote.

Although a significant percentage of citizens are narrowly focused on abortion — with Kennedy mostly voting to preserve the legal precedent of Roe v. Wade, which was decided before he joined the court — other decisions made by the court actually have a far greater impact on American society. One of the biggest of these, commonly called Citizens United after the right-wing group that pursued it, resulted in corporations being granted political rights similar to those of flesh-and-blood people. By allowing easier manipulation of elections, Citizens United has been one of the single biggest factors in making sure our nation’s rich get richer, while everyone else struggles. Kennedy’s fifth vote allowed this to happen. He is no hero.

In decisions during the just-concluded court term, Kennedy often landed on the pro-Trump side. He was, for example, the deciding vote approving of President Donald Trump’s controversial travel ban, which started out as transparently biased against Muslims and then gradually was modified to arguably qualify as a legitimate exercise in barring visitors from countries that don’t adequately screen air passengers.

Much of the sound and fury in coming weeks over Trump’s forthcoming nomination will focus on such hot-button issues. The scripts of these fights were prepared long ago and will play out along tiresome, predictable lines. But we and our U.S. senators who will debate the issue can better spend our time pushing for openness from the nominee on questions like corporate power, fair elections and subjects important here in the West, such as water rights, tribal relations and federal land management.

Fair elections and maintaining some sense of fundamental economic balance in the U.S. are key to national harmony and success, while the West also lives day in and day out with issues that are unique to our region. As we said in 2010 when President Barack Obama nominated Elena Kagan to the court, there should be some effort for a regional balance.

Only token attention was given in 2010 to the fact that with Kagan’s confirmation, four of New York City’s five boroughs were represented on the court. Since then, Coloradan Neil Gorsuch has replaced one of the New Yorkers, Antonin Scalia of the Queens borough. Kennedy, with solid roots in Sacramento, is now departing.

Six of the nine current justices received their legal educations at Harvard, while the other three went to Yale.

This bias to the Northeast and the implicit assumption that only Harvard and Yale are capable of producing top legal minds is bound to skew the cultural, social and intellectual underpinnings of the men and women on the court. While it is superficially comforting to have a Colorado native among “the supremes,” it is questionable to what extent Gorsuch’s presence is representative of prevailing views and issues in the three populous mainland West Coast states.

Former Justice Sandra Day O’Connor, from Arizona, was the last member who really knew about Western life. No matter her politics, she brought knowledge of water-allocation issues and other regional matters that were only purely theoretical to her Supreme Court peers. O’Connor’s firsthand life experiences were invaluable.

If all 100 U.S. senators came exclusively from the most elite East Coast universities, there would be a second American Revolution. No one would see such an Eastern bias as being acceptable for our republic and democracy. At a time when pundits already are writing of us being in the midst of a “cold” civil war, we can ill-afford to have more power concentrated in the hands of the East Coast moneyed class.

Trump can do us all a favor by defying expectations. He should nominate a non-Ivy Leaguer from the West who will not rubber-stamp every item on the ultra-wealthy wish list, but honor Western traditions of self-sufficiency, egalitarianism and good-neighborliness. Otherwise, he will further intensify the feelings of anger and disenfranchisement that are threatening to pull this great nation apart.


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