After their obsequious preliminaries, The Editorial Board of The New York Times frames their milquetoast critique of Neo-Confederate/Originalist Fellow Traveler Anthony Kennedy, as residing in ‘part of his charm’. Call this not just the exercise of the obsequious, but of kowtowing of the most nauseating kind. The obsequious tone is a cover for a overly respectful scolding: it bears the form of respect, but not its actuality. Here is where the timid exercise of ‘truth telling’ appears to come to rhetorical life.
Of course, part of your charm is that you’re an equal-opportunity disappointer. In 2010, you wrote the majority opinion in the Citizens United case, which opened the floodgates to unlimited spending in political races by corporations and labor unions. In 2013, you signed on to an opinion — a deeply misguided one, we believe — that gutted the Voting Rights Act and allowed states across the country to make it harder for people, especially minorities, to vote. In the next two months, you may well upset liberals again by casting the deciding vote to uphold President Trump’s travel ban, or in favor of the Christian baker who doesn’t want to make cakes for same-sex weddings. At the same time, you would most likely be the key vote to rein in partisan gerrymandering, one of the most corrosive and anti-democratic practices in modern America.
And none of us outside the court can know how much your mere presence affects which cases the justices choose to review — or not review.
Because this is ‘The Paper of Record ‘ these editorial writers need to let their bourgeois readership know, that they have a grasp of contemporary legal history, as the permission for their critique. Further into the essay we have more of the same scolding:
As Justice O’Connor would tell you, legacy isn’t only what you do when you’re on the court; it’s also the circumstances in which you leave it. To put it bluntly, did you spend a lifetime honoring and upholding the Constitution and the values of civility and decency in American public life only to have your replacement chosen by Donald Trump?
But not content with the above, the writers offer this :
Do you want to give your seat to a president whose campaign and administration are under criminal investigation, whose closest aides have been indicted or have pleaded guilty to federal crimes? A president with so little regard for or understanding of the role of the judiciary, the separation of powers and the rule of law? A president who nominated to the federal bench someone who called you a “judicial prostitute?
You know as well as anyone that the Supreme Court’s authority depends on public confidence. When that fails, the consequences can be dire.
This is where you come in, Justice Kennedy. You’re a conservative from a time when conservatism was a more or less coherent political philosophy, not a tribal identity. You’re a believer in free markets and individual liberty, and also in human rights and equal justice. A defender of the rule of law, of civility and decorum — those time-honored values now desecrated daily by the current inhabitant of the Oval Office.
The erosion of ‘public confidence‘ in The Supreme Court began with the appointments of Rehnquist, followed by Scalia , Thomas, Roberts, Alito and finally Gorsuch. But look to the utter mendacity of John Roberts, in his appearance before the Senate Judiciary Committee. Where he pledged his undying fealty to stare decisis ,and then his own call for arguments for Citizens United*, the destruction of one hundred years of election reform . And since the lawyer’s métier is lying, he appointed Kennedy to head his long cherished destructive exercise in judicial betrayal of ‘settled law’. As first, a lie before a committee of the Senate. And then a demonstration of ideological commitment to Corporate Money in politics as ‘protected speech’. And the Neo-Confederate/Originalist, white supremacy’s victory for the Confederacy in the 21 st Century: Shelby County v. Holder which eviscerated the ‘Pre-Clearance Clause’ of the Voting Rights Act. Mr. Kennedy is nothing more that a Fellow Traveler of the vile quartet of Roberts , Alito, Thomas, Gorsuch. No amount of made to measure historical chatter, or the maladroit begging of this misbegotten ‘savior’ of the Republic, now long dead, is the last gasp of the Paper of Record, and its claim to some kind of moral/political leadership. The cumulative evidence is that The New York Times is the ally of respectable American bourgeois politics. Nothing from the New York Times Editorial Board, can change or mitigate the facts of its betrayal of the idea and practice of Journalism, as an integral, not to speak of an essential part of this once Republic!
*See this link for the essential arguments from the Supreme Court and the arguments pro and con :