The first paragraph of Mr. Douthat’s unrelenting attack on Justice Kennedy, begins an indictment of Kennedy for not being like Scalia. Mr. Douthat in high dungeon is compelling, in his ricocheting polemic, that almost hits its target, except Mr. Douthat’s caustic assessment of Kennedy gets in his argumentative way.
In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists, Anthony Kennedy occupied a particularly important role. He was appointed to the Supreme Court at a time when the Republican Party was officially interested in curbing judicial activism and restoring power to the elected branches of government. As the court’s swing vote, though, he instead consolidated the judiciary’s imperial role — taking the expansive powers claimed by judicial liberals in the Warren era and turning them to his own purposes, his own vision of the common good.
Did Mr. Douthat copy this from a Federalist Society address by Scalia? The ‘judicial-executive dyarchy’ that Douthat refers to began with Brown I and II: when the NAACP , Thurgood Marshall, took the practice of School Segregation to the Supreme Court. The ‘why’ of that strategy was that the legislatures in the states that practiced Segregation were never going to redress the grievance of that Segregation.
Thus was born the Neo-Confederate/Originalist Myth of ‘Judicial Activism’ The propaganda assault on the very notion and practice of redress of grievances, as part of our Constitutional system. Douthat lacks the intellectual integrity to broach this subject, his status as respectable bourgeois Conservative at The Paper of Record could be placed in jeopardy. His blistering polemic needed a carefully executed argumentative stealth, although it misses that standard, but does quality as eviscerating political polemic.
The word ‘imperial’ appears four times in this essay. Douthat as ‘Leftist’? And Ruth Bader Ginsburg appears as ‘Notorious RBG’. Its evident that Douthat didn’t read, or is simply ignoring as a political inconvenience of Ginsburg’s dissent in Shelby County v. Holder, that eviscerated the rationale of striking down the ‘pre-clearance clause’ of the Voting Rights Act based on compelling empirical evidence, rather than mere assertion about ‘change‘. The majority opinion, that ‘things have changed’ offered by Roberts, with the addition of Scalia’s dull-witted obfuscatory redhead rhetorical malapropism.
Mr. Douthat opines on one specific Supreme Court case Planned Parenthood v. Casey :
Planned Parenthood v. Casey, 505 U.S. 833 (1992),[1] was a landmarkUnited States Supreme Court case in which the constitutionality of several Pennsylvaniastate statutory provisions regarding abortion was challenged. The Court’s plurality opinion reaffirmed the central holding of Roe v. Wade[2] stating that “matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”[3] The Court’s plurality opinion upheld the constitutional right to have an abortion while altering the standard for analyzing restrictions on that right, crafting the “undue burden” standard for abortion restrictions. Planned Parenthood v. Casey differs from Roe, however, because under Roe the state could not regulate abortions in the first trimester whereas under Planned Parenthood v. Casey the state can regulate abortions in the first trimester, or any point before the point of viability, and beyond as long as that regulation does not pose an undue burden on an abortion. Applying this new standard of review, the Court upheld four regulations and invalidated the requirement of spousal notification.
Like his judicial hero Scalia, Douthat sees Casey and its precursor Roe v. Wade as a frontal attack on the deeply held Patriarchal view that ‘women’ are by nature incomplete beings: incapable of exercising full existential autonomy without male tutelage. Kant’s imperative be dammed!
Douthat has the habit of patrolling the sexual/reproductive decision making of women predicated upon that ‘as if‘ of feminine dependency on an indispensable male tutelage.:
If his constitutional theory was somewhat lacking, though, his guiding ideals were clear. Without being a completely consistent libertarian, he was a general champion of freedom — “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as his Planned Parenthood v. Casey decision famously put it — across both social and economic spheres. To borrow an overused but still useful word, Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.
I was not a great admirer, as you can no doubt tell. Like most conservatives, I favor a more limited role for our robed archons, I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism, and I regard Kennedy’s Casey ruling as a vapid Emersonian effusion, whose paean to individualism was really a license to kill inconvenient innocents. Even when he was right on the merits of an issue, he was still too aggrandizing, too eager to impose his own judgment, too quick to short-circuit legislative debates.
Douthat’s admiration for Scalia’s ‘Originalism’ ‘…because it establishes plausible (if, of course, debatable) limits on judicial activism,.. Call Mr. Douthat’s admiration for Scalia the political propinquity of one hyper-reactionary for anther of member of this species. Mr. Douthat and his confreres defend the right to life of the ‘unborn’ with a unslakable ferocity, yet make unrelenting war against the ‘living’ with that same moralizing ferocity!
Douthat describes Kennedy as ‘neoliberal’:
To borrow an overused but still useful word, Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.
A more apt descriptor of Kennedy’s jurisprudence, as Neo-Confederate Originalist fellow traveler, is opportunism rather that ‘neoliberalism’.
A final quotation from the Douthat polemic to end my comment , although there is more to say, my patience with Douthat’s tedious moralizing chatter has reached it limits.
Here it may be that John Roberts, Kennedy’s likely successor as our First Archon, is better suited than his predecessor to the imperial task. We know that Roberts is more temperamentally cautious than Kennedy, more interested in limited rulings than in sweeping ones. We also know that he’s both more friendly to religious conservatism (witness his Obergefell vote) and more willing to let social-democratic policymaking stand (witness his vote to save Obamacare).
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