Justice Anthony Kennedy

No president ever appointed Stuart Schneiderman to the Supreme Court, but he still has no difficulty in eviscerating Anthony Kennedy’s opinion.

Justice Kennedy’s opened his opinion with the following stirring statement:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

…

The notion that individuals are free to define and express their identities is pop psychology and postmodern critical theory. More accurately, it’s mental drool.

When Kennedy added a few more freedoms to marriage, he went further off the rails of rational thought:

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.

One expects better of the Supreme Court. In truth, freedom comes in many different shapes and forms. Free love is not the same as free will. Freedom from responsibility is not the same as freedom for responsibility. Free will is not the same as free lunch. And, of course, free expression and the free trade in ideas do not constitute a free-for-all.

By extending the concept of freedom indiscriminately Justice Kennedy has sowed confusion.

As for Kennedy’s musing about pop psychology, it’s one thing to say that marriage has evolved to include the possibility that a couple be in love. It’s quite another to say that the “nature of marriage” is to grant access to a freedom for intimacy and spirituality. In truth, Scalia pointed out, marriage circumscribes and restricts your access to intimacy. It limits your freedom to covet your neighbor and to commit adultery. …

Kennedy’s idea makes no sense within the context of gay marriage. If gays were free to create themselves as they wished they could recreate themselves as straights.

Admittedly, some people who are involved in homosexual activities are not, strictly speaking, gay, but homosexuality, nearly everyone will agree, is not a choice. It is a natural predisposition.

If Kennedy meant that gays should be allowed to define themselves as straight, thus, to marry as though they were straight he was suggesting that gay relationships, those that differ from socially recognized marriages, are somehow inferior to marriage.

One notes that Kennedy also mentioned, rather mindlessly, that the alternative to marriage was loneliness.

In fact, once you enter into the marital institution that institution defines and delimits your relationship. Those who have avoided entering into the institution of marriage have done so in order to gain a greater liberty in defining their relationship. Feminists, for example, have insisted that marriage is an oppressive institution, one that would unduly constrain the exercise of their freedom.

Dare we mention the obvious point, that a married couple is not free to change the definition of their marriage without passing through a judicial process called divorce.

Kennedy seems to have granted us the liberty to take liberties with reality.

One ought to note that the Supreme Court decision has not transformed reality. It has changed the way that certain couples are treated “in the eyes of the law.” The law can confer dignity and it can deny dignity, but it is not the only arbiter of the way dignity is conferred or denied.

Whole thing.

Photoshopped version of: Vasili Pukiriev, Неравный брак [The Unfitting Marriage], 1862

An inclination toward, and willingness to participate in, perverted sexual acts does not really endow morally feeble and psychologically defective people with membership in a category of society carrying with it special recognition and privileges.

There is no such thing as a “Gay.” There are only perverted sexual acts. Gay is a fake, artificially-constructed category padded out with all sorts and forms of deviance and abnormality: with sissies, with psychologically-damaged and socially-maladapted persons obsessed with envy of the opposite sex, i.e., transvestites and female impersonsators, with pedophiles, fetishists, and with persons who are sexually stimulated by self-abasement. In Lawrence Durrell’s Alexandria, for instance, there were “more than five sexes and only demotic Greek seem[ed] to distinguish among them. The sexual provender [was] staggering in its variety and profusion. You would never mistake it for a happy place.” The ranks of the suppositious Gay identity are filled with neurotics, neurasthenics, eccentrics, the rebellious young, females disappointed in love, persons desperate for some form of self-distinction, dabblers, experimenters, and fellow travelers, debauchees, trend-seekers, self-destroyers and substance-abusers. They are so desperate for numbers that they have even added to their “LGBT” self-styled designation people who mutilate their bodies and ingest the hormones of the opposite sex.

If membership in a culture best noted for offering oral sexual services to strangers in public lavatories entitles you to have the government invent a parody version of marriage just for you, why shouldn’t fishing pals, business associates, bowling team members, bridge partnerships, drinking buddies, and people who counterfeit money or rob banks together not also receive federal benefits? If sodomy is worthy of federal recognition, approval, and protection, why not polygamy, bestiality, and incest? There are doubtless people in California who want group marriages and others who want to marry objects of public infrastructure and redwood trees. On what logical basis can they now possibly be denied?

If indulgence in vice makes you special and gives you status and privileges, why are only sodomites being so favored? Alcoholism is commonly considered to be an inheritable infirmity. Like the homosexual, the boozehound has no choice about his inclinations. Clearly, Anthony Kennedy ought to sit down and find some appellate case to which he can arrange cert, and start drafting his opinion that rumdums are equal, too, and cannot be denied their rights to employment or to driving vehicles.

We obviously live in a society led around by the nose by an elite which is too stupid to live. Any appeal to emotion and sentimentality will reduce even the learned Supreme Court Justice, nominated by a Republican and entrusted by Fate with the deciding vote, to the intellectual condition of a pubescent female in early high school who has been reading Black Beauty.

The constitutionality of Obamacare needs extreme assistance.

When professional spinners on the left like Peter J. Boyer start explaining why the Supreme Court’s killing of Obamacare would really be a good thing for Barack Obama’s reelection chances, you can kind of tell that the realization that the Supreme Court is not likely to rule their way has pretty well sunk in.

Apart from the fact that Republicans would lose their most animating issue in the presidential race, the overturning of the health-care reform law would free Obama of the burden of having to mount a broad defense of his health-care plan as a centerpiece of his campaign. The president, who can read polls, managed to absent himself from any public observance of the reform law’s second anniversary last week. A Supreme Court invalidation of the reform law’s individual mandate, the feature that Americans find most odious (PDF) would allow Obama to embrace the issue anew, focusing on those portions of the reform (such as the provision allowing families to keep their children on their policies until they reach the age of 26) that most people actually like. Obama’s Democratic allies, meanwhile, could hammer home the importance of deciding who will be making the next appointments to the Supreme Court.

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The Hill quoted a major liberal analyst, who was about as pessimistic on Obamacare’s chances as it’s possible to get.

Jeffrey Toobin, a lawyer and legal analyst, who writes about legal topics for The New Yorker said the law looked to be in “trouble.” He called it a “trainwreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.

Toobin’s observation came on the second day of oral arguments at the Supreme Court over the constitutionality of the Affordable Care Act.

Earlier that day, Supreme Court Justice Anthony Kennedy, who could be the deciding vote on whether to uphold the law, told Solicitor General Donald Verrilli that there appeared to be a “very heavy burden of justification” on aspects of the law, according to The Wall Street Journal.

Toobin described Kennedy as “enormously skeptical” during the arguments Tuesday.

Hilzoy thinks she can, but her arguments amount only to extravagant assertions that everyone, everywhere, and at all times, in peace and in war, tra la! has the same judicial rights and the same access to US courts as a US civilian accused of a domestic crime in peacetime residing in the United States.

who has habeas rights? And where do they extend? The court’s answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

Shooting at US forces in Afghanistan or conspiring in Karachi to arrange attacks on the civilian populations of US cities are the kinds of circumstances in which people normally enjoy the protections of US citizenship and the protection of US courts? Apparently that’s what Hilzoy, a graduate of Princeton, thinks.

Hilzoy:

if we accept the government’s argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.

This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.

From Hilzoy’s perspective, there is no legal distinction whatsoever between the United States and foreign soil, no issues of distance, remoteness, or lack of US sovereignty matter. There is no difference between US citizens and aliens, and there is no difference between peace and war.

One expects Hilzoy (and perhaps Justice Kennedy, too) to leap in front of the muzzle of some frontline marine’s rifle, crying out: “Don’t you shoot that chap in the turban (the one firing the AK47)! He’s entitled to counsel, a fair trial, and a full course of appeals before he can be punished. Don’t you go violating his rights, you brute.

In JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), the Supreme Court ruled:

1. A nonresident enemy alien has no access to our courts in wartime.

2. nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

observing:

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied [339 U.S. 763, 778] protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States. …

To grant the [339 U.S. 763, 779] writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

So how does Justice Kennedy arrive at a different conclusion?

at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany.

The only readily comprehensible distinctions Justice Kennedy makes are Bush has shilly-shallied around too long. There should have been more timely military trials and the Guantanamo Naval Station is somehow more under “the absolute and definite control” of the US Government than a prison operated by the US Army in Germany in 1950 was, while WWII involved a different historical context and mission, i.e. was the “Good War.”

(1) perhaps has some merit. (2) simply amounts to a rationalization.

Justice Kennedy’s arguments are weak, and they are clearly self-interested. What this is really all about, as in Rasul, is plain Judicial Branch imperialism and overreaching, the refusal to accept limits to jurisdiction or the supremacy of the Executive in time of war.

Justice Kennedy has produced a very irresponsible opinion, which will surely result in the release of some dangerous and fanatical enemies of the United States, very probably leading to further loss of American lives. Members of today’s American intelligentsia, even those sitting on the Supreme Court, are commonly incapable of seeing what was obvious even to the Ancient Romans, who closed the Temple of Janus in time of war to symbolize the fact that inter arma enim silent leges.

Justice Anthony Kennedy opined, awarding Habeas corpus protection to illegal combatant non-citizens captured overseas bearing arms against the United States in violation of the laws and customs of war.

Justice Kennedy’s ruling will undoubtedly open a Pandora’s box of legal argument and judicial obfuscation which will effectively paralyze the Bush Administration’s hesitant and overly scrupulous efforts to bring mass murderers operating entirely outside the law to justice.

Five of eight members of the Supreme Court have demonstrated themselves to be self-important nincompoops determined to assert judiciary authority over the executive and to strike poses, while demonstrating a truly horrifying obliviousness to legal and historical precedent and common sense.

All this is, of course, the fault of the Bush Administration, which carelessly also overlooked all precedent, and then tried to invent new forms of military justice conformable to the whims, notions, and fantastical scruples invented by its opponents in the establishment media. President Bush and the rest of the civilian administration should simply have avoided injecting themselves into the matter, and thereby allowing entry to lawyers and courts, at all. The administration should have relinquished all authority connected with prisoners captured overseas to the military authorities.

Those military authorities should have authorized local commanders quickly and on the spot by drumhead courtmartial to establish the status of these kinds of prisoners as illegal combatants required to be condemned to death by military custom and law, and those local commanders should have been instructed upon such determination to hang them.