Anthony Kennedy

Momentous Day As Supreme Court Chooses To Pass Judgment On Gay Marriage!

Today has been a very momentous day, as the United States Supreme Court has chosen to accept two cases on gay marriage, one involving the constitutionality of the Defense Of Marriage Act of 1996, and the other the validity of the passage of Proposition 8 in California, banning gay marriage.

This could be the blockbuster case of the present term, when it is decided in late June of 2013, after oral arguments in March.

This matter brings to mind the Loving V Virginia case of 1967, when the Supreme Court unanimously upheld the right of interracial couples to be able to marry, a very controversial and divisive case in the age of the Civil Rights Movement.

It should be pointed out that many Southerners and Christian religious leaders opposed interracial marriage bitterly, but once it was settled by the Supreme Court, the issue was moot.

The same opposition, heavily Southern and religiously based, is now vehemently against gay marriage, but the tides of history are going against a continuation of discrimination.

If gay marriage is accepted by the Court, after already being legal in nine states, no religious group would be required to marry a gay couple, but they could be married civilly by a judge or county clerk, or hire someone who is legally qualified to marry couples.

The belief is strong that the Court will rule at least 5-4, if not 6-3, for gay marriage rights, with the four Democratic appointments to the Court—Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, Elena Kagan—voting for the majority, along with Justice Anthony Kennedy, and possibly Chief Justice John Roberts.

Kennedy is the key vote, but since he supported the right of gays to privacy in the Lawrence V. Texas case in 2003, and was, indeed, the decisive fifth vote, it is believed he will take a step further in support of this major step forward.

Roberts is an unknown quantity, but after his surprising vote for ObamaCare in June, it is believed he might join the majority on this significant case.

So now, ten years later, it looks likely that the Court will have evolved further, and the right of anyone to marry who they love will be guaranteed as a basic civil right.

This is basic social justice, and a majority in public opinion polls, and particularly the younger generation, support gay marriage.

No one is saying that there cannot be people who oppose gay marriage, but society does not have the right to use their prejudices and religious views to deny basic human rights to others!

Voting Rights Act Under Review, As Arizona, Florida And Other States Show Evidence Of Voter Suppression

The Supreme Court has accepted a case on the validity of continuation of federal oversight of the Voting Rights Act of 1965, with the argument that states can handle their voting effectively, without discrimination.

Are such advocates getting high on drugs?

It is CLEAR CUT that Arizona, Florida and other states were working to discriminate against people of color and poor people in the recent election!

Florida was unable to handle its voting process expeditiously, and was abusive in cutting down days of voting from 14 to 8, thanks to the GOP legislature and Governor Rick Scott!

Arizona has still not counted all the votes, and Governor Jan Brewer and Maricopa County Sheriff Joe Arpaio are the worst abusers of voting rights, and both promote intimidation of Hispanics and Latinos, and act as if they are above the law!

Other states have promoted intimidation of Hispanics and Latinos, including Alabama specifically, and many states have promoted voter suppression laws.

How could a reasonable Supreme Court do anything other than uphold the need for continued monitoring of voting?

And yet this right wing majority on the Court could very well destroy one of the path mark pieces of legislation under Lyndon B. Johnson, and bring us back to the age of “Jim Crow”!

It i s hoped that Justice Anthony Kennedy (often the swing vote), and or Chief Justice John Roberts will join the four liberal members of the Court in upholding the continued enforcement of the Voting Rights Act. Roberts, having surprised everyone, with his decisive vote to uphold ObamaCare, hopefully will surprise us again with an open mind, and come through, even if Kennedy fails to do so.

To have advancements in American democracy endangered 50 years later is a true disgrace!

Scott Brown Vs. Elizabeth Warren: The Key Senate Race Above All Others!

Massachusetts Republican Senator Scott Brown is engaged in the most combative Senate race of all against Harvard Law Professor Elizabeth Warren for the Senate seat held for nearly 47 years by Ted Kennedy.

Brown won a surprising victory in the special election in 2010 to succeed Kennedy for the rest of his term, and is the only Republican to represent the state of Massachusetts, which has an all Democratic House delegation, a Democratic Governor, and a dominant Democratic majority in the state legislature.

Brown has had a difficult course to follow, and has tried to come across as moderate, like Maine Senators Olympia Snowe and Susan Collins, but he has voted over 90 percent of the time with his party, and has refused to back President Obama on almost anything he asked for, including jobs legislation, and is now acting very aggressively against his opponent, who worked with Obama, and helped to start the Consumer Financial Protection Bureau, although GOP Senate opposition prevented her from running this new agency, so she decided to run for the Senate. Brown has come across as in bed with Wall Street, gaining a lot of financial support from top banking and corporate interests.

Elizabeth Warren is an inspiring candidate, who clearly is for the middle class and the poor, and comes across as a hero of progressives, who supports the DREAM Act, which Brown is against, and is clearly a strong Obama supporter who would fight for progressive causes in the manner that Ted Kennedy did for so long!

Their second debate last night in Massachusetts demonstrated that Brown is ready to use rhetoric in a way that is divisive, including his derision of Warren as being a professor who may control her students but not him; saying she is not native American because of her appearance despite her assertions that she is; allowing his staff to make fun of native Americans publicly; and making clear that he considers her a left wing extremist not in the mainstream, as he claims he is. When he said that Antonin Scalia was his favorite Supreme Court Justice, then swung to Anthony Kennedy, John Roberts, and finally Sonia Sotomayor, the audience seemed to turn against him.

The debate brought up the issue that if Brown is reelected, he could decide a Republican majority in the Senate, and would have a dramatic effect on Supreme Court appointments of the next President, and would certainly NOT, based on his record and his rhetoric, be following in the tradition of Ted Kennedy!

This race is crucial to the future of the Obama Presidency in so many ways, and with Obama certain to win the state of Massachusetts, the hope is that he will have adequate coat tails to carry Warren into the Senate as his champion, and have Warren join Bernie Sanders and others in promoting the progressive agenda over the next four years!

The Supreme Court: The MOST Crucial Issue In The Presidential Election Of 2012!

Plenty of attention is being paid to economic and domestic policy in the Presidential campaign of 2012.

Also, now with the Middle East crisis that erupted this week, foreign policy is, suddenly, being given tremendous emphasis.

It is right that attention is being paid to both areas of national policy, as they really matter!

But an area which still is NOT being focused on adequately, if in fact at all, is the effect of the election on constitutional matters, which are determined primarily by the Supreme Court of the United States, along with the federal circuit courts.

First, the circuit courts consistently have vacancies, even in a one term Presidency, which can have a dramatic effect on constitutional law. Also, it must be remembered that the tradition has been to appoint Supreme Court Justices from this level of the judiciary, although that was certainly not the norm in the long history of the Supreme Court.

Ultimately, however, it is the Supreme Court which is the final arbiter of the Constitution, as the nine members of the Court, once they have made a determination, rule the day, unless a constitutional amendment can be passed to overrule a Supreme Court decision, or the members of the Court, through changes of personnel, decide to revisit areas of controversy already decided by an earlier Court.

After a decade of no changes on the Court, from 1995 to 2005, suddenly, in a period of five years, from 2005-2010, there were four changes on the Court–Chief Justice John Roberts in 2005 and Associate Justice Samuel Alito in 2006 under President George W. Bush; and Associate Justice Sonia Sotomayor in 2009 and Associate Justice Elena Kagan in 2010 under President Barack Obama.

Now in 2012, there are four Justices in their 70s, who are seen as possible or likely retirees from the Court over the next four years—Associate Justice Antonin Scalia (76), appointed by President Ronald Reagan in 1986; Associate Justice Anothony Kennedy (76), appointed by Reagan in 1988; Associate Justice Ruth Bader Ginsberg (79), appointed by President Bill Clinton in 1993; and Associate Justice Stephen Breyer (73), appointed by Clinton in 1994.

By the end of the next term, if none of these four Justices left the Court, they would range in age from 77 to 83!

It seems certain that one or more will retire, or unfortunately, die, in the next four years, and who is appointing their successors, is all important for the future of constitutional law!

If Obama makes one to four appointments, it will, at the least, keep the present balance, slightly toward the conservative side, but if Mitt Romney makes the choices, it could make the Court more conservative, more to the right, than it has been since at least the 1920s, if not the Gilded Age of the late 19th century!

This is NOT a minor matter, considering the areas of criminal justice, affirmative action, abortion, gay rights, and the constitutionality of laws passed under the New Deal of the 1930s and the Great Society of the 1960s, and recent actions on health care, campaign fund raising, and many other touchy, controversial areas of policy, and of civil rights and civil liberties!

The Court could turn back a century of political, social and economic reforms, if it turns in the direction of the far Right, a danger with Mitt Romney in office!

We can expect that by 2020, if not 2016, all of the members of the Court will be those appointed in the previous 15 years, with the possible exception of Associate Justice Clarence Thomas (64), appointed by President George H. W. Bush in 1991, and stating he would not retire or leave the Supreme Court until he breaks the all time record of Associate Justice William O. Douglas, appointed by President Franklin D. Roosevelt in 1939, and serving 36 years on the Court under seven Presidents, until he left in 1975!

So this issue needs to be addressed in the Presidential debates in October, as it is an issue for voters to consider, and to recognize its significance!

Tension Between Chief Justice John Roberts And Conservative Justices On Supreme Court Reported: What It Might Mean!

In an extremely rare inside look at the Supreme Court, which tends to keep secret the interactions of its members, there are strong indications that the decision of Chief Justice John Roberts to side with the liberals on the Court and uphold “ObamaCare” may have caused what might be a permanent rift on the Court between Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

No one is likely to ever confirm such a rift explicitly, but it will be very interesting to observe the body language of the Court in oral arguments, decision announcement days, and other public meetings where the members of the Court will be together in public places.

One could wish that he or she was a “fly on the wall” figuratively, to see what has really gone on, and will occur, in the future.

The situation could transform the Court IF Roberts continues to side with the liberals, but few expect that to happen. But the old warmth and respect for each other that the Court is famous for in most of its past may be done, nevertheless.

It also makes one wonder, particularly IF Roberts continues the course he is on at the moment, whether it will convince Antonin Scalia to quit the Court, at age 76 and counting, and may be determined by who is elected President in November.

It is hard to imagine Scalia leaving, or even Associate Justice Anthony Kennedy, if Barack Obama is elected to a second term, but if Romney is elected, it is conceivable that both might leave sooner rather than later, if either or both feel uncomfortable working with Roberts in the future.

One can forget about Clarence Thomas or Samuel Alito leaving, however, as neither would plan to leave anytime soon!

America In 2012: African American President, Irish Catholic Vice President, Mormon Presidential Candidate, Supreme Court Of Catholics, Jews, Women, African American And Hispanic, And The Third Woman Secretary Of State!

In the midst of all the turmoil we are going through politically, America should sit back and marvel at how far this nation has come by 2012.

We have an African American President, Barack Obama!

We have an Irish Catholic Vice President, Joe Biden, the only Catholic since John F. Kennedy in 1960.

We have a Mormon Presidential candidate, Mitt Romney.

We have a Supreme Court consisting of six Catholics (Antonin Scalia, Anthony Kennedy, Clarence Thomas, John Roberts, Samuel Alito, Sonia Sotomayor) and three Jews (Ruth Bader Ginsberg, Stephen Breyer, and Elena Kagan), and also an African American (Clarence Thomas), an Hispanic, (Sonia Sotomayor) and three women (Ruth Bader Ginsberg, Sonia Sotomayor, Elena Kagan) on the Court.

And we have the third woman Secretary of State, Hillary Clinton, after two earlier ones (Madeleine Albright and Condoleezza Rice (one with Jewish heritage and one African American).

So we have a lot to be proud of in 2012, with the tremendous amount of diversity!

1937: “Four Horsemen Of The Apocalpse! 2012: “Three Horsemen Of The Apocalypse” On The Supreme Court!

In 1937, at the height of the New Deal of Franklin D. Roosevelt, four members of the United States Supreme Court resisted any part of the programs to deal with the Great Depression, and came to be known derisively as the “Four Men Of The Apocalpyse!.

These four Justices, seen as overly right wing conservatives were:

Willis Van Devanter (1911-1937)
James McReynolds (1914-1941)
Pierce Butler (1922-1938)
George Sutherland (1923-1939)

Today, 75 years later, it is clear that three Supreme Court Justices are united in their opposition to the agenda and programs of Barack Obama, as he tries to deal with many of the same economic problems that we had in the Great Depression.

These men are:

Antonin Scalia (1986-)
Clarence Thomas (1991-)
Samuel Alito (2006-)

It would seem appropriate to call them the “Three Horsemen of the Apocalypse”!

In 1937, we had two moderate centrists on the Court, Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts, while today we have somewhat equivalent conditions with Chief Justice John Roberts and Associate Justice Anthony Kennedy!

Hopefully, Barack Obama will have much of the same fortune that FDR had, the ability in the second term to replace, in FDR’s case, three of the four “Horsemen of the Apocalypse” with replacement appointments with a more open minded, progressive attitude, which had a dramatic effect on the future of the nation!

Despite Health Care Ruling, Supreme Court Is Still Out Of Control, And Presidential Election Will Decide If It Regains Confidence Of The American People!

The Supreme Court came through by the barest of margins on the issue of “ObamaCare” last week, but when one looks at the Court’s radical swing to the right in so many other ways, it is clear that the future reputation of the Court and the long term future of the nation requires the victory of Barack Obama for a second term as President.

By confirming their Citizens United decision again in a case involving Montana state law, and by actions against labor unions and their rights in another case, and in the solidity most of the time of the Republican appointees in rejecting past precedent and tradition, the Court has gained an image of being extremist and confrontational, and lost American public opinion and respect, which is dangerous for our democracy.

Ronald Reagan, George H. W. Bush, and George W. Bush effectively moved the Court away from the political center to the extreme right, and we are suffering the effects of this extremist rightward tilt.

We cannot afford to base the future on Anthony Kennedy SOMETIMES going with the liberal side of the Court, or Chief Justice John Roberts seemingly being concerned about the reputation of the Court. Neither is reliable to keep the Court in the political center, and protect the rights of the powerless.

The only answer is to insure that when the older members of the Supreme Court retire or die while in service on the Court, that we replace them with Justices who have a vision of the country more in line with the reality of the 21st century than the 19th century Gilded Age!

With Ruth Bader Ginsberg, Antonin Scalia, and Anthony Kennedy to be over 80 before the next Presidential term ends, the likelihood is that whoever is President in the next four years will have a transformative effect on the Supreme Court and constitutional law.

The thought of Mitt Romney making those choices is truly terrifying, and will make the Court a right wing extremist influence into the 2040s, totally unacceptable!

Barack Obama will be able to make the Court shift more into the mainstream, preserving the brilliant times of the Warren Court in the 1950s and 1960s, when America advanced constitutionally in so many ways!

One Dark Part Of The Supreme Court Decision On “Obamacare”: Commerce Clause Limited For First Time Since New Deal, Thrilling Libertarians!

As one analyzes the Supreme Court decision on “ObamaCare” written by Chief Justice John Roberts, in the midst of the celebration, one has to pause and be concerned about Roberts’ assertion that the “commerce clause”, utilized regularly since the New Deal to permit expansion of federal power, was declared limited by a 5-4 vote of Roberts and all four Republican and conservative appointments on the Court—Antonin Scalia, Clarence Thomas, Anthony Kennedy, Samuel Alito–and vigorously opposed by the four Democratic and liberal appointments—Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Instead, Roberts said the law was constitutional based on the “mandate” being a tax.

LIbertarians are cheered by this aspect of the case, but it COULD effectively limit federal power, and restore states rights back to the pre 1930s view, which would indeed be tragic in so many ways!

So the battle over the future of government, and over what the Roberts majority opinion means for the long term, will be the subject of much discussion, debate, and cases over the coming years!

Cordiality On The Supreme Court: Does It Exist After The Health Care Decision?

It has always been said that the members of the Supreme Court are always cordial and friendly, no matter their ideological differences.

But one wonders if that is so, after Chief Justice John Roberts wrote the majority opinion in the case involving “ObamaCare”, joining the four liberals on the Court.

We know that Antonin Scalia was uncomfortable as the decision was being issued, and was certainly furious and temperamental in his public utterances that Thursday morning!

It is hard to imagine that Scalia, Samuel Alito, and Clarence Thomas are NOT upset over the decision, and that it might very well affect personal relationships. This may not be something easily overcome, particularly when the usual swing vote, that of Justice Anthony Kennedy, was not there to support Roberts.

Roberts may be hoping, privately, that Scalia and Kennedy retire, as they really should soon, with their age being past 80 by the end of the next term.

On the other hand, Roberts and all of us will be burdened for many years by the relative youth of Clarence Thomas and Samuel Alito!

This whole situation makes it more urgent than ever that Barack Obama replace retiring Justices, as well as circuit court judges, if there is to be any hope for a fair hearing in Supreme Court cases!

The “compassionate conservatism” of Chief Justice Roberts is far preferable to the narrow minded, biased, uncaring conservatism of Scalia, Thomas, Alito, and YES, even Anthony Kennedy, sorry to say!