Eminent Domain

By some act of Satan, I ended up reading The Nation today. I read through David Cole's article about the Supreme Court, oh so originally titled The 'Kennedy Court'. I know, I know, there have been six and a half million articles about Justice Kennedy's influence on the Court. I admit to being a part of the problem too.

Cole spends the beginning of the article lighting off fireworks in honor of the Hamdan decision. After some celebrating, Cole hits us with this hyperbolic statement...

But as much as Hamdan deserved celebration for rejecting the President's vision of unchecked power in the post-9/11 world, the term also showed just how close the country is to a system of government that has no meaningful checks and balances.

"No meaningful checks and balances." That actually translates into "the branches of the government will not do something that I want (because my side got trounced in the last few elections), therefore we are living in a police state." We have elections in this country. If the public does not support the policies and direction of the majority party, they will vote them out. Let's just calm down on the "OMG DICTATORSHIP!!!" comments.

You may think that this post's title refers to the previously mentioned statement, but it does not. After the usual examination of Justice Kennedy's swing voting from the past term, Cole enters the fear portion of the article...

But the voting alignment in Hamdan and many other important cases this term only illustrates how close the Court is to veering off in an extreme rightward direction. Its two oldest members are Justice Stevens, at 86, and Justice Ginsburg, at 73. If either retires while a Republican President is in office, the Court will likely be reliably conservative for several decades at least.

I have made this point numerous times. The liberal wing of the Court is older and in worse health than the conservative wing. The next retirement is almost guaranteed to come from their ranks. Cole continues...

Perhaps never before has the power to appoint the next Justice been so potentially determinative of the course of constitutional law.

Depending on which Justice is next to go, this is true. As I said, a liberal retirement as the next retirement is almost guaranteed. If there is a liberal to conservative flip, then Cole is right. It would be huge. If it is a conservative replacing a conservative, that is still important but not as important. A new, younger Justice, even one with the same voting pattern, is still an important appointment.

Now, Cole gets really ominous...

Meanwhile, the division on the Court will undoubtedly continue next year. The Court has already agreed to take up cases involving so-called "partial birth" abortion laws and efforts to maintain racial balance in public schools. On both issues Justice Kennedy has previously sided with conservatives. While he was in the majority that refused to overrule Roe v. Wade in Planned Parenthood v. Casey, he dissented passionately from the Court's application of Casey to strike down a "partial birth" abortion statute in 2000. And he has been an outspoken critic of affirmative action, voting to declare it unconstitutional in the University of Michigan's affirmative action cases just three years ago. This time next year, in other words, we may not be celebrating.

To me, the idea of celebrating a court striking down a partial birth abortion ban is a troubling thought. If that's what gives Cole his jollies, well, great for him. I do think that Cole is right that the partial birth abortion cases will not go his way. I re-read Kennedy's dissent in Stenberg v Carhart the other day. I can't see him changing his vote. If Roberts and Alito join Kennedy, Scalia, and Thomas, then the bans will stay in place. Cole will just have to deal with it.