Justice Anthony Kennedy and Our Schizophrenic Supreme Court

Conservatives were, rightly, thrilled by the recent Supreme Court decision that affirmed our constitutional right to keep and bear arms. Not so fast. Of the four important decisions the court has rendered in this term, three of them have gone the wrong way.

Let's first take a brief look at each of these four cases.  Then let us examine Justice Anthony Kennedy's thinking in these cases. Kennedy was either the deciding "swing vote" or the determining factor in each one.

The only case correctly decided was (1) District of Columbia v. Heller. Justice Scalia wrote the Heller decision, which holds that an individual right to keep and bear arms is guaranteed by the Second Amendment. He is one of four conservative justices on the court.[i] Justice Kennedy joined in this opinion.

But the four liberal judges[ii] all dissented -- and dissented vehemently. They claimed, in effect, that the Second Amendment applied only to state militias. Justice Stevens said in his dissent:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.

Your personal right to firearms was one vote away from being thrown on the ash heap of history.

And it still is. Cities, like New York, with strict gun control laws, will be sued in federal court using the holding from Heller. Justice Kennedy could change his mind tomorrow.

Justice Kennedy was the author of all three of the wrongly decided cases in this term. In (2) Boumediene v. Bush, Kennedy, and the four liberal judges, gave enemy combatants access to federal civil courts. This "right" had never existed in American law before the decision.

Next, in (3) Dada v. Mukasey, these same five judges allowed an illegal immigrant the "right" to change his mind about leaving the country voluntarily. This opinion is so convoluted that most constitutional scholars are still scratching their heads.

In (4) Kennedy [no relation to the justice] v. Louisianna, the same Justice Kennedy, and the same four liberals, overturned the death penalty of a man convicted of brutally raping an eight-year-old girl.

"Brutal" is not nearly a strong enough word. This is taken from the Court's opinion:

A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure.  Her entire perineum was torn from the posterior fourchette to the anus.  The injuries required emergency surgery.

But, according to Kennedy, the death penalty would have been unreasonable in this case. Justice Alito summed up the majority's reasoning in his dissent. (Kennedy's words are in quotation marks.):

First, the Court claims to have identified "a national consensus" that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its "independent judgment," that imposing the death penalty for child rape is inconsistent with "‘the evolving standards of decency that mark the progress of a maturing society.'"

Make no mistake, Justice Kennedy is running the Supreme Court. It is his vote and his decisions that are making or breaking (mostly breaking) our constitutional rights and our protection as citizens under the law.

What is driving Kennedy's reasoning in these cases? It is not the meaning of the Constitution; it is not an effort to enforce the law and protect Americans; it is his one-man attempt to ensure that the Constitution and the law conform to his "evolving standards of decency."

There is no questioning his integrity. In all of these cases Justice Kennedy was trying to do the "right" thing. The problem is "doing the right thing" is not his job. We know that the four liberals on the court are going to be, well, liberal; but Anthony Kennedy is just trying to be decent.

Look at the situation of the claimants in each of these cases. In the (1) Heller case, the District of Columbia had stripped its citizens of any means of self-defense. In certain neighborhoods, armed hoodlums (who ignored the gun ban) robbed and raped almost at will. That was the factual situation in Heller. Kennedy voted to let the citizens of D.C. defend themselves. He did the "right" thing.

Moving to (2) Boumediene, some of the terrorist prisoners of war have been held at Guantanamo Bay for nearly six years without a trial. That doesn't seem right -- does it? Kennedy admits in his majority opinion that,

It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.

Later in the opinion he writes,

The detainees in these cases are entitled to a prompt habeas corpus hearing.

Under the law and the Constitution enemy combatants have never been allowed a prompt habeas corpus hearing. But now, under Justice Kennedy's evolving standard of decency, they have.

Consider this summation of the facts in Kennedy's opinion in (3) Dada v. Mukasey.

Petitioner Samson Taiwo Dada, a native and citizen of Nigeria, came to the United States in April 1998 on a temporary nonimmigrant visa.  He overstayed it.

The Department of Homeland Security ordered Dada to leave the country within thirty days. He volunteered to do so. Two days before his scheduled departure he changed his mind and decided to sue the government to allow him to stay in America. The Supreme Court affirmed that an illegal alien who has broken the law has a "right" to sue to remain in the country. You'll have to look long and hard to find that clause in the Constitution or in the applicable laws.

But, once again, it was not a matter of law that drove Kennedy; it was a matter of decency:

... as matters now stand the appropriate way to reconcile the voluntary departure and motion to reopen provisions is to allow an alien to withdraw the request for voluntary departure before expiration of the departure period.

What Kennedy means by "appropriate way" is the "decent way." Even illegal aliens can change their minds. The decision explicitly holds that illegal aliens, who are ordered to exit the country, can volunteer to leave, and then stay, and then sue for the right to remain in the country. Go figure.

Finally, in (4) the Louisiana child rape case, Kennedy decided it was cruel and unusual to execute a man who raped a little girl until her bowels fell out. Maybe so. (On a personal note, I have always been ambivalent about the various applications of the death penalty.)

But neither Justice Kennedy nor I live in Louisiana. Neither of us is an elected state legislator who voted for the law condemning to death the perpetrators of the heinous act of the raping of children. And neither of us sat on the twelve-person jury who unanimously recommended the death penalty in this case.

It is not Justice Kennedy's job to determine "evolving standards of decency." It is his job to defend the Constitution and the protection it affords its citizens.

He got it right in (1) Heller. That is once out of four tries. That is not good enough.

Larrey Anderson is a philosopher and writer living in Idaho.  He can be reached at ldandersonbooks.com

[i] The three other conservative justices are Roberts, Alito, and Thomas.

[ii] The liberal justices are Stevens, Ginsburg, Souter, and Breyer.