Ted Kennedy, SCOTUS Supervillain

Our history often comes back to haunt us, but seldom with greater irony than in the risible SCOTUS decision making homosexual marriage the land’s supreme law.

That’s Edward Kennedy’s fault.

Obamacare may well also be.

And that’s because Edward Kennedy prevented Robert Bork’s SCOTUS appointment and, thus, effected Anthony Kennedy’s instead.

That both Edward and Anthony have the same last name is just a bonus quirk.

Ah yes, Edward and Anthony -- call it the Senator Ted and Justice Tony Show.

Senator Ted was the Senate’s undisputed Obamacare paladin.  He’s the one who converted Obama himself to what became Obamacare.  And the 2009 Obamacare letter -- written practically on Senator Ted’s death-bed -- from him to Obama provided the pivotal drama which pushed Obamacare through a faltering Congress unable even to read what it was voting on.

No one has ever hinted that Justice Tony was anything but heterosexual, unlike the 9th-Circuit Appellate Judge (Vaughn Walker) who overturned California’s constitutional amendment banning homosexual marriage (and only afterward disclosed his own homosexuality), Justice Tony has ever been a model family man.  But Justice Tony’s penchant for confusing his private libertarian principles with the land’s supreme law has for over three decades (first in the 9th-Circuit and then in SCOTUS) led him to judicially toe the homosexual line virtually without deviation right up until his deciding homosexual-marriage vote last week.

However, but for Senator Ted, Justice Tony would never have been Justice Tony.  Here’s why. 

In 1987, Ronald Reagan nominated Robert Bork to replace Justice Powell.  The Senate’s rejection of Bork’s SCOTUS nomination forced Reagan to nominate Justice Tony.  And that’s why, thanks to Senator Ted, Justice Tony made homosexual marriage the land’s supreme law.

That doesn’t mean that Bork -- had the Senate 28 years ago approved his nomination -- would still last week have been a SCOTUS Justice.  Bork died (at age 85) almost three years before.  What it does mean, however, is that Justice Tony wouldn’t have been Justice Tony and, consequently, couldn’t last week have speciously used the 14th-Amendment to trump God’s biological (let alone the states’ civil) legislation.

And it’s not only that.  It’s also two previously specious SCOTUS decisions -- one making an unconstitutional Obamacare constitutional and the other keeping it from self-imploding.  Here’s why.

William Rehnquist, the Chief Justice previous to John (“Obamacare”) Roberts, died in office on September 3, 2005.  Had Bork been and remained an Associate Justice through that date, it’s at least possible (and perhaps even probable) that George W. Bush would then have replaced Rehnquist by elevating Bork from Associate to Chief Justice rather than by nominating an external Roberts as Chief Justice.  After all, Rehnquist himself had become Chief Justice by elevation. 

What that means is that Bork could still have been at least an Associate Justice, and possibly even a Chief Justice, on June 28, 2012 when Chief Justice Roberts rewrote the Obamacare legislation by changing an unconstitutional penalty into a putatively constitutional tax.  That’s true because Bork didn’t die until almost six months later, on December 19, 2012, and he could have remained in office until his death (as Rehnquist, whom Bork would have replaced, also did).  What it also means is that Roberts might never have been a SCOTUS Justice at all -- Chief or otherwise.  And what it additionally means is that Bork’s assiduously strict-constructionism -- either as Associate or Chief Justice -- would have been influencing SCOTUS judicial philosophy for the past quarter of a century.  How greatly might that have retarded the Court’s intervening judicial activism (not to mention potentially having rolled back the constitutional abuses of the Warren and Burger Courts)?

Bork was the preeminent constitutional “originalist” -- committed to strictly construing the Constitution’s plain language as its framers had understood its meaning over two centuries ago.  He was also arguably one of the most eminently qualified jurists ever nominated to the Supreme Court.

Here, for example, is what Senator Ted scurrilously said on the Senate floor during Bork’s 1987 nomination:

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is -- and is often the only -- protector of the individual rights that are the heart of our democracy ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

All but two Democratic (plus six RINO) Senators then narrowly and, for the Constitution fatally, rejected Bork’s nomination and destroyed his character and reputation with such vicious “world class . . . scurrility,” that his very name became the verb “to bork.”

The state of our present constitutional jurisprudence might be vastly different had Massachusetts in 1969 abandoned the incompetent Senate blowhard who dishonored any principles he might ever have had during the dark night on which he abandoned Mary Jo Kopechne to slowly suffocate at the bottom of Poucha Pond.