Friday, June 09, 2006

Some Liberals Don't Get It

Dahlia Lithwick's recent piece in Slate on the "unremitting scorn and abuse" poured on Justice Kennedy misunderstands why Conservatives attack him. Well, I shouldn't use the word attack, so I'll call it strong disagreement.

She cites two cases that were the basis for criticisms of Kennedy: Roper v. Simmons and Lawrence v. Texas. An Alabama Supreme Court judge ran on a platform calling for the Alabama Court to ignore the "activist" Roper decision that was based on foreign law. Now, I strongly disagree with state courts ignoring precedent (just like I disagree with the Ninth Circuit's refusal to construe precedent reasonably, which is why it is overturned all the time). And Roper was not based entirely on foreign law.

But criticism of Roper is apt if one believes the Constitution should be interpreted according to its original understanding. Kennedy presumed that the meaning of the Cruel and Unusual Punishments Clause evolves with time, and deigned himself worthy to determine what the clause means today. Now, if you ask me, that's not a crazy position, but it is one worthy of criticism. And the decision was weaker because of its reliance of foreign law (although foreign law was a secondary basis).

The Wall Street Journal attacked Kennedy's decision in Lawrence as the reason why some people support the FMA. Lawrence opened the door to SSM by "finding" a broad right to privacy in the Constitution. That argument is not unreasonable and Justice Scalia himself made it in dissent. Since the right of privacy is not found in the Constitution, and that right as construed in Griswold does not protect same-sex sodomy, Kennedy's opinion was weak (and overly expansive), and something that could easily be used as a basis for requiring same-sex marriage (as was done in Goodridge).

Is it so ridiculous for conservatives to find disappointment with a man who was nominated in place of the "borked" Robert Bork? Conservatives went from someone who was a sure thing, to a judge who has supported a right to abortion and same-sex sodomy. It's not hard to understand why they might criticize Kennedy, especially since his opinions sometimes warrant as much. Conservatives don't attack Justice Ginsburg because we never expected her to do better.


Blogger Charlie Hall said...

'Since the right of privacy is not found in the Constitution'

I just thought of an interesting parallel between interpretations of Torah law and interpretations of US Constitutional law:

There is explicit right of privacy in the US Constitution. But Justice Goldberg found one in Griswold vs. Connecticut and got the court to agree with him. The reasoning was a stretch, but until recently few were arguing to go back to prohibiting contraception

There is no explicit prohibition of female homosexuality in the Torah. But Rambam found one and codified it in the Mishneh Torah. It appears his reasoning was based on inaccurate facts (it was the Greeks, not the Egyptians, who practiced homosexuality) but until recently this wasn't a major topic of concern among Jews.

6/09/2006 10:16 AM  
Blogger Nephtuli said...

There is explicit right of privacy in the US Constitution. But Justice Goldberg found one in Griswold vs. Connecticut and got the court to agree with him. The reasoning was a stretch, but until recently few were arguing to go back to prohibiting contraception.

Goldberg's concurrence actually wasn't horrible, but it was Douglas' opinion that was baseless and the source of so many constitutional problems today. And overturning Griswold would not return us to the days where contraceptives were banned.

6/09/2006 11:43 AM  
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