The feeding frenzy of speculation about the next Supreme Court vacancy is starting early this year, and a trial balloon already needs shooting down.
The Court’s 2001-02 term is its eighth with the same lineup of justices, the longest stretch without a vacancy since the 1820s. Only four presidents have not appointed a single justice, and two of those did not serve a full term. So the odds are that a vacancy will happen soon.
The speculators say the next retirement will likely come from among Chief Justice William Rehnquist and Justices John Paul Stevens and Sandra Day O’Connor. President Richard Nixon appointed Rehnquist to the Court in 1971 and President Ronald Reagan appointed him Chief Justice in 1986. President Gerald Ford appointed Stevens in 1975 and President Reagan appointed O’Connor in 1981.
While speculating and handicapping are common outside the Court, campaigning from within is rare. Yet Court-watchers are buzzing that Justice Anthony Kennedy, appointed in 1987 by President Reagan, is positioning himself for elevation if Rehnquist steps down.
An article in the Feb. 17 Chicago Tribune looked at the circumstantial evidence, including Kennedy’s very public participation in a “Dialogue on Freedom” project with First Lady Laura Bush. The article quoted one “court observer” saying “I’m sure he wants to be chief justice.”
That elevation would be a mistake. Some claim as evidence of Kennedy’s moderation that he is in the Court majority more than any other justice. This Court, however, is closely divided between activist justices who make law and restrained justices who follow it. Being in the majority nearly all the time means Kennedy is trying to please everyone. We all know where that leads.
A brief review of critical constitutional decisions of the last dozen years reveals a more disturbing picture. These are the decisions revealing where a justice really stands, the kind of power a justice thinks he has. When it counted, Kennedy sided with those judges who believe they and not the people should make policy and define the culture.
Last year, Kennedy wrote the opinion in Legal Services Corporation vs. Velazquez, striking down Congress’ restriction on using taxpayer money for lawsuits to overturn welfare reform. He was joined by activist Justices Stevens and David Souter. Justice Antonin Scalia wrote the dissent, joined by Rehnquist and Justice Clarence Thomas.
In 2000, Kennedy joined the majority in reaffirming the Court’s control over police procedures. In Dickerson vs. United States, the Court upheld its created rules, seen every day on TV, that police read suspects their rights. Though the Constitution does not require such rules, and Congress passed a law making them optional, the Court said its rules take precedence. Scalia wrote the dissent, joined by Thomas.
In 2000, Kennedy and Souter joined Stevens’ majority opinion striking down student-initiated, student-led voluntary prayer before high school football games. This decision had nothing to do with the real Constitution, which forbids the federal government from establishing a religion, but is another Court-created cultural regulation. Scalia and Thomas joined Rehnquist’s dissent.
In 1996, Kennedy joined Justice Ruth Bader Ginsburg’s opinion striking down the Virginia Military Institute’s all-male tradition. This was a breathtakingly activist example of using the Constitution to impose the justices’ personal sociological views on the people. Scalia wrote the dissent.
In 1995, Kennedy wrote the opinion in Romer vs. Evans striking down a state constitutional provision prohibiting special legal rights for homosexuals. The people of Colorado, hardly a right-wing bunch, overwhelmingly passed the measure, but the Court knew better. Kennedy essentially accused Colorado of lying about its motives in passing the measure, saying it was “inexplicable by anything but animus toward” homosexuals. Scalia wrote the dissent, joined by Rehnquist and Thomas.
In 1994, Kennedy joined Stevens’ opinion striking down term limits for federal legislators. Though the Constitution says that states may do what the federal government cannot, the majority said that if the feds can’t, the states can’t. Rehnquist and Scalia joined Thomas’ scholarly dissent.
In 1992, Kennedy wrote the opinion in Lee vs. Weisman striking down clergy-led voluntary prayer at graduation ceremonies. Justice Scalia wrote the dissent, joined by Rehnquist and Thomas.
And in 1992, Kennedy joined with Souter and O’Connor in crafting the decision upholding a right to abortion and creating new abortion regulations. As even honest abortion supporters admit, this is a political or social policy issue, but the Constitution has nothing to do with it. These activist justices actually wrote that the Constitution protects “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” They actually wrote that. The Constitution about which they wrote, however, was the one they made up, not the real one.
These examples reflect Kennedy’s belief that judges ultimately have virtually unlimited power. In a documentary about the Court, he said that justices can use the years since the Constitution’s ratification to decide which provisions are good and useful and which ones are not. Scalia’s response in that documentary should be same as the Bush administration’s response today to the idea of elevating Kennedy: “Don’t sign me up for that one.”