And Also: Meanwhile, a pro forma ruling rejecting a last minute death penalty appeal (means of execution); he was later executed. One of those on principle cases. [Edit] This SCOTUSBlog summary of the clean-up order should replace my previous comments, including notice of a grant of a case to examine the "dual sovereignty" double jeopardy rule. A few notables.
The official end of the term seemed to mean another year before any justice would voluntarily retire though people were careful to note that there was still a chance a retirement would come down the next few days etc. The only thing that was expected was a catchall order (that might have some interesting statements from justices on various sues) and later on there will be three scheduled summer order days. Time for justices to plan their summer travel schedule and that special Senate summer session to be spent filling the lower courts and other Trump nominations. If only, right?
As noted by Richard Hasen over at Slate, Kennedy seemed in the mood to retire, including never joining the liberals in a 5-4 ruling this term (Roberts wrote the key ruling there, the Carpenter cell phone data case even if Gorsuch seems to have joined with him in spirit). An aside there: Hasen joined with others back when Gorsuch was appointing opposing a filibuster, arguing that if you waited until now, that one or two Republicans might join with Democrats. But, they still could on the up/down vote, plus the case was stronger there given Garland. Meanwhile, there were grounds to go all out to fight the norm breach and support their base. Hasen however promoted the b.s. idea the Democrats got on benefit for it. Tweeted his article on point repeatedly.
Kennedy's last opinion for the Court was the Wayfair tax case of some significance though one where only one liberal joined his decision, Robert joining the others in dissent. His last personal opinions were concurrences appealing to governmental self-restraint (Muslim ban) and arguing requiring basic disclosures in crisis pregnancy centers and advertising was some grave threat to liberty. Toss in him yet again not dealing with partisan gerrymandering and avoiding deciding the basic issues in the same sex marriage bakery dispute, and you have someone in his 30th year ready to retire. Anyway, after we thought the justices were done, Kennedy released his retirement announcement (official end of July) and his colleagues their kudos. Charming.
I viewed Kennedy basically as a matter of the likely alternative -- the Reagan justice allotment was (roughly) a Nixonite, a Federalist Society type (who grew into a FOX viewer), pragmatic conservative and Kennedy. The guy we got instead of Bork. On that level, he did some good though we can cite all his low points too.* Didn't expect much, so you know, okay. Felt somewhat more positive about him than some here. But, oh boy, did he end badly. This term, Roberts if anything stepped into the reasonable conservative role (as far as that is possible) a few times. Masterpiece Cakeshop as the one time Kennedy sort of stepped in, and it was a special case given his gay rights concerns, and a mixed bag too.
Kennedy retiring in 2015 would have been looked upon somewhat kindly. But, now? He's a Trumpite or a Republican, same difference. Not joining a single 5-4 liberal ruling this term fits the character of them now. Chris Hayes said it best there. Even the means he used (the standard there is to do so in open court, so to speak) -- as if he was embarrassed or too tired to care -- to retire was pathetic. Mind you, things will be worse with his replacement.
Hard to expect his former clerk to be truly honest here, but don't buy this approach, especially given Kennedy himself viewed his role as a public duty. No, he doesn't have carte blanche morally to retire whenever he feels like it. Understand the negative take here, but don't really think the "he argued gay rights badly" approach holds up that well. Was the privacy approach, unenumerated rights after all involved, in Griswold and Roe wrong? RBG using equal protection alone, which Kennedy did mix in, wouldn't sudden strike down conservative opposition. Ultimately, results are what counts here. Other points stronger.
What the future will hold is unclear, including abortion rights. The level of horror and despair is understandable, but what will happen in the end? Who knows. For instance, I think same sex marriage is here to stay, Roberts joining more than one opinion that in effect said as much. The Texas law that Kennedy thought too much is the type of thing Roberts et. al. would support; less so some ban that doesn't allow abortion at eight weeks or something. But, who knows, and there are various loopholes that we can imagine will now be allowed, trans rights in particularity dubious.
Around ten cases turned on Gorsuch, only one supporting a liberal result (dealing with immigration defendant rights), so crime paid there. The thing to do is for Democrats not to allow a vote until after the new Senate seats. Let the people decide! The fear is that the Democrats won't win the Senate and maybe this will even help rally the conservative troops. The basic thing is not to legitimize the pick here, especially if (as generally happened) the seat is a conservative seat that shifts things. Hard to imagine the person will be as much as a tool as Gorsuch, but Alito is no prize either.
So, we are waiting on who the nominee is to replace someone who might be around until c. 2050. Mixture of anger and depression, especially as the usual suspects, including lead troll Mitch McConnell, is looking on gleefully. It was insane to confirm Gorsuch as the Russian Investigation went on. It still is and the evidence is if anything more blatant. The Gorsuch Seat is not legitimate. This seat is not either at the end of the day. Fruit of the poisonous tree and all that. Let those who can do what they can, the fight one for the future, Republicans not giving quarter even in losing battles. In the end, they won though.
Compromise now is both ideally and pragmatically equally a dubious proposition though the usual conservative Democratic suspects in tough red state races very well will.
ETA: It has been discussed in the past that Trump's kids have some connections (including Ivanka) with Kennedy, but Kennedy's son being involved in Trump banking business in the 2000s is less known. Not secret or anything, but less known. Him retiring also is bringing back and leading to a fleshing out of such connections and attempts like picking Kennedy clerks to lower courts and the like.
This isn't conspiratorial stuff but it's notable. Still, various people on Twitter, liberal minds like Rick Hasen, the primary strongly liberal guy at Slate Jurisprudence and others are simply appalled some are suspicious. Hasen, e.g., leads with how he's old and tired. Suddenly aged the last couple years, huh? It's quite understandable a conservative wants to be replaced by one, especially one who doesn't trust Democrats probably, but the whole story is worth talking about. And, yes, see Citizens United, these financial connections are going to make people suspicious.
There seems to be some degree of overcorrection. The same with one person appalled at talk of court packing. Who knows that that will bring? It's at this point just talk, something at most to threaten if yet another conservative troll type is put on the Court while Trump is under investigation. But, saw some liberal leaning law professor appalled at "anything goes" talk because Republicans are "evil' or something. Calm down. Person even said she agreed Garland's seat was stolen. Okay. Well, at some point, painful hardball tactics will at least be brought up!
---
* It is not simply that he "liked teh gays" or something. See, e.g., his opinions on the death penalty (though in the lethal injection cases he silently drew a line at a broad attack). And, as the swing vote, he even put limits on things like his concern about use of race consciousness. Bush v. Gore and Citizens United would be two low points as would announcing the joint dissent in the PPACA Cases. His sanctimony and purple prose annoys but the former at least seemed to be honestly earned.
The official end of the term seemed to mean another year before any justice would voluntarily retire though people were careful to note that there was still a chance a retirement would come down the next few days etc. The only thing that was expected was a catchall order (that might have some interesting statements from justices on various sues) and later on there will be three scheduled summer order days. Time for justices to plan their summer travel schedule and that special Senate summer session to be spent filling the lower courts and other Trump nominations. If only, right?
As noted by Richard Hasen over at Slate, Kennedy seemed in the mood to retire, including never joining the liberals in a 5-4 ruling this term (Roberts wrote the key ruling there, the Carpenter cell phone data case even if Gorsuch seems to have joined with him in spirit). An aside there: Hasen joined with others back when Gorsuch was appointing opposing a filibuster, arguing that if you waited until now, that one or two Republicans might join with Democrats. But, they still could on the up/down vote, plus the case was stronger there given Garland. Meanwhile, there were grounds to go all out to fight the norm breach and support their base. Hasen however promoted the b.s. idea the Democrats got on benefit for it. Tweeted his article on point repeatedly.
Kennedy's last opinion for the Court was the Wayfair tax case of some significance though one where only one liberal joined his decision, Robert joining the others in dissent. His last personal opinions were concurrences appealing to governmental self-restraint (Muslim ban) and arguing requiring basic disclosures in crisis pregnancy centers and advertising was some grave threat to liberty. Toss in him yet again not dealing with partisan gerrymandering and avoiding deciding the basic issues in the same sex marriage bakery dispute, and you have someone in his 30th year ready to retire. Anyway, after we thought the justices were done, Kennedy released his retirement announcement (official end of July) and his colleagues their kudos. Charming.
I viewed Kennedy basically as a matter of the likely alternative -- the Reagan justice allotment was (roughly) a Nixonite, a Federalist Society type (who grew into a FOX viewer), pragmatic conservative and Kennedy. The guy we got instead of Bork. On that level, he did some good though we can cite all his low points too.* Didn't expect much, so you know, okay. Felt somewhat more positive about him than some here. But, oh boy, did he end badly. This term, Roberts if anything stepped into the reasonable conservative role (as far as that is possible) a few times. Masterpiece Cakeshop as the one time Kennedy sort of stepped in, and it was a special case given his gay rights concerns, and a mixed bag too.
Kennedy retiring in 2015 would have been looked upon somewhat kindly. But, now? He's a Trumpite or a Republican, same difference. Not joining a single 5-4 liberal ruling this term fits the character of them now. Chris Hayes said it best there. Even the means he used (the standard there is to do so in open court, so to speak) -- as if he was embarrassed or too tired to care -- to retire was pathetic. Mind you, things will be worse with his replacement.
Hard to expect his former clerk to be truly honest here, but don't buy this approach, especially given Kennedy himself viewed his role as a public duty. No, he doesn't have carte blanche morally to retire whenever he feels like it. Understand the negative take here, but don't really think the "he argued gay rights badly" approach holds up that well. Was the privacy approach, unenumerated rights after all involved, in Griswold and Roe wrong? RBG using equal protection alone, which Kennedy did mix in, wouldn't sudden strike down conservative opposition. Ultimately, results are what counts here. Other points stronger.
What the future will hold is unclear, including abortion rights. The level of horror and despair is understandable, but what will happen in the end? Who knows. For instance, I think same sex marriage is here to stay, Roberts joining more than one opinion that in effect said as much. The Texas law that Kennedy thought too much is the type of thing Roberts et. al. would support; less so some ban that doesn't allow abortion at eight weeks or something. But, who knows, and there are various loopholes that we can imagine will now be allowed, trans rights in particularity dubious.
Around ten cases turned on Gorsuch, only one supporting a liberal result (dealing with immigration defendant rights), so crime paid there. The thing to do is for Democrats not to allow a vote until after the new Senate seats. Let the people decide! The fear is that the Democrats won't win the Senate and maybe this will even help rally the conservative troops. The basic thing is not to legitimize the pick here, especially if (as generally happened) the seat is a conservative seat that shifts things. Hard to imagine the person will be as much as a tool as Gorsuch, but Alito is no prize either.
So, we are waiting on who the nominee is to replace someone who might be around until c. 2050. Mixture of anger and depression, especially as the usual suspects, including lead troll Mitch McConnell, is looking on gleefully. It was insane to confirm Gorsuch as the Russian Investigation went on. It still is and the evidence is if anything more blatant. The Gorsuch Seat is not legitimate. This seat is not either at the end of the day. Fruit of the poisonous tree and all that. Let those who can do what they can, the fight one for the future, Republicans not giving quarter even in losing battles. In the end, they won though.
Compromise now is both ideally and pragmatically equally a dubious proposition though the usual conservative Democratic suspects in tough red state races very well will.
ETA: It has been discussed in the past that Trump's kids have some connections (including Ivanka) with Kennedy, but Kennedy's son being involved in Trump banking business in the 2000s is less known. Not secret or anything, but less known. Him retiring also is bringing back and leading to a fleshing out of such connections and attempts like picking Kennedy clerks to lower courts and the like.
This isn't conspiratorial stuff but it's notable. Still, various people on Twitter, liberal minds like Rick Hasen, the primary strongly liberal guy at Slate Jurisprudence and others are simply appalled some are suspicious. Hasen, e.g., leads with how he's old and tired. Suddenly aged the last couple years, huh? It's quite understandable a conservative wants to be replaced by one, especially one who doesn't trust Democrats probably, but the whole story is worth talking about. And, yes, see Citizens United, these financial connections are going to make people suspicious.
There seems to be some degree of overcorrection. The same with one person appalled at talk of court packing. Who knows that that will bring? It's at this point just talk, something at most to threaten if yet another conservative troll type is put on the Court while Trump is under investigation. But, saw some liberal leaning law professor appalled at "anything goes" talk because Republicans are "evil' or something. Calm down. Person even said she agreed Garland's seat was stolen. Okay. Well, at some point, painful hardball tactics will at least be brought up!
---
* It is not simply that he "liked teh gays" or something. See, e.g., his opinions on the death penalty (though in the lethal injection cases he silently drew a line at a broad attack). And, as the swing vote, he even put limits on things like his concern about use of race consciousness. Bush v. Gore and Citizens United would be two low points as would announcing the joint dissent in the PPACA Cases. His sanctimony and purple prose annoys but the former at least seemed to be honestly earned.
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