Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, March 5, 2018

Justice Kennedy's opinion is "nuts," and other non-disqualifying commonplaces about AMK outputs

Senator Tammy Baldwin and her staff are attacking a district court nominee in Wisconsin based on critical comments he made about Justice Kennedy in a blog comment and a couple of radio interviews. The focal point of the attack on nominee Gordon Giampietro is criticism of the opinions in Obergefell v. Hodges and Lawrence v. Texas:

"Senator Baldwin believes serious questions remain about whether this nominee would be able to serve as a fair and impartial judge on a federal court," Baldwin spokesman John Kraus said.

Kraus focused on Giampietro's comments on the U.S. Supreme Court's decision on same-sex marriage. In 2015, Giampietro said of Justice Anthony Kennedy's ruling, "It's not really legal reasoning" and added that Kennedy "went off the rails years ago" in a decision striking down sodomy laws.

“This nominee for a lifetime appointment to the court attacked a majority decision from the Supreme Court, written by Justice (Anthony) Kennedy, and said it could be ignored," Kraus added. He said Giampietro should have made this information available to the nominating committee. 

Really? C'mon. There's nothing disqualifying about attacking "a majority decision from the Supreme Court," especially one authored by Justice Kennedy. It's as American as America itself.

Conveniently, Mitch Berman and David Peters at Penn have just posted to SSRN a new paper about Justice Kennedy. They defend him as a principled jurist. But to set up their defense, they collect criticisms in Part I. Here are some evaluations of aspects of a range of AMK opinions for the Court:

  • Parents Involved is "cryptic." (Jonathan Fischbach) 
  • LULAC is "bizarrely unclear." (Michael S. Kang) 
  • Boumediene is "Kafkaesque." (Robert J. Pushaw, Jr.)
  • Casey is "unintelligible." (Michael Stokes Paulsen)
  • Lawrence is "remarkably opaque" (Cass Sunstein) & "almost incomprehensible" (Steven Calabresi).
  • Abbasi is "wholly unsubstantiated," "staggeringly wrongheaded" and, "for lack of a better word, nuts." (Stephen I. Vladeck)
  • Alden is "not only intellectually insupportable ... but ... simply wrong" (Louise Weinberg); also, "nothing short of fanciful" (Daniel Meltzer). 
  • Citizens United is "simplistic" and "preposterous." (Ronald Dworkin)
  • Gonzales v. Carhart "refuses to take Casey and Stenberg seriously.” (Ruth Bader Ginsburg)

Senator Baldwin and her staff might not recognize all the names here (I don't), but these critics plainly represent a wide range of views on other matters. Whatever one thinks of particular opinions, Justice Kennedy has at one time or another driven almost all of us to conclude he's "gone off the rails" in some respect or another. This doesn't disqualify. It just shows that we're paying attention.

https://mirrorofjustice.blogs.com/mirrorofjustice/2018/03/justice-kennedys-opinion-is-nuts-and-other-non-disqualifying-commonplace-reactions-to-amks-outputs.html

Walsh, Kevin | Permalink