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Whose Scotus is it, anyway? While John Roberts may be the Chief Justice, Anthony Kennedy is well-positioned at the center of the court’s ideological spectrum, and this centrist role as a swing vote gives him a tremendous influence balancing the split court in 5:4 decisions.
The “problem” that needs fixing is a situation when a single Justice “owns” an area of the evolving law, writing a series of key decisions in a row; this can be called “justice specialization”, or “judicial hogging” or “issue hogging”. This is an egotistical abuse of stare decisis, as such justices maneuver to bind future courts and society at large, while following their own footsteps. It is regretful, although unavoidable all too frequently, when the Court supplants the judgment of Congress or of the people with its own. It is simply wrong when such overriding judgment is of a single justice persona. Kennedy, of course, is not the only hogger justice; however his aforementioned centrist influence gives him a flexibility to do so, and greatly aggravates this problem of such single-person quest; his preferences in such issue-area are dictatorial. Such decisions lack requisite democratic legitimacy and are damaging both for the Court as an institution, and for the national consensus as a whole, aggravating political polarization.
As a prime exhibit consider the chain of progressively radical “gay rights” decisions: Romer (1996), Lawrence (2003), Windsor (2013), Obergefell (2015), which were all written by Justice Anthony Kennedy. His pet project over the 20 years amounts to an attempted redefinition of the institution of marriage being imposed on an American people. In that - reflecting his preference alone. Obergefell is especially appalling and notable with regards to issue hogging.
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So if the Court declines to moderate itself, the Senate can help. With a likely delay in confirmation of Gorsuch anyway due to Democratic opposition, now is a good time to do so: Senate can make lemonade (pressure on the Court to moderate) out of lemon (Democratic filibustering of the nominee). In this sense speedy confirmation of Judge Gorsuch may be advantageous for the conservative cause short-term, but a properly managed delay may benefit the Congress as an institution, and to rebalance the separation of powers.
The “problem” that needs fixing is a situation when a single Justice “owns” an area of the evolving law, writing a series of key decisions in a row; this can be called “justice specialization”, or “judicial hogging” or “issue hogging”. This is an egotistical abuse of stare decisis, as such justices maneuver to bind future courts and society at large, while following their own footsteps. It is regretful, although unavoidable all too frequently, when the Court supplants the judgment of Congress or of the people with its own. It is simply wrong when such overriding judgment is of a single justice persona. Kennedy, of course, is not the only hogger justice; however his aforementioned centrist influence gives him a flexibility to do so, and greatly aggravates this problem of such single-person quest; his preferences in such issue-area are dictatorial. Such decisions lack requisite democratic legitimacy and are damaging both for the Court as an institution, and for the national consensus as a whole, aggravating political polarization.
As a prime exhibit consider the chain of progressively radical “gay rights” decisions: Romer (1996), Lawrence (2003), Windsor (2013), Obergefell (2015), which were all written by Justice Anthony Kennedy. His pet project over the 20 years amounts to an attempted redefinition of the institution of marriage being imposed on an American people. In that - reflecting his preference alone. Obergefell is especially appalling and notable with regards to issue hogging.
( Read more... )
So if the Court declines to moderate itself, the Senate can help. With a likely delay in confirmation of Gorsuch anyway due to Democratic opposition, now is a good time to do so: Senate can make lemonade (pressure on the Court to moderate) out of lemon (Democratic filibustering of the nominee). In this sense speedy confirmation of Judge Gorsuch may be advantageous for the conservative cause short-term, but a properly managed delay may benefit the Congress as an institution, and to rebalance the separation of powers.
