Justice Kennedy, Still Consistent, Makes the Most Pusillanimous Choice
He's been a weasel... excuse me, "swing vote" all along.
I honestly don't know if he has some vestigial threads of legal integrity or not, but it's clear that he has a concern for his legacy in historical terms.
The conflict between being a naturally somewhat-conservative jurist who will always choose what looks like the 'winning side' in the short term, and a legal scholar with some uneasy sense of the march of history has been abundantly clear throughout his career.
And now the walls are closing in.
History-- the same History that has justly relegated the Taney Court to infamy, the same History that has spoken eloquently on Korematsu, the same History that has marched--in tiny and slow increments, but steadily all the same-- onward toward equity and justice, will not look kindly on the Roberts Court, and Kennedy obviously knows this.
(Hence his weasel words on the Hawaii decision and the token nod toward Korematsu-bashing.)
He knows what History will make of this Court and the Justices that have enabled it, and he seems to think a bolt for the door, now, might save him from at least some of that opprobrium.
It's possible he's aware of plans to do something that will make the Hawaii decision look like a light warmup in the "burning down democracy" category.
Whether that has anything to do with denying due process to non-citizens, or attempting to roll back sixty years of decisions on the side of civil rights and equity, I don't know. Neither would surprise me, at this point.
But Kennedy seems to think that if he's not around for it, he might not end up in the same basket as, for example, Robert Cooper Grier, as one of the great betrayers of the U.S. Constitution from the Supreme bench.
So away he sneaks, a craven abandonment that's hardly surprising, given his record.
But Justice Kennedy, I really do not think you are going to escape History's judgment thus. Instead, you will win the perpetual title of "Jurist Who Enabled the Fascist Takeover of America in the Early 21st Century."
Congratulations.
Sleep well.
disgustedly,
Bright
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