30 June 2018

Justice Kennedy's Retirement Is A Reminder That Every Day Is A Time For Choosing

A great deal of speculation, pontification, and blatant posturing followed Justice Anthony Kennedy's June 27th announcement of his retirement from the Supreme Court. Predictions of a coming reversal of newly-won (some would say newly-created) civil rights abound. Celebrations of the first decidedly conservative Supreme Court in seventy years flow with equal abandon.

As is common when politics intersects the law, both sides are missing the point.

Justice Kennedy's retirement--as is the case with all outgoing Supreme Court justices--is a moment that calls each citizen to remember the role the Court plays not only in our government but in our society.  It is a reminder that our elected officials, our Presidents and Senators, are empowered to impact both government and society not only for this generation, but for all subsequent generations. If our elected officials typify the society we are today, justices illuminate what manner of society we will be tomorrow. The composition of the Supreme Court is not a "liberal" or "conservative" question, nor even a purely political question, but is an "American" question.

Justice Kennedy's retirement is an invitation to reread what the Constitution says about the Supreme Court, and understand what role it plays in Constitutional government.

The Supreme Court is the only court in the United States mandated by the Constitution (Article 3, Section 1):
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
The Supreme Court is an appellate court for almost all cases within Federal jurisdiction (Article 3, Section 2), " both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Appellate jurisdiction empowers the Court to review both the verdicts of lower courts within the Federal judiciary and their interpretations of Federal law, which includes assessment of the Constitutionality of Federal law.

Under the Constitution, the Supreme Court is the highest judicial authority. Its interpretations of Federal law are binding upon all Federal courts, and its rulings are applicable to the whole of the Federal government--as Chief Justice John Marshall wrote so powerfully in Marbury v Madison, "It is emphatically the duty of the Judicial Department to say what the law is." Yet it does not possess unlimited power or unlimited authority. The 11th Amendment sharply limits its jurisdictions where disputes involve a single state, and by inference John Marshall's own assessment of the role of the Court does not extend to saying what the law should be--that duty is reserved to the Congress.

The truth of the Supreme Court is that its Constitutionally-defined construction and jurisdiction are distinctly non-partisan and non-ideological. Political ideologies are the foundations of advocacy for what laws we should have, and what laws we should discard, but no advocacy can alter the text of the laws as they are written. The role of the Court is to apply the law--apply the letter of the law--to cases brought before it, and the law is neither liberal nor conservative; rather, the law merely is.

Naturally, both liberals and conservatives desire judges and justices who will interpret the law in ways that favor their political aims.  This has always been true, and it will always be true. It is also true there have been judges and justices who have contorted and distorted the law (including the Constitution), to arrogantly impose their views on society--such cases are etched permanently in our judicial comprehension: Dredd Scott v Sanford, Roe v Wade, Obergfell v Hodges. Yet the Constitution calls for a Court that rises above both partisan and personal ideology, that dispassionately reads the law as it is written and just as dispassionately applies it to the cases brought before it.

The Supreme Court is not merely the balancing third branch of the Federal government, acting as a brake upon the predations of both the legislative and executive branches against the rights of the people. By its explicit charter within the Constitution, it is the guarantor that the rule of law shall remain the foundation of this Republic. John Marshall was not the first to conceive the idea that no act of Congress could contravene the Constitution--the Kentucky and Virginia Resolutions argued that exact idea in much the same language as Marshall some five years prior to Marbury--but it was the Court's finding in Marbury that put the matter beyond all dispute, "...an act of the Legislature repugnant to the Constitution is void." The Court is this nation's assurance that not even the Congress can contradict the Constitution.

Thus it is that the promise of the Court, if not always its legacy, is that, under our Constitution, within the limits of the Constitution, the rights of all people shall always prevail.  The Court thus becomes the embodiment of the Constitutional ideal, that this Republic be governed by laws rather than men.  This is the Court we can have, so long as sober and serious justices occupy its bench.

Yet justices are but men, and they are appointed by men, who are in turn elected by men. So it is that Justice Kennedy's retirement is a reminder to us all that Constitutional government only works when We The People are prepared to do the work of governance.  We will only have the Court the Constitution promises us if we elect Presidents and Senators who understand, appreciate, and esteem that promise, and who are serious in their oath of office to ensure they appoint justices who will give us that Court.

Justice Kennedy's retirement, as is the retirement of every justice, is the periodic reminder that, in a republic, every day is a time for choosing. Every election is a matter of consequence, and every vote is of significance. Justice Kennedy's retirement is our periodic invitation to engage with our government, with both the President and the Senate, to petition that we might get the justices and the Court the Constitution has promised to us.

The Court may say what the law is, but ultimately it is We The People who will say what the law should be, and it is We The People who will say how the Court shall be. As Justice Kennedy closes his long and distinguished tenure on the bench, the best honor we could show him would be to remember this simple truth, and to put this simple truth into action, today, and every day.

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