Years ago, when I was a young lawyer, I had an interesting conversation with a much older judge. He was a Democrat, an old-school liberal, and he said something revealing: “There’s the law, and then there’s what’s right. My job is to do what’s right.” Or, to put the philosophy in the words of one of my leftist law professors, “You determine the outcome first, then you do your reasoning.” Time after time, that’s exactly what Justice Anthony Kennedy appeared to do.
It was written that certain lawyers will “strain at a gnat but swallow a camel “ if either will advance their agenda. It was not seen as being to their credit.
As that demoncrap judge revealed, Justice Scalia was right:
It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.
What ‘we the people’ want most of all is someone who will agree with us as to what the evolving constitution says.
We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.
(and that includes previous SCOTUS decisions and laws passed by Congress)
What in the world is a ‘moderate interpretation’ of the text? Halfway between what it really says and what you want it to say?
The only reason you need a constitution is because some things you don’t want the majority to be able to change. That’s my most important function as a judge in this system. I have to tell the majority to take a hike.”
And from a 9th Circuit dissent by Judge Alex Kozinski:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted….But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. …..
Looking at Trump’s list of 25 candidates (and reading the speculative “short lists”) to replace Kennedy, one thing seems certain: The moment the new nominee is confirmed, no matter who it is, the Supreme Court will grow appreciably more originalist. Look for fewer sweeping moral statements — like Kennedy’s declaration in Obergefell that “marriage responds to the universal fear that a lonely person might call out only to find no one there” — and more close textual and historical analyses of the Constitution.
No one should believe that any judge is entirely free of ideological bias, but there is a profound difference between judges who approach a legal conflict with the question, “What does the Constitution mean?” and those who instead ask, “What does justice demand?”
So, what can we reasonably expect?…
Second, look for the court to offer greater clarity on the Second Amendment. Since Heller and McDonald, the Court has essentially gone quiet about gun rights. Left undecided are questions about the extent of the right to bear arms outside the home (implicating carry permits) and the nature and type of weapons precisely protected. If an originalist court follows the late Antonin Scalia’s reasoning that the Second Amendment attaches to weapons “in common use for lawful purposes,” then broad “assault weapons” bans will likely fail.