Philosopher Samuel Rickless (UC San Diego) writes with kind words and apt observations:
I do so enjoy reading your blog. I look forward to it every morning,
and consider it a breath of fresh air, especially after spending most
of my breakfast cursing at the NYTimes.Case in point: today’s front page story about how much the right wing
hates Anthony Kennedy. Now I know that the story is about right-wing
reaction to Kennedy’s views, but the article is notably unbalanced in
its treatment of Kennedy’s jurisprudence. His admirers are described
as praising his judicial temperament: "good judgment, fairmindedness
and a willingness to disentangle his own moral values from the law".
His detractors (including Bork, who was interviewed for the piece) are
described as questioning his "judicial views" on the grounds that he
does not "stick to the Constitution." The two scholars who are quoted
as praising him are Robert Gordon and Michael Dorf (a former Kennedy
clerk). Gordon defends Kennedy’s "ability to empathize with those
outside his own moral code". Dorf defends Kennedy’s "openness",
reading the fact that "he changes his mind a lot" as a sign of
"impartiality". Jeff Rosen, who describes himself as a "liberal
advocate of judicial restraint," criticizes Kennedy for having
"embraced a rhetoric of judicial supremacy." Nowhere in this piece is
ANYONE quoted as defending Kennedy’s JUDICIAL views. The overwhelming
impression one gets from the piece is that Kennedy is a fair-minded guy
who has abandoned judicial restraint for judicial activism, mostly
because he doesn’t have a consistent jurisprudence.Now I am not exactly a Kennedy enthusiast. But surely the NYTimes
could find SOMEONE to speak in favor of Kennedy’s judicial opinions.
Both Romer and Lawrence, for example, speak to Kennedy’s abhorrence of
second-class citizenship. And his much-ridiculed statement in Casey
can be cited as a defense of the right to define one’s own identity, as
a fundamental component of human dignity. (Casey also contains a
sophisticated interpretation of stare decisis.) And, of course, the
finding of unenumerated rights protected by the Constitution has an
illustrious pedigree, tracing all the way back to Madison’s speech to
Congress in defense of the Bill of Rights. So what if Kennedy doesn’t
always tell us whether he is applying strict scrutiny or the rational
basis test! There are moral principles in play, and Kennedy sees them.
This is the important thing, and it is a sign of general legal
ignorance and illiteracy that the NYTimes reporter who took on the job
of covering the Kennedy story not only passed over the principles, but
also passed over everyone in the legal academy who might have defended
Kennedy’s appeal to them.
Indeed. I’m sure my colleague Larry Sager, among others, would have talked to them! Lawrence v. Texas is one of the most significant civil rights decisions of our time, and it is to Justice Kennedy’s credit that he authored it.




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