As the Supreme Court takes up the two marriage equality cases this week, Joseph Farah has a column about Justice Anthony Kennedy that picks up on the same lines the justice delivered in Sacramento a couple weeks ago that I wrote about when it happened, about the idea of legislating from the bench. He asks if Kennedy is “finally waking up” because of these comments:
Anthony Kenney (sic) has been on the Supreme Court for a long time.
For conservatives who revere the constitutional separation of powers, it’s an understatement to say this Ronald Reagan appointee has been a disappointment.
Considered a “swing vote” on the court, he often swings the wrong way. He’s something of a switch-hitter – sometimes swinging right and sometimes swinging left depending on who’s pitching.
But he made a statement earlier this month that was somewhat encouraging.
Here’s what he told reporters in his hometown of Sacramento about the tendency of the court to legislate from the bench: “I think it’s a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”
Does he mean what he says?
Has he had an epiphany?
Farah says he’s not holding his breath and he’s right not to do so. Let me answer that last question: No, he hasn’t. I called this “meaningless rhetoric” when I wrote about them and that is exactly what it is. Kennedy does not oppose “legislating from the bench” and — here’s the crucial part — neither does Farah. Because that is a meaningless phrase, like “judicial activism” and “judicial restraint,” that really only means that the court is ruling the way he does not want them to rule. No one can give a coherent definition of the concept, least of all Farah.
Farah has rambled on for years about “judicial activism” and “judicial restraint,” yet he cheered on the Supreme Court when it went far beyond what even the plaintiffs were asking them to do in Citizens United and struck down a large portion of a law passed by Congress. Neither he nor any other conservative was the least bit concerned that “nine unelected people from a narrow legal background” overruled a democratically-passed law. Everyone is against “judicial activism” unless they agree with the outcome. Then they suddenly forget all about the concept. Which makes such arguments utterly incoherent.