Justice Kennedy Has Decided that He’s Going to Run Things for a While.
I must highlight this bit of Justice Kennedy’s majority opinion from today’s SCOTUS case. The background here is that in a prior case, the SCOTUS decided (in a similar vote) that detainees are entitled to habeus corpus rights like citizens of the US because Guantanamo Bay is actually a sovereign part of the United States. The Bush administration had argued that it was not, since it belonged to Cuba and we were there with their consent. Justice Kennedy seems to believe that a rental agreement where you get control over the property means that it’s yours. Anyhow, that’s the setup. Here’s the bit I wanted you to see.
Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.”
The sad thing is that he’s completely serious, which alarms me. He’s been a Justice on the Supreme Court for 20 years and was an Appellate Court judge for 13 years before that. His job description for the past 33 years has been painfull simple: compare the laws brought before you to the Constitution. By now, he should have the entire Constitution memorized and he should be able to recite any part of it on demand.
Yet somehow, the simple fact that our elected officials determine the law has escaped him. That is a sign of rank incompetence. If he had any dignity, he’d resign now. If we had the abbility to impeach him, we should. No Supreme Court Justice should ever display the combination of ignorance and arrogance that Anthony Kennedy did in that sentence.
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What a dumb post. He knows his job better than you could ever hope to, you worm.
He has a funny way of demonstrating it. But what the heck. It's only the Constitution he's ignoring. You don't need that musty old document, right?
And knock off the name-calling.
"And knock off the name-calling."
May I at least accuse you of "rank incompetence" as you did him?
Of course. But you would at least need to bring some evidence to the table. Like, say, you had found that I had written that the Supreme Court said what the law of the land is instead of the elected officials the Constitution has specifically charged with that job.
Now if I had done that, you could call me incompetent all day.
"you could call me incompetent all day."
Good, then I shall. Writing laws is indeed the job of Congress, but saying “what the law is”, i.e. interpreting it vis-a-vis the Constitution– clearly the meaning in this context– is the job of the judicial branch. Kennedy, writing for the majority, knows his job and did it for 175 pages or whatever. If you want to argue the finer points of that opinion, fine, but willfully misconstruing what he said as you did is a silly waste of everyone's time.
Wrong, spoots. The job of the judiciary in that regard is to ensure that the law does not conflict with the Constitution. That's not saying what the law is but saying that the law complies or does not comply. Nothing more.
Congress says what the law is when they pass it. That's why Congress debates the law in an open fashion, so we who have elected them can see the process and inject ourselves into it if necessary.
Laws are determined by the elected officials. They are measured agains the Constitution by the judiciary. That's basic black-letter Constitution.
"That’s not saying what the law is but saying that the law complies or does not comply."
Whatever, dude. Kennedy doesn't need a refresher course from you or anyone. "Say[ing] 'what the law is'" is a pretty vague phrasing, I admit, but given the immediate context, there can be no real question as to what he meant. He's obviously not making a play for the power of the other 2 branches.
Except that's exactly what he and the rest of the majority did, spoots. Never, ever in the history if this country have illegal combatants been given habeus rights. Now they have more habeus rights than you do. If that's not a power play, then the phrase has no definition at all.
As I wrote on my blog, McCain could win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision.