Anthony Kennedy “retired” under suspicious circumstances. He was replaced with Justice Brett Kavanaugh, despite credible “partisan” labeled opposition, that he had sexually assaulted women at least 2 women during his “youth” and had at least “83 ethics complaints” filed against him during his his time as lower court judge. The evidence suggests that "Bart" Kavanaugh was appointed, in part, due to his RW Catholic Conservatism, anti-abortion stances, but also due to his personal relationship with Anthony Kennedy! Like other so-called “moderates” Kennedy proved to not really care about stare decisis or noble principles of law as much as emoluments and social influence. This was underlined recently in an appearance the two gave jointly at a Seventh Circuit judicial conference in a question-and-answer format moderated by Chief Judge Diane Wood, reported on by "Above the Law." They report him saying:
“I see technology straining our traditional understandings of speech, of privacy and of war in a way that’s going to be a huge challenge for our system of separation of powers, and a huge challenge for all of us as judges and as citizens”["ATL"]
When Kavanaugh says that "modern technology" is at fault for an assault on “privacy” he seems to be thinking of the privacy with which privileged people can make decisions to rob workers or engage in unethical behavior with impunity. That is why Mystal says' he probably is not on the side of the issue that he implies he is.
Elie Mystal, reports that that “creeps him out.” It creeps me out too. The reason is that tyrants always blame some strawman for their decisions to exercise arbitrary power and censor critics and Kavanaugh was blaming modern technology for giving the President powers to “wage cyber war” online. If the Congress and Courts cede power to the executive, as RW conservative activists like Kavanaugh and Barr have done, then a ruthless and unethical President will use that power ruthlessly. He is right to be concerned about such power. Elie Mystal is right to be concerned about whether he is will be any check on a President who shares his corruption and ideological view.
Kennedy
Anthony Kennedy, on the other hand, is obtusely in denial about what is wrong. At the conference Judge Gary Feinerman, an Obama appointee who clerked for Justice Kennedy alongside Justice Kavanaugh. asked him:
“What do you see as the source of what’s currently plaguing our society” ["ATL"]
Kennedy is in denial because he specifically denied the role of money, access, emoluments, job offers and the improper access and influence they buy in his Citizens United Case. And he compounded that error in rejecting a 100 year body of evidence in the Montana Case:
So when Feinerman asked him:
“what do you see as the solution?” asked U.S. District Judge Gary Feinerman, ["ATL"]
That obtuse blindness reared its head. Kennedy has no solution. Because he already sabotaged one solution, reasonable restrictions on bribery and corruption.
When Kennedy talks about "civility" he is missing the point that civility requires a virtuous civil system that involves self moderation by officers of the law, officials and leaders of all kinds. Loss of civility is a symptom not an underlying issue. When people no longer believe that their civil servants serve them, they lose respect for the system. When someone uses his position to influence where his children work so they can become filthy rich, that is what damages "civility." People see that and are offended. People who would respect the courts, lose that respect. Raw power can't restore that respect. Only justice can.
“I don’t know, Gary,” Justice Kennedy said. ["ATL"]
Of course Justice Kennedy doesn't have an answer. His citizens United decision denied the problem and thus exacerbated it. If you can't diagnose the problem you focus on symptoms. Our democracy is in trouble due to the corrupt influence of money and power over resources and access to those resources. If you don't have a virtuous government, then raw power rules. When raw power rules elites manipulate mobs and republican democratic forms are replaced with their corrupt counterfeits. So he blames democracy:
“We’re still too overconfident that democracy can survive without conscious effort. But that’s not true.” ["ATL"]
Democracy won't survive with corrupt judges and concentrated raw power. It won't survive if officials aren't held accountable for their deeds and judges label bribes as free speech. Elie's article drips with a certain amount of justified contempt. He ends his post in a rant, which deflects from a valid central point. Those two are blind to the actual causality of what is going wrong. Looking to them for wisdom is a waste of time. At it's heart the problem is a three fingered thing, and the tyranny of courts and tyrants was defined by John Locke in his two treatises:
I'm looking at them for lessons to learn about what not to do, in order to give some ideas about what we can do.
