Balkinization  

Sunday, March 24, 2013

"My Work Here Is Done"

Mark Tushnet

Suppose that Justice Kennedy wanted to leave the Court with his reputation at a high point, as he sees things. This Term would seem to be perfect -- far better than any recent Term, or (perhaps) any Term in prospect. Consider what Justice Kennedy might have accomplished when the Term ends: further restrictions on affirmative action, gutting or finding unconstitutional Section 5 of the Voting Rights Act,  and -- of course -- substantially advancing the cause of gay marriage. From his point of view, that's a near-perfect Term.

Of course he's a Republican, and might not want to leave when his successor might undo his work (though norms within the Court of keeping some degree of continuity for a while would mean that the changes, while perhaps inevitable, would not be immediate). But, Justice Kennedy is a Reagan Republican, not a Tea Party Republican, and we have the view expressed by another Reagan Republican, Justice O'Connor (reported by Jeffrey Toobin) that "What makes this harder is that it’s my party that’s destroying the country."

Is this a liberal's fantasy or nightmare?

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