Editor’s Preface: 75.1
By Nathan Goetting
With the retirement of Justice Anthony Kennedy, the Supreme Court is about to further lapse into right-wing activism. It’s been a reactionary court for the past 13 years, when Kennedy was the swing vote in a few divided cases. But sometimes Kennedy would swing the Court toward genuine progressive victories that frustrated his Republican colleagues. He wrote Eighth Amendment opinions, for instance, that resulted in the abolition of the juvenile death penalty1 and the reform of California’s torturously overcrowded prisons.2 He voted against the Bush administration in all four of the major cases3 brought by Guantanamo detainees during the “Global War on Terror.” These votes helped check an out-of-control executive branch and ensured that the mini gulag the U.S. maintained in Cuba could not become a completely Constitution-free zone. Towards the end of his tenure Kennedy was nearly always alone4 among his Republican colleagues on the Court in his willingness to, at least once in a while, meaningfully thwart party orthodoxy.
Kennedy’s three decades on the Court shouldn’t be valorized into a profile in political courage. He was generally a reliable and unadventurous right-wing Republican judge, as Ronald Reagan, who appointed him, surely hoped he’d be. But he was of a fundamentally different type than the four hard-driving Republican-appointed reactionaries sitting with him on the Court when he left. Clarence Thomas, John Roberts, Samuel Alito, and Neil Gorsuch have long been darlings of an aggressively regressive legal counterculture. They’ve been lionized and groomed by its vanguard think tank, the Federalist Society, whose money and political power has grown exponentially over the past few decades. They’re now powerful enough to tightly control Republican Party judicial ideology. Kennedy was the kind of Republican that no longer exists—considerate of Court norms and traditions, occasionally independent, and sometimes deferential even to liberal precedents. With the election of Ulbrecht v. U.S. was a missed opportunity for the Court—and the nation. Here the Court declined to hear a case in which the defendant had been convicted after his web browsing history was searched and seized without probable cause in clear violation of his Fourth Amendment rights. We increasingly live more of our lives online—surfing, chatting, posting, flirting, emoting, loving, and hating. Who knows where this will finally eventuate? It’s hard to imagine a Fourth Amendment issue more immediate and essential than whether the government can warrantlessly examine where we go online. A number of Mr. Ulbrecht’s other core constitutional rights were violated in this case as well, including his right to freedom of expression and to be punished based on facts determined by a jury. In their brief on behalf of the National Lawyers Guild, et. al., Zachary Wolfe and Heidi Boghosian explain the urgency and significance of the questions presented in this case. Though it may be unreasonable to do so given the direction the Court is taking, we can only hope that the Court will soon do its constitutional duty and act to restore the rights this case has put in jeopardy.
- See Roper v. Simmons, 543 U.S. 551 (2005).
- See Brown v. Plata, 563 U.S. 493 (2011).
- See Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. 723 (2008).
- See, e.g., NFIB v. Sebelius ,567 U.S. 519 (2012). Chief Justice Robert’s majority vote and majority opinion in NFIB v. Sebelius is the lone counter-example too obvious not to mention.
- See Ian Millhiser, Trump Says He Will Delegate Judicial Selection To The Conservative Federalist Society, ThinkProgress (Jun. 15 2016, 7:26 PM), https://thinkprogress.org/trump-says-he-will-delegate-judicial-selection-to-the-conservative-federalist-society-26f622b10c49/.
- Planned Parenthood v. Casey, 505 U.S. 833 (1992).
- Roe v. Wade, 410 U.S. 113 (1973).
- See Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 576 U.S. ___ (2015).