Lithwick's piece argues that conservatives criticize Justice Kennedy for every position Kennedy takes, and that the criticisms are internally inconsistent and unprincipled. She uses two primary examples. First, former Alabama Supreme Court Justice Tom Parker based his election campaign on his opposition to Roper v. Simmons, and particularly on the fact that Kennedy's opinion trumps the will of state legislatures that wanted to allow the death penalty for 16 and 17 year-olds. Second, the Wall Street Journal editorial page recently wrote a piece invoking Justice Kennedy's opinion in Lawrence v. Texas as justifying the need for a constitutional amendment on same-sex marriages. In particular, the Journal argues that Kennedy's opinion makes it more likely that courts will trump the will of state legislatures that want to define marriage in a particular way.
According to Lithwick, the fact that these two criticisms are both being made by conservatives against the opinions of Justice Kennedy shows that conservatives are inconsistent and unprincipled:
Just so we're perfectly clear here: Conservatives are bellowing at Anthony Kennedy because in Roper he ignored the Constitution and attempted to divine the will of the majority of the people. But they also hate him because in Lawrence he ignored the will of the people as he attempted to divine what was constitutional.The writing here is sharp, and if you don't look too closely it might even seem kind of witty. But if you actually think about the argument Lithwick is making, it quickly becomes clear that it makes no sense.
Not a whole lot of wiggle room there, really.
Whether you agree or disagree with the criticisms Parker and the WSJ are making — for that matter, even if you think Parker and the WSJ are totally nuts — it's not hard to see that they are making the same point. They both criticize Justice Kennedy for writing opinions that trump the will of the people as expressed through the legislative process. Both Parker and the WSJ want the law in these areas to be made by state legislatures instead of the U.S. Supreme Court, and they oppose opinions Kennedy wrote that ruled that legislative decisionmaking on the issue was prohibited by the Constitution. Again, you can agree or disagree. But these two criticisms make the same basic point, and seem to follow from a consistent perspective.
Lithwick misses this — or, perhaps, tries to hide this — by comparing apples and oranges. In the snippet above, she compares complaints that Kennedy ignored the will of the people with complaints that Kennedy was trying to divine the will of the people. But as far as I know, no conservative has criticized Justice Kennedy on the ground that Roper "attempted to divine the will of the majority of the people." Rather, conservatives have criticized Roper on the ground that it ignored the will of the people as expressed in state law, and its analysis of the emerging national consensus was quite plainly unconvincing. Again, the criticism in the two contexts seems to be pretty much the same.
(originally posted at orinkerr.com)