Justice Anthony Kennedy

 

Once upon a time, the New York Daily News was a reliably conservative outlet, the NY Daily Mirror was considered 'liberal', and the NY Post was a daily version of The Enquirer.  Somewhere along the way, the Mirror folded, the Daily News went hard left, and the Post became conservative.  I wasn't living there at the time so I didn't pay attention and can't tell you 'when' or 'why'.

The Post yesterday printed a story, "The real meaning of Democrats’ Supreme Court panic", about the retirement of Justice Anthony Kennedy noting:

This is why Democrats celebrate obviously superlegal decisions like Roe v. Wade: There is no right to abortion in the Constitution, but they would prefer not to battle that issue out at the electoral level.  The Supreme Court allows them to hand down their policy from the mountaintop without having to subject those policies to public scrutiny...  And that means that any reversal of such policy by a Supreme Court that actually reads the Constitution as it was written is a threat to Democratic hegemony.

(They're correct, but for the wrong reason.)

Also once upon a time, Justice Antonin Scalia remarked (possibly in commentary on Roe v Wade) that he couldn't find a right to privacy in the Constitution.  It appears that Scalia hadn't read the Constitution as far as the Ninth Amendment.  It's possible Scalia wouldn't have said that had he a better appreciation for the 9th.  If he also appreciated the 10th, he might have voted to kick Roe back to the state where it originated.

For the benefit of those who aren't able to recite the Constitution verbatim, I quote it here for you (commatosis in the original):

AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In modern American English, this means "just because we only listed a few rights here doesn't mean that's an exhaustive list. We just didn't want to waste the ink and parchment on something any idiot could figure out."  That is: there is a right to privacy in the Constitution, right there in the 9th; there is a right to travel freely, a right to smoke marijuana, a right to marry whomsoever you please, right there in the 9th; there are all sorts of rights in the Constitution, right there in the 9th.

And the 10th:

AMENDMENT X:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In modern English:  "if we didn't give some particular power to Congress, Congress doesn't have that power; it's a 'state thing' or a 'person thing', but it's not a 'Congress thing'".

An originalist Justice who "actually reads the Constitution as it was written" is exactly what we need.  In fact, we need eight of them since only Clarence Thomas currently fits the description.  More originalists?  Yes, please, and hurry!  A mere half-dozen originalists would already have struck down the National Firearms Act, NAFTA, NDAA, the War Powers Act, and hundreds of similar Congressional and Executive usurpations.

As to Roe v Wade, this clearly is a topic within the purview of the 10th amendment.  It should never have been heard at the Supreme Court.  Alas, Robert Bork said exactly that in his confirmation hearings and paid a dear price for having too much knowledge of the Constitution, too much honesty, and too much naïveté.

As to Kennedy being a 'swing vote', Democrat angst over his imminent departure is misplaced.  Kennedy voted with the majority in Janus, NIFLA v Becerra, Trump v Hawaii, Ohio v AMEX, and dozens of other cases that cause Democratic wailing and gnashing of teeth.  Why are they so upset at him retiring?  Do they think his replacement will be worse?  No, they fear his replacement will be an originalist.