In the Washington Post, Ruth Marcus has penned an unhinged column in which she insists that Anthony Kennedy’s retirement must provoke “another Bork moment.” There is much that is ugly about this sentiment — not the least of which is that Robert Bork was treated shamefully, and was hideously slandered to boot — but what stands out above all else is that, at best, Marcus doesn’t know what she’s talking about, and, at worst, she’s a hypocrite.
Marcus’s central contention is that Kennedy’s departure will be a bad thing for stare decisis — that is, for judicial precedent. Americans, she argues, should “insist on a justice who doesn’t simply want to ‘pick the winning side,’ as Kagan said, but who will understand, among other things, that respecting precedent is a true conservative value.” In a vacuum, this is a fair argument to make (personally, I’m closer to Clarence Thomas’s view, though I agree that his is not the only respectable approach). In the world as it exists, however, it is preposterous. For a start, Marcus seems to have no problem whatsoever with Kennedy’s having overturned precedents she personally disliked. Praising him, she writes that “Kennedy steered the court, and the country, to a nobler place on the rights of gay and lesbian Americans.” And that he did — at the expense of Baker v. Nelson and Bowers v. Hardwick, both of which were precedents, and both of which were overturned. Moreover, Marcus seems not to know that, compared to, say, John Roberts — whose new role as “swing vote” she predicts will make things “so much worse” — Justice Kennedy had no great respect for precedent per se. The obvious exception to this, of course, came in Planned Parenthood v. Casey, in which case Kennedy is held to have “saved” Roe v. Wade. Perhaps when Marcus writes “Constitution,” she really means “abortion”?