Kennedy Retiring

Justice Kennedy is stepping down. Will this change anything?

Can we put some teeth in Heller and McDonald now? I’ve said before that I’m not really sure Kennedy is the weak link, and have suspected it could be Roberts. It could also be the pro-Heller contingent of the Supreme Court didn’t want to roll the dice again between both Roberts’ and Kennedy’s tendency to go wonky when it’s a controversial issue.

We’ll know when we get a replacement. If we see some grants of cert on 2nd Amendment cases, it will be telling.

37 thoughts on “Kennedy Retiring”

  1. Have we gotten 2 or 3 of the current court to opine on the failure of SCOTUS to grant cert? If Justice Kennedy’s replacement is more full of fire, we might get cert.

    At which point the mild panic begins.

    1. Thomas and Alito have spoken up about it, Thomas repeatedly and quite emphatically. They have been highly displeased and i agree that they’ve been unwilling to invite a loss because of Roberts and Kennedy, the former being possibly compromised by blackmail, corruption,or extortion as seen with the Obamacare ruling and a few others.

      1. Its always been a big debate of who was the weak link of the Heller 5. We know how Thomas and Alito feel (as they have written dissents on the cert denials). We have a good idea of how Gorsuch feels.

        So that leaves Roberts and Kennedy. While it could be Roberts, I wonder if he’s more of a political game player, and was the one that didn’t want to grant because of Kennedy. I think he’d join a majority striking down some of these bad gun control laws if he had a stronger 5th, like we hope Kennedy’s replacement will be.

        1. Roberts doesn’t want to issue a ruling that will be reversed later, is what I think his problem is. He gave us Heller and McDonald in the expectation we would use it to fix the problem legislatively. Which we are on the brink of, quite frankly.

          I worry that an overbroad pro-2A decision may end up being for gun rights what Roe v Wade was for abortion rights; a wired down pressure valve…

          The other hand says Heller is a dead letter because Roberts won’t enforce it on the federal judiciary, so I don’t make the above argument too strongly.

          1. For all their talk of gun control, I think the Left is far, far more invested in Roe V. Wade.

            1. Oh. sure, it’s very much a “parenthetical” concern of theirs. But I, personally, am pretty invested in Heller and the pro-2A scene.

  2. As I recall, Thomas, Gorsuch, and Alito have all written dissents on failure to grant cert. So it is either both Roberts and Kennedy or perhaps one of them not trusting the other. If it was Kennedy or Roberts not trusting Kennedy, we should get cert soon. We could really get burned though if cert is granted and Roberts defects again.

    1. Looking at her family history, that’s not a reasonable assumption. She’s likely got quite a few more years in her given how long her relatives have lived.

      It was actually Kennedy who has lived far past his family history. (He’s about 12 years longer lived than his direct ancestors on average.) Breyer is also just on the other side of the average life of his ancestors.

      1. Family history isn’t everything. 85 years old, twice cancer patient, every day that goes by her odds of dropping dead go up.

        Even then, Ginsburg or Breyer makes no difference to me. Maybe we’ll get extra lucky and get both….

        1. I don’t consider wishing death upon people to be a reasonable comment. There’s a strange and morbid role for discussing death in relation to any lifetime appointment/sentence/role, but that’s no reason to cross into cheering it. Don’t be a jerk about it.

          And when it comes to family history, it’s not everything, but it’s a HUGE factor in longevity. I can tell you from researching many, many families that there are clear trends. Every once in a while, you get an outlier. But most people tend to follow their family trends. Consider the family that I can follow for her lived in urban areas which tend to kill people at a younger age (easier for diseases to spread, more technology accidents, etc.), the fact that her ancestors and close family with similar genetic factors all weigh in her favor.

          Not to mention, one of your examples actually highlights that she is a cancer survivor twice over. That means she beat it – including by catching a particularly deadly form very early. Because she stays on top of her health. Stop wishing bad things on the woman and just work in reality of who is on the bench.

          1. The most I’ll wish on someone is that they feel the desire to spend more time with their family.

            1. people clutching their pearls over hoping that old crone kicks the bucket. please.

              Whether they admit it or not, these people hate you and they especially hate your freedom of thought and action. Not recognizing that fact is what dug us the hole that we now have to dig our way out of. The world will be better for my kids and grandkids without her in it so excuse me if I don’t get all teary eyed over the thought. The “moral high ground” doesn’t do anything but get your butt kicked….

      2. Here’s an interesting calculator I found from a couple years ago, giving probability of death based on CDC stats. Those probabilities only go up ever day that passes.


        Edited by Bitter to make the pasted URL a link. Please use basic HTML tools so as to not make other comments unreadable.

  3. Democrats are starting to flirt again with the idea of packing the Supreme Court.

    Things might be looking more rosy for us at the moment. But it ain’t over yet!

    1. I think this is good, bad and ugly, for the following reasons:

      First, it’s good, because it would likely generate anger among Americans.

      Second, it’s bad, because the Democrats might just succeed.

      Third, it’s ugly, because it might very well end with every President packing the court, causing the court to become unwieldly large.

      Having said that, I have no problem with packing the lower courts — the courts are overburdened as it is (albeit, there’s probably a case to be made that something should be done to force prosecutors to exercise more discretion as well) — and as much as I’d hate it to happen under a Democrat administration, I’d be open to expanding the court system even then. If only the Republicans would do it first!

  4. Dave Kopel said the same thing yesterday on Cam and Company. He was not so sure that the problem isn’t Roberts. Guess we’ll see soon enough.

  5. Regardless of who of Kennedy or Roberts (or both) voted against Cert in later cars, not one of the dissenters in Heller or their replacements did. That says to me that the dissenters in Heller have even less faith in Roberts AND Kennedy voting their way in the later cases.

    If one of those two actually wanted to scupper Heller, they could have at any time. My guess is, neither of them wanted to make a decision, preferring to leave that to Congress. Who, if they ever had something like the tabled reciprocity bill, will break the back of the anti gun states without a court decision.

  6. I don’t expect a shift in the courts anyway. This does not move the needle; they will continue to refuse to hear Second amendment cases while the lower courts shit all over the Heller and McDonald decisions saying that total bans and confiscation are acceptable.

    However the collective aneurysm that the left is having over this is quite entertaining. Of course as Miguel has said some wacko leftist might literally try to kill Gorsuch. If senate Republicans Are not a bunch of idiots about this, but I repeat myself they will try and confirm whoever Trump picks before the election. Or at least before the swearing ins happen. Senate seems secure and Flake would be gone but still.

    1. This does not move the needle? Unless Kennedy is replaced with another Kennedy-type wobbler, this development very much does move the needle.

      The post-2010 silence of SCOTUS on gun-rights is going to break. One way or another, it’s going to break.

      And the Court will have a large selection of cases to choose from. As California intends to intensify its war on gun-rights.

      1. We’ll see. But I don’t have much hope in the courts anymore. At least McConnell said they’d move to confirm before the election. Unless Flakes decide to stonewall it.

        1. Flake and McCain are out of F&^$s to give with the current administration and don’t have to face any music from constituents.

          This can move the needle, if we get a 4th vote for cert out of it. That could be good or bad.

          It’s not just CA that’s generating suits. There’s a second try at declaring May Issue unconstitutional (in light of the DC shall-issue decision) coming out of NJ, plus a magazine-size suit from NJ as well.

          1. Don’t forget that New York and Massachusetts are also being sued to hell regarding the gun-issue. We often overlook Massachusetts.

          2. Exactly. Flake has been on a seemingly one man crusade to stop all Trump court picks lately. I’m in Arizona. I used to like Flake more than McCain as I viewed him better on guns than McCain. Sure he pissed me off sometimes but I understand that he has other constituents and as humans we are not going to have the same opinion on everything. Then he says he won’t run for re-election and turns into a *republican* version of Kamala Harris. No one here can stand him anymore. The democrats here hate him by there nature as democrats and the Republicans view him as a traitor. As do I. If he gets the opportunity to piss in Trumps and McConnelles cornflakes over this he will. If the democrats picks up his seat it wouldn’t matter much. Of course this is Arizona. As you can tell I can’t stand him anymore. A lot of Arizona Republicans can’t stand him anymore. And he knows it.

            Or maybe he will stop being a dick for once this year, I don’t know.

            1. That’s something we sometimes fail to consider about the idea of term limits.

              How many representatives and Senator actually represent their constituencies because they want to be re-elected? And how many of them would do awful things to their constituencies because they know they can no longer run for office?

              My own Senator Orin Hatch is a classic example — a squish I’ve wanted to get out of office for years. It’s been a running joke for at least a couple of decades that he’s reliably a liberal in the first couple of years after an election, a moderate in the middle of his term, and a conservative the last couple years of his term.

              How different would Senator Hatch’s record have been, had he known that his term is up? (Even though he’s finally retiring, this last term isn’t even an exception: he was toying with running yet again up until about a few months ago. This, despite being something like 84 years old….)

              There’s something to be said about standing up on principle now and again, even if it’s against the wishes of your constituents. But there’s also something to be said about respecting the wishes of your constituents. Having re-election always a possibility helps keep that in balance.

  7. Just a random musing inspired by the discussion of future cases, I have to wonder if we couldn’t turn Kagan with the appropriate plaintiff (ie. victim) on a may issue case. Tugg on those SJW heart strings.

    1. Color me skeptical. I’d be happy if that was the case but he’s disappointed me before. I’m not calling you a liar but do you happen to have the article or a link or something I can look at or watch?

  8. Two words for next supreme court justice: Jeanine Pirro.
    The case is closed.

    1. No way!

      Jeanine Pirro favors an “assault weapon” ban:

      District Attorney Jeanine Pirro, a Republican, called on Washington last week to set politics aside and extend the federal ban on assault weapons that is scheduled to expire Sept. 13.
      ”The fact that I’m Republican doesn’t have anything to do with this,” she said in a telephone interview Thursday. ”I’ve been in law enforcement 29 years and there is no legitimate purpose to have an assault weapon.
      ”These are weapons employed by drug operations by gang enterprises,” she added. ”This is about killing as many people as possible in as short a period of time as possible.”

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