I’m not feeling particularly inspired today, but this Bookworm Beat has some links I’d like to share with you, covering everything from politics to humor.
Obergefell is worse than you imagined. Obergefell is the case in which Justice Kennedy, writing the romance novel of his life, found buried in the Constitution a long hidden right to gay marriage. Legally, it was a disaster of an opinion and, as romantic fiction, it was too overwrought to be believable.
What those of us who read it once with an eye for the specific issue missed is the fact that Kennedy included language that encourages each federal judge in America to take a legislative role for himself, never mind that these judges are appointed, not elected, so voters cannot touch them:
In Obergefell, Justice Kennedy did far more than merely discover a constitutional right to same-sex marriage. He wrote that judges have an ongoing “duty” to identify and protect new “fundamental rights.” He maintained that judges should institute new rights whenever their “reasoned judgment” suggests that it is appropriate to do so.
Previously, a Supreme Court precedent titled Washington v. Glucksberg held that judges could recognize constitutional rights only if they were “deeply rooted in” American “history and tradition.” Justice Kennedy dismissed this standard as unduly constraining judges’ power.
The article from which the above quotation comes explains that, across the United States, activist judges have been taking full advantage of this unconstitutional mandate:
A case titled Juliana v. United States presents an ominous warning as to what lies ahead. A district-court judge in Oregon used Obergefell’s license to fashion a new individual right to a “climate system capable of sustaining human life.” The judge adopted Justice Kennedy’s “reasoned judgment” standard and wrote, “Exercising my ‘reasoned judgment,’ . . . I have no doubt that the right to a climate system capable of sustaining human life” is a fundamental constitutional right.
The plaintiffs argued that various government officials violated the Constitution by “causing atmospheric CO2 levels to rise” and “knowingly endangering Plaintiffs’ health and welfare by approving and prompting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion.” They urged the court to order the government to stop violating their constitutional right to a healthy environment and to require it to “develop a plan to reduce CO2 emissions.”
This sounds like a plainly political rather than constitutional question, but under Obergefell’s amorphous “reasoned judgment” standard, anything is possible. The judge explained that under Obergefell, the creation of “new fundamental rights” is not “out of bounds.” The case is ongoing, but the district-court judge has already recognized the existence of the “constitutional right” in question.
Justice Kennedy cannot retire from the Court soon enough. Nor can Justice Ginsburg. This aggregation of raw power in the only branch of our government that is not answerable to anyone is a fearful tyranny that needs to be quashed instantly, if not sooner.