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March 18, 2004
Justice Kennedy Endorses Judicial Disregard of Congress

In an era where a sitting state Supreme Court justice had to be impeached from office because he refused to remove a three-ton monument to the Ten Commandments -- a decision with which I heartily agreed -- SCOTUS Justice Anthony Kennedy's remarks yesterday seem jarringly at odds with respect for the law:

Supreme Court Justice Anthony M. Kennedy yesterday praised federal judges who are willing to buck sentencing rules that were enacted for what the justice suggested were political motives. ... "I do think federal judges who depart downward are courageous," Kennedy told the House Appropriations Committee during a hearing on the court's budget. Judges should not have to "follow, blindly, these unjust guidelines," he said. ...

"The mandatory minimums enacted by the Congress are in my view unfair, unjust, unwise," Kennedy said. When determining sentencing guidelines, "there are two different philosophies. One was the tough-on-crime argument, the other was well, everybody should be treated the same," Kennedy said. "Every time they compromised, it was for higher sentences . . . this is wrong."

I have no issue with Justice Kennedy's opinion, or of his giving said opinion, against these sentencing guidelines. However, when he praises federal judges who unilaterally disregard laws passed by Congress absent a ruling on their constitutionality (which isn't an issue for sentencing rules and guidelines), then he encourages law-breaking, just as Justice Roy Moore demonstrated when he refused to abide by a higher court ruling on his monument. What difference is there? Either you follow the law or you don't.

Furthermore, by making these remarks, Justice Kennedy has now signaled to federal judges that they will have at least one vote on the Supreme Court that will support them on appeal. This strikes me as extremely inappropriate. The federal appellate courts have forgotten that they do not write law, nor do those courts represent a quality control for Congress and the Executive; their only proper check on those branches is to determine whether laws are constitutional, not whether they are effective, desirable, or necessary. Having a sitting SCOTUS justice egg their judicial activism on will further damage our balance of government and continue the decline from a representative government to a star-chamber, judicial autocracy.

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Posted by Ed Morrissey at March 18, 2004 12:35 PM

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