Why Does Anthony Kennedy Hate Lindsey Graham?

This is a rather interesting public statement from the guy who–at least before Elena Kagan and her obscure views on executive power got sworn in–was the swing vote on SCOTUS. (h/t fatster)

“Article III courts are quite capable of trying these terrorist cases,” [Justice Anthony] Kennedy said, agreeing with [an earlier panel that endorsed civilian, rather than military, trials].


It was clear, he said, that an “attack on the rule of law has failed,” referring to the use of military tribunals to try terrorist suspects, often before panels in Guantanamo Bay, Cuba.

Mind you, this is not exactly a surprise. Aside from Kennedy’s votes in past terrorism-related cases, his opinion in Boumediene was as much a defense of Article III prerogative as it was a defense of habeas per se. Which is why I’m interested in the context of his “attack on the rule of law” quote–because it sure sounds like he’s fed up with efforts on the part of both the Bush and Obama Administrations to usurp the powers of the courts.

And if he feels that way, I hope he nagged those judges in the 9th he was partying with to hurry up and finish their Jeppesen opinion so he can vote to uphold some limits on state secrets…

  1. DWBartoo says:

    One hopes, EW, that you will be proved correct in your considered analysis and speculations.

    That Kennedy spoke of an “attack on the rule of law …”, is truly heart-warming, leading one to hope …


      • DWBartoo says:

        A not unreasonable question, Scarecrow, to which I can only answer that “we” have “heard” about his “view”.

        As far a I know, for certain, he is the ONLY SCOTUS Justice to have even noted the “patterns” which have alarmed many thoughtful and keen observers for years. Among judges, on the federal level, there has been a persistent, perhaps even deliberate blindness, a determined unwillingness to see … to grasp what the executive power-grabs mean, beyond money and influence for those who “go along”.

        As phred says, a meager lot are our hopes, and so very dependent upon the rule of law.

        Let us speculate wildly; Without a viable and genuine rule of law, society is neither civil … nor sustainable … in any decent way.

        So many, seemingly, within the world’s second oldest profession, are either undisturbed or, SOMEHOW, even aware that the law has become handmaiden to tyranny and a pathetic joke where it cleverest, most “able” and “astute” practitioners … use the law … to destroy the law.

        Perhaps, on some level, Kennedy understands this?

        One may only hope so.


  2. phred says:

    so he can vote to uphold some limits on state secrets…

    It’s discouraging how little we can really hope for, isn’t it?

    SCOTUS needs to revisit Reynolds and severely curtail the government’s ability to hide behind state secrets. Congress needs to require our government function openly with very very few exceptions where classification may be permitted. And the executive needs to return public functions to publicly funded civil servants to remove the financial incentive that is driving the miliary-“intelligence”-industrial-congressional-complex.

    But in the meantime, I’ll hope for a few scraps tossed our way from Kennedy…

    • michaelfishman says:

      SCOTUS needs to revisit Reynolds…

      If they look at Reynolds, they’ll have to look at Herring…and if they look at Herring, they’ll have to deal with the Supreme Court and the Third Circuit ratifying and becoming parties to a fraud on the Court (themselves!). Although it would be interesting to see what Scalia could do with it.

  3. Hugh says:

    My take is Kennedy is a radical conservative like Roberts, Alito, Scalia, and Thomas. He doesn’t like the Executive or Congress infringing on his turf, but as long as the political branches give a nod to the courts, he is willing to back their abuses no matter how horrendous.

  4. eCAHNomics says:

    I’ve recently come to hear/read bits & pieces about how much the NYC WTC bombing trials were kangaroo courts. So what diff does it make where, when, how the alleged terrorists are treated.

  5. Scarecrow says:

    I’ve never understood why anyone in Congress still listens to Graham, when even this Supreme Court has said, several times, that Graham doesn’t get the Constitution.

    There seems to be a general rule in Washington that everyone who is consistently wrong gets to keep making the decisions based on the same flawed theories. See, Federal Reserve. And instead of changing the decision, they change the oversight to ratify the wrong decision.

  6. willaimbennet says:

    “And if he feels that way, I hope he nagged those judges in the 9th he was partying with to hurry up and finish their Jeppesen opinion so he can vote to uphold some limits on state secrets…”

    I’m sure Bybee’s shaking in his loafers.

    and ECHAN is correct. The idea that anyone of these so-called defendants will get the kind of fair shake black dfefendants convicted on eye wtitness testimony is absurd. that’s why is such an effectively distracting debate- commish vs. federal court.

    • eCAHNomics says:

      Oh dear. I guess I’ll have to go back to learnin’ how to be more provocative. When I left for lunch, I was thinking that everyone at FDL would jump all over me for denigrating their Fitz & MJWhite heroes & trying to remember what clues I’ve gleaned that make those earlier ‘trials’ nothing but show.

      Now I’ve come back to find my only response is one agreement.

      To the substance of my remark, I really can’t remember where I picked up the clues. But they involved the usual stuff like keeping info from the defense, secrecy in a more general sense of keeping the public out (national security, dontcha know), etc. The fact that the convicted are now experiencing a fate worse than death in supermaxes, is another clue. And the dead giveaway is how Rahman’s lawyer, Lynne Stewart, had been persecuted.

  7. Leen says:

    ew “because it sure sounds like he’s fed up with efforts on the part of both the Bush and Obama Administrations to usurp the powers of the courts. as U.S”

    good to hear


    Just read in the Wall Street Journal that the “State Department said it will double the number of private security contractors it uses in Iraq as U.S. troops leave”

    Wondering what the numbers of private contractors are now? And what doubling those contractors will add up to

  8. Teddy Partridge says:

    ooh, ooh, pick me! pick me!

    Because Anthony Kennedy has tremendous respect for LGBT people who risk a lot to allow their sexual orientation to inform their views in public discourse, and make those views and their personal stake known to people who can make a difference in their lives, as his clerks and ex-clerks are rumored to have done when he had Lawrence v Texas before him?

    And therefore he has very little respect for someone like Lindsey Graham?

  9. Teddy Partridge says:

    Also: I am told Hawaii wasn’t a party, but was a very important conference. So important, in fact, that few clerks got to go and perhaps the Perry panel had to — horrors! – write their ruling extending the marriage stay themselves!