Justice Kennedy's retirement marks the end of an era, but are we prepared for what comes next?
I’ve been traveling today, driving from Amherst back to Washington, and so I’m catching up with some of the comments drawn by the piece on Commencements and the bizarre implication that springs from the judgment of the Court in Lee v. Weisman. I want to thank Carl Scott for his stirring words on Natural Rights & the Right to Choose. But on this matter of whether I would try to make use of the lever revealed in this case, he has me wrong on one critical point: I’m always in favor of the conservatives making use of the ‘principles’ laid down by the Left in order to show how those principles would work quite forcefully against them. The Left persistently fails to live by the rules or principles it lays down for others, and so the only way of making them back away is to use the precedents they set in ways that they’ll find quite jarring.
It was only when the statute on Independent Counsels was used to put in place Ken Starr, tracking Bill Clinton, that the Democrats lost their conviction about Independent Counsels and let the statute lapse. Bill Bennett and I did a piece in the Wall Street Journal, posing the question of whether the rules laid down for the impeachment of Richard Nixon would be respected now when it came to Bill Clinton. And so, if the “suborning of perjury” was thought a sufficient ground for impeaching Mr. Nixon, should it not be a ground comparably sufficient for the impeachment of Bill Clinton and his removal from office.
The most notable example I’ve offered here is one I floated in a speech to the Supreme Court Historical Society back in 1996, with Chief Justice Rehnquist introducing me. One friend noted the Chief’s eyes lighting up when I offered this use of the infamous case of Wickard v. Filburn, the case in which Roscoe Filburn set aside a portion of wheat on his farm for the domestic consumption of his family. Robert Jackson famously “explained” then that this action, innocent enough, may have little consequence, but if everyone did that, there would be a vast, aggregate effect that would have the most notable, detrimental effect on the federal policy in managing agriculture. Using precisely the same logic and rationale I offered this scheme: that singular, private abortion may be yours alone, but when it is taken in combination with 1.2 million every year in this country, your example contributes in the aggregate to a vast effect in depressing the interstate sale in: bassinetts, baby food, toys, diapers, furniture… and later: bar mitzvahs, weddings, college tuitions even later, removing 1.2 million taxpayers coming on line ever year to sustain the system of welfare and medicare.
The conservatives have sought to argue against the extension of the Commerce Clause, but the willingness to use in this way the precedents accepted under the Commerce Clause would do far more overnight to wean the Left away from their ready use of this formula to extend the reach of the federal government.
But, having said all of that, I’ve held back from mapping out in this piece a scheme for using the lever that could emerge from Scalia’s insight in Lee v. Weisman. That is simply a reading of the political facts of life in most of the colleges and universities. And yet, beyond that, I’d need to do some further pondering in figuring out just how, and whether, a move of that kind could be made. The father of a former student of mine was knifed and killed on a bus in Miami. It was a galling matter for him to see Amherst honoring opponents of capital punishment at Commencement. As he saw it, these people did not think that the murder of his father was a wrong that truly deserve to be vindicated—a wrong that called out for the most severe penalty. But what he could do was lodge his moral argument and his protest, a move not likely to produce an effect at Amherst. The lever provided to Deborah Weisman would not be available to him in a private college. Perhaps something could be done at a public university, but if we pick up the hints offered by Justice Kennedy recently in Town of Greece, he is likely simply to limit the “right” here to young, immature students.
On the other hand, I should point out that nothing in this argument entails litigation, or a decision by a court, as the only theater of action or the only source of a remedy. But the first step is to notice the connection that Scalia made—the powerful implication that is forged when the Weisman case is joined with Barnette on the Jehovah Witnesses and the salute to the flag. That remarkable connection is what I sought to recall. And once we bring it forth, I can call to my side here the imagination of my friends, to consider whether there might indeed be a way of employing this lever. I’d invite our friends to ponder this one with me. There are lessons to be taught. And so we should see what genius we might call upon in teaching those lessons.