Page 43 - AVN August 2013

Nina Totenberg revealed that he had his nomination after ace National Public Radio reporter
smoked a few blunts
as a student and as a professor. Strike Two!
As you might imagine, Team Reagan was becoming
exasperated with this nomination. However, since
Kennedy had little in the way of baggage, his nomination
sailed through the confirmation process and was
unanimously confirmed by the Senate.
That ended anything in common between Justices
Scalia and Kennedy, at least where sex was involved, as
they embarked upon their lifetime tenures as associate
justices of the Supreme Court. Justice Kennedy
repeatedly expressed himself in a brilliant way; Justice
Scalia repeatedly expressed a desire to return American
sexuality to the Victorian era, if not earlier—leading one
to wonder how he and his wife begat nine children.
Justices Scalia and Kennedy presently are the two longest-
serving justices on the court. (The chief justice holds a
position senior to all of the associate justices, irrespective
of years of service.)
One of Justice Kennedy’s early strokes of humanity was
in his 1989 opinion concurring with Justice Brennan
’
s
majority opinion (with which Justice Scalia, remarkably,
silently voted in agreement), brilliantly holding that
burning the American flag is protected by the First
Amendment:
“I write not to qualify the words Justice Brennan
chooses so well, for he says with power all that is
necessary to explain our ruling. I join his opinion without
reservation, but with a keen sense that this case, like
others before us from time to time, exacts its personal
toll. This prompts me to add to our pages these few
remarks.
“The case before us illustrates better than most that the
judicial power is often difficult in its exercise. We cannot
here ask another Branch to share responsibility, as when
the argument is made that a statute is flawed or incom-
plete. For we are presented with a clear and simple statute
to be judged against a pure command of the Constitution.
The outcome can be laid at no door but ours.
“The hard fact is that sometimes we must make deci-
sions we do not like. We make them because they are
right, right in the sense that the law and the
Constitution, as we see them, compel the result. And so
great is our commitment to the process that, except in
the rare case, we do not pause to express distaste for the
result, perhaps for fear of undermining a valued principle
that dictates the decision. This is one of those rare cases.”
Texas v. Johnson, 491 U.S. 397, 420-21 (1989) (Kennedy,
J., concurring).
Read that again! It punctuates Justice Kennedy’s
humanity and wonderful perspective on the place the
Supreme Court occupies in our government and society.
Four years later, a majority of the Court held that it
was constitutionally permissible for the government,
under the RICO law, to forfeit an entire publishing
enterprise as a result of a small handful of obscenity
convictions. The subject of the forfeiture, by the way, was
Ferris Alexander’s Minnesota adult bookstore empire:
inventory, real estate, bank accounts and everything else
involved. Justice Scalia voted without comment to agree
with Chief Justice Rehnquist’s majority opinion. Justice
Kennedy would have nothing to do with it, reading his
dissenting opinion from the bench (which is highly
unusual). He began:
“The Court today embraces a rule that would find no
affront to the First Amendment in the Government’s
destruction of a book and film business and its entire
inventory of legitimate expression as punishment for a
single past speech offense. Until now I had thought one
could browse through any book or film store in the
United States without fear that the proprietor had chosen
each item to avoid risk to the whole inventory and indeed
to the business itself. This ominous, onerous threat
undermines free speech and press principles essential to
our personal freedom.
“Obscenity laws would not work unless an offender
could be arrested and imprisoned despite the resulting
chill on his own further speech. But, at least before today,
we have understood state action directed at protected
books or other expressive works themselves to raise
distinct constitutional concerns. The Court’s decision is a
grave repudiation of First Amendment principles, and
with respect I dissent.”
He then went on to write a most principled exposition,
as logical as the majority was illogical, explaining why the
decision ran afoul of very well-established principles of
First Amendment jurisprudence. Alexander v. United
States, 509 U.S. 544, 560 (1993) (Kennedy, J.,
concurring).
In the cable television signal-bleed case, Justice Scalia
showed his true colors, both in oral argument (which he
appears to view as a sport) and in his dissenting opinion.
The government had stipulated that the movies involved
(cable versions) were not obscene. At oral argument,
Justice Scalia asked the attorney for the government
about that topic:
“[D]o—do I have to—do I have to assume, for pur-
poses of this case, that what is at issue here is just what
you call indecency and not obscenity? I mean, I’ve read
some of the footnotes in—in your brief that describe—
describe these matters. My law clerks have looked at the
videos that were lodged, and I wouldn’t even read the
descriptions in—in public. It seems to me obscenity.”
He echoed that in his dissenting opinion:
“I will assume for purposes of this discussion (though
it is a highly fanciful assumption) that none of the
transmissions at issue independently crosses the boundary
we have established for obscenity ....” United States v.
Playboy Entertainment Group, Inc., 529 U.S. 803, 831
(2000) (Scalia, J., dissenting).
In 2003, Justice Scalia and Kennedy clashed with a
passion that would be repeated just last month over the
extent to which the Constitution protects sexual
orientation. Recall that before either Justice Scalia or
Kennedy was on the Court, its 5-4 decision in 1986
rejected a challenge to Georgia’s anti-sodomy law, allow-
ing a conviction of two adults caught engaging in private,
homosexual conduct. Bowers v. Hardwick, 478 U.S. 186
(1986). The Court agreed to revisit the issue in 2003,
with Justice Kennedy writing for a 5-4 majority overturn-
ing the conviction of two Texans for conduct just like in
Bowers v. Hardwick. After a painstaking and impassioned
analysis of why the dissent in Bowers was more
constitutionally sound than the majority, Justice
Kennedy’s conclusion was simple and to the point:
“Bowers was not correct when it was decided, and it is
not correct today. It ought not to remain binding
precedent. Bowers v. Hardwick should be and now is
overruled.”
Justice Scalia went ballistic:
“State laws against bigamy, same-sex marriage, adult
incest, prostitution, masturbation, adultery, fornication,
bestiality, and obscenity are likewise sustainable only in
light of Bowers’ validation of laws based on moral choices.
Every single one of these laws is called into question by
today’s decision; the Court makes no effort to cabin the
scope of its decision to exclude them from its holding. ...
The impossibility of distinguishing homosexuality from
other traditional ‘morals’ offenses is precisely why Bowers
rejected the rational-basis challenge. ‘The law,’ it said, ‘is
constantly based on notions of morality, and if all laws
representing essentially moral choices are to be
invalidated under the Due Process Clause, the courts will
be very busy indeed.’”
Masturbation? Was he serious? Does anyone know of
any state law that outlaws masturbation? Sure, there are
laws against public indecency; but masturbation in
private? And fornication? If you don’t believe he said any
of that, go look it up. Lawrence v. Texas, 539 U.S. 558
(2003).
Now, if you think that affording constitutional
protection to private homosexual conduct was disquieting
to Justice Scalia, how do you think he reacted to granting
constitutional protection to gay marriage? You
’
re right; he
did a burn last month that matched the one a decade
earlier:
separate the views on sexuality
of the Roman Catholic
”Justice Scalia is unable to
Church from the duties
imposed upon him; Justice
Kennedy has done so.
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