# Anthony Kennedy to retire this year? **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [May 2, 2017, 12:34pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709 "2017-05-02T12:34:08Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 3, 2017, 4:57pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/61 "2017-05-03T16:57:56Z")
> [@AK84](#): > > What about conservatives who have read down the Treaty clause of the US Constitution, because they don’t like the text of the treaty? Like some guy named **Bricker** You’ll have to refresh my recollection. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 3, 2017, 5:33pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/62 "2017-05-03T17:33:17Z")
> [@Bricker](#): > > You’ll have to refresh my recollection. [Like so](http://boards.straightdope.com/sdmb/showpost.php?p=9122920&postcount=25).😉 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 3, 2017, 5:42pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/63 "2017-05-03T17:42:30Z")
> [@AK84](#): > > What about conservatives who have read down the Treaty clause of the US Constitution, because they don’t like the text of the treaty? Like some guy named **Bricker** Here’s what I said in the post you linked: > [@US Sovereignty versus International Court?](https://boards.straightdope.com/t/us-sovereignty-versus-international-court/422411/25): > > Our federal government is one of limited, enumerated powers. The Constitution lays out the powers the federal government has, and notes that all other rights and powers are reserved to the states, or to the people. To add a power to the federal government that the Constitution doesn’t already grant requires an amendment to the Constitution. > > If a treaty made by the federal government could trump state law on any and every subject, then we have the curious contradiction that the federal government could grant itself any power merely by including the language in a treaty. > > That’s not how it works. A treaty may only reflect Congress’ powers. It may not exceed the powers of the federal government. And I absolutely agree with that today. But I am still waiting for you to refresh my recollection – when did I adopt this position “because \* don’t like the text of the treaty?” I hold my commentary to be accurate regardless. If, for example, the United States were to enter into a treaty with Vatican City, in which each agrees to ban abortion in all its territory, and the Senate confirmed this treaty, I argue it would not have the legal effect of banning all abortion in the United States, even though I very much like that outcome. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 3, 2017, 6:05pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/64 "2017-05-03T18:05:37Z")
I am sorry, but you are contradicting yourself there. Making a treaty is absolutely one of the “enumerated powers”. It was known back in 1789 that by making a treaty a nation-State may well agree to things ordinarily repugnant to its laws. And the US states gave up part of their sovereignty when they signed on to the US Constitution, including the power to raise Armies and Navies, print coinage and yes make Treaties. By doing so they were opening themselves up to a situation where they would face a Treaty mandated law which affected them in ways they did not like. The situation you describe is absurd. The check on such unwanted abuses of power is the ballot box, the fact that a supermajority of Senators have to agree to ratify the treaty is the check on it. Its a political, not a legal concern. The Senators are not going to vote to ratify a Treaty which is so broad as to be offensive to the majority of the US public and institutions, they still have to face the electorate. I take it you think _Holland_ was wrongly decided? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 3, 2017, 6:18pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/65 "2017-05-03T18:18:40Z")
> [@AK84](#): > > I am sorry, but you are contradicting yourself there. Making a treaty is absolutely one of the “enumerated powers”. Good thing I don’t disagree with that, then, eh? What I disagree with is the proposition that a treaty made pursuant to Article II, section 2 has legislative authority equal to the Constitution itself. > [@](#): > > It was known back in 1789 that by making a treaty a nation-State may well agree to things ordinarily repugnant to its laws. And the US states gave up part of their sovereignty when they signed on to the US Constitution, including the power to raise Armies and Navies, print coinage and yes make Treaties. By doing so they were opening themselves up to a situation where they would face a Treaty mandated law which affected them in ways they did not like. Sure, but the ways in which they could be affected was never unlimited. > [@](#): > > The situation you describe is absurd. The check on such unwanted abuses of power is the ballot box, the fact that a supermajority of Senators have to agree to ratify the treaty is the check on it. Its a political, not a legal concern. The Senators are not going to vote to ratify a Treaty which is so broad as to be offensive to the majority of the US public and institutions, they still have to face the electorate. Unlikely is not the same as “absurd.” But in any event, let’s get this side issue handled: _because I don’t like the text of the treaty_ was not an accurate summary of what I said. My position doesn’t rest on my like or dislike of a particular treaty’s terms. Do you agree that portion of your claim was misplaced? > [@](#): > > I take it you think _Holland_ was wrongly decided? Do you [even need to ask?](https://en.wikipedia.org/wiki/Bricker_Amendment) ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 3, 2017, 6:55pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/66 "2017-05-03T18:55:13Z")
> [@Bricker](#): > > Good thing I don’t disagree with that, then, eh? > > What I disagree with is the proposition that a treaty made pursuant to Article II, section 2 has legislative authority equal to the Constitution itself. Ok then but… > [@](#): > > Sure, but the ways in which they could be affected was never unlimited. What is the authority for that? Its not present within the text itself nor the Supremacy clause. _Reid v Covert_ was about an agreement, not a treaty and in \*Medellín \* Roberts dodged the issue, preferring to decide on the text of the Convention. And in both Federalist 42 and 44 Madison suggest that Treaties should be effective regardless of State Law (and State law would necessarily include things they are permitted under the Constitution). So I am curious as to where you get the position that the power is limited. > [@](#): > > Unlikely is not the same as “absurd.” > > But in any event, let’s get this side issue handled: _because I don’t like the text of the treaty_ was not an accurate summary of what I said. My position doesn’t rest on my like or dislike of a particular treaty’s terms. > > Do you agree that portion of your claim was misplaced? I don’t see any other reasonable summation. if you had said that the text of the Convention itself did not permit relief asked for (which was Robert’s view) then it would have been different. That is however not the argument you made. > [@](#): > > Do you [even need to ask?](https://en.wikipedia.org/wiki/Bricker_Amendment) 😛 Nice to see you back Senator.😉 ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 3, 2017, 7:19pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/67 "2017-05-03T19:19:37Z")
> [@AK84](#): > > …😛 Nice to see you back Senator.😉 And quite well-preserved, too, for having been born in 1893. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 3, 2017, 7:24pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/68 "2017-05-03T19:24:41Z")
> [@Elendil\_s\_Heir](#): > > And quite well-preserved, too, for having been born in 1893. Whats your opinion on the issue at hand? (I am procrastinating since I have to write an opinion where the issue of Treaty v Agreement comes up, and this is far more interesting than that. Hence my sudden recollection of such case law). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 3, 2017, 11:06pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/69 "2017-05-03T23:06:23Z")
> [@AK84](#): > > I don’t see any other reasonable summation. if you had said that the text of the Convention itself did not permit relief asked for (which was Robert’s view) then it would have been different. That is however not the argument you made. To your knowledge, have I ever argued that a treaty should be unreviewably supreme? That is, what 's the basis for your belief that my position turns on whether I like the treaty? > [@](#): > > What is the authority for that? Its not present within the text itself nor the Supremacy clause. _Reid v Covert_ was about an agreement, not a treaty and in \*Medellín \* Roberts dodged the issue, preferring to decide on the text of the Convention. And in both Federalist 42 and 44 Madison suggest that Treaties should be effective regardless of State Law (and State law would necessarily include things they are permitted under the Constitution). > So I am curious as to where you get the position that the power is limited. The natural conclusion that constructing it as you discuss leads to an absurd result: that the Constitution, which otherwise be amended only by two-thirds of both houses of Congress and three-fourths of the state legislatures, can instead be amended by two-thirds of the Senate, the President, and the Pope. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 3, 2017, 11:13pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/70 "2017-05-03T23:13:53Z")
> [@Elendil\_s\_Heir](#): > > And quite well-preserved, too, for having been born in 1893. Clean living, boys. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [May 4, 2017, 4:46am UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/71 "2017-05-04T04:46:21Z")
> [@Bricker](#): > > Why aren’t those rights you speak of held by the states? Why aren’t the state courts the correct venues for discerning them? Because the Bill of Rights has largely been incorporated to the States, indicating that they apply equally at either level. And because the idea that the States have Rights at all has been basically demolished by Supreme Court jurisprudence. Even the current issue with marijuana is one of the Feds not doing what they have a right to do and stop it, not the States actually having a right to do what they want. The separation between the States and the Federal government has been eroded over time to the point that there’s barely any real distinction. Hence why “States Rights” activists are conservative–they want to go back to the way things were. While liberals don’t tend to care about it at all, since we see it as something that is going away. The second it was used for the Civil War, it had an expiration date. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [May 4, 2017, 5:08am UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/72 "2017-05-04T05:08:29Z")
The issue I have with Kennedy is that he’s actually a pretty good model as a judge. He doesn’t do this textualism nonsense where you pretend there’s some objective interpretation that just happens to lean conservative most of the time. There’s a reason why textualists are considered conservative, when they should be inherently neutral if they lived up to the concept. Problem is, the list given is basically a list of partisans and textualists, rather than actual neutral judges–or so I understand. And Kennedy is basically neutral. So replacing him is a problem. I hope he realizes that allowing himself to be replaced in today’s hyperpartisan climate would actually reverse a lot of his decisions. I cannot see any replacement following judicial restraint. Textualism doesn’t support it. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [May 4, 2017, 5:09am UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/73 "2017-05-04T05:09:31Z")
The issue I have with Kennedy is that he’s actually a pretty good model as a judge. He doesn’t do this textualism nonsense where you pretend there’s some objective interpretation that just happens to lean conservative most of the time. There’s a reason why textualists are considered conservative, when they should be inherently neutral if they lived up to the concept. Problem is, the list given is basically a list of partisans and textualists, rather than actual neutral judges–or so I understand. And Kennedy is basically neutral. So replacing him is a problem. I hope he realizes that allowing himself to be replaced in today’s hyperpartisan climate would actually reverse a lot of his decisions. I cannot see any replacement following judicial restraint. Textualism doesn’t support it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 4, 2017, 12:52pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/74 "2017-05-04T12:52:42Z")
> [@BigT](#): > > And because the idea that the States have Rights at all has been basically demolished by Supreme Court jurisprudence. States have powers. I should have been clearer about that distinction: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That concept has, I assure you, NOT been demolished by anything. The shorthand phrase “states’ rights,” typically refers to those powers. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 4, 2017, 2:12pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/75 "2017-05-04T14:12:19Z")
> [@AK84](#): > > Whats your opinion on the issue at hand?.. The Supremacy Clause places ratified treaties on the same level as the Constitution as “the supreme law of the land.” The Senate would be very unlikely to ratify any treaty that significantly encroached on well-established domestic law or rights, and if it did and that was later realized and became a political issue, the U.S. would, I suspect, speedily abrogate or withdraw from the treaty. I can’t say it’s something that keeps me up nights. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 4, 2017, 4:40pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/76 "2017-05-04T16:40:46Z")
> [@Elendil\_s\_Heir](#): > > The Supremacy Clause places ratified treaties on the same level as the Constitution as “the supreme law of the land.” The Senate would be very unlikely to ratify any treaty that significantly encroached on well-established domestic law or rights, and if it did and that was later realized and became a political issue, the U.S. would, I suspect, speedily abrogate or withdraw from the treaty. I can’t say it’s something that keeps me up nights. Are you saying the Senate has the power to amend the Constitution via treaty, but because they most likely won’t you’re okay with it? I suggest that the Senate doesn’t actually have that power. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 4, 2017, 5:30pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/77 "2017-05-04T17:30:40Z")
I agree that it does not. An Art. V amendment is the only way by which the Constitution may be changed, but statutes, court decisions and treaties may have an effect - even a significant effect - on the actual operation of government without technically amending the Constitution. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 4, 2017, 5:58pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/78 "2017-05-04T17:58:37Z")
> [@Elendil\_s\_Heir](#): > > I agree that it does not. An Art. V amendment is the only way by which the Constitution may be changed, but statutes, court decisions and treaties may have an effect - even a significant effect - on the actual operation of government without technically amending the Constitution. OK, so let’s take abortion, which is _arguendo_ a constitutionally grounded right. In 2019, President Trump enters into, and 67 senators ratify, a treaty with the Vatican in which both countries agree not to permit abortion within their borders. Does this then become the supreme law of the land? ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 4, 2017, 7:11pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/79 "2017-05-04T19:11:12Z")
I think it would be a profoundly bad idea, cause a political firestorm and not actually change the text of the Constitution the way an amendment does, but under the Supremacy Clause, yes, it would be the supreme law of the land. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 4, 2017, 8:38pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/80 "2017-05-04T20:38:24Z")
> [@Elendil\_s\_Heir](#): > > I think it would be a profoundly bad idea, cause a political firestorm and not actually change the text of the Constitution the way an amendment does, but under the Supremacy Clause, yes, it would be the supreme law of the land. I disagree. I think would be an excellent idea if it worked, but I don’t agree that the constitutional protections regarding abortion can be obliterated by the President plus 67 senators and one Pope. [Previous page](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709.md?page=3) [Next page](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709.md?page=5)