Anthony Kennedy to retire this year?

[Bone]

@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.

Not so. In Bond v. US:

If that is true, then the possibilities of what the Federal
Government may accomplish, with the right treaty in
hand, are endless and hardly farfetched. It could begin, as
some scholars have suggested, with abrogation of this
Court’s constitutional rulings. For example, the holding
that a statute prohibiting the carrying of firearms near
schools went beyond Congress’s enumerated powers,
United States v. Lopez, 514 U. S. 549, 551 (1995), could be
reversed by negotiating a treaty with Latvia providing
that neither sovereign would permit the carrying of guns
near schools. Similarly, Congress could reenact the invalidated
part of the Violence Against Women Act of 1994
that provided a civil remedy for victims of gendermotivated
violence, just so long as there were a treaty on
point—and some authors think there already is, see
MacKinnon, The Supreme Court, 1999 Term, Comment,
114 Harv. L. Rev. 135, 167 (2000).
But reversing some of this Court’s decisions is the least
of the problem. Imagine the United States’ entry into an
Antipolygamy Convention, which called for—and Congress
enacted—legislation providing that, when a spouse of a
man with more than one wife dies intestate, the surviving
husband may inherit no part of the estate. Constitutional?
The Federalist answers with a rhetorical question:
“Suppose by some forced constructions of its authority
(which indeed cannot easily be imagined) the Federal
Legislature should attempt to vary the law of descent in
any State; would it not be evident that . . . it had exceeded
its jurisdiction and infringed upon that of the State?” The
Federalist No. 33, at 206 (A. Hamilton). Yet given the
Antipolygamy Convention, Holland would uphold it. Or
imagine that, to execute a treaty, Congress enacted a
statute prohibiting state inheritance taxes on real property.
Constitutional? Of course not. Again, The Federalist:
“Suppose . . . [Congress] should undertake to abrogate a
land tax imposed by the authority of a State, would it not
be equally evident that this was an invasion of that concurrent
jurisdiction in respect to this species of tax which
its constitution plainly supposes to exist in the State
governments?” No. 33, at 206. Holland would uphold it.
As these examples show, Holland places Congress only
one treaty away from acquiring a general police power.

And in Reid v. Covert:

The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.

Article VI, the Supremacy Clause of the Constitution, declares:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . . .”
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary 17*17 War, would remain in effect.[31] **It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.[32] In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. **The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is a lot more in Reid.

[Elendil_s_Heir]

It does not appear that the court actually ruled on the constitutional issue presented in either iteration of Bond, and Reid was about an executive agreement, not a treaty.

Bond v. United States (2011)

Bond v. United States (2014)

Reid v. Covert

[Bone]

Both of those cases discussed the issue at hand - the ability of the treaty power to supersede constitutional amendment process or invalidate other constitutional provisions. The idea was resoundingly against the interpretation you’ve put forward even if they did not rule on that constitutional issue presented in Bond. There is strong indication that the interpretation you’ve presented would not be upheld.

Reid was about executive agreement, and specifically uses the treaty example. Not perfectly controlling but it describes and discards the exact scenario you have put forward.

[rbroome]

@Shodan

The Ninth Amendment says nothing of the sort.

This is the kind of thing conservatives object to - making it up as they go along.

Regards,
Shodan

Well, now that the 9th amendment has been brought to my attention, I think your claim is a bit strong.
Reading the background and reasoning for the ninth amendment, it was written to avoid anyone making the argument that since the constitution and the Bill of Rights listed certain protections, say the right to keep and bear arms, that didn’t mean that other rights not mentioned in the Bill of Rights were not important.

It addressed the exact problem that is highlighted by the abortion debate. Just because abortion isn’t specifically protected in the constitution doesn’t mean that it might not be a protection. Now the argument remains whether abortion is a protected right, but the ninth amendment specifically protects the discussion. And that protection IS in the constitution.

[PastTense]

Anthony Kennedy retirement watch at a fever pitch

Anthony Kennedy retirement watch at a fever pitch | CNN Politics

If he retires and is replaced by another conservative will Roe vs Wade be overturned?

[John_Mace]

@PastTense

Anthony Kennedy retirement watch at a fever pitch
http://www.cnn.com/2017/06/24/politics/anthony-kennedy-retirement-rumors/index.html

If he retires and is replaced by another conservative will Roe vs Wade be overturned?

I don’t think Roberts would allow that. Thomas would have no problem overturning Roe, and maybe even Alito. But after that, I think it gets very iffy. At the very least, I think we’d need one more “liberal” justice to retire and be replaced by a very, very conservative justice. And even then, I think it’s a long shot.

[madsircool]

@PastTense

Anthony Kennedy retirement watch at a fever pitch
http://www.cnn.com/2017/06/24/politics/anthony-kennedy-retirement-rumors/index.html

If he retires and is replaced by another conservative will Roe vs Wade be overturned?

Probably not but all it would do would put abortion back in play in politics. It wouldn’t make it illegal.

[The_Other_Waldo_Pepper]

@madsircool

Probably not but all it would do would put abortion back in play in politics. It wouldn’t make it illegal.

Or, split the difference: imagine a Supreme Court that says, yeah, on second thought, this isn’t really a call for the federal government; it’s a matter for each state.

So maybe it’s illegal in Alabama – but it’s legal in New York. And et cetera.

[UltraVires]

No Kennedy retirement. At the rate Roberts is going, I hope he and Kennedy both retire. Gorsuch seems to be a for real conservative.

To sum up my disappointment with Roberts today:

1. His stupid footnote 3 in Trinity Lutheran.
2. His joining of the summary reversal in Pavan.
3. His joining of the half-assed opinion/non-opinion on the travel ban cases.
4. His vote to deny cert in Perulta.

Not a good day for Roberts’ conservative credentials.

[UltraVires]

@The_Other_Waldo_Pepper

Or, split the difference: imagine a Supreme Court that says, yeah, on second thought, this isn’t really a call for the federal government; it’s a matter for each state.

So maybe it’s illegal in Alabama – but it’s legal in New York. And et cetera.

I’m not sure how that is a “split the difference” opinion. It is all conservatives have asked for: a state by state determination. Nobody except the most hard core right wingers ask for an opinion to outlaw abortion in all 50 states regardless of state laws to the contrary. Such a position would be conservative judicial activism that, IMHO, is completely unsupported by the Constitution.