Justice Harry Blackmun (1973), Justice Anthony Kennedy (2003), And The Likelihood Of Transformative Moment In Constitutional History Again!

Associate Justice Harry Blackmun was a THIRD choice of President Richard Nixon for the Supreme Court in 1970 after rejection of Clement Haynesworth and G. Harrold Carswell, and Blackmun went on to make history in 1973, in authoring the decision in Roe V. Wade, arguably the most important decision in modern times on women’s rights!

Associate Justice Anthony Kennedy was a THIRD choice of President Ronald Reagan in 1988 after rejection of Robert Bork and Douglas Ginsburg, and Kennedy went on to make history in 2003, in authoring the majority opinion in Lawrence V. Texas, arguably the most important decision in modern times on gay and lesbian rights!

Are we about to see another transformative moment in the Court’s history and in constitutional history, with the upcoming case on gay marriage, being argued tomorrow and Wednesday, with Kennedy believed likely to continue to support gay advancement, and the hope that he will bring along Chief Justice John Roberts, who has a sense of history, and already showed leadership and courage in backing ObamaCare last June?

Many experts believe the Supreme Court will broadly back gay marriage, although they could just do a narrow decision on Proposition 8 in California, and on the Defense of Marriage Act as an alternative.

But this decision, if broadly based, could be of similar impact, as Loving V. Virginia was on interracial marriage in 1967, or Brown V. Board Of Education was on racial integration of public schools in 1954!

10 comments on “Justice Harry Blackmun (1973), Justice Anthony Kennedy (2003), And The Likelihood Of Transformative Moment In Constitutional History Again!

  1. Juan Domingo Peron March 25, 2013 3:40 pm

    The only reason the case is on the SCOTUS is because the people of one of the most liberal states in the union, rejected gay marriage. The fact that they are litigating this proves that no matter what the skewed polls may say, each time the issue goes to a vote, it is mostly rejected.

  2. Young Progressive March 25, 2013 4:40 pm

    I agree Professor. I think it will be a transformative moment as well.

  3. Ronald March 25, 2013 5:19 pm

    Juan, NO ONE should decide who should be able to marry by popular vote. If that was the case, interracial marriage would not exist, integrated public schools would not exist, etc. The right to marry should NOT be based on prejudice, narrow mindedness, or religious views, as long as religious institutions are not required to marry, and civil marriage exists. The basic civil rights of all of us should NOT be subject to popular referendum, because most people have no knowledge of the matter, and vote on emotion, not rational reasoning!

  4. Juan Domingo Peron March 25, 2013 6:32 pm

    Ron: If the basic civil rights of all of us should NOT be subject to popular referendum because most people have no knowledge of the matter, and vote on emotion, not rational reasoning, then why do you post “Gay Marriage Acceptable To Majority In New Washington Post-ABC News Poll”? In any event this is not about any civil rights, its very easy to label anything you want a civil right, just to get public opinion on your side. If what you say were true, then the right to polygamy would be a civil right. The right to marry your brother or sister would be a civil right. And the list is endless. You like to claim that there no moral view should be imposed on anyone, yet you say “I do not think denying marriage to gays is the moral and ethical thing to do, as I see it!”,thus proving that this is a moral issue. So if it is a moral issue, then the Courts should not be deciding it. Furthermore, as I have pointed out before, in a rational and not emotional manner, comparing changing the definition of marriage to include a marriage between people of the same sex is not comparable to racial discrimination because it is “predicated on the profoundly false premise that race and sex (or “gender” as it is now referred to) are analogous. They are not. While there are no differences between black and white human beings, or between any race of humans, there are enormous differences between male and female human beings. That is why sports events, clothing, public restrooms, and (often) schools are routinely divided by sex. But black sporting events and white sporting events, black restrooms and white restrooms, black schools and white schools, or black clothing stores and white clothing stores would be considered immoral and therefore discriminatory. Because racial differences are insignificant and gender differences are hugely significant, there is no moral equivalence between opposition to interracial marriage and opposition to same-sex marriage.”Now this is not based on emotions , on prejudice, narrow mindedness, or religious view. But if you think that there are no gender differences, that male and female are exactly the same, and I am not talking one better that the other, their rights or genital differences, well then there lies the problem.

  5. Juan Domingo Peron March 25, 2013 8:54 pm

    D: I grant Olson is right and there is a fundamental right to marriage. And you cannot discriminate on the bases of race or sex. But the question remains, what is marriage? Who defines marriage? Marriage defined as it has been throughout history and all cultures is between a man and a woman. If a gay man wishes to marry a woman or lesbian woman a man they can marry and will not be and cannot be denied marriage, otherwise that would be discrimination. Just as people of different races cannot be denied the right to enter into marriage. But If a man wants to marry a man, or a woman a woman, or two men a woman, or two women a man, then that is impossible because the verb to marry means to wed someone of the opposite sex, one man – one woman. So the constitutional argument of discrimination does not fly. And the Courts cannot change the dictionary that is a definition of a word. Now, if the people wish to change the definition of marriage, making it something totally different, they can through the legislative process. They can expand to include same sex unions and even expand it to more that two people.But the Court should not be in the business of changing the definition of marriage.

  6. Young Progressive March 26, 2013 12:13 pm

    This is worth adding to the discussion: robertreich.org/post/46277315334

  7. Juan Domingo Peron March 27, 2013 9:27 am

    An institution that predates the United States by several millennia will be defined for a third of a billion people by whichever way Anthony Kennedy feels like swingin’ that morning. The universal deference to judicial supremacism is bizarre and unbecoming to a free people.
    The fact that the Supreme Court may be about to pass judgment on the age-old definition of marriage is the reductio ad absurdum of American constitutional jurisprudence. That we have reached this point tells us that the Supreme Court has taken some terribly wrong turns.
    The fact that, until very recently, marriage has universally been deemed to require an opposite sex component doesn’t mean that this component must be required forevermore. But a decent appreciation of democracy, human history, and the fallibility of the individual means that nine glorified lawyers shouldn’t be the ones who make the change. Nor should they be in a position where they might make it.
    No court with any understanding of accountable government or constitutional propriety would go along with it. It may well be that the tide has turned, and the American people are cool with gay marriage. In that case, their elected representatives should enact it into law (as the House of Commons at Westminster recently did). But the spectacle of a nation agog waiting for a puff of smoke from Justice Kennedy to see which way he’s going to blow is ridiculous.

  8. Ronald March 27, 2013 9:45 am

    One could also argue that almost ANY decision of the Supreme Court, whether progressive or conservative, is “undemocratic” in that a majority of five can change the course of history, sometimes in a good way, sometimes in a bad way. But that is our system of government, and the man most responsible for this is not the whole Founding Father group at the Constitutional Convention, but rather Chief Justice John Marshall (1801-1835), who enunciated a broad interpretation of the Constitution, as Alexander Hamilton did, and later Henry Clay! Still, uneducated or ignorant people in the general population should not be able to decide the basic human rights of others!

  9. Juan Domingo Peron March 27, 2013 10:06 am

    First I reject the elitist view, typical of progressives, of “uneducated or ignorant people in the general population”. If the people are good enough to defend the US and our freedoms during times of war then they are good enough to govern themselves, even though I do believe great part of the population is not informed on certain issues. Second, I am not making a case against judicial review. Now that said, it is true that certain fundamental constitutional rights are taken away from the public and political discourse and protected by the Bill of Rights. But we must be talking about rights,( real constitutional rights not invented constitutional rights like abortion for example), and the definition of marriage is not a right! It can be change I grant you, but not by judges. I find it curious how the left is so willing to undermine clearly established constitutional rights, rights that are written down so every can read them, like freedom of religion and the right to bear arms, but goes out of its way to establish as constitutional rights certain issues that are not even mentioned in our Constitution. The left just takes any issue it wants or dare I say perceive as an electoral gain, and declares it a constitutional right! That way one cannot even argue against it because he is automatically accused of being a hater and bigot! Typical leftist tactic.

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