Everyday Erinyes #126

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”

Heron Greenesmith starts his article at the Huffington Post by saying ” am going to speak ill of Justice Kennedy.” Well, so am I – except I wouldn’t call him “Justice” Kennedy. “Injustice” Kennedy is, I think, a better fit.

Greenesmith is a policy attorney for LGBTQ people, specializing in advocacy for bisexual and pansexual communities; he is also a board member of the Massachusetts LGBTQ Bar Association. So he is keenly aware of Kenndy’s specific record on LGBTQ issues, and he points out that it is as mixed as his overall record. Many times Kennedy was the one justice whose vote could not be predicted – and that was also true on issues where people remember him for a reasonable deciding vote. He voted abysmally on other cases involving the same issue.

On LGBTQ, for example, his positive record is based narrowly on relationship recognition. On other civil rights issues touching the LGBTQ community, he undermined that community, even while he was a rock for same-sex marriage.

His record on abortion is likewise mixed. In 2007, for instance he wrote the opinion upholding a federal ban on some abortions. He also joined the majority on the Hobby Lobby case, which purported to be about “religious exemptions” for for-profit corporations, but which in fact was about employers denying women birth control AND abortion. (If anyone ever sees a for-profit corporation in church during a service, please let us know, especially the media – that would be a journalistic sensation.)

He has also struck down gun control laws, supported strip searches, and joined the majority on Citizens United. (If anyone ever sees a for-profit corporation in a voting booth on Election Day, please, let us know, especially the media – that would be a journalistic sensation. No, there’s not an echo in here. It’s just me.)

During the last week of this spring term, Kennedy joined in (unfortunately majority) opinions which are so hard-right that they annihiliate his reputation as a swing judge, instead portraying him as

 … a hard-right, anti-Muslim, anti-immigrant, anti-health care, anti-worker conservative. These three cases represent three pillars of Trump’s administration: disdain for immigrants and Muslim people; disdain for health care, particularly for women and low-income people; and disdain for labor organizing and the working class. 

But Greenesmith goes even further to point out that the TIMING of the retirment is as much a slap in the face to America as the decisons themselves.

By retiring now, at the end of the spring 2018 term, Kennedy has made a clear and indisputable statement: He wants Trump to be able to appoint his successor, and he wants the closely divided Senate to confirm that candidate before the November midterms. 

Greenesmith doesn’t mention something else that struck me about the timing of his retirement announcement. I’m sure I’m not the only one who has noticed that media coverage of immigrants, refugees, children separated from their families at the border has dramatically dropped off since Wednesday. I can’t fault the media for giving coverage to the catastrophe that is the Supreme Court, since it’s damnably important, a life and death matter. But so are our children. I have no idea how much this was considered by anyone who was even peripherally in on Kennedy’s decision of when to announce. But I have to wonder.

HuffPo has published two other opinion pieces on Kennedy’s departure. Eric Segall, the Kathy and Lawrence Ashe professor of law at Georgia State University College of Law emphasizes gun control, and how Kennedy’s absence is likely to shape the Court. Robin Marty, a reporter who covers abortion rights, abortion clinic access and the anti-abortion movement (and whose work can also be seen at Care2 and truthout), addresses – well, let me quote her title: “What To Do When – Not If – Roe Vanishes.” Neither author is a fan of Kennedy. I’m sure he has no fans here either.

Alecto, Megaera, Tisiphone – there’s nothing you can do about Injustice Kennedy at this point. There may be, although the chances appear frighteningly slim, something you can do about stalling the confirmation of the monster who will be appointed (we already know he, or God forbid she, will be a monster, because that’s who Orange Judas hires.) And maybe – for the future – it may not be possible to pass it right away, but we will probably need time to get it right anyway – Help Congress and/or their staff in drafting proposed legislation to prevent ANY Federal Official, from nominating anyone, to any position which requires confirmation, while under investigation, for activities which may be proved criminal. And to void any appointments made by any federal official who is later proved to have engaged in criminal activities at or before the time the appointment was made. That’s not going to be easy to draft and make it iron clad.

The Furies and I will be back.

Cross posted to Care2 HERE.