Saturday, October 31, 2015

Only Nazis should be judges

Referring to laws governing both marriage and abortion, the young man asked Kennedy, “Would you say that there are any state or federal officials with authority to act according to her own judgment of the truth of new insights or of the soundness of the court’s constitutional interpretation, or would it be illegal for any federal official or state official to enforce or to act according to the old understanding of life and the Constitution that she still judges to be the truth of the matter?” 
The justice responded by pointing out that only three judges resigned during Germany’s Third Reich — the government of Adolf Hitler — and said, “Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point. However, the rule of law is that, as a public official, in performing your legal duties, you are bound to enforce the law.” 
“This requires considerable introspection,” he continued, “and it’s a fair question that officials can and should ask themselves. But certainly, in an offhand comment, it would be difficult for me to say that people are free to ignore a decision by the Supreme Court.”

That's the reductio ad absurdum of judicial imperialism. Putting aside the fact that this isn't really about the "rule of law," but about five lawless judges who amended the Constitution to fabricate a Constitutional right to homosexual marriage–even though the Constitution never gave the judiciary that authority–it doesn't even occur to him that in a Third Reich situation (and that's his own analogy), public officials might have a duty to resist governmental evil and tyranny remaining in office, but undermining the regime from within. Insiders can sabotage the regime in ways that outsiders cannot.

Kennedy has been a top gov't official since 1988, so I suppose it's understandable that he can no longer see things from any other perspective than a member of the ruling class. By his logic, only Nazi judges ought to be judges in Nazi German, as if it would be immoral for virtuous judges who found themselves in that situation when Hitler assumed power to maintain their position in order to subvert the evil, despotic regime. 

The critics of Kim Davis have said she should "just do her job or quit." I appreciate Kennedy taking that principle to its logical extreme, where "just doing your job" becomes an end in itself. And, come to think if it, wasn't that the philosophy of the "good German"? 


  1. Obviously he would have made for a fine, goose - stepping stooge for Hitler. Thanks for confirming what many of us have long suspected Justice Kennedy.

  2. "The reliable path of duty seems to offer the escape from the bewildering plethora of possible decisions. Here, that which has been commanded is clutched as the most certain; the responsibility for what has been commanded lies with the one giving the command rather than the one who carries it out. However, duty is so circumscribed that there is never any room to venture that which rests wholly in one’s own responsibility, the action that alone strikes at the very core of evil and can overcome it. The man of duty will in the end have to do his duty to the devil." Dietrich Bonhoeffer, excerpted from his circular letter After Ten Years