Now that he has made himself an uber-legislator, Supreme Court Justice Anthony Kennedy should do as lesser legislators do. He should stand for re-election.
What I mean is, he should resign -- and see if the president nominates him again, or the Senate confirms him.
The Constitution, of course, sets no term limit for justices. They can resign, however, at any time.
In explaining why the Framers gave justices unlimited terms, Justice Joseph Story (a Madison nominee) ironically pointed to the precise reason Justice Kennedy should now limit his own term: He has put his personal interpretation of popular opinion above our written Constitution.
That's the very sin the Framers feared elected politicians would commit. To balance it, they gave justices indefinite tenure, hoping they would check power-hungry politicians by following only the Constitution as it was first written or duly amended.
For if justices with limited terms interpreted the Constitution according to their own perceptions of popular opinion, asked Story, would it not make "at different times the most opposite commands?" Would it not "erect, behind the Constitution, a power unknown, and unprovided for by the Constitution, and greater than itself?"
Two opinions rendered 16 years apart demonstrate how Justice Kennedy, despite lifetime tenure, behaves like a legislator, not a judge, and commits the very abuse Story describes. In both cases, the question was whether the Eighth Amendment ban on "cruel and unusual punishment" prohibits states from executing killers who commit murder before they are 18.
In 1989, Kennedy said no. Last week, he said yes.
In 1989, Kennedy embraced arguments made by Justice Antonin Scalia. Last week, he rejected the same arguments -- made again by Scalia.
Americans have not amended the Eighth Amendment since 1989. But, thanks to Kennedy and four other justices who share his current personal opinion, the Eighth Amendment now means the opposite of what it meant in 1989 (and in 1789), insofar as executing 17-year-old killers is concerned.
In the 1989 case, Stanford vs. Kentucky, two teenage murderers appealed their death sentences, pointing to the 1958 case, Trop vs. Dulles. In Trop, a World War II Army deserter argued that depriving him of U.S. citizenship was "cruel and unusual" punishment for wartime desertion. It was a long shot: The penalty had been enforced unchallenged since the Civil War.
But a four-justice plurality in Trop ruled the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
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