Anthony Kennedy and the Juggalo Creed

Every roach hides under a rock called legitimacy. That’s probably not such a novel insight. But removing that rock entirely to reveal the insects in mid-scurry is the sort of action most people don’t much consider. I’ll return to that thought momentarily.

Public discussion on the raft of recent Supreme Court decisions was mostly washed aside in the wake of Brexit. Which is a mild shame given the effort that tribunal expended in crafting airy rationalizations for its result-oriented expedients. Such displays merit little mention except to those who still imagine this is a panel constrained by some legendary scrap of paper. Or, it should be acknowledged, by their own cosmic rhetoric offered in previous decisions. But so what? Most of these justices are old enough to be stolen by Indiana Jones. You think they maintain a logical decision-tree of their bullshit?

I would hope they might, actually. If for no other reason than to avoid the mockery of Internet fly specks. Though apparently that’s insufficient motivation. And so we are continually handed howlers like FISHER v. UNIVERSITY OF TEXAS AT AUSTIN ET AL.

This was case number something in an ongoing ellipsis of court decisions related to affirmative action in university admissions. The perpetually protruding nub of which being how to reconcile these programs of bald racial preference with the lakebed of laws, amendments, and florid pronouncements on the sanctity of non-discrimination.

The problem for the court is that a significant cohort of gullible whites have long labored under the misapprehension that the whole universalist construct was ever principled rather than particularist. These dullards ceaselessly complain that if racial discrimination is both immoral and unconstitutional, then it is so against us as well.. This facile plea compelling the court to the awkward chore of generating reams of legal legerdemain in hopes of numbing minds enough to elude painfully definitive pronouncements while dissuading further appeals.

I doubt the effort will be successful. Though I also doubt any court manned by Anthony Kennedy will agree to take up the question again. And if they do I expect it to read very much like the following:


No. 14–981

JUSTICE KENNEDY delivered the opinion of the Court.

Dear dumb white shits,

We have attempted to mollify your persistent bleating with the sort of sweeping rhetoric that has so often rendered you insensate to the ongoing defenestration of your national interests. Thus it was hoped we could evade the necessity of settling this issue with uncomfortable candor. Yet your determined inability to absorb politely oblique guidance has rendered that aspiration impractical. As a result, the court is obliged to speak loudly.



It is so ordered.

Here’s a few examples of the only slightly more veiled direction from the pen of Justice Kennedy. The source document being available here. First is to frame that difficult constitutional balance between the invisible diversity amendment and those defecated onto the country during “””reconstruction.”””

Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

You might be tempted to wonder where “diversity” appears in the constitution. Though that impulse should be resisted. Instead just understand that considerable deference is owed to a landlord in defining those intangible characteristics, like renter homogeneity, that are central to his property’s identity and mission.

But despite the deference owed to white nationalist landlords, it remains a challenge to reconcile the pursuit of non-diversity (which is as prominent a feature in our statutory framework as diversity) with the promise of equal treatment.

I wonder which side of the non-diversity/equal treatment divide Kennedy came down upon? I think this may have been the determining factor:

Petitioner’s final argument is that “there are numerous other available race-neutral means of achieving” the Uni­versity’s compelling interest. A review of the record reveals, however, that, at the time of petitioner’s application, none of her proposed alternatives was a workable means for the University to attain the benefits of diversity it sought.

So the black renter’s complaint is that the WN landlord should have used race-neutral means to achieve his preferred racial outcome. But how is he supposed to do that? Further, a review of the record shows that none of the petitioner’s proposals were workable plans for the landlord to attain the myriad benefits of non-diversity. These benefits including but not limited to physical safety, higher property values, increased cultural capital, and fewer strewn about hair extensions. In fact, without taking race into consideration in rental decisions, property owners can not even be assured of achieving a white critical mass, which is the number of non-diverse renters desired by the landlord, though not shared with the court.

Kennedy further qualifies…

Therefore, although rental admissions officers can consider race as a negative feature of a minority student’s application, there is no dispute that race is but a “factor of a factor of a factor” in the holistic-review calculus.

This is precisely what I originally attempted to explain to DOJ Civil Rights division chief, Vanita Gupta. Race was only one of the reasons we didn’t rent to Jerome. His undesirable blackness was just a factor of a factor of a factor in our holistic review (approximately 98% factors in each instance, incidentally).

Fortunately the logical weight of our compelling interest in non-diversity swayed Justice Kennedy, who upheld the WN rental policy in writing the majority opinion. Though obviously not all members of the court found our brief persuasive. One of them contested the matter on 14th Amendment grounds, arguing:

The moral imperative of racial neutrality is the driving force of the Equal Protection Clause.

A moral imperative to racial neutrality? Thankfully not so imperative that it supersedes our landlord’s asserted interests in non-diversity. By the way, which Justice offered the quote above in dissent of Kennedy? Well that was Anthony Kennedy himself, rhapsodizing in a separate opinion. These moral imperatives can be frustratingly slippery. The fact of which returns us to the rock of legitimacy and all those things scuttling beneath.

First some idle musing. If instead of the words that appear, what if the constitution was replaced with the Juggalo Creed? Were this inspirational manifesto their guidance, which justice’s votes in which prior decisions do you imagine would be altered? My speculation would be none whatsoever.

And if that were true, as of course we have only our intuition to surmise, then what exactly is the utility our most hallowed document? The honest answer is that its purpose is found in supplying camouflage to the court.

With no constitution to make sententious gestures towards, the court would be revealed for precisely what it is: the nine-man upper house of a tricameral legislature. The chore of this panel being to accept, reject, or rewrite the legislative efforts and referenda of their junior colleagues and the public alike on a purely political basis.

I suppose arguments can be marshaled in support of maintaining this function, though it is just as likely the counterpoints would be more robust. Perhaps the public would prefer its collective will to take primacy over a platoon of government lawyers. Or maybe you believe Ruth Bader Ginsburg has more of your welfare in mind than your own mother does. Regardless, the public should at minimum have avenues of relief available for all its political representation. What form this relief takes should be another matter for careful and imaginative public consideration.

If intellect were matched to task, I would put Kennedy in charge of a kennel and assign Sotomayor as a resident. Though as it is neither are deserving of any deference as stewards of America’s founding charter.

And a stoic piece of paper reflects impassively.


12 thoughts on “Anthony Kennedy and the Juggalo Creed

  1. Ignoring the good/bad arguments of affirmative action for blacks. Nobody has ever explained to me why affirmative action should apply to people that chose to come to the country that weren’t descended from slaves? What exactly is owed to Jose and Mjambe that he should be put at the front of the line over whites that have been here for generations?

    I know, I just haven’t looked hard enough the a Ouija Board Constitution to divine the answer.

      • You’re right of course. I’ll go back to flogging myself, your honor.

        One final point:

        Affirmative Action: Good
        Calling someone an Affirmative Action case: Bad

        Try this out. Call Barack Obama (or Sotomayor) an affirmative action hire (which they obviously are). When people object, ask them if they support affirmative action. Of course they do! Great. Then say they should be happy that you are acknowledging the success of the program that they support.

        The smoke that pours from the gears is wonderful.

    • Posner doesn’t understand the potential impact on lifetime sinecures of turning the judiciary from implicitely to explicitly political.

      One of those impacts being the proliferation of logical inquiries such as “what is it we need them for exactly?” If people only obey you out of deference to the constitution’s legitimacy mirage, then why keep you on the payroll after you openly admit the entire exercise is a sham? I’m eagerly awaiting a hearty LOL when the answer to that comes back: “Because the constitution says so!”

      I hope people like him continue to speak with such open stupidity.

      I’ll tack on another thought since that gaffe has me nearly giddy at the thought the notion might gain traction. Because if the constitution is a dead letter then the entire basis for judicial review goes out the window. Which invalidates at least half of the liberal modern framework constructed on court decisions exclusively.

      Put Pozner on the court and maybe he can scuttle the whole institution.

      • “If people only obey you out of deference to the constitution’s legitimacy mirage, then why keep you on the payroll after you openly admit the entire exercise is a sham? I’m eagerly awaiting a hearty LOL when the answer to that comes back: ‘Because the constitution says so!'”

        No, you see, we just think the parts of the Constituion where those DEAD FUCKING WHITE MALES gave YOU rights are kaput. We still expect you to continue paying our salaries and those of the president and congress and obey our edicts without complaint.

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  3. Whenever some nice middle-aged liberal complains about “divisiveness” in contemporary politics (usually meaning “right-wingers who complain too loudly”, because good lefties, no matter how extreme, are never “divisive”), I want to say “Well, maybe if your liberal lawyer buddies hadn’t spent the past 60 years manipulating the court system to do an end-run around democratic politics, we might show more respect for the middle-of-road consensus. As it is, the political ‘center’ is light-years to the left of anything for which the American people ever directly and willingly voted”.

    The only reason such creations of naked judicial fiat garner any public support at all is because many Americans regard SCOTUS decisions as the solemn ex cathedra declarations of a Church council or Pope- “Roma locuta est, causa finita est”. Less reverent souls, who regard the nine High Priests of the American religion as mere secular functionaries, thus find themselves drifting further and further from the “center”, without moving at all. Usually, these are people who worship a real God, and thus don’t feel the required piety toward America’s ersatz one.

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  6. Where we could REALLY use affirmative action is in the hiring of journalists. Media outfits should have to hire a minimum number of conservatives. There is precious little diversity now in the media.

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