Anthony Kennedy, the Politics of the Supreme Court, and how a New Justice May Change the Court

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In our first ever three-person Politics Guys, Northern Kentucky University Law Professor Ken Katkin joins Mike and Jay to discuss:

  • how Kennedy was different from the Court’s four other conservatives
  • whether the Justices are politicians in robes or if they base their decisions on more than partisan calculations
  • if Senator McConnell should hold off on hearings for President Trump’s nominee to replace Kennedy until after the election, as he did with President Obama’s nominee to replace Justice Scalia
  • how the Court may alter its opinions on partisan gerrymandering, LGBTQ rights, denial of services to same-sex weddings, and Roe v. Wade with a new, more conservative replacement for Kennedy

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6 thoughts on “Anthony Kennedy, the Politics of the Supreme Court, and how a New Justice May Change the Court”

  1. I’ve listened to you guys for a few years now on and off. I thought this was a good podcast because it had a more fact based host (Ken). What happened to Jay was telling. He was constantly corrected on his propaganda. What is the point of having Jay on if he is going to be just telling untruths. It seemed like every representation he made was bluntly proved false. For example if the couple just got an off the self cake it would have been fine. Seconds later he is corrected that they did want an off the shelf cake. Time and Time again he was corrected for just being unfactual.

    What value is Jay brining to the show if Mike has to argue with someone who has his facts so wrong? I hope Ken is brought back more often. He was insightful and provided a lot more history to put events into perspective.

    1. Actually, I believe that Ken was wrong on the Masterpiece Cakeshop facts, at least according to the Supreme Court’s own summary of the case, as well as a number of comments from Justices on both sides. But that aside, I’m glad you enjoyed hearing Ken’s perspective – as a law professor, I felt he’d bring a depth of knowledge that I wouldn’t be able to match. -Mike

      1. I may have oversimplified a bit, for which I apologize. As Michael notes, the Masterpiece Cakeshop baker was willing to sell off-the-shelf products to Charlie Craig and David Mullins, so long as those products were not used in a same-sex wedding ceremony. But the baker refused to sell any wedding cake to a same-sex couple. As the Colorado Supreme Court noted in ¶ 4 of its opinion in the case: “The parties did not dispute any material facts. Masterpiece and Phillips admitted that the bakery is a place of public accommodation and that they refused to sell Craig and Mullins a cake because of their intent to engage in a same-sex marriage.”

        The wrinkle that I oversimplified is that the Masterpiece Cakeshop had no wedding cakes on-the-shelf. All wedding cakes had to be custom-ordered. But if wedding cakes had been available on-the-shelf, then the baker would have refused to sell a wedding cake off-the-shelf for a same-sex wedding. This point is clear because the baker openly and admittedly “refused to sell Craig and Mullins a cake because of their intent to engage in a same-sex marriage.” And In fact, as Justice Kennedy noted in passing in his majority opinion in Masterpiece Cakeshop, the Cakeshop also “had refused to sell cupcakes to a lesbian couple for their commitment celebration because the shop ‘had a policy of not selling baked goods to same-sex couples for this type of event.’” (I believe the cupcakes were on-the-shelf).

        The point I was trying to make is that the baker refused to sell any baked goods to a same-sex couple for use in a same-sex wedding ceremony, regardless of whether those baked goods were off-the-shelf or custom-baked. This point is correct. However, no wedding cakes were actually available on-the-shelf. And Michael is also correct in pointing out that the baker was willing to sell other, non-wedding-related baked goods to Craig and Mullins.

        1. Thanks for taking the time for that clarification Ken. In the midst of our discussion I missed that. While I intended to ask you about it both during the show and after, I somehow didn’t get around to it. One wrinkle I wasn’t aware of is that there were no off-the-shelf cakes at all, which means to me that the baker’s claim that he would have sold the couple an off-the-shelf cake – if he did in fact claim that, as I seem to recall – somewhat odd.

          1. Well, Firstly thanks Ken for that response and clarification.

            Mike, you really focused on that single tree instead of the problem forest. How am I to take anything that Jay says seriously? What is the point of listening to you two discuss points of views based on fiction?

            So to not just be a critic I would like to propose a solution. Maybe you two should script your shows (not word for word). You each should write each other about what your arguments, facts, and sources are on each claim. If a topic is going to be about fruit; one says that apples and oranges are the same then that should be fact checked and rejected. That argument should never be put into the show. Maybe enlist some interns to help check claims and positions. Otherwise what I am seeing a lot of is just a less heated CNN panel including Kellyanne Conway. Once the fiction is out there and left unchallenged it poisons the discussion. Ken had command of the facts and instantly challenged points that were factually wrong, instead of the shows normal agree to disagree. I got way more out of his participation then any of the other shows I can think of. I am writing this out of frustration as I keep leaving your show and coming back. Give me more than I could get from CNN.

  2. While I often disagree with Jay’s analysis and conclusions, I believe his points of view aren’t based on fiction, but rather on some fundamental assumptions that frequently differ from those I, and many of my fellow liberals, hold. As such, I think it’s worthwhile to consider and take seriously his views in order to have a fuller sense of how people on the right see certain issues. That said, it’s absolutely true that from time to time one of us misstates a fact or is unclear in explaining something. When that happens, we’re happy to have listeners inform us of that, and we’re committed to not only announcing corrections, but announcing them prominently, to ensure that as many people hear the correction as heard the initial error.

    Thanks for your idea about improving the show. It’s very interesting but definitely beyond what we can do given our time and resources. I’d like to think that even though we have nowhere near the resources of CNN, Jay, Trey, Ken, and I provide many listeners with something they find worthwhile. I hope you’ll keep on listening, and that if you believe any of us to have gotten our facts wrong, you’ll let us know so that we can correct the record. While it’s awesome to have listeners tell us how much they love the show, it’s also great to have attentive and knowledgeable listeners who keep us on our toes!

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