An Oath to Justice Kennedy

Jonah Goldberg has a new post up at National Review. He discusses the increasingly meaningless oath that the Supreme Court justices are required to take before taking office. True, they must swear to protect, defend, and enforce the U.S. Constitution. Unfortunately, what that oath actually means is becoming increasingly ambiguous, according to at least five of the nine justices on the Court. (Actually, I think the number is six, even though Goldberg doesn't include any good quotes on the use of foreign law pertaining to Souter. Still, based on Souter's decision with the majority in Roper-Simmons, he obviously agrees with this philosophy.)

Ginsberg: "openly expressed her hope that America would discard its "Lone Ranger" attitude when it comes to interpreting the U.S. Constitution."

O'Connor: "the future challenge for the court will be to figure out how "our Constitution" "fits into the governing documents of other nations."

Breyer: "invoked the rulings of the supreme courts of Zimbabwe and India and the Privy Council of Jamaica to support his rulings."

Kennedy: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty."

Stevens: "within the world community, the ... death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved."

In 1989 Justice Kennedy signed on to a ruling that considered the standards he used this month to be "absurd" and/or "irrelevant." He rejected "the contention that the sentencing practices of other countries are relevant" in 1989. In 2005 he said "it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Kennedy says that times have changed and there's a national consensus for banning juvenile executions. Leaving aside the tendentious math he invokes to find this "consensus" on the issue at the state level, if there's a national consensus, why bring up the "international" consensus against the juvenile death penalty?

The salient fact isn't that times have changed. It's that Kennedy has...if the plain meaning of the Constitution can change as Justice Kennedy's mind changes, then the meaning of the Constitution is not to be found in its text or in precedent...No, the meaning of the Constitution does not exist at all — outside the cranium of whichever justice provides the swing vote.