Justice Anthony Kennedy, The Most Powerful Judge In America, Speaks At Berkeley Law

Yesterday U.S. Supreme Court Justice Anthony Kennedy, the critical swing vote on almost every controversial case, spoke to students at UC Berkeley Law.  His topic was essentially how the Supreme Court works, and his talk provided some glimpses into the values and thought processes of one of the most powerful decision-makers in the country.

First, he spent some time describing the basic workings of the court, such as the schedule (like a semester system, with “term papers” due by June).  He also talked about the process of selecting cases and oral argument.  Of interest: he confirmed that the questions the justices ask during oral argument are often directed at their colleagues on the bench.  Since the justices never discuss a case before oral argument to avoid pre-judging the outcome among “cliques and cabals,” they ask questions like “isn’t it true you have standing under the Clean Water Act…” to signal to Justice Scalia (in Kennedy’s example) that you believe the court has jurisdiction, and so forth.

Kennedy said he is never nervous before oral argument because he prepares thoroughly and looks forward to the opportunity.  But he is nervous before the first conference where the justices discuss the cases.  Mostly he is afraid he will say something stupid about a case in front of his peers. He’s in favor of being “flexible” in his opinions to win votes, but he doesn’t see it as compromising principles.  Instead, he views it as making incremental progress, even citing a Harry Potter book he read to his grandkid in which Harry found a magical train to school and a whole new world on the previously hidden track number “9 3/4” at the station, between tracks 9 and 10.

Justice Kennedy and Berkeley Law Dean Sujit Choudhry

Justice Kennedy and Berkeley Law Dean Sujit Choudhry

In 5-4 decisions in the conference, he said the real burden is then to write a decision that not only persuades the other justices but also the public. And in some instances, a written draft may actually lose a previously supportive justice.  The justice may tell him, ‘you know, I think I’ll wait now to read the dissent before deciding.’  I imagine some version of this process happened with Justice Roberts when he seemed to have switched his vote on the decision to uphold Obamacare at the last moment.

Kennedy was surprisingly funny at times, recalling one of his early cases in private practice involving a malfunctioning winch on a boat in the Oakland Estuary.  As a young attorney, he was shocked to see the esteemed federal judge break out in laughter when reading his opening brief: he had started it with: “A seaman working on a wench…”  Spell checking was not his forte, Kennedy admitted.

But Kennedy turned more serious when discussing the state of politics and culture in the country.  In short, he is quite concerned, even alarmed, at what he perceives to be the lack of civility in the country and even worse at the lack of appreciation among younger generations of our “heritage of freedom.”  He said our democracy is still vulnerable, people around the world are watching us, and it’s incumbent that we teach the younger generation to appreciate what we have.  He cited the example of a former communist country where democracy is breaking down and alarmingly, no one seems to care.  He also described how at least in communist Poland great thinkers went into teaching and instilled democratic values in students for decades, whereas our educational system is now lagging.

I found his sense of alarm surprising and something I don’t share to quite that degree.  Sure, there are lots of reason for pessimism about the state of the U.S.  But I don’t see our democracy as under threat from a sleep-walking public.  I think our governing institutions are basically working as intended.  The biggest problem may be political corruption from campaign contributors who have outsized influence on decision-makers, thereby subverting broad public opinion.  But if anything, Kennedy made that dynamic significantly worse with his Citizens United decision, which opened the floodgates to corporate money in politics.  We could certainly use political reforms and a better-educated citizenry, but I don’t think it’s as dire as Kennedy thinks.

I agree with Kennedy that “freedom” requires democracy or majority rule, but our system of government doesn’t guarantee freedom.  Our “heritage of freedom” was limited of course at first to certain white men, while democracy over the centuries here has co-existed with slavery, disenfranchisement of women, internment of Japanese Americans and systematic dispossession of Native Americans from their lands.  And the U.S. certainly hasn’t led the world in most freedom rankings, although we’re still doing better than most places.  By different global measures and studies, we’re tied for 23rd on press freedom, 12th on economic freedom, and 13 and 15th on democracy and corruption, respectively.  Not bad but could be better.  So should we really be worried about “preserving” our heritage?  Or should we be looking to expand freedom at home?  I would argue the latter, but Kennedy seems to suggest the former.

During Q&A, I got a chance to ask the justice about whether or not he would favor limited or shorter terms for justices, in order to improve the democratic accountability of the court.  (I once asked this question of Justice Ginsburg, who bristled at the thought of depriving the country of the final years of Justice Rehnquist or Stevens, although I later saw that Justice Breyer was open to the idea in principle.)  Kennedy first responded by blaming presidents and the nominating process, pointing out that presidents are appointing much younger justices than the historical norm, so they serve longer.  He sounded thoughtful on the issue but ultimately not in favor of limiting terms. He did note that in some countries they have forced judge retirements at certain ages.  Then he said that since his generation never got a president (World War II-era George H.W. Bush skipped to baby boomer Bill Clinton), he wanted to keep serving to represent his generation.  I found the answer odd given that his generation is plenty well-represented in Congress and among his fellow justices.  It struck me as a way to rationalize his not stepping aside after a long tenure.

Ultimately, my take away is that Kennedy is still very much a right-wing justice, despite his image as a moderate.  For example, his libertarian bent and alarm about “declining freedom” may have motivated his vote to overturn Obamacare as lacking justification under the Commerce Clause (a conclusion that flies against decades of court precedent and arguably the plain language of the clause).  He also showed almost no introspection about the lack of diversity on the court or any mistakes he might have made (“I would have changed some reasoning in some cases, but all my decisions were basically sound”).  But he’s unpredictable, as his time among Europeans abroad has convinced him that climate change is real, leading to his landmark Massachusetts v. EPA decision that forced the EPA to regulate greenhouse gases as a pollutant.  So in that sense, he’s not a lockstep conservative.  But temperamentally, and politically, he will continue to tack the court to the right.

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