I saw Justice Anthony Kennedy tonight at Northwestern Law School. He gave a short talk on ethics and the Constitution, answered questions, and then spoke individually with people at a reception afterwards. I got to ask him a question then (about the libertarian ramifications of his decision in Lawrence v. Texas) and hear him speak to others.

I thought the most interesting part was him describing the life of a Supreme Court Justice in DC. He talked about how one day he was late for work and driving down Pensylvania Avenue, but was stopped by a large line of people outside the National Archives. He asked a policeman what was going on, and was told that the Constitution was being taken down for new preservation measures and all the people were there to wish it well.

He also talked about how powerless he was, even as a Justice. He discussed seeing homeless people sitting out in the cold DC winters. He joked that he’d take out his pocket constitution (he did) and say “I can make sure you have a fair trial but I can’t give you food and shelter.” On the other hand, he said it would probably be a mistake logistically for the Constitution to require that everyone have food, shelter, and health care (even though he wanted to government to ensure all these things) because the court was only good at preventing the government from doing things, not forcing it to do them.

But the real reason he came seemed to be that he really cares about students, and passing on the tradition of the Constitution. He longed for the days where every citizen also knew about the law, and discussed programs for getting high schoolers and other students interested in our important freedoms. He got really engaged in a discussion with our Constitutional Law teacher, recommending books and techniques for getting kids interested in the subject.

All in all, he seemed like a relatively normal guy (with a vast knowledge of the law) who was just trying to do what seemed right and fair. He talked about how he never wanted to lose touch with the actual people behind all of his cases, and how he really wants to be a trial judge so he can be listening to people’s actual problems (he says he never had the political power to get the job). I think this is why he’s often the “swing vote” — he doesn’t care so much about political battles or overarching doctrines, but just doing what’s right by the law and what’s fair for the people.

A full report on his talk and the event follows.

My class on American Constitutional Law decided to take a field trip to come hear him speak. We drove downtown to the Chicago campus of Northwestern’s Law School and sat in Lincoln Hall. He was introduced as the justice with the least dissents. (From now on I’ll speak as Justice Kennedy.)

We live an amazing era. I never thought I’d see constitutions being formed, but now they’re being created in Europe, and South Africa, and South America. But we have the oldest constitution, and more than an ethnic or geographic connection, the constitution is the thing that ties us together.

It’s funny that while our constitution was created to deal with a lack of sovreignty, Europe is creating constitutions to deal with too much sovreignty.

The constitution is really part of our country’s history. All over Europe, law is an undergraduate degree, but not here. In the days of the colonies, Blackstone was the #2 bestseller after the bible. Law schools have an important function in maintaining that legal literacy. The common language of the law allows us to communicate with others across space and time.

After 9/11, I was concerned about a lack of moral orientation in the young. The Constitution believes in moral absolutes, and has a moral component. I created something he called The Dialogue of Freedom, a program for high school students: Imagine being in a repressive country that didn’t give many rights to women. What would they do to convince the people to give the women more equality?

I was scared to discover that most kids felt it was wrong to tell them how to run their country, even when just trying to persuade them. And even when the stakes were raised and I introduced a hypothetical genocide, 5-10% of the class still refused to intervene.

People are confusing tolerance with relativism. Tolerance is based in absolutes — human rights — relativism is the opposite. Students feel intolerant proposing a morality. That’s wrong.

150,000 high schools did the program, and I watched tapes of some of them. I was concerned that even though most of the kids wanted to intervene in a genocide, they had no framework for justifying that.

I see the same thing with lawyers. You’re a trial lawyer. You see your adversary is moving and has all his stuff packed up. Do you try to move up the date of depositions to throw him off? Most would. What if his son just died? Again, 5-10% still would. Your duty isn’t just to your client. Ethics are universal principles to be respected.

Now societal attitudes are pendular, but this generation (and he hears this from those in other countries too) seems to have a great civic comittment right now. We need to teach this to the next generation. We need to tell them that the Constitution has an element of “inspiring and beautiful spirituality”. We need to teach them to pay attention to not only the big-C Constitution but the little-C constitution, the social rules of what’s right and wrong. We need to continue our history of great things like saving people from the depression and going on humanitarian missions.

Q: What’s the difference between being on the Appeals Court and the Supreme Court?

I wanted and still want to be a trial judge. I never had the political power to achieve that. (Laughs.) That’s the closest you get to touching real people. When I was in the appeals court, I didn’t want to burn out and get crochety. There are still real people involved. In a social security case, you have to remember that you’re talking about a real person’s aching back.

In the appeals court I tried to write decisions with enough generality to be useful to other cases, but not so general so that I could distinguish a later case if I made a mistake. I can’t really do that now. You’ve got to get it right, the Court can’t zigzag. I used to think stare decisis was an uninteresting, backwards-looking principle. But it has “a forward thrust of tremendous force”. You have to think carefully about the effects of your decisions. You’re bound by what you write.

Q: You esteem the Constitution, but it hurts us too. The right to bear arms and protection from self-incrimination have caused real problems for society.

I disagree. The Constitution is the “single most brilliant and inspiring document in the history of western civilization”. These people who had only known monarchies managed to protect our rights and human dignities. The rule of law has three parts: 1) The Government is bound by the law. 2) All people are equal. 3) The individual has a core personality that cannot be violated.

I don’t lose sleep at night thinking about how to protect the Second Amendment. But protection from self-incrimination is important. We can’t let people be tortured.

Q: Should we be looking toward other nations?

As I said, this is something new to this generation. There are two parts to this: a) should we look at what other constitutions provide? and b) should we look at how similar provisions are interpreted? Students say the Constitution should guarantee the right to food, shelter, and medical care. In DC winters I see homeless people with the right to a jury trial but unable to eat. But that shouldn’t be in our Constitution. The Bill of Rights are negative things (the government can’t do this); these entitlements are positive acts that have to be taken. It’s easier to enforce the ten commandment’s prohibition on stealing than the exhortation to love your neighbor. It’s difficult to enforce things that require so much money. I think they should be aspirational or preforatory text — not something that’s enforcable. As for (b), we’ll be citing other courts as their standing improves.

Q: I’ve read every opinion of yours and your fidelity to law is consistent. What do you think about the distance between law and politics or personal preference? Do you feel that law is being challenged by the preferences of individuals in high positions?

Thanks for an easy question, professor. (Laughs.) Often I have to go back to square one. We make up our minds about what’s right or wrong fast, and there’s nothing wrong with that. But then we have to convert that into legal principle. If doing this creates doubts, then you have to go back and rethink. It’s important to remember that I’m not the only one whose not results-oriented.

(Imitates a senator during nominations questioning:) Are you going to create the law? (Imitates the questioned judge trying hard to please:) No, no! (Back to normal:) Of course I’m going to create the law. I mean, where do they think the law comes from? The stork? But I strive to be fact-based and neutral.

Q: Does the Supreme Court play a role in setting social mores? What about Lawrence v. Texas?

Believing in the Constitution is taught. If we don’t transmit our traditions consciously, we’ll lose them. So the court needs to take high-profile, widely-publicized cases. The court shouldn’t make political decisions — society needs to be able to make decisions to survive — but we need to protect basic rights from nonsensical government intrusion.

(Back to me now.) After his talk, we filed out for a reception with food and drinks in the atrium. There was a line of people waiting to talk to Justice Kennedy that I got in.

I had read Randy Barnett’s take on the Lawrence v. Texas decision, and asked him if he thought the liberty reasoning could be extended to things beyond sexual liberty.

He didn’t answer the question directly (he was very good at this) but he said that he felt the First Amendment, and the large quantity of jurisprudence built up around it protected the most important parts our liberty — the right to define our own personality, which he had previously said was one of the key protections required of a constitutional democracy — but that at the frontiers there were still aspects of liberty that needed protection.

Another student asked him what he thought about Canada’s drug decriminalization. He also said Canada isn’t in our consciousness enough and that it was important that different states and countries get to experiment, and we learn from their example.

When we introduced him to our Constitutional Law professor, he got very excited that there was an undergraduate constitutional law course. He talked about a book at the Supreme Court bookstore about cases that had to do with high schools, and suggested we talk similarly about college-related cases. He recommended a newspaper case at UVA. (He noted that he couldn’t remember recent case names well — in the chambers they always talked about cases generally, such as “the UVA newspaper case”.) (UPDATE: Jerry Goldman suggests the case is Rosenberger v. Virginia which looks right and interesting.) He also suggested students study a particular justice’s decisions and try to get inside their mind and predict how they would decide (he suggested Justice Stevens and Justice O’Connor, I think).

I took a few photos of the class with him and then we went back.

posted October 01, 2003 09:22 PM (Superheroes) #


What A Little Bug Can Do
What’s Good on TV
Fixing Compulsory Licensing
Comprehensive Reponse to All Arguments Against Gay Marriage
Meeting Justice Kennedy
Poison Dart Guns or Solving Politics with Technology
The Evening News
Shades of Gray
Followup to “Shades of Gray”
Notes to Self

Aaron Swartz (me@aaronsw.com)