On October 23, Justice Anthony Kennedy sat down with Dean Martha Minow for a discussion on his experiences as a Supreme Court Justice, law professor, and practicing attorney. The conversation touched on topics ranging from corrections to campaign finance to his Supreme Court legacy.
Kennedy thanked the dean for not using the term “swing vote” in her introduction. “It conjures a mental image of these—spatial gyrations,” said Kennedy. “Cases swing—I don’t!”
Asked by Dean Minow about his views on the U.S. prison system, Kennedy emphasized the public costs and profound human suffering engendered by overlong sentences, mandatory minimums, overcrowding, and solitary confinement. He described the political influence of prison guard lobbies in his home state of California as “sick.” Kennedy reminisced that his own generation of law students and professors at Harvard Law School was fascinated by the process of uncovering guilt or innocence, but largely uninterested in corrections. He called for society, and lawyers in particular, to become more engaged with criminal justice issues. “It’s everyone’s job to look into it,” he said.
To a student who asked about the extent to which a public official could refuse to implement a “new understanding” of the Constitution that conflicted with his or her own moral views, Kennedy replied that public officials were bound to enforce the law if they wished to retain their office. He acknowledged that deciding whether a law transgressed one’s fundamental moral principles required “considerable introspection.” Another student questioned Kennedy about the state of campaign finance in a post-Citizens United world. Kennedy stated that “what happens with money and politics is not good,” but emphasized that an “internet world” allowed for disclosure of financial contributions within 24 hours. When Dean Minow pointed out that agencies with the power to compel disclosure, such as the FEC, have failed to do so as a result of political deadlock, Kennedy responded with an acknowledgment that political discourse in the United States was currently “fractious.”
Kennedy discussed the philosophical relationship between law and morality. For Americans, said Kennedy, a commitment to the rule of law is part of how we define ourselves: in democratic society, the law is not merely a mandate but a promise that an ethical course of conduct will lead to freedom. “We are bound by the Constitution, with both a large C and a small c,” said Kennedy, explaining that the “Constitution” was the governing document of our country, while the “constitution”—in the sense used by Aristotle, Locke, Hobbes, and others—was the mores, customs, behaviors, and values that define a people. Our “duty,” according to Kennedy, is “to make the big C mirror the small c.”
Kennedy stressed that being a member of the Supreme Court did not entail embracing “moral relativism,” which Kennedy described as “not only disagreeable, but antithetical to my personal values,” leading to “skepticism, which leads to cynicism, which is corrosive of human values.” The point of living in a democratic society, said Kennedy, was that the government does not decide questions of morality, but “you still have to.”
Describing how to write a good Supreme Court opinion, Kennedy stated that while different cases require different genres of opinion, the most important question was, “can the opinion produce and garner allegiance to what the law does?” He told an anecdote about a WWII former POW, incensed by the Supreme Court’s ruling on the Texas v. Johnson flag-burning case, who came to respect the court’s decision after reading Kennedy’s opinion. “So that was one person!”
Asked which case he would most like to be remembered for, Kennedy replied that he was not sure. “I hope time will be a gracious judge,” he said.