Justice Kennedy Will Not Be Taking Any Questions on this Term’s Decisions…

By Laura Suelau ’13

An audible rumble rolls through the crowd of mostly-retired at the Aspen Institute as they wonder why they paid $15 for a “conversation” with Justice Kennedy and if maybe they should just leave. The mediocre props on stage (two construction paper easels with a small “c” and a large “C” written on them), only serve to heighten the audience’s doubt that the event will prove worthwhile, but the face-lifted crowd remains seated and Kennedy takes the stage.

What follows is a rough overview of the topics, from profound to humorous, Justice Kennedy covered.  (Disclaimer: Justice Kennedy does not allow tape recording and one can only type so fast in iPhone Notes.)

What’s with the “props”? Image

There is the “Constitution” and the “constitution.” First, a little history lesson: Jefferson was not in Philadelphia during the Constitutional Convention, he was in France.  From that distance he made clear that Virginia would not ratify without a Bill of Rights.  Thus, we have a Constitution with a structure by Hamilton and a Bill of Rights by Jefferson.  That document is the large “C.”

Constitution with a small “c” is the human aspect of the document.  Without a virtuous enlightened people, the “constitution” cannot survive.  Small “c” is the sum total of the morals, history, customs, destiny, and values of the people and should work together with the big “C.”  Freedom and the United States are largely judged by the small “c” and each generation is the trustee for the next.

“Structure Should not be Dismissed as Being Irrelevant to Rights”

Federalism is not just a convenient organizing premise, it has a moral premise.  It is ethically wrong to delegate so much power to a central body that you no longer have control over your own destiny.

“Happiness to Jefferson Did Not Mean a Third Car”

(This statement draws considerable laughter from a crowd to whom “third jet” is more accurate, but Kennedy continued).  The “pursuit of happiness” to Jefferson was more than material gain.  It used to be that the principle meaning of happiness was the feeling of self worth one attained by making a contribution to their community.  It should be a concern that the present generation does not understand the origin of freedom.  The President and every citizen has a duty to teach that.  Because you cannot preserve what you’ve not studied and you cannot protect what you don’t practice and you cannot transmit what you haven’t learned.

The Democracy Experiment

As a country we need to return to the basics – we are in a crisis and the rest of the world is watching.  For over half of the world the verdict on democracy, the verdict on the United States, is still out.  That is why we must discuss how best to sustain freedom.

Why Not Answer Questions on this Term’s Decisions?

We are judged by what we write; we don’t go around giving speeches saying how great my majority opinion was or how great somebody’s dissent was. We don’t do that. That’s for the professors, for the legal profession, for the public, to hold the court accountable for what it does.  I think it’s a little bit pretentious to say we are the only branch of the government that explains what we do (laughter).  We have already explained our reasoning and we just hope we do it right.

On Public Distrust of the “System”

A half-truth soon becomes a full lie.  A public that is skeptical soon becomes cynical and cynicism corrodes all human lives.  Democracy with mass media is relatively new, but the media has a duty to convey messages accurately.

Inside the Court

I am not nervous on the bench, if anything I am nervous for those arguing.  When I do feel pressure is in judicial conference where I, and each Justice, present 4-6 cases with our reasons and talk in order of seniority.  We do not always have a reason; we wait and listen or are sometimes tentative.  Our goal is to get a rationale that five justices agree with and give guidance to the system.  A divided case doesn’t give guidance.

We are pretty careful about private conversations outside of the conference and try to avoid cliques.

Who Reads the Opinions Anyway?

There is a heavy reliance on the press to convey our opinions.  For two media outlets to incorrectly report an outcome that will impact the American people for years to come is just silly.

In general the media doesn’t have time to explain why and that’s one of the problems with the Internet – we are losing quiet reflective judgment, losing consensus based on reasoned deliberation.

How to Eloquently Dodge a Question on Privacy in the Technological Age:

I know the more technologically advanced we become, the more fragile our individuality is.

City on a Hill

When asked why America’s definition of “Rule of Law” (specifically Kennedy’s famous three-part definition) should be the guiding principle for other nations, Justice Kennedy boldly responded: “We hold these truths to be self evident.  I don’t think I need to explain moral primacy of freedom, it’s everyone’s right.”

Then Why Use International Standards in Roper and Lawrence v. Texas?

Wasn’t that a big stir?  It is very important to maintain the link to our Constitution with a big “C”, it’s a priceless gift.  It’s yours and it defines you.  On the other hand, what about when the Founders looked to Plato?  Do you think they made up “freedom” or “democracy” in Philadelphia?  The founders looked to foreign law for guidance.  Of course we look.

Teach Your Children Well

Teaching civics in school is crucial to understanding the capacity, right, and duty to preserve the democracy that will soon be yours.

In Conclusion

For us the law is emancipating; it gives us freedom.

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One comment

  1. Mike Ellement · · Reply

    Is that Akil Amar leering in the background?

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