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If you like Anthony M. Kennedy's story, you might also like:
David Boies,
Ruth Bader Ginsburg,
Rudolph Giuliani,
Alberto R. Gonzales,
Frank M. Johnson,
George J. Mitchell,
Ralph Nader,
Anthony Romero,
Albie Sachs,
Barry Scheck,
John Sexton and
Antonio Villaraigosa

Anthony M. Kennedy's recommended reading: Nineteen Eighty-Four

Related Links:
Supreme Court of the United States

The Supreme Court Historical Society

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Anthony Kennedy
Anthony Kennedy
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Anthony Kennedy Interview (page: 4 / 6)

Justice of the U.S. Supreme Court

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  Anthony Kennedy

How difficult is it to transcend your own points of view and your own feelings when those are at issue?

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Anthony Kennedy: You have to do it again, every case. I thought, "Oh, I'm a good judge now. I know how to do that." And then I'll get a case and I have to do it all over again. What is it that really should control the decision? What is it that's controlling my decision? Do those two match?" Judges, particularly on our court, don't go around giving press conferences. We don't have a press conference and say how great our decision yesterday was or how bad another one was. Part of the reason for that is that we try to teach a lesson. We try to teach that we will listen to your cause and judge the cause only when we hear it. You know, in any given year, we may make more important decisions than the legislative branch does -- precluding foreign affairs perhaps. Important in the sense that it will control the direction of society.

Today is June 3, and by June 15, all of our dissents and opinions must be circulated internally. And by June 30, we will finish our work for the year: 80, 90, 100 cases. That doesn't mean we're better than the Congress, or more committed or more principled, it just means we're different. All we can do is decide. A case is presented to us, and it's our duty and obligation to decide it, whether we want to or not. We decide it within the language of the law, and the language of the law is different than the languages of the political branches. Not better, not worse, different. It's more confined.

The language of the law has a grammar, a logic, a tradition, a dynamic, an elegance, a syntax. It's all its own. It's the language of the law. It's very formal. We are constrained by that language of the law. We can decide only within the confines of that language. Other branches of the government, providentially and happily, have a different language. The job of the citizen is to translate, and the job of the lawyer is to translate the language of the law to the language of everyday life.

Could you imagine, when you embarked on this life as a judge, that you would one day be a Justice of the Supreme Court?

Anthony Kennedy Interview Photo
Anthony Kennedy: I didn't really think about it that much, no. Being a judge on the Supreme Court is kind of like being struck by lightning. The vacancies come up so rarely, and the stars have to be aligned the right way. I know there are some judges who always think that they're going to be on the Supreme Court. One of the great judges in New York City was Learned Hand. Judge Hand was a brilliant man, a very principled judge, a judge whose decisions can still teach you things when you read them. He was a District Judge in the United States Court of Appeals, and everybody just assumed he would be on the Supreme Court some day. He had the brilliance and the talent, but he never was.

Why do you think Anthony Kennedy made it to the Supreme Court?

Anthony Kennedy: I like to think that those who were interested in my appointment thought that I was devoted to the law, and that I would be fair. That's all that I ever ask of myself. That's all I ever try to hold myself out to be.

Are you ever troubled by fears of making a wrong decision. Have you felt self-doubt, agonizing over these things?

Anthony Kennedy: Yes. If you have complete confidence that you're right, then you'd better do a reality check. Now, there's a difference between being weak and indecisive and not knowing at once what you're going to do. You have the duty of introspection and reflection and study, and of judging, of adjudicating, based on what you hear. I think you have a duty to keep an open mind. That's not indecisiveness. That's just a commitment to the tradition of the law. Of course, you wonder if you've missed things. On the Court of Appeals it's a bit harder, because you're the first appellate court. You have to make sure that the issue you're talking about was what the trial judge's decision turned on, and that the attorneys have given you all of the law. On the Court of Appeals, I used to say, "There must be something on this that the attorneys have missed that I have to find for myself." We don't have that problem on the Supreme Court because we're a second or third-tier review, and the issue has been refined. Different courts have already disagreed when we enter the fray. So on the Supreme Court, it's actually easier to identify the issue you're supposed to decide. How to go about deciding it and what the results should be is more difficult, because you can't make a mistake without really hurting the system.

Anthony Kennedy Interview Photo
On the Court of Appeals, you could trim your sails a little bit. What's the metaphor? I heard a law professor say, "When you go to a swimming pool and nobody is there, you put your towel over here on this chaise lounge, and you put your other stuff over there. You make a big space, but then as more people come, you have to narrow your perimeter, you have to pull in, and this is what happens in the law. If you're writing on a new area, you can be expansive; if you're writing a very difficult area, you must pay attention to what's around you.

What were you thinking on the first day that you donned the black robe of the Supreme Court? Was there a weight of history? Was there trepidation? Was there anticipation?

Anthony Kennedy: There was, since I had been an appellate judge and was committed to the law. I teach constitutional law, and that's mostly Supreme Court decisions. Since I taught the decisions of the Supreme Court, I thought I knew about the inside dynamics. I was wrong about that. I didn't fully comprehend the difficulty of the position at the time I took it.

The Supreme Court has these marble steps, it looks like we couldn't have had a Supreme Court if we didn't have Greek architecture. We look at the Capitol Building, and the White House is there and the Washington Monument. I told some school kids not long ago, "Washington is a stage set for democracy." The minute I said that, I thought, "Well, I don't want to cheapen the enterprise or use too popular or vacuous a metaphor," so I immediately explained to them, but it's real. It's designed to remind you that what you're doing is very important. You are put onto a stage with these props around you to help you realize that what you're doing is important and does have a significance and does have an obligation and does have a duty and does have an oath connected with it and you must respect your position.

No matter what the field is, you can't please all of the people all of the time, least of all on the Supreme Court. How do you deal with criticism, with controversy?

Anthony Kennedy: I haven't thought much about that question. In part, we're so busy working on the next case, we can't worry about the last one. You must be very confident that you're not deciding one way or the other because of popular opinion.

The dynamic of the law is that it transcends -- or attempts to transcend -- the emotions of the time. That's the dynamic of the legal system. Most law professors and many commentators say that the judicial review -- the idea that courts can set aside legislation -- is anti-majoritarian, or contra-majoritarian, so that a majority can't make its will binding on an injured minority. That's true in one sense, false in another. It may be true that when we set aside a particular congressional enactment or a state law -- which is an awful function, awful in the sense of powerful -- it's true that we, for the moment, may displease the majority. But, if you look over time, if you ask what the American people -- the majority of the American people -- want over time, over our history, they want judicial review. They want to make sure that the promises of the Constitution are honored, that the commitments we made basically over time with our ancestors are followed.

[ Key to Success ] Courage

And, the Constitution defines the American people. Americans have their self-definition -- their self-identity -- shaped by the Constitution. When we rebelled against England, the rest of the world said, "What do these Americans want? What's the problem?" The Americans said, "We want freedom." People in England and Europe said, "Freedom? Those are the freest people in the world! They have all the property they need, all the land. What are they talking about, freedom?" So we had to send a fax back to them, an e-mail, as to what our principles were, what the reason for this revolt was, what the reason was that we were committing our young people to confront the British military. The reason we gave was a legal one. The Declaration of Independence is basically an indictment of King George, and the Constitution is a formulation of what we think the principles of freedom are, and that's what defines America.

We're so fortunate. Either by accident or history or providence or design, I think all those. The self-definition, the self-image of an American relates to his or her Constitution. No other country in the world has that. We can't be smug about this and say no other country in the world can have a constitution, but this accounts for the fact that our Constitution is the oldest constitution in the world. I've had the heads of foreign governments ask me, "I think I should amend the constitution to do this and that," usually something that helps them over the short term. And I say, "You know, a constitution, by definition, is something that has to last over time." Madison said, "The Constitution must acquire the reverence of its people, and it can only acquire that reverence over time." And so, the court wants to -- is a way, is one way of reminding Americans, of reminding ourselves that the Constitution must transcend the emotions and the opinions of a particular day. And so, criticism doesn't bother me. I think criticism is very important. The Constitution doesn't belong to a bunch of judges and lawyers. It belongs to you. It's yours. Now, we have to interpret it in this formal way, but you have to live it.

[ Key to Success ] The American Dream

So if there's a decision people don't like, of course, we're pressured about it. I think it's unfortunate that sometimes people ascribe improper motives to judges. They don't understand the tradition. A lot of editorial writers just read the dissent, they don't read the majority opinion. The press does a fair job of reporting what we do, not a particularly good job of reporting why we do it. But that's because of the time line. They have to meet the 24-hour or 48-hour deadline, and then the public loses interest. Our function is more philosophical and has a broader time line than that.

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This page last revised on Sep 23, 2010 15:28 EDT
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