From the Publisher / Arnold G. York
This past week, U.S. Supreme Court Justice Anthony Kennedy came out to speak to the Pepperdine University legal community for their annual William French Smith Memorial lecture.
Any appearance by Justice Kennedy is significant because, more often than not, in any significant case he’s the fifth vote out of the nine justices that makes the majority. So it would be fair to say today that, generally, as Kennedy goes, so goes the U.S. Supreme Court. Therefore, every word that Kennedy utters on or off the court is parsed by academics, judges, lawyers and litigants for some clue as to where the court may be headed in the future. For that reason, justices are usually very cautious about what they say off the bench and, generally speaking, never make flat pronouncements in their speeches. Kennedy in his appearance in Malibu last week was no exception to that rule, and in the main was somewhat circumspect in all areas but one. That was in the area of criminal law. I must admit I was surprised because, generally, Kennedy is a conservative, and, typically, conservative justices tend to be more oriented toward prosecution and punishment, and are not very flexible in the area of criminal justice. But Kennedy is very different from many of the other justices, most of who come from government service or large corporate law firms. Kennedy, to the contrary, chose to be a sole practitioner in Sacramento, Calif. and taught constitutional law at the University of the Pacific McGeorge School of Law. He indicated that in his practice he did everything, including civil work and criminal defense work, which is a highly unusual background for a Supreme Court Justice, which might explain his outlook on criminal law. When asked about the three strikes program in California, he said the prison guards union, which Kennedy bluntly described as just plain “crazy,” had sponsored the initiative. He also indicated that our prison sentences are eight times as long as those in Western Europe for similar crimes, and he was quite clear that he also thought that made no sense. The subtext is that our criminal justice system has become a jobs program for a prosecution/prison industry, and judging from Kennedy’s response, given the appropriate case, he might be inclined to make some changes.
He also opened up the window a bit as to how the U.S. Supreme Court actually operates. Each year, the court gets about 8,000 cases asking to be heard and they mark about 500 of those petitions for discussion-meaning discussion at their conference. At that meeting they vote to decide which cases to actually hear. In past years they heard about 160 cases per year, although recently they’ve reduced that number by about one half, or by 80 cases per year, which Kennedy clearly thought was a good thing because it relieved some of the time pressures. What is surprising is that they have no formal discussions with each other about the cases. That dialogue is done through draft opinions that are circulated among the justices. Kennedy indicated that through the oral argument, in some respects, the justices are really arguing the cases with each other through the questions they ask the lawyers for the contestants.
Kennedy, like most Supreme Court justices, was very low-key and avuncular. There is sort of a public persona that they all seemed to adopt, that of a low-key philosopher, slow to decide, reluctant to express any flat statement of philosophy, although part of it creeps out from around the edges. Someone asked him if he intended to write a book, as has Justice Scalia, but he said he figured his written opinion were his book and a statement of what he thought. But in passing, he alluded to changes in the way the law works nowadays. He said, in the past the lawyers were always the “No” guys-the guys who said you can’t do it. Today, Kennedy said, lawyers are trying to compete in thinking “out of the box,” and it was pretty clear that he didn’t think it was such a good idea. I suspect, as he said it, many of us were thinking about Enron, WorldCom, Madoff and a number of other case wending their way to the Supreme Court.
In conclusion, what struck me most was that Kennedy, in personality, reminded me of another justice from an earlier period-Justice William O. Douglas. Douglas was a justice in the 50s and 60s, a leading, liberal light of the court, the bane of conservatives, the darling of the political left, who spoke to my class when I was in law school. Based on his reputation I had expected a blazing radical, but Douglas had the same avuncular personality as Kennedy. It served as a reminder that what the Supreme Court justices deal with are ideas that shape our world and they’re not talking heads on TV, and really shouldn’t be either.
P.S Malibu’s Congressman Henry Waxman will be here on Friday to speak to the Rotary Club of Malibu. The event is taking place Feb. 19, 8:30 a.m., at the Villa Graziadio Executive Center on the Pepperdine Campus. The cost is $30, part of which will go to the victims in Haiti. I would encourage you to go. Most major legislation in Congress goes through Waxman’s House Committee on Energy and Commerce, which makes him a major player in our nation’s legislative politics. The health bill, any stimulus bills and just about anything you might be interested in will cycle through Waxman’s committee, which he chairs. There are no walk-ins so you must call Holmes Osborne at 310.442.9931 or email him at holmesosborne@holmesosborne.com to make a reservation.