Out of 68 cases decided last term, 24 decisions were resolved by a 5-4 margin. Justice Anthony Kennedy was in the majority in all 24. No other justice was in the majority in all 24 cases. Indeed, at no other time in the Court's 217-year history has there been one justice in the majority in all of the 5-4 decisions.
On Wednesday, just days before the start of the Supreme Court's 2007 term, Justice Kennedy spoke at the Economics Club of New York, offering unique insight into the most crucial member of the Court. Both of us were amazed by Justice Kennedy's humor and candor. Whether we agreed or disagreed with Justice Kennedy on particular issues, he demonstrated humanity and a deep respect for history. He also offered some insight into his views on California's three-strike laws, the federal version of which is being challenged before the Court on Tuesday, October 3, and on punitive damage awards.
Justice Kennedy began by describing the role of the Supreme Court as helping to find common meaning, just as the framers had developed a sense of common purpose and national identification by drafting the Declaration of Independence and the Constitution. From the beginning, he said, the Court has charged into controversial issues. He argued that the Court decides issues with political consequences, and shouldn't shy away from these cases, but doesn't take on cases in a political way. The Court, instead, uses the language of the law, which is and should be neutral as to political consequences, and should use restraint, the grammar of the law, history and tradition, and a legal ethic. Recognizing his audience, Justice Kennedy said that when the Court acts it may draw down on the public trust, but then needs to replenish this trust, which it does through respect for tradition and its history.
Justice Kennedy sounded fairly non-ideological. He came clearly down on the side of recognizing the changing conditions in which constitutional language will be interpreted, suggesting that the framers could not have foreseen everything that would happen in the future and therefore used "expansive words" such as "liberty." When asked about two cases - State Farm (involving the constitutionality of large punitive damage awards) & Lawrence (involving the constitutionality of laws criminalizing consensual gay sex) - in which he was perceived to have been willing "to enforce unenumerated rights" and rule in the absence of a clear constitutional mandate, Justice Kennedy said that in both he had relied on an interpretation of the meaning of the word "liberty," which is in the Constitution. Implicitly criticizing those who would claim they stick to literal translations, he defended his interpretation, also making clear that interpretation has to be done with care and a concern for consistency.
Justice Kennedy also had strong words for those who lobby in their self-interest, in a way that may conflict with the public interest. (And by the way, he also pointed out that the term "pursuit of happiness," which is in the Declaration of Independence, was not originally meant to suggest the pursuit of material goods, but, instead, the kind of happiness that results from civic engagement.) In the State Farm case, he said, the $145 million in punitive damages claimed by the individual in the case were excessive and "wrong." He criticized the American Trial Lawyers for lobbying for what he suggested were excessive punitive damages, saying that the organization had spent more on lobbying last year than GM and that this was self-interested. (Whether or not the Trial Lawyers are acting in the public interest, we found it interesting that Justice Kennedy had such a clear sense of right and wrong on that point.)
He also criticized California's "three strikes and you're out" rule on similar grounds, telling the audience that the campaign for the rule was funded by self-interested correctional officers. He saved his harshest words for the prison guard lobby, emphatically stating "that's sick!"
And, from his perspective, there are other things wrong with American society. There are more than 2 million people in the United States behind bars, and sentences are eight times longer than in Europe. Justice Kennedy asked, at what cost? And what are we doing about it? He said that we need to be interested in re-education, rather than obsessed with guilt and innocence.
Justice Kennedy also criticized legislators. He said that through redistricting, legislators now pick the voters rather than voters picking the legislators. Justice Kennedy sensed that "something is wrong with this."
In response to the question whether Court proceedings should be televised, Justice Kennedy said that he and the other Justices were against televising the proceedings. Though he allowed that it might have educational purposes and it would be helpful for people to see what happens at the Court, he cautioned against introducing a dynamic whereby someone might think one of their colleagues might pose a question because they were on television. "We're not a debating society," he said. In a moment of insight into his view of oral argument, Justice Kennedy described how oral argument works best: if it is working well, counsel is participating in a conversation among the Justices, and questions are asked of counsel as part of the back and forth on the Court. But ultimately, the Court is judged by what it writes.
Throughout the talk, he kept returning to the importance of history and a world perspective, expressing surprise and concern that students today may not be able to name the three branches of government. Another anecdote, attributed to the historian David McCollough, involved a student who was very excited to find out that the thirteen original colonies were all on the east coast. We've got to engage young people, he said, in national security - which is played out in the world of ideas. People have to learn about world poverty, about the scarcity of water. About the fact that something like 2 billion people live without easy access to clean water. About the fact that in some countries, life expectancy is in the 30's. We must recognize that if we are asking other countries to embrace our values (the values of the rule of law and free enterprise), we have to understand these realities.
Justice Kennedy was asked about his reliance on international standards in a ruling striking down the application of the death penalty to someone who was 16 at the time of his crime and whether that foreshadowed a trend. Justice Kennedy said that, in his opinion in that case, he was careful to say that the application of the death penalty was unconstitutional under the American constitution. This finding is not controlled by international law. However, he thought it was "confirmatory" and relevant that only China and Sudan followed a different approach.
Justice Kennedy was also asked about the growing trend in business toward resolving disputes in arbitration rather than federal court. He lamented a loss of prestige in the federal courts, suggesting that some of the best attorneys who might have gone to the federal bench now are attracted to arbitration. He said that a declining percentage of cases filed are now going to trial and that major companies don't want to go before juries. In an argument in sympathy with corporate interests, he expressed the need for juries to be educated, mentioning that juries in malpractice cases will award three times higher damages against hospitals than against the doctors (suggesting that they don't understand how this affects business).
Justice Kennedy spent some time, also, talking about the problems of human trafficking, high infant mortality in particular countries, and the exploitation of labor. How does he respond to concerns expressed internationally about "legal imperialism" by the United States? He told a story of labor exploitation in Dubai and said that we have to begin to insist that at least minimum norms are observed, and we have to reach out to impoverished people across the globe.
Justice Kennedy's recurring theme throughout the two hour event was the need for fairness, public education and civic engagement. It will be interesting to see how these themes play out in the 2007 term, especially in key cases dealing with three-strikes laws, the constitutionality of voter identification at the polls, disparities in sentencing for crack and powdered cocaine, employment discrimination, and death by lethal injection. The National Campaign to Restore Civil Rights, which works to educate the public about the civil rights rollback and find ways to stop it, will monitor key cases and provide information throughout this important term.