Thursday, February 4, 2010

Notes on Justice Kennedy

A thoughtful contribution from Appellate Super Lawyer and Manatt partner Ben Shatz:

On Wednesday afternoon Pepperdine School of Law convened its Fourth Annual William French Smith Memorial Lecture, featuring a conversation with the Honorable Anthony Kennedy. Over the past few years Pepperdine recently has hosted Justices O’Connor, Alito, Thomas, and Scalia, and this program too drew a full house. (Judges in the audience included 9th Cir. Judge Callahan, retired Cal. Supreme Court Justice Arabian, and Court of Appeal Justice Moore, a Pepperdine alum.) Justice Kennedy spoke for about 75 minutes. The program was videotaped and should be available for viewing on the law school's Web site at some point soon. In the meantime below are some of my notes.

When speaking Justice Kennedy chose to stand, rather than sit with the other panelists, to minimize the time his back might be facing part of the audience. He was impeccably dressed in a dark suit, white shirt, purple tie, and handkerchief in his breast pocket. He was extremely eloquent, speaking without hesitation in full paragraphs, sounding almost as if he were reading from a well polished opinion. In addition to being highly erudite — always finding an appropriate historical reference — he displayed a delightful sense of humor, making the audience laugh with every answer. This humor, however, did not detract from serious answers to well framed questions. The format was the National Press Club approach, meaning audience members could submit questions for the moderator to distill and select.

First Justice Kennedy shared memories of William French Smith, noting that his first litigation involved his firm and Gibson Dunn "locked in mortal combat," but eventually they became good referral sources to each other. "The law imparts verbal symbols with inherent moral meaning" Law should be a guide to ethical conduct, and Smith used it that way. In the past CEOs complained that lawyers were ones who always said "no"; but now it seems lawyers compete to "think outside the box" and the CEOs are in the position of having to say "we shouldn't do that." Legal advice from Smith was always lawful, moral, and ethical, and he is a great role model.

Q: Do you have a judicial "cosmology" about how you interpret the Constitution. A: "Thanks for starting off with an easy question!" The idea, the promise, of the law is that we learn from experience. The Framers used spacious phrases -- life, liberty, property, pursuit of happiness. Happiness to us today has a hedonistic component. But going back to the Greek origins of the word, happiness means self-respect, dignity and worth from making civic contributions. In a non-celebrity crazed age, Washington was the most famous person of his day. Before him only Isaac Newton was as famous. The enlightenment freed the human mind. Washington succeeded Newton as poster boy of the Enlightenment because similar to the way Newton said that natural laws could be found to describe the universe, Washington said we could discovery laws for a free society. The founders were well versed in Enlightenment and other branches of philosophy (Jefferson read Greek). Each generation shapes its density subject to the Constitution. My philosophy is to find that dynamic in the Constitution. The Constitution gives a philosophy to the judge, not the other way around. Of course, one might say this is circular, because the judge is interpreting the Constitution. Oliver Wendell Holmes said that law is the story of our moral life. It's improper for a judge to have a fixed cosmology that doesn't take account of developing law.

Q: Describe differences between the Rehnquist and Roberts court. A: We get 8,000 cert petitions per year. If a Justice marks one of them for discussion, which happens to about 500 of them, then they must be discussed. There is not a lot of emotional or intellectual capital spent here. When I was first on the Court we heard 160 cases per year, which was too many. Now we hear about 80, which is too few; 100 is about the right number. All opinions are due by June 1 and must be announced by June 30, so the Court is the only branch of government that operates on time Because the Court is taking fewer cases, there's more time for substantive discussions now. Amicus briefs are very important; and we look at the names of counsel for lawyers we trust. The Solicitor General falls into that category too. I have 4 clerks and also serve as the Circuit Justice for the 9th Circuit.

When I get to the Pearly Gates, I'm afraid I'll be asked "How can you justify reading briefs for 40 years?" I was once asked "how do you read all those briefs?" to which I explained that I listen opera, and I have one opera briefs and two opera briefs. The lawyer responded, well I have one six-pack briefs and two six-pack briefs!

The Justices don't talk about the cases together until oral argument. Justice Breyer and I would like to have longer arguments. In England, they sometimes have arguments that last for days. After all, language is the natural resource of English lawyers. He then told an anecdote -- including mock English accent -- about how there are maxims of construction for both sides of an issue. Oral argument questions are often designed for my colleagues. Never appear before a court -- even a trial court -- without first scouting out the dynamics of the court. Good counsel knows how to participate in a conversation with the Justices. He once asked a friendly question to a law student during moot court, and the student made the mistake of viewing it as a hostile question. He then asked what coat size the student wore, and then promptly switched coats and robes with the student and showed the student "here's how it's done."

Conferences at the court are quite formal, and involve more discussion now that under Rehnquist, because there is more time and because of the Chief's personality. Tentative votes are taken for an outcome, but there are not a lot of "high fives" if you're in the majority -- votes could change during the drafting process. The Court is highly collegial and efficient.

Q: Do you have any advocacy tips to share, as in Justice Scalia's book with Bryan Garner, Making Your Case: The Art of Persuading Judges? A: You mean like a how-to on "The Art of Persuading Justice Kennedy"? The argument a lawyer makes must suit his or her own personality or style. The Court takes cases because they are hard ones, so focus on the hard parts. Recognize that the Court has difficult problems to wrestle with. Be careful in slanting the facts, because if facts can be slanted one way, then they can be slanted the other way.

Q: What's your most memorable oral argument? A: We don't have time for very eloquent arguments. In one case (involving whether jurors can be excluded based on race in civil cases), however, counsel was asked a question about standing, and very effectively responded, "I've no time to respond in detail, but remember that this case isn't about the conduct of the lawyers, but about the jurors. They came to court expecting to be treated not based on race, and yet they were excused without being asked any questions." The lawyer quoted Martin Luther King's lines about being judged by the content of their character, and this was very powerful. Most lawyers do moot courts before arguing, and this is very important.

Q: How have you been shaped by the American West? A: In this age of sensitivity to stereotypes, one should be careful about discussing being shaped by place; but there's nothing wrong with pride of place from one's home. One very American idea -- especially manifest in the West -- is the notion of being judged solely by what one has accomplished. You don't know your role models until you're an "old duck," but growing up in Sacramento, I saw civil servants who were proud to be working for the public. Under Earl Warren, California had a problem about how to spend the State's surplus funds. As Jefferson said, "democracy presumes a virtuous and enlightened people." A responsible citizenry wouldn't vote for lower taxes yet more benefits, and yet that sort of thinking happens sometimes today, which gives me "a sense of despair."

Q: I've been teaching Con law for 6 months; what do you think is a great case to teach? A: Speaking of 6 months, an 11th Circuit judge (who, like me, had not served as a district court judge) once told me that about 6 months into his job a lawyer closed an oral argument by saying "And the trial judge had been on the bench only 3 months." The judge then said, "You know I've only been on the appellate bench six months," to which the quick witted lawyer responded, "It's surprising how much a judge can learn in 90 days!"

Justices are judged by what we write. We don't give press conferences to say how great our dissents are. Some editorial writers write their columns before reading the opinions. This is an amazing rush to judgment in the media. A great case to teach is Johnson v. Texas, about whether Texas could prosecute the burning of the American flag. I wrote that the prosecution was illegal. Sometimes the Constitution requires us to make decisions we don't like. Later, I was recognized by a lawyer in a restaurant who had this story to share: The lawyer's father had been a POW in Germany, and the American flag was precious to him; he was outraged by the decision (as were many Senators who denounced the Court, and President George H.W. Bush spend time touring flag factories). He asked his son, if this is the law, how can you stand to be lawyer? But then the father actually read the opinion, and he changed his tune and said "Son, you can be proud to be a lawyer."

The Constitution doesn't belong to judges and lawyers. It belongs to the People. The law lives in the consciousness of the people; that consciousness must be renewed and informed. We must have a legally literate society.
In Colonial times, the best selling book (after the Bible) was Blackstone's Commentaries. We must not let go of that tradition of a legally literate society. Our current populace lacks a sense of history and heritage. This is dangerous, because to protect and defend the Constitution, you must know what the Constitution is and says. You can't protect what you don't know.

Q: Comments on Citizens United or Justice Alito's "not true" comment or the President's scolding? A: "I have a lifetime job; he doesn't" Abraham Lincoln used to tell the story about how a large woman sat on his hat that was resting on a chair in a darkened theatre. When she handed him his compressed hat, he said "I could've told you it didn't fit when I tried it on." It is tremendously important to have a robust debate about the Court's decisions. This includes student comments in law reviews.

Q: In an age of political infighting, how do the Justices retain civility? A: That's part of professionalism. It's our function and our life. We love it. Justice Scalia is a wonderful colleague. Sometimes I have to say "Nino, I have to dissent from your opinion; and don't forget we're having dinner tonight with our wives." Professional disagreement is not personal disagreement.

Q: Justices Scalia and Breyer have written books about their Constitutional philosophies. If you were to write such a book, what would it's title be? A: "United States Reports!" Justice Scalia is a wonderful colleague and brilliant scholar. When I teach my law school class in Saltsburg, after Justice Scalia comes for a guest lecture it takes me about a week to get the students straightened out.

Q: Does a Court with so much collegiality cause more fractured opinions? Is that a concern?A: We take a case to give guidance to the system. We wait for other smart judges to try to solve the problem first, and then if we get involved we must give guidance or it’s a waste of time. One cannot surrender on one’s principles, so there is a duty to concur or dissent — although that is not as useful as a decision providing clear guidance. If we decide cases too broadly, we’re likely to make a mistake; and if we decide too narrowly then we haven’t provided useful guidance. So we must strike a balance. But we’re always very cautious about collegiality.

Layers should help reform the prison system. The hardest thing a judge can do is sentencing. The only thing worse than using the sentencing guidelines is not using them. I’m against mandatory sentences. They take away judicial discretion to serve the four goals of sentencing. American sentences are 8 times longer than their equivalents in Europe. California’s 3-strikes law emanated from the electorate, and the sponsor of the initiative was the correctional officers association — “and that is sick.” California has 185,000 people in
prison and the cost is astounding.

Q: Thoughts on Federalism? A: You must read the Federalist Papers. Madison said the issue was for Congress. Federalism is counterintuitive: to have a free society you need two governments, not one? Federalism is American’s unique contribution to political theory. We have cases that are “warning shots” to Congress to protect Federalism.

Q: Thought to share with the new Chief Justice of England’s new Supreme Court (who will be visiting Pepperdine in March)? A: “You mean I can advise the English on something new?” The power and prestige of a court depends on the respect paid to its decisions. The key is honesty in selecting judges.

Q: Thoughts on Justice Thomas’ reluctance to ask questions from the bench? A: It’s not his style to ask questions. He was my seat-mate for 18 years and he knows the records cold: Once I asked, “Clarence, is that in the record?” And without pause, he said, “At page 183.” So “don’t worry about him.”

Q: Thoughts on the use of international law? A: The Constitution is valuable because it is ours. It’s our Constitution and our freedom. American’s have a respect, a link to, a personal stake in the Constitution; it is essential to our destiny. It’ the oldest constitution in the world. There has been a lot of misinterpretation about the case where we said that international law “confirmed” our view of cruel and unusual punishment. We must acknowledge the fact that a decent respect for the opinions of mankind isn’t a one-way street. To say we are not interested in other countries is wrongheaded. We simply used it as a check.

Q: What’s your favorite other country? A: I won’t touch that one. But I will talk about China, a place I go every year. The Chinese legal education system was broken, because it was all memorization by rote. China is no stranger to academic intransigence. The Chinese are movie buffs, “in party because they can watch any movie they want” [seemingly a reference to digital piracy]. When interviews were held for admission to a law program, many students said that they were driven to seek a legal education because of American movies. I thought, well this is going to be about 12 Angry Men or To Kill A Mockingbird. But it wasn’t! They were influenced by Legally Blonde! A lesson from that movie is that students shouldn’t be afraid to take risks; to reassess values; to rethink goals; and to love the law. The language of the law is a bond between all lawyers and judges, past and present.