May It Please the Audience

Justice Kennedy regales USC Law community with anecdotes, insights

-By Lori Craig

It might take a fair amount of suspended disbelief to accept that a lawyer can have a sense of humor, but a Supreme Court justice?

Justice Anthony M. Kennedy

In an hour-long discussion that was filled with humorous anecdotes (such as feeling awkward among misbehaved Congressmen at the State of the Union) and sly asides (“Your professors might claim it takes as much work to write your exams as it does to take them. It doesn’t.”), Associate Justice Anthony Kennedy had his USC Law audience in stitches Feb. 1.

Kennedy, who spent the day at the law school and also taught a Constitutional Law class, sat down with Dean Robert K. Rasmussen at lunch before a sea of students, who along with faculty and staff overflowed into two additional rooms that received a live video feed of the discussion. In a conversation that also was introspective and thoughtful, Kennedy reflected on his years on the court, offered advice to the future lawyers and answered some questions from the students.

In response to an opening question from the dean, Kennedy said sitting on the high court wasn’t what he expected.

“You have to be there for two or three years to understand the institutional differences, and you write the opinions differently,” Kennedy said. “[As a Supreme Court justice], you’re giving direction to a system.

“I thought it would be mostly a retrospective-looking task, but I soon realized that stare decisis has a prospective dynamic because you are the first person bound by what you do. Of course, we have a real dispute that we’re solving, but we’re working in a larger system.”

That system, which Kennedy likened to an ocean liner with its sluggish changes in direction, is to some extent renewed by each decision the Supreme Court makes.

“You have to write in a way that you can instill or inspire allegiance in the law,” Kennedy said. How he writes a decision depends on his audience – for example, he would describe a decision in a railroad-industry case differently from how he would the decision in a free speech case. “You write for the audience so people know you’ve thought through the questions and can give reasons for what you do.”

He recounted the story of a man who, greatly angered by the court’s decision to protect flag burning as speech in Texas v. Johnson, approached Kennedy to chastise him. In response, Kennedy asked the man to read through the decision, which explained that the court is “required to make decisions because they’re ‘right’” according to the Constitution. The man returned to shake Kennedy’s hand and pronounce that he should be proud to be a lawyer.

“I reached that reader,” Kennedy said with pride.

Kennedy, a Sacramento native who was appointed to the federal court by President Ford in 1975 and seated on the Supreme Court in 1988, was in private practice in San Francisco for about 15 years after graduating from Harvard Law School. In his personal life he is a Shakespeare buff and teaches law internationally.

“It is important to understand our history and heritage – our constitution with a small ‘c,’” he said, noting that the U.S. Constitution is the oldest in the world. “This constitution defines who we are, this is what gives us our identity. We like to think that our big-C Constitution embodies our small-c values, but we need to work on that.”

He advised students that when they become lawyers and begin to interact with judges, “make your argument” even if the judge pushes them around a bit.

“You have to do it in a professional, careful way,” Kennedy said. “Everyone has his or her own style and you should be honest with who you are … but you can be forceful while still respectful.”

Asked by a student about the true weight of oral arguments at the Supreme Court, Kennedy pointed out that arguments are the first time the justices discuss cases together. Before that point, they might communicate by memo, but they don’t discuss the cases in advance.

“What you see is a real process,” he said. In arguments, justices aren’t just deciding their rulings, they’re looking for the rationale behind them. “I’m somewhat harder on the attorney whose side I think will prevail.”

Another student, pointing to Kennedy’s experience as an attorney and Justice Elena Kagan’s academic background,, asked how the judges’ varied experiences might affect their decisions.

Kennedy said he thinks it would be a mistake to have only judges who have “gone through the ranks.” Then he joked that if you ask a judge about the ideal judge’s background, of course it will sound strikingly similar to his or her own. He also pointed to other “marvelous” judges – Douglas, Frankfuter, Warren, Black, Harlan, among others – who had non-traditional backgrounds.

In response to a final question about the degree to which the Supreme Court is out of touch with the citizenry, Kennedy said the legislature should be the voice of the people.

“The court can’t be flippant or arbitrary,” Kennedy said. “I do think it’s important for us to keep the law in its proper place and that’s where you lawyers have the responsibility [of] telling judges when they’re making mistakes.”