Justice Anthony M. Kennedy Offers Insight

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Justice Kennedy makes a point during a constitutional law class on Nov. 18.

United States Supreme Court Justice Anthony Kennedy recently visited Duke Law School, teaching constitutional law with Duke professors, talking with students and faculty, and meeting with local judges over the course of three days. On Nov. 18, Justice Kennedy’s talk on the inner workings of the Supreme Court filled a lecture hall and drew students to two spillover rooms, where his comments were broadcast.

Justice Kennedy, whose stay at Duke Law was sponsored by the School’s Program in Public Law, told students how few cases ever reach the Supreme Court’s agenda despite the overwhelming number of requests. The court generally receives 8,000 requests per year for cases to be heard, he said, 500 of which result in significant discussion among the justices. Of those 500, only about 100 actually make it to the calendar.

Justice Kennedy speaks to a packed lecture hall on the inner workings of the U.S. Supreme Court.

The Supreme Court must choose each case with extreme care, he said, because each one requires the full attention of all nine justices and will require crucial time and energy in a session that must end on time each year — June 30.

Justice Kennedy also explained how the short oral arguments of the cases, in which the justices question attorneys, also function as conversations among the justices. Some of the questions are meant to stake out a position or make a key point to another justice. That’s important, he said, because the justices rarely discuss the cases in depth before that point. It’s up to the lawyers to be sure they answer effectively and make themselves a part of that conversation.

“What you really see is a discussion the justices are having with each other,” he said. “A skilled attorney can enter into that.”

He added that the 30 minutes allotted for oral arguments is “cruelly short,” forcing lawyers and justices to cut to the heart of their positions and questioning. “There’s not a lot of time for oratory,” he said.

Justice Kennedy also spoke of the reverence he and fellow justices have for the court and the law. Every case is handled with great seriousness, and gut reactions take a back seat to consideration of precedent, ethics and the basics of the Constitution. “I’ve been a judge since 1975,” he said. “And I’ve been surprised at how often I’ve had to go back to the beginning.”

That reverence for precedent and reluctance to overturn it partially comes from the notion that any changes to interpretations of law or the Constitution can have lasting and profound consequences, Justice Kennedy said. “You’re bound by what you do,” he said. “I have to discern the consequences of what I do. The law and justice are much more forward looking.”

He lamented what he described as a growing lack of civility in the justice system, and he encouraged students to follow the example of the Supreme Court, where justices can strenuously disagree on a professional level without taking arguments to a personal level. “I’m very concerned about the civility of the bar,” he said, describing some lawyers’ efforts to gain advantage over their opponents as “Rambo tactics.”

He also expressed concern over rancor in Congress that has led to a slowdown in filling vacancies in many federal judgeships. He blamed that problem on partisanship among both parties. “Legislators are big on payback,” he said. Ultimately, Justice Kennedy said, that partisanship, as well as reliance on popularity polls, has the potential to undermine the judiciary. “It’s all poll-driven now, and we’re the worst for it,” he said. “There has to be a new assertion of principle in Congress.”

Justice Kennedy addressed faculty, area judges and other guests at a dinner and reception on the night of Nov. 18.

Students and faculty described the visit as inspiring. “Having him here really makes the Constitution come alive for us,” said 1L Angela Rafoth. “It really inspired me to look at the Constitution as a different vehicle,” added 1L Joy Ganes. “He was very engaging and informative.”

Chris Schroeder, Charles S. Murphy professor of law and public policy studies as well as an organizer of the visit, said Justice Kennedy offered students and faculty insight into the court that wouldn’t be available from many other sources. “His explanation of how the court functions internally is something students and faculty have no way of learning without hearing it from the mouth of a sitting justice,” he said. “I think what really came through when he spoke was how much reverence he has for the work he does and the law and the Constitution. It also gives you a graphic sense of the importance of what you’re studying in class in a way that even professors can’t convey.”

The 66-year-old Justice Kennedy was nominated to the Supreme Court by former President Ronald Reagan and was affirmed by a 97-0 Senate vote on Feb 11, 1988. He graduated from Stanford University in 1958, earning an A.B. and induction into the Phi Beta Kappa honor society. After Stanford, Kennedy continued his studies at Harvard Law School, graduating cum laude with his LL.B. in 1961.