By MATT CHANDLER
Buffalo Law Journal

The 5,000 seat open-air amphitheater at the Chautauqua Institution was standing-room only Thursday morning as U.S. Supreme Court Associate Justice Hon. Anthony Kennedy took to the stage as part of the Institution's summer lecture series.

In a 45-minute speech that was peppered with humor and heavy on history, Kennedy shared his views on civic and individual freedoms, both at home and abroad.

"The Constitution doesn't belong to the lawyers or the judges, it belongs to you," Kennedy said in his opening remarks, eliciting the first of several raucous cheers from the crowd.

Kennedy urged the audience to embrace civic freedoms as a way to "better the human condition." He borrowed from Thomas Jefferson in adding, "Freedom presumes (the participation of) a virtuous, enlightened people."

Drawing on his background as a longtime law professor, Kennedy devoted a substantial portion of his talk to viewing freedom through a worldwide historical lens, revisiting ancient Greece, revolutionary France and the modern-day Middle East as he painted a grim picture of basic freedoms still lacking in many parts of the world.

Telling of countries where women have to pay the equivalent cost of a week's worth of food for their families to file a police report if they are raped, and others where women labor eight hours a day just to procure water for their homes, Kennedy told the crowd that freedom "isn't a genetic inheritance," but something that must be taught because, he said, "You cannot defend what you do not know."

Referring to the plight of the oppressed around the globe, Kennedy said, "These people are living without freedom and without laws because they cannot survive otherwise, and we must change this."

Speaking to his place on the nation's highest court, Kennedy again turned back the clock - this time more than 150 years - to revisit the Supreme Court decision that ordered that Africans imported into the United States as slaves, along with their descendants, had no rights under the Constitution and could never become U.S. citizens.

"The Supreme Court of the United States all but destroyed itself with the Dred Scott case," he told the audience, referring to the court's 1857 ruling in Dred Scott v. Sanford. "This (decision) was stunningly wrong at the time, but philosophical decisions make a difference."

Kennedy talked about the uproar that was created when he voted to uphold the protection of flag burning in the court's 1989 ruling in Texas v. Johnson. In writing for the majority in that case, Kennedy said, it was "poignant but fundamental that the flag protects those who hold it in contempt." It was a sentiment he reiterated in his remarks in Chautauqua, telling the audience, "Your liberty is not subsumed by the state, it is your right."

Bruce Kenney, a process server from Olean, made the trip to Chautauqua with his wife, Margaret, to hear Kennedy speak. He said he wasn't disappointed.

"Justice Kennedy has always seemed to be the voice of reason in a court that is sometimes fractured," Kenney said. After waiting in line to shake hands with Kennedy, he said it was "a very influential speech ... very good."

In a question-and-answer session with the audience following his remarks, Kennedy was asked about the balance of maintaining civility while exercising one's right to speak out - a clear reference to the well-documented outbreaks at recent town-hall forums on health-care reform.

"Civil discussion has to be dynamic, and when it becomes unruly and uncivilized, it tends to obscure rationality," he said, adding, "I think we lack civility and could profit from having more of it."

 

 

Insights on a swing vote's rulings

After more than two decades on the U.S. Supreme Court, Hon. Anthony Kennedy has developed a reputation as a key swing vote. Coming from both sides of the aisle, Kennedy has made decisions in favor of both conservative and liberal viewpoints.

But during his 45-minute talk Thursday at the Chautauqua Institution, he said that the Supreme Court is not a politically driven body.

"We decide issues with political consequences, but we do not decide in a political way," he said.

In an address that focused on international law and its influence on domestic law, Kennedy touched on the fact that only two countries allow the juvenile death penalty.

During the Thursday lecture, the justice also discussed the court's unpopular decision in a flagburning case, Texas v. Johnson. In a 5-4 decision, for which Kennedy wrote a concurrence, the court determined that the law could not prohibit the burning of the American flag.

As he spoke, Kennedy recalled an anecdote of a stranger approaching him while he was at a pancake restaurant with his family. The man, an attorney and solo practitioner, told Kennedy that his father was furious over the recent decision, and that he should be ashamed to be a lawyer. The man gave his father a copy of Kennedy's concurrence, and the next day, the father came back and said, "You're right, you can be proud to be a lawyer."

"It's poignant but fundamental that the Constitution protects those it holds in contempt," Kennedy said Thursday. Decisions like this, he added, show that the "Constitution has meaning now."

Kennedy also discussed the framers' decision to create two separate levels of government, federal and state, and the "unique contribution" to political theory of the Federalist Papers.

Among the other cases that found Kennedy coming out on divisive issues were his majority opinion in Roper v. Simmons, a 2005 case concerning the juvenile death penalty, and his dissent in Blakely v. Washington a year earlier.

In his Roper opinion, the justice traced the legal history of the execution of minors, tying it to a recent Supreme Court case outlawing capital punishment for the developmentally impaired. Kennedy stepped nimbly from Thompson v. Oklahoma, in which the court determined that standards of decency prohibited the execution of a minor under 16 at the time of the crime, to Stanford v. Kennedy, which also looked at standards of common decency to determine whether capital punishment was constitutional.

In Blakely v. Washington, Kennedy wrote a dissent that favored interdependence between the two levels.

While this relationship has been changed by the federal income tax and World War I and II, Kennedy said during his lecture that the connection between the federal government and the states was still important.

"Americans identify with the Constitution," he said.

- By Kelsey Swanekamp

 

Kennedy: A biographical overview

Before his appointment to the Supreme Court, Hon. Anthony Kennedy stretched his legal wings both in private practice and on the bench.

The son of an attorney, the 73-year-old justice was born in 1936 in Sacramento, Calif.

He attended Stanford University and the London School of Economics, and recieved a bachelor's degree in political science. He later graduated cum laude from Harvard Law School and went on to earn an LLB from Harvard Law School.

After his graduation from law school, Kennedy went into private practice in San Francisco, and returned home to Sacramento in 1963 after his father's death to take over his law practice.

Kennedy served as a professor of constitutional law at the McGeorge School of Law at the University of the Pacific from 1965 until 1988.

He was also a member of the California Army National Guard in 1961.

In 1975, Kennedy was appointed to the U.S. Court of Appeals for the 9th Circuit. Thirteen years later, President Ronald Reagan appointed him to the U.S. Supreme Court in 1988. Kennedy was appointed after the failed attempts to confirm Robert Bork and Douglas Ginsberg.

He and wife Mary Davis have three children.

- By Kelsey Swanekamp