tv Justice Kennedys Writing Style CSPAN November 12, 2018 10:09pm-11:16pm EST
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this is hosted by georgia state university on the impact and legacy on the impact of justice kennedy. due to audio difficulties, we are unable to bring you the panelists opening remarks. >> our next panel is going to be devoted to tran eight. i think we would all agree, his unique writing style and how that maybe or maybe not affected the substance of his opinion. our guests are jamaal greene of columbia law school, mike dors of cornell law school and mike berger of the university of nebraska. i do want to mention that this is a little bit special in that many years ago, eric was mike's people at columbia law school. we have a teacher and a pupil. >> so, i do want to begin this
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panel by reading two of justice kennedy's passages so we get the flavor of what we are going to talk about for the next hour and 15 minutes. perhaps his most famous or infamous paragraph comes from the casey opinion where he wrote at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life which is a sentence that angered many people. i will say, he said something very similar to that during his confirmation hearing. this is what he said, this is longer so bear with me. i think it is important, again, to understand justice kennedy office unique writing style. he wrote, no union is more profound than marriage.
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for, it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. informing a marital union, two people become something greater then once they were. as some of the petitioners in these cases demonstrate, marriages embody a love that endure even past death. it would misunderstand these men and women to say they disrespect the idea of marriage. their plea is that they do respect it and respected so deeply that they seek to find its fulfillment for themselves. their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. they ask for equal dignity. justice scalia has said throughout his career, i think it turned out to be for better or for worse, an excellent strategy. who do we think justice kennedy
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was writing for? >> i kind of think he is writing in very broad terms, mike sat in his chambers, so he might have more to say about this, that people talk about donald trump picking justices or picking a secretary because they look the part. i think justice kennedy wanted his opinions to look the part. or to fulfill a certain style that the supreme court is supposed to express. i do not know that it is necessarily the public or law students in any specific sense, but rather that, he thought there was kind of an institutional style that he wanted, especially in the rights cases, he wanted -- what he wanted them to look like. >> justice kennedy liked to
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speak with groups of students, especially high school students and tell them about the glories of the constitution. but, i think he quite consciously, in big cases, in a case where there is going to be a lot of public debate, i think he was quite consciously trying to speak to the people, broadly. i want to say, i want to note that there is a kind of tension between the anti-doctrinalism that everyone on the first panel talked about in this sort of grand eloquent style. the anti-doctrinalism works well in reaching the general public. the public does not know about or care about the three-part test or the sub prongs. they want to know, is this a denial of equality or liberties? then, the formal tests make sense. i think the style we are talking about, now, which critics would call pompous, i
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don't think that works especially well in reaching the general public. maybe it is not aimed at them, but in so far as i think one of his goals and a laudable goal, was to speak to the people with a capital p. speak and i think it depends somewhat on which opinion. i think very much he was trying to talk to the people, talk to readers of the unit -- of the new york times. i talked very much about the tension between the anti-deck trial -- anti- doctrinal style. i think we had a conversation about this the other day. i think, one of the reasons why he might be anti-doctrinal is, it is hard to speak in doctrine if you are also making grandiose, cause i poetic gestures.
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there is this sort of tension between those. i suppose you could be rigidly and slightly doctrinal on one side of the opinion and right in grand style. if you tried to put it all together, the opinions would be even longer than they are. >> casey is eloquent for a few paragraphs and then it is my new. it is written by two different people so that sort of makes sense. >> justice scalia was able to -- in the formalist doctrinal form.
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he was able to fit into his -- he was able to fit his own unique style into the framework . i am not sure that justice kennedy could have been both a formalist and a writer with a poetic style. >> i would not call justice scalia's style poetic. he was an excellent writer, and some of justice kennedy's writings may not qualify as poetry. i think part of what made justice scalia such a good communicator, i think the same is true to a somewhat lesser extent is they are good at writing very direct, snappy prose that is very mutable and speaks to the public better than some of the passages from casey like what you quoted, for instance. >> i agree with that. i think
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about news reports on npr after the court has decided a case. how do you decide what to quote from the opinion? i will have read the opinion when it came down at 10 am and then when i am driving home and listening to the news, i will hear nina read a passage. it is true that if it were of a certain dissent you would hear those snippets. but the public are not reading the opinions. has a lot of followers for law. it is law famous not real famous. so, people are getting it on the news and so it may well be that you are trying to write to
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get quoted either on all things considered or the evening news. >> this is a question i thought about and do not know how to phrase, exactly. i do wonder if we have opinions about whether justice kennedy, to some degree got himself -- thought himself more as a philosopher king then a justice. someone whose job it is to espouse a broad, moral and ethical dignitary type principles then someone who is applying law? any thoughts on that? >> i think, i think it begs the question to say that doing what justice kennedy is doing is not being a judge that it is the
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job of a judge in a constitutional case involving rights and rights that are not well specified in the constitution that seem to be implementing some kind of value commitment or set of values. to say that the job of a judge in that case is to mechanically or formalistic lee apply law is to state a substantive position within the case itself. it is not to state a universal premise about judging. at least not in constitutional cases. constitutional judging, i think as part of the flaw of american academia. we think about constitutional judging as completely continuous with all kinds of other judging. it is that a contract case is the same as judging about abortion rights. they are quite a different task.
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the fact of the matter is, we have a constitution and the constitution is not self- explanatory. so, yes, justice kennedy i think thought part of his job was to speak to the values in the constitution in a way that wasn't particularly formalistic or mechanistic. again, i don't know that is necessarily consistent with judging. >> one of the things that people object to when calling a particular justice a philosopher king is that they justice, under criticism tends to vote to strike down more laws than the critic thinks is appropriate. that is a particularly likely charge against justice kennedy who was the least, in this sense, least restrained justice
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of those who sat on the court, maybe ever. he sat with the liberals in the abortion and gay rights cases. he is very strongly in favor of the first amendment, he is with the conservatives on federalism grounds. he has the all of the above approach. so, that makes him criticize a ball on those grounds. again, we can distinguish between the anti-doctrinal and the reach for the poetic style and the tendency to want to strike rings down. if you want to do the math, there are eight possible combinations of those three things. you can assume each of them is yes or no. the question that might be interesting is, if you start out anti-doctrinal list and you are reaching for poetry and you are also going to elevate your view of the constitution over a more
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restrained view, to the answers to all three of those questions tend to go together? i think that there is something to that. i don't think they logically go together, they do sort of reinforce each other. >> i don't have a whole lot to add to that. i agree entirely with mike that of all the justices, he clearly was the one who was least deferential to the government and most likely to strike things down. i also find him one of the most inscrutable of the justices. i don't know if it is because he thought of himself as a philosopher king. he used to say the tiebreaker goes to liberty. perhaps he saw the court's role as protecting individuals from government overreach in all the different areas that mike mentioned. speak and let's talk about jamaal's point. this might be a little bit off the point, but it is an interesting point i want to talk about.
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is it possible to decide hard constitutional cases in a way that is honestly doctrinal? it turns out justice scalia researched 131 laws in his career. that is a lot of laws. the numbers aren't that different. scalia and thomas strike down a lot of laws. is it possible, is constitutional law, law? i am -- >> that is a big question. i do not think it is possible, if we are going to speak the terms of the claim in fairly simplistic ways, is it possible
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to do constitutional law in a way that, broadly speaking, is rule oriented which is to say the constitution establishes a set of rules that tell you exactly how to decide a case based on some premise that can be established at the outset of the case. as opposed to in some qualitative sense, trying to apply value judgments to the facts. is it possible to do that? i don't see why not. is it possible to do it in a way that is free of reasonable criticism? no, of course not. we are going to reasonably does agree. constitutional law is inherently contested. so i guess what i would say, and what is responsive to this
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is to say, i don't think it is possible to persuade reasonable people, all reasonable people that what one is doing in constitutional law is compelled by the constitution, by the text, by its structure, by its original understanding or something along those lines. perhaps, there is a sense in which justice kennedy, just as writing style and the way he expresses himself made it more obvious than for someone like justice scalia. that justice kennedy was, and if you talked about this in the early -- in the earlier panel, part of that is simply to say, he resists the notion that the constitution is necessarily determined in a way that is accessible to everyone all at the same time. he is not a rule oriented justice in that sense. he is a justice who believes in
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what you might call the major premises of constitutional law. he is all about saying, the constitution protects liberty or the constitution protects federalism. for him, that drove a lot of the case. in that sense, he shares that feature with rule oriented justices. you can state the major premise and the minor premise is not quite as important to the decision. but, he was not formalistic in that sense. he did believe that you can state those rules at a very broad level of generality. speak and i believe that conflict is more interesting than agreement. i am going to challenge you on this, eric. this picks up on, not your most recent book, but an earlier book where you claim that the supreme court is not a court. the claim is, you argue it mostly based on constitutional
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cases. the claim broadly could apply to the supreme court. one question we might ask is, is your claim, as i read you, you are not a full on -- who thinks that law is not law, but you just think law at the supreme court level is not law. or constitutional law is not law. both justices scalia and kennedy were appeals court justices before they were supreme court justices. kennedy for a longer period of time. when will you figure out, whether the supreme court is just making stuff up in a way that is different from what judges do generally is to compare and contrast their opinions as supreme court justices versus appeals court
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judges. i have not done that, but i would be surprised if you focus on big cases, there are fewer of them in the appeals court, you don't have discretionary jurisdiction, but i would be surprised if there is a very substantial difference. that i think both of them wrote more or less the way they did, all along, they got more comfortable in their role as they continued, they can be reversed at the supreme court. i suspect that this was the way he was all along. >> i will say, justice kennedy, on the ninth circuit, had to write an opinion upholding the military dismissal of a gay person that he would never have had to write and would never
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have written had he been on the supreme court. i would also say that judge pozner who publicly criticized the gun decision struck down an illinois law restricting guns. he told me he felt he had to do that. i think the difference between the supreme court and the court of appeals always is, always has been, the supreme court never has to do anything. >> justice kennedy did not have to do that. so, you can say he had to write, so yes, of course, lower court judges are bound by the supreme court in a way that supreme court justices are not. but an overall style, i don't think it changes much. >> first a response to your back-and-forth and then a response to your question several months to several minutes ago. -- question several minutes ago.
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>> at the supreme court, most of the cases that get there, especially constitutionally, they get there because they are hard. by hard, i mean there are good arguments on both sides and people are going to disagree about them. at the appellate court level, you're more likely to have at least a substantial portion of the case that regardless of your political norms or preferences, the law is going to be a clear. there are obviously exceptions to that and some of those exceptions go to the supreme court. i think that is a difference between the roles of the court. it plays into the perception, to your argument in your book, that the supreme court is not a court. one of them is, it is just a universe of cases where your are much more likely to see the justices norms infused in it.
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on your previous question, maybe i'm twisting some what, but you asked about honesty. one thing i think is interesting about justice kennedy's opinions , and him defining honesty and a particular -- in a particularly narrow way, even if you're pretty sure you are right, there could be arguments on the other side i think sometimes justice kennedy was actually pretty good at it and sometimes he was bad at it i think that is sort of interesting. he actually did, regardless of how the cases came down, he did a pretty good job of recognizing the values on the other side. he said, recognition of same- sex marriage does not demean those who disagree with it. then, in other cases, he seems completely dismisses it --
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dismissive of the values on the other side. in a case like rosenberger, he really saw that as a case about viewpoint discrimination and breast -- and brushed aside the disestablishment cause. your kind of pretending that platitudes should not be deciding a case. so, i think it is interesting that on the one hand, he almost goes out of his way to honestly recognize that the, that whatever values are on the losing side have some legitimacy. in other cases, he is pretty myopic to those. just a follow-up on that and a follow-up on this previous discussion. >> i totally agree with eric about, that justice kennedy was an odd mix of being totally sure
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that his view was the right view . and, being unusually good, i think, at recognizing the range of rights or range of interests on both sides of a question. maybe this is just something about, i guess mark talked about this in the previous panel, the empathy. i think in his defense, i think this is something that was good about him, i think his impulse was to say, we should be clear about when there are interests and values that are in conflict on both sides. we should be honest and transparent about the fact that a case is a difficult case. he was not a justice who thought that he should be
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writing a brief were you just sort of pretend that the arguments all point in one direction. i think he was unable to see the range of interests in certain kinds of cases. we were able to point out his particular blind spots. a small point on the long courts, the city -- the supreme court question, it might be worth ringing up the question that you asked of the previous panel. why does justice kennedy go from one view in webster to a different view in casey? >> one of the possibilities that one has to bear in mind is justice kennedy thinks that his role is, in fact, different, and he has an obligation to adhering to a certain set of
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institutional norms, a certain set of continuity in one role versus another role, even within the court. i think that is suggestive of the view that even though the court does not have to do anything, in a sense that someone is going to make them or overturn them, but the sense that the court does have a certain set of obligations and commitments that i think he took very seriously. >> just really quick, another example of that would be fisher which is a case where based on what he voted in the past, i guessed he would've been able to strike down affirmative action. in that position, unwilling to take that step realizing that dishes become i want to say, very quickly, because mike brought it up, not me, that the one central thesis of that book was one thing we expect all judges of law to do is take
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prior law, minimally seriously. they are not expected to engage in all things considered decision-making, there is some minimal requirement of prior law being taken seriously and my empirical thesis of that book was, we can show the supreme court as an institution, has never taken prior law minimally seriously. in the context of, i don't want to debate that here, we can if you want, but i will say that justice kennedy, i think is a grand example, of someone who may be didn't take prior law minimally seriously when deciding what result he was going to reach. do you think that is an understatement? >> yes. i think you're not accounting for selection bias. you are looking at the stuff that is on the surface. there is a gigantic, stable body of
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law. kennedy might have disagreed with it in initial matters that he is not going to -- >> kennedy would not agree -- >> i want to come back to this. one question, one reason may be why he is sympathetic to the other side in some cases and not in others is that, he is just being honest. i once heard someone describe what a judge said to another. i can't remember who told it to me or who the judge was. the judge said, when i hear a case, sometimes it is 51-49. but, when i write the opinion, it is 100-0. let me suggest that for kennedy, if he heard it at 51-49, he would write it
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at 51-49. that does not mean he is being especially sympathetic to the other side, he just finds it a hard case. if he is writing it at 100-0, it is because he finds it an easy case. the real challenge would be to write an opinion that is sympathetic to another side when you think it is a 100-0 case. i am having a difficult time thinking of examples of that from him or really anybody. >> i think that anecdote is something justice white allegedly told to another. always write it as if it is 100- 0. i tend to think that one of the problems with judicial rhetoric at the supreme court, and this alludes to what jamaal said, the opinions are written too much like reefs. they leave it to the dissent to make the other side. i kind of
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applaud turn eight four at least recognizing that there are competing interests. sometimes he says, the history is not determinative. we need to look to other things. i think that helps explain jamaal's point that in some cases, he did not acknowledge the other side because he could not see it. i think it is sort of part of why he is inscrutable. he tended to put things in particular boxes, but it was hard to know. you could have seen that as a case about employee speech. he did not see it in that box. >> i want to push back strongly on the inscrutable point for justice kennedy. the case involving habeas corpus rights. there is a sense where justice kennedy says we need to
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decide how habeas corpus is. formalism cannot decide this question. he really believed that in that case. he may have been also responding to scalia's dissent, which he did a lot. justice kennedy, much more often than not, put his nonlegal value judgments front and center. so, the same-sex marriage opinions are mostly about dignity. and different ways of describing that. the term limits case of the 1990s, which the young people in this room, i can't explain what a big issue term limits was in the 1990s. this was really one of the biggest issues in american politics. arkansas put term limits on members of congress and justice stevens writes a 40 page opinion going to text history and traditional tools. justice thomas writes a 40 page
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opinion going into how it is constitutional. congress needs to have a separate identity from the states. for these reasons. we are going to talk about that later this afternoon. >> it also contains his best line of poetry in any supreme court opinion. in describing the system of federalism, the framers split the atom of sovereignty. i think that is a legitimately great line. >> i agree with that. >> my question is, when you said inscrutable, i think he is the most inscrutable justice of my lifetime. because, he didn't, he did not hide behind doctrine. he did not hind -- hide behind doctrine to mask the judgments
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he thought decided the case. in that sense, he and judge pozner share a great similarity. neither one hid behind doctrine to justify their results in a case. is that accurate? and is it a good thing if it is accurate? >> i guess i would say, i don't think that justice kennedy hid behind doctrine. i think i agree with that. whether that is a mark of unusual honesty or transparency, that's where i might get off the train. insofar as, i don't think there's any particular, from the perspective of honesty or transparency, i don't think there is any particular valence to being a doctrinal list first versus being a non-trick trying to list -- being a non- doctrinal list. in a way that
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is entirely nontransparent, i think when eric says it is inscrutable, we don't know how you get from citizens united when you say, corporations have a certain speech right, it is not good to discriminate on the basis of a speaker, jumping from that to a restriction on electioneering in the last three days before elections, it says you can speak through a certain path, but not through your treasury fund, that is not constitutional. it is not an obvious conclusion. he does not tell us how he gets there. there is no discussion at all of in what way is burdensome. that should be relevant to the decision in a way that it just
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isn't because for justice kennedy, the conclusion just follows from the premise of liberty and speech. i don't know that i described that as particularly transparent. i do agree that he does not hide behind doctrine in an obvious way. i think one thing that separates him from pozner is that it does speak to transparency a bit, at least two pozner's credit, it is not a great value for a judge, it is not obvious that judges should always be transparent. they shouldn't necessarily maximize transparency when writing decisions. pozner is clear. he is clear that he is not bound by doctrine. he will tell you that. he says, this is my philosophy and i do not believe in doctrine. kennedy does not say that. we just have to read that into his opinions. in that sense, i think that is
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a significant difference when we talk about transparency. kennedy, sometimes he is bound to dock or and and sometimes he isn't. he does not tell us how that is driven by any sort of philosophical ideas. >> pozner did say he would check to see if his result was blocked. there have been lots and lots of justices and judges who are not formalists, right? it is conventional wisdom that at some point, we all became legal realist to a point. the question is, to what point? i think, one of the interesting questions about justice kennedy, with respect to the lack of doctrine and some of the cases is why he did it
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given how easy it would have been, in any of those cases, to write a much more straightforward opinion reaching the same results using the standard doctrinal formulations. indeed, after lawrence against taxes which struck down the taxes ban on same-sex sodomy, there was a whole series of lower court cases as to whether the case made same-sex or opposite sex intimate sexual relations a fundamental right. there is litigation over a sex toys ban and the circuit said no it was not a fundamental right. if he had just said, it would have been easy, after the case, larry tribe wrote a view showing how passage by passage, kennedy
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actually used the language that we normally associate with the doctrine of fundamental rights, but he scrambled it up like it was a word jumble. it did not have the exact formula. you say, why did he do that? i confess, i do not know the answer to that question. one hypothesis might be that if you are an anti-doctrinal list, you preserve the freedom to decide other cases in ways that you want. rehnquist was guilty of doing this. he wrote these very short opinions in which there was not a lot that you could cite as a future president, but i don't think that is what kennedy was up to.
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>> on your first point about him being more honest in terms of admitting his -- i don't think it is true in comparison to judge pozner who is the paragon of candor as a judge. what i meant when i said he was inscrutable, i guess i meant three different things. the first is what mike just referred to. he wrote the decisions, in some cases they are so drop -- so doctrinal. he did not even tell you what your scrutiny is, is he just abandoning the tears of scrutiny altogether, that is why you have that mess inscrutable in terms of reading
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is that persuasive. so unlike the grant case, about life in prison for juveniles, and we have paroled for juveniles for people who have been convicted of a certain amount of crimes, he talked about how the public opinion is turned against it. a specific majority of state still had it, and there are ways to explain it away, and the trend seems to be against it. it seems to hang a lot on the assertion that it is not clear that doing that much work for him. in other cases, he makes these assertions without any evidence at all. so citizens united, because of our corporate influence, he said nothing about that. in this other case is the people mentioned, the first panel, he makes assertion about
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women coming to get abortions and he could lead to depression. i think that is inscrutable as well as he is putting a lot of these assertions, and why they are important and where is he getting this? >> one way that justice kennedy i think definitely was a true judge in the sense of temperament is that justice scalia criticized him in ways that scalia used to criticize o'connor, but a connor went around him, and even as far back as 1992, when the court struck down graduation prayers at high school graduation, and that really did alienate much of the right, in justice chris lee us that and justice scalia's dissenting opinion in accuse kennedy of all sorts of
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things. justice kennedy never to the best of my knowledge responded to any of those criticisms, and his many others in the way that he could have, and did that kind of rhetoric and tone. >> you are not going to put that bag over my head.[ laughter ]>> scalia did not use that exact phrase, but where he said he should put a bag over his head and also compared the majority opinion to the inscrutable mysteries of a fortune cookie. so here is my substance of question and out of respect for kennedy for not taking that road on the one hand. on the other hand, what his opinion maybe have been over the course of time more durable and more effective in the way that scalia's dissent turned
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out to be i think had he resorted to a little bit more taking off of the gloves and responding to the attacks by scalia. >> i challenge the idea that scalia's dissent are durable. if you provide scalia's dissent, and he says gay people control the media so what do you expect. i am not exaggerating for that. so, nobody can mistake the prejudices of their age or whatever, and it was almost the stuff that was not going to hold up. we teach the first just it! justice harlan's dissent, and we typically don't talk about the blatantly racist anti- chinese sentiment.
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but i am not sure that is the right question as i am thinking about this conference a while back, and are we talking about the legacy of justice kennedy, and so much depends on the next appointment and after that, and in a way, that is the wrong way to think about it. if i think about the supreme court in some earlier period whether or not it is in the 19th century or the earlier 20th century, part of what i want to know is how much of the law they decided is still good law. but i really want to know what does this tell us about the period in which they lived, and for a period of nearly 30 years, justice kennedy was either one of the two most important are the most important person for
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the meaning of u.s. law. it was across a wide range of issues and even if all of his opinions are overruled, that will be an important figure for that. i don't think that answers your question, but i do want to push back a little bit on this idea that the way we measure a justices impact is by how many of their opinions continue to be good law a generation later. >> we have about five more minutes, and i want to say that is a sophisticated law professor way of looking at it for the gays and lesbians who want rights, how durable his four opinions are is very important. i think how he wrote those opinions may or may not be durable, but it is an important plane.
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>> i am amazed to you say that because you think this doctrine doesn't matter at the supreme court. >> i don't think that the doctor matters at the supreme court, but i think the way the supreme court is perceived by the public matters to future supreme court cases is -- cases, and how justices write opinions can affect that. >> i actually admired justice kennedy for taking the high road i think the supreme court does better than the vast majority of american society and disagreement with some sort of respect, but i admire justice kennedy. i don't inc. that affected the durability, but i think what might in fact how enduring his opinions are as a matter of law is because, and i am not sure i am right about this, but because they are less final, you are more likely to have confusion in the
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lower courts about how to apply them, and it might make them more likely to get to this record which could rewrite it or overturn it in a way different from what justice kennedy intended. this is a point that i saw that jamaal made after justice kennedy announced his retirement and regardless of how many of his opinions are still good law, he made the point that he wrote an incredible number of really important opinions, and maybe more than any chief justice since marshall, and that will probably endure regardless of how the law changes. >> along those lines, i also am going to dissent a little bit, and i will dissent from the premise that how justices write an opinion is likely to have much effect on the durability of those opinions. i think what the particular
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issue is and society has the effect on durability and society honestly has a lot of effective decisions, and as mike pointed out and you look at large versus texas, and we as law professors develop opinions about them, and justice scalia always had a few putdowns and sharp lines, but justice scalia in defense, and lawrence makes a prediction about if you go down this road, same-sex marriage is coming next, you watch out. low and behold he is right about that and also in dissent in that case. we just had a panel, and it marks about as durable of a president and it is going to get, and justice kennedy is a winner in that series notwithstanding that does the scalia had some better lines.
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he loss. >> that makes sense and i will say one thing about the lower court confusion and it was wrote a long time ago about the clause that some verbal formulations are easier to evade than other verbal formulations, and federal judges and their law clerks at the district court level are overworked, and don't have endless time. it is it think that to say how hard it is to avoid a decision that is relevant to whether or not you are going to avoid it. i think that might make a difference in the long run. but these cases are more easy to litigate in the lower courts than the upper course. with that, let's take some questions from the audience. you have any questions.!?
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>> --? >> to brief reactions to that and mainly off of the last comment. the first is that it occurs to me that you are right and kennedy wrote so many of these important decisions and i think it was because they was 5-4 and they needed his buy-in and there was some sense of the fact that he might not sign on. this sort of tells us at the same time that the moderate the swing judge is gone. i don't think we are going to have that. i guess roberts becomes a swing judge, but that is not much of a swing. so my question is do you think, and here is the first one, you think that those days are over and there will not be another great justice that you can say wrote all of these really
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important opinions because at this point, we don't have a middle anymore. then my second one, and it goes to the point made by jamaal, and kennedy won on the same-sex marriage in fact that scalia had some better lines. i agree with that and i agree with the first panel in saying this is about as stable as you get. i think the reason this is true is because the supreme court was catching up and the supreme court there was just lagging behind where society was. i have been thinking about the supreme court as going down the tubes now, but maybe that is not so. i think what we are going to see again is a court that lags behind where society is. maybe by the time they recognize it, will have more celebrated decisions because society has passed us by.
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those are my questions and comments. >> i would like to make two points. the fact that justice kennedy was a swing justice, i think it might plausibly have had some effect on his writing style and one thing about justice kennedy is that in a lot of cases he was not afraid of losing someone in the case, so that gives you a lot of freedom to write exactly the way you want to write where as if you are worried about losing some other person, you might be much more careful in how you write. whether someone is a swing justice depends on what else is going on in the world. if you would have told me all the things that justice kennedy does in 1985, and said here is your swing justice, i would say that is a pretty conservative justice, but he becomes a swing justice as the court moves over
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time. i think it is quite plausible that you could see something similar happen in the future. in the last term of the court, john roberts was the +1 more often than justice kennedy. all the cases in which the liberals won 5-4, it was some justice other than justice kennedy. over time, i could very easily see someone like john roberts who is looking out how fast the court moves in a certain direction even as he is quite conservative himself, ended up being a backstop because the rest of the court is so much further to the right than it was even when he joined the court. >> we will be discussing the media justice. just on the point of lack, people who study history more closely -- lag,
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people who study history more closely than i do, the basic lesson of that history is that on average, the supreme court lags and that is the way that justices are chosen. it occasionally gets out in front but when he gets about more than a standard deviation away from the center of public opinion, it is brought back. this view would suggest that it is controlled by some other things, namely what the society as a whole is doing, and if that is true broadly speaking, then it doesn't matter that much. that is just what i tell myself. >> barry freeman just said that he thinks this to court is going to be a standard deviation away from that. >> and if he is right,
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according to history, it will get radiant. >> you took some time at the beginning talking about you think justice kennedy was riding for in certain cases, and i wonder if you have any opinions about who supreme court justices in general should write for if anyone, and whether or not the changes based on the issue presented to them. >> i think they are riding for a lot of different people, and i think that is what makes it a hard job. the legal realists critique that eric takes very well might be correct, but at the end of the day, there will be future cases that the lower courts will have to decide. on the other hand, the law is more important that you cannot leave it to just lawyers. i think there is some sense for writing to the general public and riding in race that if
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somebody picks up a newspaper, they can follow up. >> at a minimum, i think all judges should be writing for the parties in the case, especially for the losing party and say okay, you lost this case and i'm going to try to justify it to you. this goes to the question about the gracious response of justice scalia. one reason not to be too snarky was that somebody is going to lose this case, and for them, if they think this has been treated as a joke, that is pretty bad. >> >> i want to get back to the starting point and bring in something that michael suggested and that it is slightly value, the prostyle
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issues. a great essay was written about this about the forest called the chasing of american prostyle and why holmes wrote the way he did. this is a shorthand version of this, but about four justices, and it is really shorthand, so justice scalia is talk radio, and chief justice roberts and justice kagan are npr. and what is weird about the approach and style of justice kennedy is that, not that in
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the late 19th century the way that he wrote would've been strange, but just that now, and this affects the client and what all of us i think are looking at today, and we read things and contemporary, and so if you are appealing to anybody of contemporary, you have to to write in a way that corresponds to one of the communications available to them. again, in some ways, it connects to the the reasoning in justice kennedy's opinion because they
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don't communicate in a way that is effective for contemporary audiences, even if you can look at them and rewrite them to make them effect if communications. >> that is not exactly right. one thing that puzzled me a little bit is why justice david souter never got the same level of criticism on this particular point because he also wrote like he was riding in the 19th century. i think there is a scene in which souter used the word inquiry, and scalia in dissent quotes it and he said yes he does. but souter got a pass on this and maybe just because he wasn't seen as that important
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in terms of the coaches that smack courts precedents. >> scalia and ginsburg are notoriously good friends off of the bench. what was the relationship on a personal level between kennedy and scalia? >> do we know? >> they was neighbors so i think it is a little bit like as they was close initially, and then they kind of drifted apart. there is a story and i do not know if it is true, but scalia did a cost kennedy verbally outside of his house, a lunch
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talk is coming up and mike again, and i forgot and failed to mentioned that smack mentioned that mike was on this panel because emily had to cancel a couple of days ago, and so you will see mike twice. what we are going to do is we are going to take a short break for you to get your lunches in the other room. bring them back and there may be signs that say no eating, so ignore them. bring your lunches back and in about 5-10 minutes, we will have a discussion directly about citizens united and other speech cases. think this panel very much.[ applause ] >> you are watching american history tv, only on c-span 3.
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each week, american artifacts take you to museums and historic places to learn about american history. here is a brief look at one of our recent trips. the hello girls were brought to france in early 1918 after the french provided to him did not speak much english and gave -- and became a logistical nightmare to try and get command to his various field officers. so he directed the u.s. army signal corps back in the united states to put out a call for female telephone operators who could speak french, but can also handle the pressures of being in the front during the battles.
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hundreds of women applied for this position and very few of them made the cut. many of them was descendents of french canadians, so they knew the french language, and they came over and was set up, and right before the battle, they was brought here. you can see by this photograph they are sitting at the switchboard and because they are so close to the front, they have the doughboy helmet and the gas mass behind their cheer. none of the telephone operators were actually in harms way but the telephone line to catch on fire at one point. the worst that the telephone operators did during the battle, it was extremely significant especially in the very hectic days at the end of september and october when trying to move supplies and orchestrate harmonies around that smack armies around this huge --
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armies around this front. >> travel with us each sunday at 6:00 be him! 6:00 p.m. and 10:00 p.m. this is american history tv all weekend. >> coming up next on american history tv, from the international church hill conference in williamsburg, virginia, former supreme court justice anthony kennedy delivers the keynote address on the former british prime minister. he sits down with chris matthews to talk about his career. justice kennedy retired this past summer after 30 years on the court. this is about 40 minutes. >> good evening ladies and gentlemen. justice anthony kennedy from sacramento, california, earned his mba from
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