Justice Anthony M. Kennedy discussed the theory and practice of law with an overflow audience at the School of Law Wednesday the 22nd anniversary of his unanimous confirmation to the Supreme Court.
But as many of the questions indicated Kennedy has been at the center of some of the nation’s most controversial judicial decisions.
Observers say Kennedy provided the deciding vote on many of the landmark cases of the last two decades from a 1989 decision that reversed 48 states’ bans on flag burning to a 2005 prohibition of the execution of juveniles that some say drew too heavily from international law.
But it is his Jan. 21 opinion finding an essentially unlimited First Amendment right for corporations to fund individual political broadcasters that still dominates editorial pages.
“Would it surprise you to know that this handful of questions [submitted by the audience] involve a case called ‘Citizens United?’ Now if I were a polite moderator I would just put them back here said Dean Kenneth Starr, pretending to put the stack of questions referring to the Court’s 5-4 decision in Citizens United v. Federal Election Commission behind his chair. But I know the justice is a big supporter of freedom of speech.”
Starr asked Kennedy who wrote the majority’s controversial opinion if he felt scolded when President Obama criticized the case during the State of the Union address.
“I have a lifetime job— he doesn’t Kennedy replied.
The response was one of at least 30 to bring laughter to a majority of those listening to a 90-minute question-and-answer period that simultaneously stressed the importance of passionately defending one’s principles and of maintaining collegiality.
Kennedy illustrated the atmosphere at the high court by repeating a rebuke he said hegave Justice Antonin Scalia, generally considered one of the Court’s most conservative members.
Nino how could you write this opinion?” Kennedy said he demanded. “It’s going to change the law and in completely the wrong direction. And remember [my wife] and I are having dinner with you at 6.”
Senior Mark Cruz one of several dozen Seaver students to attend the lecture said he appreciated Kennedy’s “classiness.”
“The speech was excellent and … I’m really impressed with him as an individual Cruz said. He’s a bit more reserved than someone like Sandra Day O’Connor.”
Cruz has heard two of the three other Supreme Court justices speak at the School of Law— Samuel Alito in 2007 and O’Connor in 2009. In 2008 Justice Clarence Thomas visited as part of the same series.
“All of the justices are different and Dean Starr and the School of Law have done a fantastic job … getting questions from students faculty and legal scholars Cruz said. I’m excited to see if we can get [Justice Sonia] Sotomayor to come next because Dean Starr was one of the first to publicly endorse her.”
The speaker at the fifth annual William French Smith lecture series which brings a Supreme Court justice every year has not been announced.
First-year law student Stephanie Asher who traveled to Pepperdine in spring 2009 to hear lectures by Justices Scalia (in an appearance separate from this lecture series) and O’Connor contrasted the style of the three justices.
“I sense that O’Connor was more personal and she had a lot more to say to female lawyers Asher said. [Kennedy’s] contribution was more … I’m not sure. I liked what he had to say about collegiality.”
Asher said she disagreed with the Court’s opinion in Citizens United and had been curious how Kennedy would explain it. She said she found the explanation unsatisfying but unsurprising.
Kennedy also emphasized the importance of learning.
“[Thomas] Jefferson’s idea was that America presumes a virtuous and enlightened people Kennedy said. The law lives in the consciousness of the people. That consciousness must be informed and it must be renewed.”
Asked before the lecture if he had any advice specific to undergraduate students he expressed the same principle.
“Take time to read Kennedy said. Don’t stop reading important original works. This is a good time for reflection.”
The justice said interesting books he had read lately included Plato’s dialogues Aristotle’s “Nicomachean Ethics” and books on both microphysics and astrophysics. (“We’re very close to discovering the nature of dark matter he said, shortly before exhorting Americans to better appreciate civic freedom” as understood by the ancient Greeks.)
He also advised all students to enroll in a constitutional law course.
“A lot of people think that’s a class you take to prepare for law school he said. But that’s the course to take if you aren’t going to law school.”
Kennedy taught constitutional law at the McGeorge School of Law University of the Pacific from 1965 until his appointment to the Supreme Court in 1988 and he continues to teach law seminars.
He said he misses being a professor although he also sees his current role as one of teaching.
“We’re the only branch of government that must give reasons for what we do and were judged by what we write the justice said. We have a responsibility to teach to speak in an accessible way.”
However Kennedy gave a strong response when Donald Earl Childress III a law professor referred to books other justices have used to teach their judicial philosophies and asked what Kennedy would title his work if he wrote one.
“U.S. Reports— that’s my book Kennedy answered, referring to the official collection of the Court’s decisions. [A popular thesis risks] an interest in defending that statement rather than in finding the law in a particular case.”
Kennedy did say he considered himself a voracious reader however. During one response he referred to Pepperdine Professor Edward J. Larson’s “A Magnificent Catastrophe: The Tumultuous Election of 1800 America’s First Presidential Campaign.”
In a discussion that did not involve raising his voice Kennedy’s most impassioned response came near the end of the event in response to a question about prisons.
“California’s three-strikes law was passed by the electorate at the ballot and its sponsor was the correctional officers he said. That is sick.”
Kennedy noted that sentences in the United States are eight times higher than in Western Europe which he said was unreasonable and unfair.
But it was the inspirational words and sharp wit that many attendants said they would remember.
“His sense of humor was a bit of a surprise said Max Rosenberg, a UCLA alumnus who plans to attend Pepperdine. He’s eloquent when he has to be but his humor really is what made this have an impact.”