DEAN MARTHA MINOW:
Hello everybody. Before we start, I have a couple
of ground rules to mention. Please do not tweet today. Please do not text today. Please just bring your
whole self here and be here. OK? Everybody agree? OK. With that said, I am absolutely
ecstatic to welcome back to Harvard Law School,
Justice Anthony Kennedy, one of our own alumni,
and let me say-- [APPLAUSE] JUSTICE ANTHONY KENNEDY: Who has
never seen any of the buildings I've been in this morning. DEAN MARTHA MINOW:
We couldn't be more thrilled that you're here. I'm going to say a few
more things about you, but then try to have as
much time for discussion. First I'll ask some
questions, and then open it up for discussion. You are allowed to applaud at
any of the further descriptions that I have about him. So Justice Kennedy
is from California. Justice Kennedy studied
political science. Justice Kennedy
went to Stanford. I wondered what would
happen with that one. Justice Kennedy also studied at
the London School of Economics. Justice Kennedy practiced law. Thank you. And didn't make a lot of money. Justice Kennedy taught
constitutional law. Come on, come on, OK. All right, done
with the applauding. When Justice Kennedy
was in private practice for a substantial period
of time and taught for a substantial
period of time, and most amazingly, continues
to teach, at the McGeorge School of Law,
where he I believe is the longest teacher
on the faculty there. JUSTICE ANTHONY KENNEDY:
I suppose that's true. DEAN MARTHA MINOW:
President Gerald Ford appointed him to the Court of
Appeals for the Ninth Circuit. And then he joined the
United Supreme Court in 1988, and there he has written
landmark opinions in fields as disparate as freedom of
speech, habeus and the War on Terror, campaign finance,
and marriage equality. He is the decisive
vote in crucial cases. A magazine had a
photograph of him that was a flattering
photograph, that called him The Decider. And he is an ardent defender
of liberty and of dignity, a word that has not previously
to his time on the court, been mentioned as
often as it has been-- JUSTICE ANTHONY
KENNEDY: And you're very gracious not to
use the term swing vote. I hate that term. It has this visual image
of the spatial gyrations. The cases swing, I don't. Thank you for not
using that term. DEAN MARTHA MINOW: You
said once, we must never lose sight of the fact that
the law has a moral foundation. And we must never fail to
ask ourselves, not only what the law is, but
what the law should be. And I thank you for that. I think that that is a
crucial reminder to us about the relationship
between law and morality, and law and justice. My first question to
you is, what did you learn from your early jobs that
you find yourself using now or that just what did you learn? So you were in private practice. You were a professor. As I know, you were once State
Senate Page, is that right? JUSTICE ANTHONY KENNEDY: Right. I was not happy in school. They didn't have the
term "homeschooling." So my parents thought
it would be good for me to be the only page
the Senate had ever had and put me in a smoke-filled
room for four years. But I was teaching at a school
for judges in the Netherlands in Europe, in most
parts of the world. When you graduate from law
school you have two choices, you're going to practice or
you go into the government service and the judiciary. And we get into that. We're very fortunate that
we have the Anglo American tradition where we choose judges
from the ranks of practicing bar. But I was teaching at the school
for judges in the Netherlands and they're very young
people, just a couple years out of law school,
for two or three days. And some young lady of one of
the new judges raised her hand and she said, how
can I be a good judge if I still have so much to
learn about the world around me? And it was one of these
moments where everybody's and expected some answer. And I said, you will
never be a good judge unless you ask yourself
that question ever day. DEAN MARTHA MINOW:
That's wonderful. JUSTICE ANTHONY KENNEDY:
And part judging is to ask, why am I doing this? The law is a discipline,
an ethic, a philosophy, a commitment that you always
go back to first principles. Cardozo-- read The Nature
of the Judicial Process. I know it's not terribly
exciting in parts, but it's short. And Cardozo in the first
paragraph of his book said, people ask judges how do
they go about deciding a case? And for one's who's been
a judge a long time, who's done it hundreds
perhaps thousands of times, you'd think the
answer would be easy. Nothing could be
further than the truth. So you rely on all
of your experience. DEAN MARTHA MINOW: So
why does law matter and why do lawyers matter? JUSTICE ANTHONY KENNEDY:
Well, in the our country, in our heritage, in our
tradition and it's our destiny and it's our purpose, we in part
define ourselves as committed to the rule of law. And we're bound by this thing
called the Constitution. Constitution, you
can use the word with a capital C or small
C. Capital C is the document that judges interpret-- DEAN MARTHA MINOW: Here it is. JUSTICE ANTHONY KENNEDY:
--that was hammered out in the summer of 1787. And after a month
in Philadelphia, they had nothing, no federalism,
no separation of powers, after a month. And Washington kept them there. You didn't walk
out of the general. They would occasionally say
the 18th century equivalent of we're out of here. And Washington would say
please stay, gentlemen. You didn't walk
out on the general. So that's 1787. In 1789 it's adopted. 1791 the Bill of Rights. So that's the Constitution
with a capital C, the one lawyers interpret, the
one that we're committed to, the one that we all
support, the one that belongs, not to just do
a bunch of lawyers and judges, it belongs to all of
us and that defines us, defines us as a people. The constitution with a
small C is the constitution that Aristotle, Hobbes,
Locke, Rousseau, Harrington, Jacque [INAUDIBLE]
used to describe the small-C constitution-- the
sum total of manners, mores, customs, traditions, morality,
ethics of the people. The closer the two come
together, the stronger we are. It's the small-C
constitution, who we are, what our culture
is, how we behave, that the rest of the world
watches, considers, weighs, when they're thinking about
what the United States means and what freedom means. Now we're maybe getting a
little bit off the track. We have a duty to ourselves
and to the rest of the world to show that this small
c constitution mirrors our big-C Constitution,
not in a legalistic term, but in our sense that
we have a commitment. Aristotle gave-- I reread
his politics two summers ago I think, and Aristotle
gave democracy a low grade as did Plato. They had the list of
possible forms of government. And he gave democracy a pretty
low mark as a desirable form of government. And in re-reading
it, my conclusion was he thought that
democracy did not have the capacity to mature. And that's our destiny
to prove him wrong. And we'll get into
law in a minute, but the other-- my granddaughter
is the ballet dancer with the New York City Ballet. She's is still in high school. And she was dancing
in Chautauqua, which Westerners have never heard of. It's near Buffalo, New York. And she'd won a choreography, so
you go to see your grandchild. And they had as a seminar
being in ancient Greece. Periclean Athens roughly 500 BC. And they said, would
you be on the panel? And I said, yeah, OK, if you
can afford my hourly rate. I didn't know what to say,
these were real Greek scholars. And I said, would the Greeks
think we were free and would we think the Greeks were free? DEAN MARTHA MINOW: Such
an interesting question. JUSTICE ANTHONY
KENNEDY: And I said just in case somebody from
the National Enquirer is here, I know men only,
slavery, I know, I know. But we wouldn't
think of the Greeks as free because we
think of in freedom in terms of individual rights. And the Greeks had
some of this, Antigone makes her point of conscience. But for the Greeks, freedom
was the capacity and the duty to engage in rational
civic discourse to plan the destiny
of your people. And the Greeks had-- it
required the Athenians-- had a required oath that every
citizen at the age of 18, male only, had to
take and that was-- it's a very beautiful
oath, and it is, we swear that we will
engage in civic discussions and in rational conversation
to the in Athens being more free, more beautiful,
and more safe for our children than it is for us. And Athens failed
because the Greeks were not faithful to that oath. And we have to think
about our civic duty. That's where the law
can be an example. That's where we can
make a difference. When you're in law school,
you're learning a language. It's the language of the law. One of us in my
generation can pick up a telephone and talk to
a lawyer a continent away and two generations removed and
we've never met, but in a sense we know each other because
we speak the common language. We all had contracts in
the first year, torts. We can talk about
curriculum later. And we have this bond,
this tie, this kinship, this common purpose, and this
is the language of the law. And the language of
the law has a restraint and a discipline and a heritage
and an elegance and a grammar and a logic that's different
from the civic discourse, different from the
political branches, not better not worse, different. And we can't expect
everyone to talk in the language of the law. The world be a boring
place if that were true. But that's what you're here for. DEAN MARTHA MINOW:
Is there one language of the law that's
universal or are they distinctive for each country? JUSTICE ANTHONY KENNEDY:
Well, as my remarks earlier indicated, in my
view, the verdict on freedom is still out. The verdict on the
rule of law is still out in half of the world. And I was thinking about it as
I was walking through today. I sometimes teach law and
literature and one thing for corrections, you
just have to read One Day in the Life
of Ivan Denisovich by Alexander Solschenizyn. And Solschenizen is one
of my favorite authors. Later in life, he did some
rather strange things, but-- Harvard, is there
a charter day speech? The charter day speech? He was the speaker
at Charter Day? DEAN MARTHA MINOW: Yes. JUSTICE ANTHONY
KENNEDY: Which, Harvard thinks is, like, the
Nobel Prize or something. And he was the speaker. So I was in California
at the time. This is pre-internet,
fax machine. So I waited for a couple
days to get his speech. This was my great hero. And I finally got a copy of it. It was in the New York Times. And I was so disappointed
that he attacked the West for its legalistic
frame of mind, for its legalistic perspective. And he said something like
any civilizations that defines itself in
legal terms does not understand the
tissues of humanities, something like that. And I was terribly disappointed. I couldn't figure it out. And after a couple days,
I figured out, you know, law to him means
something very different. And as you move roughly
eastward from the United States, and I'm afraid westward
as well, the law becomes more remote,
more threatening, more authoritarian. In Solschenizen's
experience, his history and his culture, his heritage,
I'm afraid to say still, the law was a [INAUDIBLE], a
command, a decree, a mandate. For us it's a promise. It's a promise. It's a promise that
if you commit yourself to an ethical course
of conduct and to being a good citizen in the
community, you will be free. It's very different. So law is an expectation. So the idea of law is different. DEAN MARTHA MINOW: You made a
reference to the curriculum, so I can't resist. What do you remember from your
time at Harvard Law School? Did you learn
anything that you use? What did you study? What can you say about that? JUSTICE ANTHONY
KENNEDY: I remember a lot of the cases
I had in law school better than the
cases I've written. That's true. Ask me all about
Hawkins versus McGee. Palsgraf. What is it, the train starts,
the door closes, the conductor pushes the passenger,
the drops the thing. And then the firecracker
explodes and the scale falls and hits Ms. Palsgraf. At least in my generation, you
tend to think of legal problems in the context of
the courses you had. I have checked with my
classmates, class of '61. None of us ever heard of
the term environmental law. Didn't hear the phrase. Didn't know the phrase. And I'll write what I think
is a statute of limitations case, civil
procedure, little box. And no, no, no, it's an
environmental law question. We had agency. I couldn't have
practiced law without it. Go in the library and look
up and see what agency it is. DEAN MARTHA MINOW: It's
mentioned the beginning of the corporations class. JUSTICE ANTHONY KENNEDY:
It's scattered to the birds on corporation and torts. I mean, I just couldn't practice
in a small business practice without knowing
the law of agency. Now, I looked-- I was
here half an hour early and I asked if they would get
me course book of the '61 course offering at Harvard. DEAN MARTHA MINOW:
Curriculum, wow. JUSTICE ANTHONY KENNEDY:
No criminal procedure, which did not surprise me. Rehnquist and O'Connor had never
heard of criminal procedure. Scalia had. And I had not, from law school,
because they didn't teach it when Nino and I were here. But we were in the
Academy and we heard it. So Rehnquist and O'Connor
would think of every, what we would call criminal
procedure cases, which we think of as a
unified [INAUDIBLE], as a case of federalism. DEAN MARTHA MINOW: Oh, wow. JUSTICE ANTHONY KENNEDY:
Should the federal court-- because in a way, this
helped me in my practice because I did some criminal
work and I taught con law. And when I was here, Gideon
wasn't decided when I was here. Miranda wasn't when I was here. So these cases came
out in the '60s. And in the curriculum,
constitutional law professors around the country had all
these criminal procedure cases-- what we now call
criminal procedure cases. And they went to the deans, and
they said, this is too much. We can't do this. And almost the uniform
response was to have a course in criminal procedure. And in practice,
since I taught this, and that was one of
the reasons I thought I'd stick with constitutional
law for a little bit longer because it didn't
relate to my practice, was that it began to
relate to my practice in the criminal procedure area. And I was hired as
associate counsel in a number of criminal
cases because Mapp, Escobedo, Miranda, even Gideon,
were all [INAUDIBLE]. DEAN MARTHA MINOW: Did you
geget-- were you called on? Was it all Socratic
method in your classes? JUSTICE ANTHONY KENNEDY:
Some yes, some no. You don't know who your role
models until years later. You look back say,
that was a role model. I had certain
judges who were role models and certain professors. When I taught, I consciously,
and in some cases unconsciously very much admired Clark Byse. DEAN MARTHA MINOW: He thought he
was the model for Paper Chase. I don't know if he was,
but he thought he was. JUSTICE ANTHONY
KENNEDY: And really Ben Kaplan, if the student would
ask a question which was really off the point and not
a very good question, he would never put
the student down. He would turn the question,
well, now that would-- and he would make the
question really relevant. He would make the
student [INAUDIBLE]. And the other-- [LAUGHTER] And a gentleman, which I
think is very important. And the other was Donald
Turner, and he taught agency. And in those days agency, was
required first year half year course. And the dean would call
the professor in and say, now Professor
Turner, the good news is you have antitrust
class at the time you want, the bad news is you
have to teach agency. It was scattered to the
birds on the faculty. And so I had Turner
for agency, and he talked in something
of a monotone, sounded colorless until you
listened to what he was saying. Some in the class would say, oh,
we've got agency with Turner. I'd say, no, no, listen, listen. He was a master of
the Socratic method. He would ask a question--
coming in to a 50 minute class. He'd come in and
he'd ask a question, generally relating to the case. Then he'd just ask a
series of questions. And then the 50 minutes,
the bell is about to ring, then he'd to ask the same
question he asked at the first. But the whole world had changed. It was like a sonnet. It was the most beautiful
thing I've ever seen. So I tried, I tried. My class was 6:00 to 9:30 Monday
nights with a 20 minute break. And you can't sustain
the Socratic method, or I couldn't at least,
for that whole three hours. So I would, for maybe
an hour 10, an hour 20, be able to do it, then
afterwards I'd have to switch. DEAN MARTHA MINOW: You've
mentioned criminal procedure. You have actually been very
vocal about criminal justice. You have made
important statements on solitary confinement,
on overcrowding in prisons. Could you talk to
us about what is the role of the courts
in criminal justice and what's the role
of the rest of us? Many people think that
there are real problems with our criminal
justice system. JUSTICE ANTHONY KENNEDY:
Churchill said, a society is measured by how
it treats the least deserving of its citizens. And I wanted to see--
the 1961 catalog was about that like that. And so I'd asked your office
for the current catalog and it's like the
man who ordered room service on the
Titanic and he said, I wanted ice but
this is too much. I felt just like that. And I wanted to see Dean, if
you had courses on corrections, and so forth. In my era, lawyers, judges,
law professors, law students, were fascinated with the
guilt or innocence process. And that would include later,
post conviction, release, for 28 USC, 2254,
2255, habeus corpus. But after the trial process,
then the conviction process, post conviction, we throw
away the-- corrections are for someone else. Lawyers not interested
in corrections at all. And everyone thought someone
else was looking at it. In California, my home state, we
had close to 200,000 prisoners a year. And now we're down to 120,000. In the federal system you
have over 200,000 in prison. In pretrial release, pretrial
diversion, and probation is I think, maybe in
the federal system, I guess it's around 50,000. I'm not sure. And we don't pay
any attention to it. Everybody thinks, well, we
think this is for the lawyers or the people in sociology. But as A, as you indicated
are I think rightly, Dean, I think it's everyone's job. But it' particularly, I
think we have to step up. And I was going to
look to see if you had courses in corrections. DEAN MARTHA MINOW: Inadequate. A little bit, a little bit. JUSTICE WILLIAM KENNEDY: And
solitary confinement, people are in there for years. When I was in the
Army they gave us training, because I
was in a unit that had combat stuff, training for it. And so they locked us up
in a cell and some of us were tortured just
very slightly. And after four hours in
the cell, I was going made. These people have been 40
days, 40 months, 20 years in solitary confinement. It drives men mad. And we don't even
think about it. And in California, the cost of
per prisoner is about $35,000 a year per prisoner. And the Prison Guards
Association, the Correctional Officers Association
is the strongest lobby in the state of California. And they have planned
prisons to go up the Central Valley and the
Northern Valley in small towns so the prison guards are a
large part of a population and they can control who is
the legislator, who's elected. And they are against shorter
sentences and this is sick. This is sick. And we've got to do
something about it. I tell people $30,000
per inmate and if we have to use that cost
calculus in order to get people to think about
a human dimension, that's fine with me. DEAN MARTHA MINOW:
Build a coalition. JUSTICE WILLIAM KENNEDY: We'll
go that route if we have to. It seems to me it
used to be judges had considerable discretion
in re-sentencing. We had a judge in San Diego,
very fine district judge, and he went out of
his own pocket-- this is years ago before
the sentencing guidelines, and before mandatory minimums,
which I think are terrible --and he went into
the hardware store and he bought the biggest
keys he could get. And if he gave probation
to a prisoner, he'd say, here's this key. Now, if you violate, I'm
going to take away this key. And this was something these
people could-- it was visual. And people years later
said, I have that key on my bookshelf or my mantle. But judges-- now it's all with
the guidelines and so forth and we've had very few--
some judges have resigned. They said, we're not
going to do this. But they don't get
much attention. But it's everybody's job. And I think it's just an ongoing
injustice of great proportions, and it seemed to me
and one of my speeches at the ABA some years
ago, m was my subject. Our sentences in
the United States are eight times longer than for
equivalent crimes in England the Western Europe
eight times longer. DEAN MARTHA MINOW: We the
most incarcerated nation in the history of nations. JUSTICE WILLIAM
KENNEDY: And this is because you're not
going to save $33,000 a year if you do it
right because you're going to have to have a lot of
supervision and rehabilitation, training and so forth. But we've got to look at this. DEAN MARTHA MINOW: Your focus
on dignity I mentioned before. What does dignity mean to you? JUSTICE WILLIAM
KENNEDY: Well if you're writing an opinion
under the due process clause, 5th or 14th
Amendment and liberty, you can't just repeat the word. You have to find a
synonym to explain. And it's not just for
stylistic interest so that you're
avoiding repetition that puts the reader to sleep. It's in order to
elaborate meaning. And in the European
Convention on Human Rights, the word dignity is used. And it seems to me
to sum up the meaning of human individual worth. And so, it's a word that
seems to me is helpful. DEAN MARTHA MINOW: And there's
an equality to mention there. The people have equal dignity. JUSTICE WILLIAM KENNEDY:
That's is correct. Equal protection and liberty
under the due process clause, have a linkage that hasn't
been thoroughly explored. DEAN MARTHA MINOW:
But I think you are exploring it in your opinions. And that's very, very powerful. Well you mentioned opinions,
who is the audience? Who is the ideal audience
for your opinions? Who are you writing for? JUSTICE WILLIAM
KENNEDY: Well, you write an opinion
differently if it's railroad reorganization or human rights. You have a different audience. And one of the
purposes of an opinion is to see if the opinion can
produce and garner allegiance to what the law does. And you write
these opinions, you don't know how they're going
to be received by the Academy and by the profession
and by people that are interested in the court. And so if you write an opinion
like Lawrence versus Texas or in the free speech area. I think you should write it so a
broad general audience can know and understand the reasons
the Supreme Court gave for its first decision. The press is pretty good
about saying what we did. And to cover the
Supreme Court, they like it because they
have about three months to do all the background. They have pictures
of the litigants and they can maybe
even write up what they think will be
their article, depending on the way it goes. So the press does
a pretty good job. When I was first on the court
we had the flag burning case, Texas versus Johnson. And a couple days before that
the case came out, I thought, you know, people are
going to be really mad at the court about this. And I think I'll write
a little something. So I wrote a short opinion, very
short, completely concurring, joining Justice
Brennan's opinion wholly. I wasn't trying to
detract from it. But I said, it's
poignant but fundamental that the flag protects
those who hold it contempt. And I wrote this short thing. And I told my
colleagues, I said, this is going to be
very controversial. And I think 80 senators got
to the floor of the Senate and protested of this decision. and the first President
Bush took the week off and went to flag factories. So I wrote this little thing. And I was in California
to see my children who were still there at that
time and going to school. And I had lunch
with the two boys. We met at the Universal House
of Pancakes or something. Some guy came by and
said, are Justice Kennedy on the Supreme Court. And I thought this is
some C-Span junkie that watches the budget
hearings or something. And he said, I can see
you're with your family. But he said, I'm a
solo practitioner like you were in Northern
California in Ukiah. It's a very small town. And the reason I'm there
is to be with my dad. I lost my mom years ago. But this is my hometown
and my dad's there. And he never comes
into my office. And the San Francisco Chronicle
reported the flag burning case. And the day
afterwards he came in and there were a lot
of people in my office. And he slams the newspaper
down, and he said, you should be ashamed
to be a lawyer. And he said, the reason was
he was a prisoner of war for 2 and 1/2 years in Germany. And the prisoners
would get little bits of red, white, and blue cloth
and they make a little flag and pass it around for morale. And then the guards would find
it and they'd make another one. And he said, he was
infuriated with your decision. So he said, I gave
him a copy of what you wrote because
it's short and written for general understanding of
what the Constitution means to all of us. And he came back two
days later and said, you can be proud to be a lawyer. DEAN MARTHA MINOW: Wow. Wow. JUSTICE WILLIAM
KENNEDY: So that was one that worked for one person. DEAN MARTHA MINOW: But you
have actually talked explicitly about the educational
role that the court plays, that the court is an educator. And maybe because you have been
an educator your whole life, you see that. But is it to opinions? Are there other ways in which
the court can be an educator? JUSTICE WILLIAM KENNEDY: Well
I suppose, in part again, we're talking about civility. We have to be an
example of the fact that you can have a
disagreement and resolve in a rational, principled way. I think it was Carlyle said
that, if in an argument you give way to anger,
your principal interest and in defending
yourself, not the truth. And so you have to have a very
professional way of disagreeing with your colleagues. When you try cases-- I
had a small practice. And so I went to
court all the time. And you're going to have
to argue with some judges. Some of the judges that
were my role models were wonderful judges. And I would make
sure the jury was out before I argued with them
because the jurors were-- but there will be
some judges who are not going to listen to you. And when I teach
sometimes, I want questions and they're all hesitate
to raise their hand. And I said, now how many of
you want to practice law? And they raise their hand. How many of you would
have a state bar certificate of admission on
your wall in your office? Raise their hand. And then my next question
is, how many of you want a little
sticker under that, but I'm embarrassed
and shy about arguing in front of judges? That's what you're here for. That's what you're here for. And the Socratic
method-- it's my pleasure to talk with teachers and i
talk about the Socratic method. And there are many
variations of it. One is, whatever the
student says, I disagree. And the other is, the second
is, and that's an abuse of the method somewhat. And Socrates abused
his own method, because his method was,
he had a point of view. And he would ask you
questions to bring around to his point of view. But the beautiful, the golden,
measure is, neither of us know the answer and we ask
questions to each other in order to find the truth. And it seems to me perfectly
legitimate for professors to use all three
of those methods. And it's not important
for the student to know-- DEAN MARTHA MINOW: Which ones. JUSTICE WILLIAM
KENNEDY: --but it is very important for the
professor to know which one. So I think this is
the Socratic method. Because we impliedly more
I think, to the world that we teach you
skills of efficacy. But do we? I mean do we have a course
in how to have-- in part you do that in the Socratic
method and you learn the art and the discipline
and the necessity of respectful but forceful
presentation of your arguments. And you do that do
that in the classroom. DEAN MARTHA MINOW:
You mentioned a moment ago role models of
judges that you've had. Who not alive, who not on
the court as a Supreme Court justice, was
someone you admired? JUSTICE WILLIAM KENNEDY:
I knew Earl Warren very well as a young boy can
know an older man in that kind. He didn't phone me
for advice every day. Our family knew when
we knew his children. His daughter and my
sister were best friends. And Noah, Professor
Feldman has as a book called The Scorpions,
which is a wonderful book. And it shows how unhappy
the court was with Black, Frankfurter, Douglas, Jackson. And Warren had this
wonderful way about-- Warren would be elected governor in
the primaries in California. In those days, you could
run it Democrat, Republican. He won both. DEAN MARTHA MINOW:
Hard to imagine anyone doing that right now. JUSTICE WILLIAM KENNEDY: And
when the scorpions were at it, President Truman
appointed Vinson. He knew the Court was unhappy. And he appointed to good old,
friendly, poker-playing Fred Vinson, whom everybody liked. But he was not effective
as Chief Justice because Jackson and
Frankfurter, Douglas didn't respect his legal ability. So it got worse. And so then, Warren-- can I tell
this one story about Warren? DEAN MARTHA MINOW:
Please, please. JUSTICE ANTHONY KENNEDY:
This was repeated to me by people who were there. Warren runs with Dewey as
vice president in 1948. Loses. Then in 1952, Warren wants
to run for president. And he wins the California
Republican primary. And by law, the
California delegation is required to vote for
Warren on the first ballot. And the big tussle is
between Eisenhower and Taft. So Warren is in between
and maybe would be, what, the dark horse or
the settlement candidate or whatever. So the train leaves from
Sacramento, California, with the delegation, the
California delegation. and Warren's on the
train at this point. Unbeknownst to
Warren, a young man is going up and down
the train and that man gets off at the train station
and goes to Eisenhower's suite. He said, my name
is Richard Nixon and California is yours
on the second ballot. Warren was infuriated and
leaves word that he may go home, may bolt the party. California, lot of
electoral votes there. So the arrangement
is Warren will come by and see Eisenhower. And Eisenhower said, that if
Eisenhower was president , Warren would get the first
appointment to the Supreme Court of the United States. DEAN MARTHA MINOW: Wow. JUSTICE WILLIAM KENNEDY:
Vinson suddenly dies and people are congratulating
Warren around Sacramento. But the phone doesn't ring. One day, two days. Well, you know the
way this works, the staff start
talking to each other. And they say, well you know,
we didn't say Chief Justice. Warren said, that's right. But you said the first. And that's how Warren
was Chief Justice. But I admire him very much. Hugo Black, I never met him. I admired his
jurisprudence very much. Black missed Tobacco
Road by jut a hop. Self- educated man, and
read deeply in philosophy and political theory. And I always thought
was a brilliant justice. Harlan, both Harlans,
but the second. I'm somewhat disappointed,
one of my disappointments on the Court is I can't get
my colleagues to tell me about my predecessors,
Brennan, Blackmun, White wouldn't tell me much about
what my predecessors were like. I couldn't quite get a picture. DEAN MARTHA MINOW: You
mentioned Scorpions. It seems to be a very
different kind of camaraderie on the Court right now. How do you get along
with your colleagues? How you manage
looking at someone when you've had
fierce disagreements? JUSTICE WILLIAM KENNEDY:
Well of course, there's a difference in a personal and
a professional disagreement. You're trained to disagree. That's your duty. It's something you have to do. But you have to do
it in a proper way. If you don't know the problem
with this ability tends to go. What we like to say is,
that I'll go in and say, Nino, this case, you
don't understand evidence. You're ruining
criminal procedure. And remember, we're going
with to dinner with Maureen tonight at 6:30. It's important to
have the different-- DEAN MARTHA MINOW:
You can do both. JUSTICE WILLIAM
KENNEDY: And especially in the practice
of law, especially in the practice of law. DEAN MARTHA MINOW: First case
I argued, opposing counsel asked me afterwards did I
want to go out for a drink? And I thought, I hate you. Why would I do that? And he saw the look at my face. And he said, you're going
to see a lot more of me than you are of your client. And it was a good point. It was a good point. I'm going open it up for
questions in a minute, but I have a few more. You travel a great deal
you teach and speak around the world. How does this
affect what you do? How does it affect
how you think? You also travel
back to California. How does that
influence your outlook? JUSTICE WILLIAM KENNEDY:
Well again, you're influenced by the
world around you. And travels help me. I used to go once a year
to China to teach there. And one time I was being given
a dinner, I'll tell you later, I really worked to
help started a law school in China because
the curriculum was just [INAUDIBLE]. Law in China and most
other places in the world is undergraduate. There are only, what, five
countries in the world with graduate LAW schools? South Africa, US, Canada,
Japan-- I'm missing one. So undergraduate, most
places in the world. They have a graduate
school where you can do-- DEAN MARTHA MINOW:
Advanced studies. JUSTICE ANTHONY KENNEDY:
--maybe your MA. But your law degree
is undergraduate. And this is that way in China. And their curriculum
just broken. It would be is if
you had to pass the bar to memorize the stature
the limitations of 50 states. Who cares? And so the provosts
and the deans agreed with me in
the '80s that they should reform the curriculum. We had a meeting with, I
think, maybe 10 law schools, 12 law school dean. But, I have to say
this gracefully, China is no stranger to
academic intransigence. And the faculty weren't going
to change their courses. So our solution
was to just bypass it and have a graduate school. And say it's in Shenzhen,
in the Transnational, School of Transnational Law. And in China
everything's numbered. China is a billion four,
without the billion, they're the second
biggest country in the world They're the second
biggest country in the world without the billion. So everything in
China is numbers. And for this new
law school, they were going to have 150 students. For the opening class, then add
150 each year, until they had [INAUDIBLE]. And it was like the US. They would take music majors,
art majors, physicists, whatever, and for
150 places, I think they had something like
9,000 applications. And they weeded them down. And finally they took
500 to do interviews. And they had standard
interview questions, and one of the
interviews was, why did you want to go to law school? And the Chinese
love movies that are in English, UK, or Hollywood. And any number said they were
influenced to go to law school by a movie. And so I thought, well, this
will be Twelve Angry Men or Witness for the Prosecution. No, no. Legally Blonde. DEAN MARTHA MINOW:
Harvard Law School. JUSTICE ANTHONY KENNEDY: And
I'd never heard of the thing. Mary got it on Netflix and we
watched it and it's actually pretty good. DEAN MARTHA MINOW:
It's actually good. JUSTICE ANTHONY KENNEDY:
It's a pretty good. But I taught there. It's in Shenzhen,
on the mainland, but just north of Hong Kong. But I could see why because
these students realize at the school was a new venture. It was somewhat
threatening to them. They were taking a chance
and they related to Reese-- DEAN MARTHA MINOW:
Reese Witherspoon, yes. Very good. Very good. And had a pink
laptop too, right? So let's start to
see some hands up. I have one more that
I just want to ask is, Thomas Jefferson ones
that I would rather be exposed to the inconveniences
attending to too much liberty than to those attending to
too mall a degree of it. And I wondered about that. Is liberty the most important? And do inconveniences--
take for example, some people say that our freedom
of speech leads to a coarse public culture, because you have
to harden your skin against-- JUSTICE ANTHONY KENNEDY:
Well I frankly think-- look, the Court is often thought of
as embracing moral relativism, moral relativism is
not only disagreeable, but antithetical to
my own philosophy, my personal philosophy. And relativism leads to
skepticism and skepticism leads to cynicism and cynicism
is corruptive of human values. But how can I believe
that and be on the-- oh, all movies are the same. All books are good. Anything you want
to do is all right. Are you going to
teach your children or do you teach
your children that? Of course not. So this hypocritical? No, no. What we're saying
is, the government doesn't make the choice. But you have to. And this is part of our society. Now, I'll guarantee you,
buy you a bottle of beer or whatever it is you
drink, the next time you hear an interview of a movie
that's lousy, a book that's trash, you'll say,
well of course, there's a First Amendment right. The comment is, oh, there's a
First Amendment-- I know that. It's trash. And so we have to understand the
difference between the liberty the government gives you and
your duties as a good person. DEAN MARTHA MINOW:
Just because there's a right doesn't mean it's
the right thing to do. JUSTICE ANTHONY
KENNEDY: Correct. DEAN MARTHA MINOW: Hands. Please identify yourself
and ask your question. AUDIENCE: Thank you for
coming to talk with us Justice Kennedy. I'm Harry [INAUDIBLE]. I'm a 3L from
Baltimore, Maryland. In your time on
the Court, you've written a lot of opinions where
you were the decisive judge, this swing judge. And in some of those-- DEAN MARTHA MINOW: We
don't use that phrase. In some of those, you didn't
actually write the opinion, but you've been the important
fifth vote in a lot of cases. In 50 years, in 100
years, if you could only be remembered for one of those
cases, which one would it be? JUSTICE ANTHONY KENNEDY:
The one I'm writing now. That's a fair question. I'm not sure. It takes time. You hope the time will
be a gracious judge. I'm not sure. DEAN MARTHA MINOW: You
will be remembered. That we know. Other questions. There's a mic over here. Can you-- Yes. And maybe stand up. JUSTICE ANTHONY KENNEDY: I just
might say, these big cases. It's odd, the way our time is. We will spend a lot more
time in terms of hours and in terms of writing some
of the technical opinions. Some good concurrences
or dissents that don't see the
light of day than we will in these big cases. We run a very
short time segment. You mentioned the marriage
case, the gay marriage case, I think that was
argued in April-- DEAN MARTHA MINOW: It was late. JUSTICE ANTHONY KENNEDY:
--when we had other opinions. And I had a really
tough, I think it was a patent opinion
I was going crazy with. And so, we just
don't have much time. So you hope it works out. Let me tell you, I know
you're busy in law school. I don't see too many
bags under your eyes. You're not studying
quite hard enough. But I know how-- [LAUGHTER] --how busy you are. I know that. Please, my guarantee is you'll
be busier in private practice. Now's the time, in which you
can talk to your professors and you can think about
interesting cases, questions like your
colleague asked. Now's the time to do it. It's very important for
you to be in law school. AUDIENCE: Thank you
again, Justice Kennedy, for being here. My name's [INAUDIBLE]. I'm a 1L, and my
question's about the duty of public officials
outside the judiciary. So as I understand,
your Obergefell opinion, you claim that new insights
into the nature of marriage require states to issue
marriage licenses in accord with this alternative
version of marriage or understanding of marriage. And I can understand a
similar case, probably more attractive
to those of us who think that rational norms guide
the exercise of sexual autonomy like the economic autonomy. That would be that, new insights
into the nature of human life require states to take
steps to stop abortions. My question would be,
in either these cases, would you say that there are
any state or federal officials with authority to act
according to her own judgment of the truth of new insights or
of the soundness of the Court's constitutional interpretation
or would it be illegal for any federal official
or state official to enforce, or to act according
to the old understanding of life in the Constitution
that she still judges to be the truth of the matter? Thank you very much. JUSTICE ANTHONY KENNEDY:
The question was generally, what about-- if I can
rephrase it in a fair way, what is the duty of a public
official if he or she cannot in good conscience and
consistent with her own personal and religious beliefs
enforce a law that they think is morally corrupt? How many judges do you think
resigned in the Third Reich? Three. Great respect, it
seems to me has to be given to people who
resign rather than do something they think is morally
wrong in order to make in order
to make a point. However, the rule of law is
that as a public official, in performing your
legal duties you're bound to enforce the law. And it's difficult sometimes
to see whether or not what you're doing
is transgressing your own personal philosophy. This requires considerable
introspection. And it's a fair question
that officials can and should ask themselves. But certainly in
an offhand comment, it would be difficult
for me to say that people are free to ignore
a decision of the Supreme Court. Lincoln went through this
in the Dred Scott case. And these are difficult
moral questions. DEAN MARTHA MINOW: Next one. Where is the microphone? JUSTICE ANTHONY
KENNEDY: In the law, you have an ethical obligation. I did some domestic
relations work. In California to the community
property was on the table. So you had accountants and
there was a big, big legal fees and so forth. I had a client
come and he was one of my good business clients. He had a very substantial
business, and a sad divorce, which we couldn't seem to heal. And he said, now, you ask
for custody of the kids and then we'll get a better
property settlement agreement. I said, I won't do that. He said, well, you're my lawyer. You have to do it. Man, you go. I'm not doing it. It seemed to me that
this was just wrong. I wasn't going to put
the kids happiness and welfare and good relations
with both of their parents up on the block. And you just have to do
this, as an attorney. You do have an
ethical undertaking. I seem to think this idea
of ethical counseling is disappearing from the
practice to some extent. The worst case I had
was a tremendous sum of money on either side. And we had [INAUDIBLE],
and it was settled. And we had documents that
had have to be signed. It was in my office with deeds
and corporations and so forth. It was all settled. And they were the middle of
this settlement and the husbands to the wife, and I'll be by
Friday to pick up the banjo. And she said, no,
the banjo is mine. And she it was my Uncle Fred's. He said, but he gave
it to you because I'm the one that plays the banjo. So pretty soon, the attorneys
looked at each other. This settlement thing is
going down over the banjo? And we took a recess and
attorney on the other side, we agreed we could
buy them five banjos. So we finally ended up, we had
joint custody of the banjo. So you can work
these things out. DEAN MARTHA MINOW:
Travelling banjo. OK. Here's one right here. AUDIENCE: Justice Kennedy. Thank you for coming. I'm George [INAUDIBLE], 1L. You mentioned earlier
in your talk-- DEAN MARTHA MINOW:
A little louder. AUDIENCE: Sorry. You mentioned
earlier in your talk about judges learning about
the world around them. How do you and your
colleagues go about that? Thank you. JUSTICE ANTHONY KENNEDY:
Well, it's pretty hard. We're in part, in
a different age. I was looking at
cross examination in a personal injury
case not long ago. It was an automobile accident,
intersection accident. And the attorney--
it was a deposition. Oh, no, no. This was a trial. And the attorney said,
and what gear were you in at the moment of impact? And the answer was,
Gucci sweats and Reeboks. I mean, your generation just
doesn't use the term gear anymore. DEAN MARTHA MINOW: OK,
there's one over here. We'll do both of you. AUDIENCE: I'm David. I'm a 1L as well. Thank you for coming
to speak to us. Five years later
from Citizens United, as we approach a
next year's election, I'm curious if you can stand
by some of the assumptions that underlied your opinion
there, if money's really not a corrupting force and if
corporations are really people? Thank you. JUSTICE ANTHONY KENNEDY: Yes. Certainly in my own view, what
happens with money in politics is not good. And in some traveling,
my questions are, what happens in
England and Switzerland and Europe with
campaign advertising? And there's different
answers, none of them completely satisfactory. In part, the election
cycle is shorter. In part, you have
multi-member districts. I'm not sure there's
any good answer. But remember the government
at the United States stood in front of
our court and said that it was lawful and
necessary of an act to ban a book that was
written about Hillary Clinton. They said it would
apply to a book written about Hillary Clinton in the
prohibited period of three months before the election. That can't be right. And I wasn't surprised
that the New York Times was incensed that their little
monopoly affect our thinking was being taken away. I was surprised, Dean, at how
virulent of their attitude was. Because the last time I
looked, the New York Times was a corporation,
and this meant that the Sierra
Club, the Chamber of Commerce in a small town
couldn't take out an ad. It seemed to me that there was a
tremendous speech problem here. The result is not happy. It does seem to me, one
things is the disclosure. You live in the cyber age. You need to wait
until three months after the election for a
report on who gave the money. It could be done in 24 hours. The voters don't like the
people who are funding? Don't vote for them. That's not working
the way it should. DEAN MARTHA MINOW:
Right exactly. If I could have a follow up. Your opinion says, rightly,
there can be disclosure and we have the
technology to do it, but we have a
political lock jam. So the FEC, the FCC, the
SEC, all have the authority to require the disclosure
of campaign contributions and none of them have. JUSTICE ANTHONY KENNEDY:
And it goes back to, we have this hostile,
fractious dialogue. Look at the names of some over
TV shows-- Hardball, Crossfire. We have to [INAUDIBLE]. You asked about traveling. Not to many years
ago, I went to Poland and was talking to,
again, to the law faculty at the University of Warsaw. And it was September,
and the students were going to arrive
at the following week. But I was talking to faculty,
and then people came in and whispered, and they said,
oh, Justice Kennedy, they said, our incoming law students
are here for orientation. Would you talk to them? So there are about 80 or 90. So I said, I'm
Justice Kennedy, here to talk to you about the Court. And a student raised
his hand and he said, you know, federalism
is very important. But money goes to the
federal government and then back to the states
with conditions on it. Doesn't this
undermine federalism? These are basically high
school seniors, there for their first week of college. And so we talked about that. And another student said,
separation of powers is very interesting, Congress
checks the president, the president
checks the Congress. Who checks the courts? And then a student
raised her hand, and she said, now, John
Marshall, Chief Justice John Marshall is very revered
by the American judiciary. Were all of his decisions
popular when he wrote them? And I said, stop. Wait a minute. [SPEAKING GERMAN] This is a trick. You've had all this prepared. And they said, no. They said, you don't understand. We have been studying
your constitution since the Soviets left. We've been studying your
constitutional history since the fourth grade. And I later told
my wife that night, and the university
president, I said, if I'd have had those
questions in an American class, I would have said
that's a great class. And this is what the
rule of law, this is what the
Constitution can mean. And later the provost
told me, they said, the student was right,
plus on the Soviets, if you want to be a doctor,
an engineer, and architect, you couldn't do it. And some of the best minds
in Poland were teachers. And you saw the
products of those minds. So that's how important
the rule of law is. There was one more
over here somewhere. Yes. AUDIENCE: Justice
Kennedy, thank you so much for speaking with us. My name's Robert. I'm a 1L. And I was just curious, we
discussed a few books today. The Cardozo book,
the Feldman book. I was wondering if
there's any one or two particular recommendations
you had for us as students, particularly busy, 1Ls tied
up with contracts reading. JUSTICE ANTHONY
KENNEDY: Oh, well, and I think The Visit
by Durrenmatt is a play. It's magnificent. One Day in the Life of Ivan
Denisovich, I've mentioned. And then standards,
a Kafka, The Trial, is really a much more
an allegory, a myth. But it really shows you
the way most clients look at the legal system. Kafka, The Trial and Camus. L'Etranger and The Fall,
written in different styles. Camus became confident
enough that he didn't have to follow the
Hemingway style like he did in DEAN MARTHA MINOW: The Stranger. JUSTICE ANTHONY
KENNEDY: L'Etranger. So he wrote The Fall, which is
a great book about attorneys. And Billy Budd. And if you want to know
about my generation, this was actually the
'30s, but it was a carry over when I practiced law. Women-- when I went to
this law school, there were five women in my class. And so if you want to read
about the old boy network, literally and figuratively,
but in a way of-- it had many strong features,
read that James Gould Cousins The Just and the Unjust. It's a beautiful book. DEAN MARTHA MINOW:
I want to tell you that in honor of your
time on the Court, 10 members of the faculty
have written essays about 10 of your opinions. And we will give
you those essays that may not be as good reading
as Camus or some of the others that you mentioned. Would everyone join me in
recognizing the amazing-- [APPLAUSE] Thank you so much. JUSTICE ANTHONY KENNEDY:
Thank you very much, Dean.
