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Justice Kennedy urges law students to set example for rest of world
STANFORD -- In a lecture to Stanford law students and faculty, Supreme Court Justice Anthony Kennedy urged the next generation of American lawyers to serve with more civility and integrity in order to show a better example of the rule of law to the rest of the world. Kennedy spoke in Kresge Auditorium at noon on Monday, Sept. 9, to most of the law school's 550 students, who started classes last week ahead of the rest of the campus. He answered some questions about the Supreme Court and said that the court more often errs by taking cases too soon, rather than too late.
The lecture, which was Kennedy's third at the law school since he was appointed to the Supreme Court by Ronald Reagan in 1988, was peppered with good humor. In emphasizing the need for more civility by lawyers and judges, he quipped that he did not mean a simple bumper sticker slogan of "Have you hugged your adversary today?" Americans, he said, have to "work on showing more respect and tolerance for every individual" and embrace more deeply "the democratic theory that within each of us is a core of decency." Even judges need to learn to be more polite to lawyers, said the 1958 Stanford political science graduate.
Democracy depends on the rule of law, Kennedy said. The phrase means that a government is accountable to its citizens, but it is difficult to translate into other languages and more is accomplished by example, he said.
Many countries have written new liberal constitutions in the last decade, he said, but the next 10 to 15 years are critical to their taking firmer root in Europe, China and Taiwan, the former Soviet Union and South America, he said. Even in Western Europe, he said, he has met few European or English jurists or lawyers who appreciate they now have a European Union rule of law to follow.
In the United States, where the rule of law has taken root over several hundred years, he said, it is important to remember that First Amendment rights didn't take hold until the 1920s and equal protection for persons of all races wasn't accepted until the 1950s, with difficulties still persisting in areas such as voting rights, he said.
"All eyes are on us," Kennedy said, leaning his tall frame over the too-short lectern and clasping his hands for emphasis. Other countries, he said, "are very concerned about the state of civility in our society and the order or disorder our criminal justice system presents."
Asked for his opinion on television cameras in the courtroom, Kennedy said some might call his views "hypocritical or inconsistent" because he believes they should be used in jury trials but not in the Supreme Court. The high court, he said, has a different "time frame, logic, grammar and language" from the rest of society. "We are not part of a national entertainment network."
Besides that, he said, the justices fear television would destroy their personal security, which is primarily based on the fact that the public doesn't recognize them in person.
Kennedy did not refer to the O.J. Simpson trial by name, but said that "it's a mistake to use one trial as a litmus test" on television coverage. The public may have "gone wild over celebrity, but there is nothing wrong with being fascinated with crime and punishment. Sophocles wrote about it. This is the great drama of the human condition."
The 145,000 jury trials conducted in the country annually are "the most principled part of our adjudication system," he said, and television coverage of trials is a means to teach more people about the rule of law.
In answering questions about his own court, Kennedy said that the Supreme Court serves the country best when it waits for a number of guiding decisions from lower courts before tackling major constitutional issues.
The court decided the "right to die or live" case "too soon to give good guidance," Kennedy said he believed, when, in 1990, a majority ruled that the parents of Nancy Cruzan, a woman in a comatose state since a 1983 auto accident, could not legally remove medical support equipment. "Most of the mistakes we make, it seems to me, are in taking cases too soon, not too late."
The news media, he said, often reports the court's refusal to take a specific case as a victory for one side when, very often, the justices did not take the case because they felt it was not the right vehicle for issuing guidance on an issue, either because the case was too broad or too narrow or inappropriate on technical grounds.
Kennedy's comments were in response to a question from a student who wanted to know why the court had chosen recently not to accept an appeal of the 5th Circuit Court of Appeals decision to strike down an affirmative action admissions program at the University of Texas law school.
Like voting rights cases involving racial gerrymandering, he said, affirmative action is a "sensitive, important issue. The fact we didn't take this case doesn't mean we don't think it's an important issue, but four of us felt it did not meet criteria for a writ of certiorari."
Asked if the court was providing much guidance at all, given the number of "fragmented" opinions issued, Kennedy said he had already heard the same criticism of the court in conversations with Stanford law Professors Gerald Gunther and William Cohen. "I thought we were doing a pretty good job," he said, adding that he usually got a majority of five to sign the opinions he wrote.
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