Ex-Supreme Court justice: Be ‘kind’
Bitterly divided Americans have reached “a low point in our civic dialogue,” retired Supreme Court Justice Anthony Kennedy said in a talk at Stanford University, his alma mater.
“It’s our duty to use freedom of speech in a responsible way,” in a “kind” way, and “we’re not doing it,” Kennedy said Friday in a question-and-answer session with M. Elizabeth Magill, the Stanford Law School dean. He spoke to students and alumni attending a reunion at the university, from which he graduated in 1958 with a degree in political science.
Kennedy pointedly refrained from discussing the brawl over confirmation of his successor, Brett Kavanaugh, a former Kennedy law clerk, or the timing of his retirement in July that allowed President Trump to nominate Kennedy with Republicans in control of the Senate. The justices, he said, follow “a strict rule that we should not intervene in the confirmation process,” a rule that apparently remains binding even after confirmation.
But Kennedy lamented the political climate in which civic discourse has been overwhelmed by anger and partisanship, though he expressed hope that conditions would soon improve.
“When we’ve hit a low point in our civic dialogue, which I think we have ... (it) should give energy to come upward,” the 80-year-old jurist told Magill. He also said, without elaborating, that senators were entitled to make political decisions about court nominees, “but they should remember that politics has an ethical underpinning.”
Kennedy, appointed to the court by President Ronald Reagan in 1988, often cast the deciding vote in closely divided cases, and was the author of the court’s gayrights rulings, including the 2015 decision legalizing same-sex marriage.
While the justices are often accused of being “anti-majoritarian,” or defying the will of the public, on controversial social issues, Kennedy said, on most issues, “over time, there’s acceptance of the Supreme Court opinion.” When he was part of a 5-4 majority in 1989 that declared a constitutional right to burn the U.S. flag as an act of free speech, he said, “much of the country was horrified,” but eventually came to accept the court’s reasoning.
Asked what court decisions he was proudest of, Kennedy, a devout Catholic, said some of the hardest decisions of his 30 years on the court were those that required him to act “contrary to my own religious beliefs” because of “civic duty.” He appeared to be referring to the gayrights rulings and the 1992 decision that maintained a constitutional right to abortion, rulings condemned by Catholic Church leaders.
Despite the recent turmoil over judicial politics, Kennedy said, “I think in a very short time the court will show that it’s functioning. All the justices have a very great respect for each other.” Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@ sfchronicle.com Twitter: @BobEgelko