the most cosmopolitan, and controver- ANNALS OF LAW sial, trends in constitutional law: using foreign and international law as an aid to interpreting the United States Constitu- SWING SHIFT tion. Kennedy’s embrace of foreign law may be among the most significant How Anthony Kennedy’s passion for foreign law could change the Supreme Court. developments on the Court in recent years—the single biggest factor behind BY JEFFREY TOOBIN his evolution from a reliable conservative into the likely successor to Sandra Day ew Justices in recent history have Circuit, in the late nineteen-seventies, O’Connor as the Court’s swing vote. arrived at the Supreme Court from he accepted an appointment from Chief Kennedy continues to oppose racial pref- aF more provincial background than Justice Warren Burger as supervisor of erences and to argue for expansive Presi- Anthony Kennedy. Before he moved the territorial courts in the South Pacific, dential powers. He was a principal author to Washington, seventeen years ago, which entailed travelling to Guam, Palau, of the unsigned majority opinion in Bush his professional life had been spent al- Saipan, American Samoa, Australia, New v. Gore. But he also wrote the two most most entirely in Sacramento. He was Zealand, and Japan. important pro-gay-rights decisions in born there in 1936, and when his fa- In fact, Kennedy has a passion for for- the Court’s history and has at least ten- ther, a lawyer who had his own practice, eign cultures and ideas, and, as a Justice, tatively affirmed his support for Roe v. died two years after Kennedy graduated he has turned it into a principle of juris- Wade. Conservatives regard these deci- from Harvard Law School, he returned prudence. Over the past two years, he has sions as a betrayal. In 2003, James Dob- home to take over the family business. become a leading proponent of one of son, the founder and director of the influ- When President Reagan nomi- ential evangelical group Focus on nated him to the Supreme Court, the Family, called Kennedy “the in 1987, Kennedy was fifty-one most dangerous man in America.” years old and still lived in the house The United States Supreme where he grew up. Court has made references to for- His inclinations were hardly eign law since the earliest days of those of an insular man, however. the Republic. During the tenure of While Kennedy was a teen-ager, his Chief Justice John Marshall, the uncle, an oil driller, hired him to Court was often called on to inter- work summers on rigs in Canada pret treaties and weigh controversies and Louisiana. Before he gradu- involving ships on the high seas, and ated from college, he spent several the Justices frequently cited the laws months studying at the London of other nations in their decisions. School of Economics, where he was In 1829, for example, Marshall an- struck by the range of student opin- alyzed both Spanish and French law ion and the vehemence of political to settle a claim by an American debate. “At the political union, you who had bought a parcel of land had to sit in the room according to once owned by Spain and later in- your place on the ideological spec- cluded in the Louisiana Purchase. trum, and, to give you an idea of Contemporary commercial disputes what it was like, the Communists— also cross borders, and the Justices the Communists!—were in the rely on foreign and international middle,” Kennedy recalled recently. law, as well as on American statutes, “It was a different world, and I loved to adjudicate them. In the past two it.” As an attorney in private prac- years, the Court has considered such tice, he maintained his father’s ties questions as whether Mexican with California’s Republican Party; trucks must abide by American in 1973, he volunteered to draft a safety rules under NAFTA, whether tax-cutting referendum for Gover- the American family of a Holocaust nor Reagan, which lost at the polls. victim could recover art seized by At the same time, he obtained a li- the Nazis in Austria, and whether a cense to practice law in Mexico and United States district court should helped a client establish one of the compel the American computer- first maquiladoras—American- chip-makers AMD and Intel to owned factories—there. While serv- provide documents to each other ing as a judge on the United States Kennedy’s position on Roe v. Wade ultimately may in a European antitrust dispute. Court of Appeals for the Ninth surprise supporters of abortion rights.. “When it comes to interpreting OLIPHANT PAT

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TNY—2005_09_12—PAGE 42—133SC.—LIVE ART R14429_RD treaties or settling international business laws punishing homosexual conduct, disputes, the Court has always looked to that Parliament had repealed them ten the laws of other countries, and the prac- years later, and that in 1981 the Euro- tice has not been particularly controver- pean Court of Human Rights had ruled sial,” says Norman Dorsen, a professor at that laws against gay sexual activity vio- New York University Law School. lated the European Convention on Hu- However, beginning in the late man Rights. “Authoritative in all coun- nineteen-nineties, the Court’s more tries that are members of the Council of liberal members began citing foreign Europe (21 nations then, 45 nations sources to help interpret the Constitu- now),” Kennedy wrote, “the decision is at tion on basic questions of individual lib- odds with the premise in Bowers that the erties—for which the laws of foreign claim put forward was insubstantial in democracies tend to be more progres- our Western civilization.” (In 1996, Ken- sive than those at home. In 1999, Justice nedy had written the Court’s opinion Stephen Breyer protested the Court’s invalidating Colorado’s statewide anti- refusal to hear the appeal of a prisoner gay-rights ordinance.) who argued that spending more than Earlier this year, in his opinion for two decades on death row amounted to the Court declaring the death penalty cruel and unusual punishment, and unconstitutional for juvenile offenders, thus violated the Eighth Amendment. Kennedy invoked the United Nations’ Quoting legal opinions from Jamaica, Convention on the Rights of the Child. India, Zimbabwe, and the European Writing for the five-to-four majority in Court of Human Rights, Breyer ob- Roper v. Simmons, Kennedy observed served in a dissenting opinion in Knight that only seven other countries have ex- v. Florida that “a growing number of ecuted juvenile offenders since 1990 — courts outside the United States . . . have Iran, Pakistan, Saudi Arabia, Yemen, held that lengthy delay in administering Nigeria, Congo, and China. “It is proper a lawful death penalty renders ultimate that we acknowledge the overwhelm- execution inhuman, degrading or un- ing weight of international opinion usually cruel.” More recently, in an opin- against the juvenile death penalty,” he ion concurring with the Court’s deci- wrote, adding, “It does not lessen our fi- sion to uphold the affirmative-action delity to the Constitution or our pride program at the University of Michigan in its origins to acknowledge that the Law School, Justice Ruth Bader Gins- express affirmation of certain funda- burg relied on the United Nations’ Inter- mental rights by other nations and peo- national Convention on the Elimination ples simply underscores the centrality of All Forms of Racial Discrimination. of those same rights within our own (In speeches, O’Connor has endorsed heritage of freedom.” the use of foreign sources, but she has Kennedy’s reliance on foreign sources rarely mentioned them in constitutional- has prompted a vigorous backlash, both law opinions.) on and off the Court. “When Kennedy, Had the practice of citing foreign who’s hardly a liberal, started citing these sources been confined to liberal—and, in international sources, that’s when the the current political arrangement of the subject exploded in the broader politi- Court, less influential—Justices, it would cal world,” says Dorsen, who in 2003 have remained a phenomenon primarily founded the International Journal of Con- of academic interest. But, in 2003, Ken- stitutional Law to compare the use of nedy drew on several foreign sources in foreign precedents by courts around the the context of a majority opinion in one world. In dissenting opinions in the sod- of the Court’s most important cases in omy and juvenile-death-penalty cases, recent years. In Lawrence v. Texas, the Justice Antonin Scalia, who was joined on Court ruled, six to three, that states could both occasions by Chief Justice William not criminalize sodomy between con- Rehnquist and Justice Clarence Thomas, senting adult homosexuals, thus over- condemned any reference to foreign au- turning a seventeen-year-old precedent thority by the Supreme Court. “The ba- on the subject, Bowers v. Hardwick. In sic premise of the Court’s argument— his opinion, Kennedy noted that a com- that American law should comport to the mittee advising the British Parliament in laws of the rest of the world—ought to be 1957 had recommended the repeal of rejected out of hand,” Scalia wrote in the

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TNY—2005_09_12—PAGE 43—133SC.—#2 PAGE mons that’s not always a bad thing.” Like many visitors to Salzburg, Ken- nedy is a classical-music fan, and Ber- ger had arranged for a performance of Haydn’s “Theresienmesse” by a local or- chestra and choir, which were seated in the balcony. Kennedy told me that he rarely attends the famous Salzburg Fes- tival, which coincides with his annual visit. “The tickets are way too expensive,” he said. Kennedy, who is six feet three inches tall, with a high forehead and a crown of blondish-gray hair, looks patri- cian, but he is, according to financial- disclosure reports, the least wealthy member of the current Court, with cash, stock holdings, and life insurance worth between seventy-five thousand and a hundred and eighty thousand dollars. Before Kennedy joined the Supreme Court, he moonlighted as a law profes- sor, teaching mostly night classes at the McGeorge School of Law, a branch of the University of the Pacific, in Sacra- mento. “I competed with ‘Monday Night •• Football’ for years,” he said. He first went to Salzburg in 1987, to teach for Mc- death-penalty case. “What these foreign tive, Kennedy’s influence on the Court is George as part of a summer program sources ‘affirm,’ ” he went on, “is the Jus- likely to grow. With John Paul Stevens, that the school hosts at the University tices’ own notion of how the world ought David Souter, Ginsburg, and Breyer to of Salzburg. He returned in 1990 and to be, and their diktat that it shall be his left and Rehnquist, Scalia, Thomas, has taught every summer since. He so henceforth in America.” This spring, and (possibly) the new Justice to his takes the job seriously. After Mass, as we fifty-four conservatives in the House of right, Kennedy’s vote may increasingly stepped outside into an evening driz- Representatives sponsored a resolution determine the Court’s decisions. zle, Mary Kennedy said, “Tony likes it criticizing the use of foreign sources by when it rains. It means his students the Supreme Court, and, in August, Rep- very summer for the past fifteen study harder.” resentative Steve King, a Republican years, Kennedy and his wife, Mary, Kennedy’s class met for the first time from Iowa, completed an investigation of haveE rented an apartment in Salzburg. the following morning, and he began the Justices’ foreign trips, based on the Kennedy speaks serviceable German, his lecture by saying, “Welcome to our disclosure forms that they are required to navigates the winding cobblestone class, with the modest title ‘Fundamen- file. “Between 1998 and 2003, the Justices streets with ease, and only this year ac- tal Rights in Europe and the United took a total of ninety-three foreign quired a coveted pass allowing him to States’—all in three weeks.” A ripple of trips,” King told me. “And the implication park his car in the old part of town. On laughter passed through the room, in a is that there are at least a couple of Jus- the evening I arrived in Salzburg, Ken- renovated wing of an eighteenth-century tices, chiefly Kennedy and Breyer, who nedy, who is a devout Catholic, invited building on campus. Kennedy is a natu- are more enamored of the ‘enlightenment’ me to join him and Mary at a Mass that ral teacher; in front of his students, as of the world than they are bound by our his friend Wolfgang Berger, a local law- in his opinions from the bench, he ex- own Constitution.” yer, organizes every year. It took place in presses himself in plain English, rather The debate over foreign law and the the Müllnerkirche, which, even with its than legalese. In Salzburg, he proudly Constitution thrusts the Supreme Court spectacular gilt altarpieces, qualifies as told me that his class included twenty into the perennial struggle in American only a modest parish church by Salzburg students from schools around the world, politics between internationalists and standards. (“Salt was the oil of the Mid- as well as ninety or so from McGeorge. isolationists. More important, perhaps, dle Ages,” Kennedy explained. “That’s As Kennedy explained the structure Kennedy’s unlikely transformation into why the city is called Salzburg—city of of the U.S. Constitution to his class, he a tribune of legal multiculturalism offers salt—and that’s where the money for all hinted at his own approach to interpret- a striking lesson in the unpredictabil- these churches came from.”) Just before ing the document. “Here you are in Eu- ity of the Court. If O’Connor’s replace- the service, which was in German, he rope,” he said to his American students. ment, presumably John G. Roberts, Jr., leaned over and whispered, “You won’t “And you might think, Gee, look at this turns out to be a dependable conserva- understand a word, but I find with ser- culture, look at these churches, look how

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TNY—2005_09_12—PAGE 44—133SC.44—133SC.—LIVE OPI ART A10796—#2 PAGE old everything is. But you have the oldest country, it was often to show how its tained encounter with foreign law came constitution in the world. We have a le- system had been influenced by the when he began to advise emerging de- gal identity, and our self-definition as a United States. He said that he had told mocracies—including Czechoslovakia nation is bound up with the Constitu- the judges at the European Court of and Russia—on their constitutions and tion.” But the document itself was not the Human Rights, in Strasbourg, that they the rule of law. “I never thought I’d live only constitution Kennedy had in mind. should provide more than cursory opin- in an era when we had new constitu- “There is also the constitution with a ions to go with their rulings. “If you’re tions being founded,” Kennedy told me. small ‘c,’ the sum total of customs and interpreting phrases like ‘liberty,’ you “I never thought we’d be in demand, but mores of the community,” he said. “The have to do it in a way that commands suddenly we were.” In the early nineties, closer the big ‘C’ and the small ‘c,’ the bet- the allegiance of the people,” he said. dozens of projects were created to ex- ter off you are as a society.” Near the end of his class, Kennedy men- port American legal expertise and ideas. Unbeknownst to most of the students, tioned a trip to Poland that he had made International organizations, universi- Kennedy was making an oblique refer- last September. He had been invited to ties, and private groups began arrang- ence to one of the most contentious is- meet with the law faculty of the Univer- ing meetings between American judges sues in constitutional law. A little more sity of Warsaw, but when he arrived he and their foreign counterparts. New than a year after he joined the Supreme was told that it was orientation week for York University sponsors frequent in- Court, he made a fateful choice about the the students and they, too, wanted to ternational judges’ conferences at its meaning of the phrase “due process of meet with him. “So I went to the stu- Villa La Pietra, in Florence, and every law.” In a 1989 case about parental rights, dents, and I said I was Justice Kennedy, year Paul Gewirtz, a professor at the Michael H. v. Gerald D., the majority and I wondered if they had any ques- Yale Law School, brings senior judges opinion, written by Scalia, asserted, in ef- tions for me. Well, they started asking from around the world to New Haven. fect, that the due-process clause protected the most sophisticated questions I could Most of the Justices on the Supreme only what the Framers of the Constitu- imagine, and I finally asked them what Court have participated in some of these tion intended it to protect, and nothing was going on. Was this some little strat- exchanges. (The exceptions are Souter more. If the Framers did not regard, say, egy they had decided on in advance? and Thomas, who generally avoid for- the right to have an abortion, or the right And they said no, they had been study- eign travel.) to engage in homosexual sodomy, as wor- ing our constitutional history for nine Kennedy happened to spend his thy of protection (as surely they did not), years. Later, the rector told me the stu- summers in the city where the most im- then the Supreme Court should not do dents in Poland knew our constitutional portant international judges’ conference so, either. Kennedy disagreed with Sca- history backwards and forwards.” takes place. The Salzburg Seminar was lia’s “imposition of a single mode of his- founded in 1947, by three young Har- torical analysis,” joining an opinion by he Berlin Wall fell a year after Ken- vard graduates who thought that Europe O’Connor that endorsed a more flexi- nedy joined the Court, and the po- needed a place for the study of American ble notion of due process. That brief liticalT developments that followed from ideals. They raised a few thousand dol- opinion has turned out to be a reliable Communism’s collapse had a profound lars and rented the Schloss Leopolds- guide to Kennedy’s jurisprudence. On the effect on his approach to interpreting kron, an eighteenth-century palace that bench, his view has been that the Court the Constitution. Kennedy’s first sus- had fallen into disrepair after being is obligated to consider the evolving stan- dards of society—the constitution with a small “c”—in addition to the words of the Constitution, which are what mat- ter to Scalia. As Kennedy worked his way through each constitutional provision, he com- pared it with other nations’ views on the same subject. When he came to states’ rights, he said, “Margaret Thatcher was very interested in this, because she wanted to know what the American experience taught about what would happen in the European Union.” Kennedy noted that the existence of separate federal and state governments allowed losing political par- ties in national elections to gain power and experience at the local level. “Com- pare Japan,” Kennedy said. “For close to thirty years, no leader of the opposition party has ever held an important office.” When Kennedy referred to another “Mom! Everybody at school says we’re just a bunch of crazy Victorians.”

TNY—2005_09_12—PAGE 47—133SC—LIVE OPI ART A10430—#2 PAGE seized by the Nazis. The seminar be- just say, ‘When’s your birthday? Why availability of global sources of informa- came known as the “Marshall Plan of don’t you look it up?’ And he says what- tion, in the same way that lawyers during the mind,” and it remains a meeting place ever the date was and hands the calendar the progressive era began using “Brandeis for scholars and judges. Since 1971, nine to the interpreter. So the interpreter just briefs” in response to the advent of social- Supreme Court Justices have attended stands there. He looks at me. He looks science research. At the beginning of the sessions at the Schloss, many of them around. There was this silence. Clearly, twentieth century, Louis Brandeis, then several times. Kennedy has participated he doesn’t know what to do. So I say, a Boston lawyer, began filing briefs with in four seminar events, and even during ‘Read it, read it.’ And the entry is for the Supreme Court which relied not only summers when he is not officially in- Dennis v. United States, affirming prison on judicial precedents but on empiri- volved, he visits the Schloss frequently to time for eleven American Communists. cal data, which was then beginning to meet with foreign colleagues. There was this silence again. My security be collected in a systematic way. His vic- Kennedy went to the Schloss after his guy headed to the door. Then the guest tory in the landmark 1908 case Mul- class, to have lunch with Richard Gold- of honor just laughed and laughed.” ler v. Oregon, which upheld restrictions stone, a former justice of the South Afri- Kennedy laughed, too, adding, “I am not on the working hours of women—the can Constitutional Court, who was in a world-class diplomat.” Court’s opinion noted Brandeis’s ref- Salzburg to deliver a lecture and, like Later, he told me, “Judges check each erences to “bureaus of statistics, com- Kennedy, was eager to meet his foreign other out. We’re a guild, just like physi- missioners of hygiene, inspectors of counterparts. Goldstone is among the cians or military people are guilds.” Ken- factories, both in this country and Eu- world’s most widely admired judges; the nedy regards the use of foreign law by the rope”—changed the way lawyers and former chief war-crimes prosecutor for Supreme Court as an inevitable effect of judges conceived of evidence. the United Nations, he is now a member an increasingly interconnected world. “It The Bowers case, which Kennedy’s of an independent commission investi- really began with the Holocaust, when Lawrence decision overturned, was gating the oil-for-food scandal at the international law started to concern itself rendered in 1986, the year before he U.N. The Schloss Leopoldskron has with how nations treated their own citi- was nominated to the Supreme Court. tight security by Salzburg’s relaxed stan- zens,” he told me. “Country A is con- “When Bowers was being argued, the dards, but not because of the jurists who cerned with how Country B treats its European Court of Human Rights had congregate there. The palace was the set- own citizens. So you had the beginnings just decided Dudgeon v. United King- ting for several scenes in “The Sound of of things like the European Court of dom, which went exactly the way the Music,” the 1965 movie, and endures Human Rights. They became the new defendant wanted our court to go,” Ken- more or less constant traffic from fans. (A kids on the block, but no one really knew nedy said. “Yet the lawyers didn’t even sign on the wall closest to the street reads, what they did. Gradually, their work cite it in their briefs. Now, maybe they in English, “Trespassers Will Be Prose- started to become known around the didn’t know about the case. People didn’t cuted—Including Tour Groups.”) The world. Then you started to have formal look at those cases routinely in those two men dined on the second floor, in a exchanges of judges.” Beginning in the days. Or maybe they thought our court room adorned with mirrored panels and nineteen-seventies, as part of a program would have been offended that they gilt sconces, which had been reproduced sponsored by the American College of cited a foreign case to us. But that would on a soundstage to create the von Trapp Trial Lawyers, a rotating group of Su- never happen today. We know we have ballroom. preme Court Justices has met every four to be aware of what’s going on in the “Do you know any of the Russian or five years with their counterparts in world. Of course, it’s not binding on us, judges?” Kennedy asked Goldstone. England, Canada, and, on one occasion, but we can’t pretend that it doesn’t exist. “They are so resilient.” India. “When it began, I don’t think any Today, no lawyer would think of not “I’ve met good and bad,” Goldstone of us had ever been inside the House of telling us how courts around the world replied. “Now the court belongs to the Lords,” Kennedy said. “It was novel. Now have approached the same question.” President”—Vladimir Putin. it’s routine. And then you have informal Clearly, it would require almost willful Kennedy mentioned that he be- exchanges, like in Salzburg. You can’t ignorance on the part of Supreme Court longed to the board of an American Bar help but be influenced by what you see Justices not to be aware of judicial activity Association group that advises judges and what you hear.” in other countries. The European Union and lawyers in China, where he travels Kennedy suggests that judges’ use of translates and publishes opinions from about once a year. “There was a dinner foreign law today is a response to the nearly fifty nations, and the two most fre- for one of their vice-premiers,” he said. “I quently consulted legal databases in the knew that I had to give a gift. We don’t United States, Lexis and Westlaw, carry have a budget for these things, so I went foreign opinions from dozens of coun- down to the Supreme Court gift shop, tries. (The high courts of many countries and I found one of these calendars. It now also routinely post their opinions on was in a nice leather case, and it had the Internet.) In many American courts, some anniversary from American con- including the Supreme Court, foreign stitutional law for every day of the year. nations and international organizations So we’re at this dinner, and I present the regularly file briefs citing their own laws. calendar to him, and he’s so pleased, so I Kennedy’s opinion in the juvenile-death-

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TNY—2005_09_12—PAGE 48—133SC.48—133SC—LIVE SPOT ART R14426A PLEASE INSPECT AND REPORT ON QUALITY.—#2 PAGE words, Kennedy believes that by invok- ing foreign law the United States Su- preme Court sends an implicit message to the rest of the democratic world that our society shares its values. “The Euro- pean courts, in particular the trans- national courts, have been somewhat concerned, and some feel demeaned, that we did not cite their decisions with more regularity,” he said. “They cite ours all the time. And, basically, they were “I had my own blog for a while, but I decided to go saying, ‘Why should we cite yours if you back to just pointless, incessant barking.” don’t cite ours?’ ” He went on, “If we are asking the rest of the world to adopt our idea of freedom, it does seem to me that •• there may be some mutuality there, that other nations and other peoples can de- penalty case mentioned friend-of-the- most prominently associated with the fine and interpret freedom in a way court briefs submitted by the European controversy over foreign law, have con- that’s at least instructive to us.” Union and the Human Rights Commit- siderable political differences. In Janu- Kennedy’s argument amounts to a tee of the Bar of England and Wales. ary, Breyer conducted a public debate corollary to President Bush’s policy of “The way American and foreign courts on the subject with Scalia, an unprece- exporting freedom. The difference is are connected is not much different from dented encounter between sitting Su- that Kennedy believes that American the way corporations are connected,” says preme Court Justices. At the law school evangelism for freedom is more likely to Anne-Marie Slaughter, the dean of the of American University, in Washington, succeed if it includes listening as well as Woodrow Wilson School of Public and D.C., before a crowd of about four hun- lecturing. “Liberty isn’t for export only,” International Affairs, at Princeton, who dred, with hundreds more watching the he said. This is what especially riles his examined the effects of globalization event online, Scalia declared that for- critics: the notion that the shifting en- on the American judiciary in her 2004 eign laws were irrelevant, because “we thusiasms of foreign judges could affect book, “A New World Order.” “The opin- don’t have the same moral and legal the meaning of the U.S. Constitution. ions are out there, easy to get, and the framework as the rest of the world, Cosmopolitanism on the Court is seen briefs are being filed. If the Justices didn’t and never have.” Breyer responded that, by many as élitist and un-American. cite them, it would be like pretending though foreign laws could never be Robert Bork, whose failed nomination the rest of the world didn’t exist.” binding on an American court, they to the Supreme Court in 1987 led to were still worth examining. Foreign Kennedy’s appointment, says, “The class n every subject for which the Court judges “have problems that often, more that is commonly called the intelligent- has so far cited foreign views, no- and more, are similar to our own,” he sia is composed of people who may not tablyO gay rights and the death penalty, said. “They’re dealing with texts that do very good intellectual work but who the Justices in the majority have inclined more and more protect basic human make their living with words and ideas. in the liberal direction. “The United rights. If here I have a human being Judges belong to that class and respond States is probably the most conservative called a judge in a different country to its values, which they impose as con- democracy in the world,” Goldstone dealing with a similar problem, why stitutional law. Our Justices are said to be said. “The death penalty, gender, wel- don’t I read what he says, if it’s similar engaged in a worldwide constitutional fare—you name it. I think it would be enough? Maybe I’ll learn something.” conversation. It more closely resembles a fair to say that the most conservative Kennedy offers a more tactical reason worldwide constitutional convention.” member of the South African Constitu- to cite foreign law. “Let me ask you this,” This view is echoed by conservatives tional Court would be left of the most he said to me from across a lacquered in Congress, including Tom Feeney, a progressive member of the United States coffee table in a Chinese-themed sitting Florida Republican, who is the chief Supreme Court. So, in looking at what room at the Schloss. “Why should world sponsor of the resolution condemning other democracies are doing, it would opinion care that the American Admin- the Supreme Court’s use of foreign law. mean looking to the left, not to the right. istration wants to bring freedom to op- “When judges intermingle with other I think conservatives in the United pressed peoples? Is that not because élite jurists, there is a tendency to want to States are saying, ‘Don’t do it, because it there’s some underlying common mu- be part of the club,” Feeney said. “And it’s gives us bad answers.’ ” tual interest, some underlying common a very élite club. It’s perfectly defensible Yet it would be a mistake to regard shared idea, some underlying common to say that you want to be governed by an the dispute over foreign law and the Su- shared aspiration, underlying unified oligarchy of philosopher kings. But five preme Court as simply another iteration concept of what human dignity means? wise, élite Justices imposing policies on us of America’s conservative-liberal split. I think that’s what we’re trying to tell from the bench is not the constitutional Kennedy and Breyer, the two Justices the rest of the world, anyway.” In other democracy that the Framers gave us.” In

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TNY—2005_09_12—PAGE 50—133SC.50—133SC.—LIVE OPI ART A10763—#2 PAGE May, Kennedy testified before a House turn out to be misplaced. Church-state the opportunity to try to offer a fellow committee about the Supreme Court’s traditions in other democracies vary citizen a little pamphlet, a handheld pa- budget, and he mentioned in passing widely. Some nations, like England, per seeking to reach a higher law.” That that, like many lawyers, he conducted have state religions; others, like France, same year, Kennedy wrote an uncharac- legal research on the Internet. This have a secular orientation but subsidize teristically vitriolic dissent to the Court’s prompted Tom DeLay, the House Ma- and regulate religious education. Ken- decision to strike down a Nebraska law jority Leader, to tell an interviewer from nedy has generally sided with his con- banning late-term (or partial-birth) abor- Fox News Radio, “We’ve got Justice servative colleagues on the separation of tion—what he called “a procedure many Kennedy writing decisions based upon church and state; in June, he voted to al- decent and civilized people find so ab- international law, not the Constitution of low the posting of the Ten Command- horrent as to be among the most serious the United States. That’s just outrageous, ments at the Texas state capitol and in a of crimes against human life.” and, not only that, he said in session that Kentucky courthouse. (The full Court Kennedy’s reservations about abor- he does his own research on the Internet. allowed the display in Texas, which has tion are reflected in foreign statutes. That is just incredibly outrageous.” been in place for decades without draw- Most other countries have more restric- When I asked Kennedy about De- ing much attention, and rejected the one tive abortion laws than the United Lay’s comments, he smiled and replied in Kentucky, which is newer and more States, as Scalia pointed out in his dis- evenly, “The nature of the United States controversial.) sent in this year’s juvenile-death-penalty is that we’re diverse.” But a few weeks Foreign law is more likely to affect case, noting that the United States is earlier, near the end of the Court’s term, Kennedy’s positions on gay rights and “one of only six countries that allow in June, Kennedy had given a more abortion. His opinions in the Colorado abortion on demand until the point of pointed retort. For a reunion of Chief and Texas cases have made him the viability.” He accused the Justices in the Justice Rehnquist’s law clerks, he made Court’s most visible defender of gay majority of cherry-picking foreign laws a brief video, during which he was taped rights, but his support for gay marriage, to suit their predispositions, writing, “To sitting at his computer. He said that he a subject many expect the Court will invoke alien law when it agrees with was doing a little research. He signed off eventually take on, seems far from cer- one’s own thinking, and ignore it other- by saying goodbye in several languages. tain. In the Lawrence decision, Kennedy wise, is not reasoned decision-making, cited a consensus in “Western civiliza- but sophistry.” ennedy turned sixty-nine in July, tion” against punishing homosexual When I mentioned abortion to Ken- but it’s easy to see why he rarely sodomy. But foreign traditions of toler- nedy, I said, “You will probably be the figuresK in the speculation about retire- ance for homosexual activity have not single vote preserving Roe v. Wade.” ment that clings to other Justices. He’s led to broad international support for “Perhaps, perhaps not,” he replied. extraordinarily fit for his age. Last year, gay marriage; only Belgium, Canada, Unlike some of his colleagues, Ken- while on vacation in Greece, he and his Spain, and the Netherlands currently nedy arrived at the Court without a for- wife came across a group staging a reën- permit gay people to wed. That does not mal judicial philosophy to help him actment of the ancient Olympic Games, seem like the kind of mandate that Ken- decide each case. He has absorbed the and Kennedy entered the hundred- nedy will feel compelled to join. diverse lessons of a changing world. As metre dash. His height gave him an Kennedy’s views on abortion have we concluded our talk in Salzburg, I advantage in the race—which was run long been ambiguous. In 1989, he showed him a piece of paper that his barefoot but not, as in ancient Greece, joined an opinion by Rehnquist that friend Wolfgang Berger had given to nude—because, he said, pointing to his appeared to call for overturning Roe v. me at the Mass several days earlier. It thigh, “the toga they gave me only came Wade; then, in 1992, in the case of was an English translation of the read- down to here.” Even so, he didn’t win. Planned Parenthood v. Casey, Kennedy ings for the service, from the Book of “They put me with forty- and fifty-year- joined Souter and O’Connor in an Wisdom 12:13, which included the olds,” he said. “I didn’t have a chance.” He opinion that reaffirmed the core of lines “For there is no God, other than seems enthusiastic about his likely new Roe—that is, the right of a woman to you, who cares for everyone, to whom colleague, John Roberts, who has argued terminate an early-term pregnancy. you have to prove that your sentences thirty-nine cases before the Court. “He Since then, Kennedy has generally been have been just.” Throughout the verse, I was a marvellous oral advocate,” Ken- counted as an abortion-rights vote, said, God was portrayed as a judge. nedy said. “So we feel like we know him along with Souter, O’Connor, Stevens, “The fascinating thing I thought in that regard.” Ginsburg, and Breyer, but that may not about when I read this was that He has When the Court reconvenes next be an accurate inference. Over the past considerable discretion,” Kennedy said. month, Kennedy could hold the balance decade, Kennedy has repeatedly ex- 1“There’s also no appeal.”  of power on questions pertaining to pressed his concerns about abortion. church-state relations, gay rights, and, Dissenting from a 2000 ruling that up- BLOCK THAT METAPHOR! especially, abortion—all issues likely to held the conviction of anti-abortion From the San Juan (P. R.) Star. come before the Court during the next protesters for trespassing, he criticized What lies behind the low homicide num- several years. Yet, in such cases, conser- the majority for denying “these protest- bers reported in New York? After a Byzan- vatives’ fears about the liberal influence ers, in the face of what they consider to tine brooding, I could not find a silver lining of foreign law on Kennedy’s views could be one of life’s gravest moral crises, even to such a wild goose chase.

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