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Toobin Justice.L2.Indd 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 42 THE NEW YORKER, SEPTEMBER 12, 2005 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 THE NEW YORKER, SEPTEMBER 12, 2005 43 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.
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