[/caption]Supreme Court Justice Anthony M. Kennedy, often the deciding vote in split court decisions, was the keynote speaker Thursday at the GW Law Review Symposium. The topic of discussion for Justice Kennedy, 73, was judicial review, a function that allows courts to invalidate laws passed by Congress and signed by the President.
“It is an awful power, awful in the sense of the grave, that 9 justices, 5 if the court is divided, can overturn law passed by Congress and signed by the President,” Justice Kennedy said.
The justice dismissed the notion, however, that judicial review is undemocratic or unconstitutional, explaining that Americans tend to agree with the Supreme Court a majority of the time. He also claimed that judicial review helps give the Constitution meaning in the present time.
He focused a large part of his lecture on the history and importance of English common law and how it has affected the individual liberties protected under American jurisprudence.
"Common law came from the people to the state," he said.
The 1803 Supreme Court case Marbury v. Madison established the concept of judicial review but Justice Kennedy focused instead on the evolution of the Constitution and the cases that have since been argued before the court.
In describing the debate on the court’s right for judicial review the justice noted that the Marbury case was the only judicial review case until Dred Scott v. Sandford in 1857.
“It almost destroyed the court and the Constitution,” he said of the case that among other things concluded that African-Americans were not American citizens. Today, Justice Kennedy explained, many cases are brought before the court for judicial review highlighting that while the Supreme Court may not always be on the prevailing side of history, the system is working and the courts are reviewing cases in accordance with the law and the separation of powers outlined in it.
The justice implied he took comfort in knowing that other countries have looked at American judicial review as models for their own constitutions.
"I never thought that in my lifetime I would see Constitutions get written, it was fascinating for me,” he said. “Constitutions want judicial review, America made the case.”
The justice spoke from memory and experience, often quoting the law and philosophers without the aid of note cards. A sense of humor and ease filled the room for much of the discussion. In describing an experience overseas he spoke in a faux-British accent and the Justice mocked the idea of being the keynote speaker saying it is, “Somewhat pretentious for making remarks that might engage you in your profession.”
Assuming office in 1988, after two failed attempts by Ronald Reagan to fill the seat, Kennedy soon found himself straddling between the conservative and liberal segments of the often ideologically divided court. From capital punishment decisions to handguns in D.C., Justice Kennedy has often found himself to be the deciding vote in cases.
According to SCOUTUSblog, a blog about the Supreme Court, Justice Kennedy was in the majority more than any other justice in the 2007 term including 18 of the 23 decisions that were split 5 to 4. He joined the conservative branch of the court and authored the 5-4 majority opinion in Kennedy v. Louisiana, which dealt with capital punishment. In District of Columbia v. Heller he went to the liberal wing and authored the majority opinion in the 5 to 4 decision that upheld a ruling by a court of appeals in overturning a ban on handguns in D.C.
Following his lecture Justice Kennedy took questions from law students. Among topics of concern was the level of interaction among justices.
Kennedy said the justices tend to send memos to one another, and do not interact face to face as much as people may expect.
"It is a little more isolated, insular," he said.
He also addressed the fewer number of cases the court has been able to review in recent terms. According to records, in the most recent term spanning October 6, 2008 to October 4, 2009 the Supreme Court reviewed 83 cases. Justice Kennedy said the number should be about 100 cases review per term. He said the court receives upwards of 10,000 petitions every year.
“Particularly striking were his comments that he would like the Court to hear more cases and that he was concerned with the state of civil adjudication and with important cases going to arbitration instead,” said Associate Professor of Law Renee Lerner, said in an e-mail to WRGW News. “Recall he laid out three areas of possible reform: lessening the time and expense of discovery, requiring the pleadings to state more clearly a valid cause of action, and controlling punitive damages,” Professor Lerner said.
Professor Lerner is among a distinct group of GW Law Faculty, having clerked for Kennedy. Justice Kennedy has the most former clerks now working at GW Law School, than any other justice. The other former Kennedy clerks on the full-time faculty are Associate Dean Gregory Maggs and Professor Orin Kerr. Former clerk Rachel Brand has just joined the adjunct faculty.
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