Justice Kennedy and the Meaning of 'Freedom'
ALEX CHADWICK, host:
This is DAY TO DAY, I'm Alex Chadwick.
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CHADWICK: First, on the Supreme Court Justice, Anthony Kennedy is now the man in the middle, the swing voter in case after case. So, Slate and DAY TO DAY legal analyst Dahlia Lithwick wondered what signals the Justice might send at a speech he gave before the American Bar Association meeting this last weekend in Honolulu.
Dahlia congratulations on your trip to Hawaii, and tell us about this speech that Justice Kennedy gave, a speech that your article - that's online now in Slate - suggests was really pretty radical.
Ms. DAHLIA LITHWICK (Slate and DAY TO DAY Legal Analyst): It really was Alex. I mean first of all you have to understand the ABA is an incredibly influential group. When Kennedy sort of charges them to do something, they go ahead and do it. Which happened a couple of years ago when he expressed, at one of these meetings, his concerns about the criminal justice system. They created a commission. They did a study. They made recommendations.
Here he was saying, look lawyers, I'm not going to talk to your about technical matters or narrow constitutional matters, I want to talk about law, and what law means, and what the rule of law means. And he essentially gave the lawyers present - 5,000 apparently attending this meeting - this charge to go out and sell the world on the notion of democracy, and the rule of law. He said we're failing at this task. We're on a beach, there's this terrible totalitarianism and terrorism sort of wave that is about to crash on it. So we need to do a better job of affirmatively selling the world on what it is that we believe is the law.
So this was sort of a pro se, if you will, of his idea of what the law constitutes, and it was a very, very dramatic vision.
CHADWICK: Well here he is, here's a clip from that speech.
Justice ANTHONY KENNEDY (U.S. Supreme Court Justice): My friends, make no mistake, there is a jury that's out. It's half the world. The verdict is not yet in. The commitment to accept the Western idea of democracy has not yet been made, and they are waiting for you to make the case.
CHADWICK: Dahlia what does Justice Kennedy's definition of the rule of law -what does that include here?
Ms. LITHWICK: Well he was very careful to say, that this is just sort of him thinking out loud, a thought experiment, something to sort of start a national conversation about that what the rule of law entails. And he says it's not the constitution that's a sort of negative set of prescriptions. This has to be something sort of broader and positive.
So he starts with sort of three notions of what he thinks the rule of law entails. One is law needs to bind the government and its officials, nobody is above the law. Two: that law most respect equality and dignity of all persons, and people need a voice in creating the law. And three: that people must be advised of their rights, and they need to know what the law says.
None of that sounds that dramatic. But you need to understand that he was talking about people in Bangladesh who spend a year in jail because they can't afford the three-dollar fine that would get them out.
Talking about women in Africa and how hard they have to work just to simply purify the water so their children don't die of diarrhea.
He really did - and I describe it in my article - sound like a UNICEF commercial. I mean he was talking about, sort of, world poverty and world hunger, and suffering - and talking about curing it before people can begin to think about what the rule of law might mean.
CHADWICK: And he's during this in the context of what he calls a thought experiment before a room full of the nations, sort of, most prestigious - and I would say conventional - lawyers. Maybe I'm too conventional, but this seems very surprising to me. A surprising message in a surprising forum.
Ms. LITHWICK: I want to be clear Alex, that he didn't use the word thought experiment. But certainly this is part of this new process of thinking out loud about how desperately we're failing, as Americans, to convince the world that democracy and the rule of law really work, and his notion that lawyers need to get out there and make the case.
And yes it was surprising, certainly it really did sound like something that you might have heard from a Thurgood Marshall, not necessarily from a conservative swing justice on the U.S. Supreme Court.
CHADWICK: Dahlia, when the court session reconvenes in the fall, and Justice Kennedy is back among his colleagues and hearing cases. Will anything happen to him because of these comments he's made? I mean will he be unpopular, or controversial, or what?
Ms. LITHWICK: Pretty much Alex, at this point, when Justice Kennedy burps he's unpopular and controversial. I mean he can do no right at this point. Particularly, the political right is so furious with him. He's been called, quote, the most dangerous man in America, by some conservative thinkers.
Everytime he sights to foreign law, there is a movement to impeach him. But you know, will there be lasting repercussions? No, he's got lifetime tenure. And certainly this is not going to make a lot of people very happy, but I think Kennedy is probably getting awfully used to that.
CHADWICK: Dahlia Lithwick legal analyst for the online magazine Slate, and for DAY TO DAY. Dahlia, thank you again.
Ms. LITHWICK: It's always a pleasure.
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