ALUMNI WEEKEND 2003

A Homecoming with a Supreme View

Justice Anthony Kennedy shared constitutional thoughts with alumni and students.

[Originally published in Stanford Lawyer #68]

Photos: Steve Gladfelter

Among the Supreme Court Justices, Anthony Kennedy (BA '58) is one of the least likely to have attained celebrity status. A down-home and soft-spoken Sacramento native, he eschews the limelight and reportedly is so unrecognizable that tourists have asked him to take their picture on the grand steps of the Court's building.

Indeed, when Kennedy agreed to participate in an Alumni Weekend event, he was happy to share the stage with three other panel members. Yet for the standing-room only crowd in Memorial Auditorium on Oct. 18, the star attraction was Kennedy, who had returned to the Farm for his 45-year undergraduate reunion.

The event, "We the People 2003," was a wide-ranging discussion of the Constitution, and Kennedy's observations were both personal—he expressed his admiration for the late Justice Thurgood Marshall, whom he called a "prophet," and quipped that Justice David Souter still writes his decisions with a No. 2 pencil—and analytically historical.

The "We the People 2003" panel comprised Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law; Justice Anthony Kennedy (BA '58); Kathleen M. Sullivan, Dean and Richard E. Lang Professor of Law and Stanley Morrison Professor of Law; Lawrence Lessig, Professor of Law and John A. Wilson Distinguished Faculty Scholar; and Jack Rakove, Coe Professor of History and American Studies. Photo: Steve Gladfelter

"Federalism was the unique contribution of the Framers to political theory," he said, noting that it involved more than the idea that freedom is best preserved by balancing power between federal and state governments. "Federalism had an ethical and a moral imperative," he explained. "It was wrong for you as a person, for you as a free citizen, to delegate so much authority over your life to a remote central power that you were no longer in control of your own destiny."

The crowd broke into rousing applause when Dean Kathleen M. Sullivan, the panel moderator, mentioned Kennedy's opinion for the Court in Lawrence v. Texas, which declares that the right to privacy bars the state from treating sexual intimacy between consenting adults—even if they're the same gender—as a crime. Kennedy, in keeping with the practice of Supreme Court Justices to avoid public discussion of their rulings, spoke only broadly about the challenge of honoring precedent and the law while making room for the law to evolve. He remarked: "When you take your oath to uphold the Constitution, are you going to say this person must continue to suffer because we're not ready as an institution? That's the tension."

Two days later, Kennedy spoke on campus again, this time for an audience of Stanford Law students. He told them that he listened to opera while reading cases and that he judged a case's complexity by whether it was a "one opera" or "two opera" review. A student asked which was his hardest case. "We don't take them unless they're hard," he responded. "The hardest one is the one I'm working on."

According to one report last year, only 5 percent of Americans were even aware that he was on the Court. But he received a standing ovation when his session with the students ended. And a few weeks later, when a survey of 1Ls (see p. 7) asked them to pick their favorite Justice, Kennedy was among the tops.