The overflow crowd at the Aspen Institute’s Greenwald Pavilion let out a collective groan on Wednesday night, as it was announced that Supreme Court Justice Anthony Kennedy would not be commenting on any specific cases, such as last month’s landmark decision upholding the individual health care mandate.
But Kennedy, the 24-year court veteran and frequent swing vote, later explained his public reticence on the substance of that decision and others. He argued that justices should allow their written opinions to stand on their own, and not politicize them in public.
“We are judged by what we write,” Kennedy said. “We don’t go around giving speeches saying how great my majority opinion was or how great somebody’s dissent was. We don’t do that. That’s for the professors, for the legal profession, for the public, to hold the court accountable for what it does.”
Written opinions, he argued, set the judicial branch apart from the more political parts of the federal government.
“I think it’s a little bit pretentious to say that we’re the only branch of the government that gives reasons for what we do,” he added, to laughs from the audience.
The court often decides cases on issues where the country is closely divided, he said — not mentioning the health care decision by name — but its members should not be stumping one way or another for them in public.
“We decide cases with political consequences, but we don’t decide them in a political way,” he said. “That’s a huge difference, and it’s very important that we be judged by those reasons.”
Institute vice president Elliot Gerson pointed out that most Americans don’t read judicial opinions, but learn about them only through media reports, noting that two television networks initially reported the health care decision incorrectly.
“The fact that people got it wrong for the first 10 minutes on a decision that will have ramifications for hundreds of years to come, to me, seems just silly,” Kennedy said.
He added that mass media is a relatively new addition to democracy, and argued that the increasing speed of the news cycle is leading to a less informed citizenry. Reporters in the instant news cycle, he argued, can’t explain the reasons behind court decisions and can’t possibly read the court’s opinions to keep up with the demands of instant coverage.
“They don’t have time to explain why we did it,” he said, later adding: “One of the problems with Internet technology is that we’re losing the social habit and even the cognitive and perceptual, rational incentive to have quiet, reflective judgment.”
Kennedy took questions from Gerson and Yale University professor Akhil Amar. He requested the session not be taped, and that members of the media use only “ink and pad” to record his comments.
The hour-long forum opened with an address from Kennedy, on the U.S. Constitution as a “human document.” The justice spoke of the capital “C” Constitution as working in tandem with the lower case “c” human constitution of the citizenry. He argued that it’s up to individuals in America to make the Constitution thrive through discourse and dissent, and learning from the mistakes of its government.
“The big ‘C’ Constitution and the small ‘c’ should work together,” he said. “That’s how each survives.”
He called on citizens to improve the tenor of public discourse — and, specifically, increase education on how American law and government work — in order to allow democracy to thrive. A divided country characterized by shrill partisan debates, he said, harms democracy and its chances of survival.
“The verdict on the American idea is still out for half of the world,” he said.
The “pursuit of happiness” in the Declaration of Independence, he argued, should be interpreted as more than the right to material gain.
“The pursuit of happiness for Jefferson was not the third car in the summer house,” he quipped.