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It’s that time of year: Kennedy watching season

The weather is warm, barbecue grills have already been fired up, and schools are recessing for summer. Which means it’s the time of year to start watching the U.S. Supreme Court to see what Justice Anthony M. Kennedy will do.

Not only do the justices tend to save the biggest decisions for the final weeks before the court’s term wraps at the end of June, most of those rulings divide the justices — often 5-4. This year, we are expecting blockbuster rulings on issues including same-sex marriage, affirmative action, voting rights, DNA evidence collection and human gene patentability, and Kennedy — known as the court’s swing voter — may once again be the ultimate decider.

So what will he do? Only the justices know for sure at this point, but Time Magazine’s Massimo Calabresi pointed out that Kennedy has demonstrated in the past that he “likes to be on the right side of history.”

But, he said, “[a]s court watchers learn every June, however, it’s futile to try and guess how Kennedy will come down.”

Breyer and Kennedy land on TMZ

Though Supreme Court justices are tasked with deciding the nation’s most consequential legal issues, they are also usually able to walk to streets incognito. Few Americans can identify members of the Court on sight or even name most of them. But perhaps that is changing, because last week Justices Anthony M. Kennedy and Stephen G. Breyer landed on TMZ, the gossip website that usually focuses on celebrities and reality stars.

As Breyer and Kennedy entered a congressional office building on their way to testify about the judiciary’s budget, a TMZ reporter asked a question inquiring minds apparently wanted to know: “Justice, do you ever watch ‘Judge Judy’ or ‘Judge Mathis’ sometimes?”

Kennedy ignored the reporter. Breyer simply shook his head. It’s unclear whether the head shake meant that Breyer does not watch the courtroom television shows, or if he simply was in disbelief.

Kennedy: Congress should hash out hot-button issues, not us

(Photo: 9th Circuit)

The U.S. Supreme Court has seen a dramatic increase in blockbuster cases on its docket, hearing highly politicized issues such as affirmative action, same-sex marriage, campaign finance rules, immigration and health care.

But at least one justice isn’t happy that such hot-button issues so frequently land before the Court. Those are the type of things better decided by Congress, said Justice Anthony M. Kennedy.

“ A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said after attending a library dedication in Sacramento, Calif., according to the San Francisco Chronicle. “And I think it’s of tremendous importance for our political system to show the rest of the world – and we have to show ourselves first – that democracy works because we can reach agreement on a principle basis.”

 

 

Kennedy draws laughs with talk of opera and beer

Justice Anthony M. Kennedy may not be one of the funniest Supreme Court justices during oral arguments, but he showed his funny side during a speech Wednesday at the Heritage Foundation in Washington.

Kennedy recounted a story about a casual gathering of lawyers and other judges when he was an 11th Circuit judge. “I said, do you have any questions?” Kennedy said, according to a transcript of the event from Lawyers USA‘s sister company Federal News Service. “And somebody said, ‘how do you read all of those briefs, all that written material?’”

Kennedy replied that he read every brief, and would bring home briefs from the most difficult cases to reread while listening to opera. “I have one-opera and two-opera briefs,” Kennedy said, drawing laughter from the crowd. But after answering, Kennedy said he feared his talk of opera “came across as kind of highfalutin.”

“Here’s this guy talking about the opera, East Coast intellectual or trying to be one,” he said of himself, drawing more laughs. “I thought I kind of lost the audience, but a fellow raised his hand and said, ‘well, I have a rule like that when I write those briefs.’

“I said, ‘oh, yeah?’” Kennedy continued. “He said, ‘I have a one-six-pack brief and two-six-pack brief.’  I said, ‘I remember your last one. I think it was a three-six-pack brief.’”

Get the full transcript here, and find out more about Federal News Service and its transcription and media monitoring services here.

 

The Funniest Justice, week 2: Million dollar laugh

During her oral argument Tuesday in the case Ryan v. Valencia Gonzales, attorney Leticia Marquez argued that criminal defense lawyers who lose the ability to effectively communicate with their client have a duty to raise the issue with the judge.

“Is he under duty to raise it as soon as possible, at the risk of forfeiture if he doesn’t?” asked Justice Anthony M. Kennedy.

“Well, that’s the million dollar question,” Marquez said.

“Well, that’s why I’m asking,” Kennedy replied to laughter from the crowd.

And with that, the swing-voting justice is on the board in our ongoing count to determine this term’s Funniest Justice. Justice Antonin G. Scalia and Justice Stephen G. Breyer also each earned a laugh this week. Here are our standings after week 2:

Chief Justice John G. Roberts, Jr.: 3

Justice Stephen G. Breyer: 3

Justice Antonin G. Scalia: 2

Justice Anthony M. Kennedy: 1

Justice Clarence Thomas: 0

Justice Ruth Bader Ginsburg: 0

Justice Samuel A. Alito, Jr.: 0

Justice Sonia M. Sotomayor: 0

Justice Elena Kagan: 0

 

Kennedy could be the decider in affirmative action case

The fate of the admission policy at University of Texas at Austin and other schools – which considers race among a host of other factors – could rest largely with one justice of the U.S. Supreme Court.

As the court hears oral arguments in the case this morning, all eyes will be on Justice Anthony M. Kennedy, who could provide the crucial swing vote in a decision that promises to be close.

Justice Elena Kagan has recused herself from the case, setting up the possibility of a 4-4 tie, in which case the lower court ruling upholding the school’s policy would stand. If Kennedy sides with the more liberal members of the court in upholding the measure, the school wins. But if he joins the four more conservative justices, the 5-3 ruling against the school could prevent schools across the nation from considering race in admissions.

More here from the Wall Street Journal and here form Lawyers USA.

Kennedy defends judicial gathering, blasts the confirmation process

(Photo: 9th Circuit)

At the 9th Circuit’s judicial conference in Maui – which drew the ire of some lawmakers due to its $1 million taxpayer-funded tab – Justice Anthony M. Kennedy defended the gathering, saying it was important for members of the judiciary and the bar to gather to continue to educate themselves and advance the rule of law.

“The circuit conference is a prudent and a proper exercise of the judicial function,” Kennedy said in his remarks at the conference on Monday. “If the American public knows, and they should know, of what we do at this conference, they would be and should be immensely proud, not only the judiciary and the members of the academy and of the bar who are here, but of the idea of law in itself.”

Kennedy also criticized the judicial confirmation process, which he said has been damaged by partisan politics. “This is bad for the legal system,” Kennedy said. “It makes the judiciary look politicized when it is not, and it has to stop.”

Million-dollar judicial getaway irks solons

Despite facing criticism from GOP lawmakers, a pricey Hawaiian judicial conference attended by lawyers, judges and two Supreme Court justices took place this past weekend.

The 9th Circuit conference, held in Maui (which is, indeed, in the 9th Circuit, after all) drew the ire of Sens. Charles Grassley, R-Iowa, and Jeff Sessions, R-Ala., who balked at the meeting’s $1 million price tab and urged Chief Judge Alex Kozinski to call the whole thing off, the Washington Examiner reports.

But in a letter to the lawmakers last week, Kozinski said that it was too late to cancel the event without facing pricey penalties, and because many of the event’s attendees – which included Justice Anthony M. Kennedy and Justice Samuel A. Alito, Jr. – had already purchased nonrefundable tickets.

“In hindsight, had we foreseen the nation’s current fiscal problems, we may have chosen a different site for this year’s conference,” Kozinski wrote to the senators, adding that future conferences will be held in California, closer to where most judges live. More on this weekend’s program from the Atlanta Journal-Constitution.

Happy Birthday, Justice Kennedy

Some call him the Supreme Court’s swing voter. Veteran high court  litigator Ted Olson calls him “the must-have vote in close cases on the Supreme Court.”

But today you can call him the birthday boy. Justice Anthony M. Kennedy turns 76 today.

Kennedy, mum on health care, said opinions speak for themselves

Justice Anthony M. Kennedy got a “collective groan” from the audience at the Aspen Institute’s Greenwald Pavilion Thursday when it was announced that he would not discuss the Supreme Court’s health care ruling, or any other specific case, according to the Aspen Daily News.

Justices’ opinions, he said, speak for themselves.

“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.”

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