An Enlightening Interview with SCOTUS Justice Anthony Kennedy

Law Librarians discussed the WSJ Law Blog's post on a conversation that Justice Anthony Kennedy recently had with WSJ's Jess Bravin.

Below are excerpts from this conversation:

Q: Some 9,000 or 10,000 appeals typically are filed each year at the Supreme Court, fewer than 100 usually are accepted. Can you explain the process?

A: Of the 9,000 we mark about 500 for discussion. From the 500 we discuss, we should take about 100, 120. Lately we’ve been taking only 80. There’s not a lot of emotional or intellectual capital expended arguing over whether we should take the case.  If it’s a really important case and we feel badly that it wasn’t taken, there will be another one [sooner or later] on the same issue.

This answer is interesting for the though process of not taking a case. To Kennedy, it seems that there is no harm in not taking a case because if it is really important there will be a similar case that comes down the pipeline sooner or later. However, I can't help but think about the cost associated with similar cases reaching the Supreme Court. Isn't it better for the justices to put up a fight and take these cases the first time around rather than waiting for a similar issue to reach them later? It's extremely expensive to argue a case all the way to the Supreme Court, and if a justice can assume that the issue will rise again, they should decide to fight for the issue to be heard in the first instance.

Q: How are opinions assigned?

A: If there’s a division, the senior judge in the majority assigns the opinion and the senior judge in dissent assigns the dissent. And we try to keep the workload even so that one judge doesn’t get all the railroad reorganization cases. Most of us, the first thing you write, it’s no good, you throw it in the waste basket and start again and then you circulate this draft and hope you that you get four other votes.

This reiterates the notion that good writing takes time, and writers often need to throw out entire first drafts before something worthwhile takes shape.

Q: The Supreme Court for the first time includes three women and black and Hispanic members. Is that new diversity benefiting the court?

A: Sure, I think it’s helpful that we have different points of view. I’m not sure that rigid categories of gender and ethnic background are always proxies for diversity, but it gives legitimacy to what the court does. [Still], it used to be that diversity was geographical. [Nowadays], I’m the only justice from west of the Mississippi, [while four justices come from New York City].

Thank you, Justice Kennedy, for reminding us that race is not the only factor when it comes to diversity. There are also issues of socioeconomic status, as well as geographical location that matter when it comes to diversity. I, for one, did not realize that four of our current justices hail from NYC -- that's a lot from a nine-member Court. The legal education of the justices is generally not very diverse, either. Of the current Court, five of the justices graduated from Harvard Law School, three from Yale Law School, and one from Columbia Law School.

It's nice to get a glimpse inside the inner workings of the Court.

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