California Forum

Anthony Kennedy speaks about history, civics, flag burning and emerging issues

About two dozen civics and history teachers got a chance to question U.S. Supreme Court Justice Anthony M. Kennedy last week about original intent, the biggest threat to democracy and the cases that had the biggest impact on him.

He answered by interspersing his talk with references to Aristotle, Socrates and a group of high school graduates in Warsaw, who were so well-versed in American history that they quizzed him about federalism, John Marshall, and checks and balances.

Kennedy lamented that “hostile, divisive” chatter that passes for discourse is “not the mark of a democracy that is maturing” and said he was “horrified” at an American history textbook he once read. “The prose put me to sleep, so uninteresting.” And he told the teachers about the importance of their work. “You have to keep freedom alive.”

“You have the opportunity to tell (students) the urgency of what they’re doing,” Kennedy said. “The rest of the world is watching and the verdict is out on freedom for half the world, at least. We have to show them the example.”

The teachers, most from Sacramento-area public schools, participated in the four-day program, organized by the nonprofit Anthony M. Kennedy Judicial Learning Center. They spoke with the justice by video from the federal courthouse. Here are some of the questions and edited versions of his answers.

Ellen Wong, of McClatchy High School, asked about the concept of having court standing, whether people have a right to sue.

Kennedy, himself a McClatchy High graduate, Class of ’54, referred to a statement Justice Ruth Bader Ginsburg made in which she said she wished the court had held off deciding Roe v. Wade, the 1973 case legalizing abortion.

“What Ruth meant was – and she’s right – if we come in too soon, then the public hasn’t framed the issue to where it can understand the opinion. She didn’t say we shouldn’t have taken the case. We should have, because there is real injury. There was standing.

“Democracy would be stronger if society reached many of these decisions itself, rather than this commanding from on high what the result is. On the other hand, if there is an injured person, a woman who cannot get an abortion, in the Roe case, and needed it for medical reasons, are we supposed to say, ‘Oh, no, we’re not ready for you yet. You go away.’? ”

Matthew Hodgins, of Oak Ridge High School, asked about issues the court will confront in years ahead.

“If you had asked me that 10 years ago, I would have been so wrong.

“I think problems that arise out of the Internet. There is a law in Europe that there is a right to be forgotten. Do you have that right?

“International conventions. To what extent can international conventions supersede American constitutional structures.”

Stephanie Cook, of George Washington Carver School of Arts and Science, asked what Kennedy saw as the biggest threat to democracy in the United States.

Kennedy recalled participating in a panel discussion about the Greeks. Greeks had slaves and only men could be citizens.

“On the other hand, the Greeks thought of freedom as the right and the duty to engage in a civic dialogue to determine the destiny of their country. And the Greeks took an oath and the oath is beautiful: I swear as a citizen, male only, to engage in civic affairs to the end that Athens shall be more beautiful and more splendid and more free for the next generation than it is for us. ...

“Unfortunately, the Greeks were not faithful to that oath. But that was the concept. A civic force, a civic responsibility, and I think that’s what’s missing. We have to explain that to young people.”

Jed Larsen, of Kit Carson Middle School, asked about the importance of original intent.

“It is of tremendous importance. The framers wanted to preserve freedom.

“The nature of injustice is you can’t see it in your own time. I don’t think the framers presumed to know all the elements of a functioning democracy. They used words that were very expansive. Liberty. Due process of law.

“I don’t think they intended simply to insist that we find out what they believed and then apply it with great literal force. The interpretation of the Constitution has to be the starting point.”

Jennifer Clement, of the Sacramento County Office of Education, asked how to spark a young person’s interest in the law.

“I tell them about history. I tell them about Lincoln’s decision with respect to committing young Americans to keep the union and why that was important. I tell them about Eisenhower sending the troops into Little Rock.

“I would talk about the importance of law in history. The evils of segregation and the hurt.

“In 1954, I was a senior in high school and Brown v. Board of Education came out. My father said, read this, it is one of the most important decisions in the history of the Supreme Court. I read it. I thought, ‘They won’t discriminate anymore. My sister will be a nurse or a teacher and I will be a lawyer.’ You don’t see discrimination and bias in your time.”

Dana Dooley, of Roosevelt High School, asked about rulings that most impacted Kennedy.

“I think the one, because it helped change my First Amendment philosophy, is the flag burning case, Texas v. Johnson.

“We ruled that flag burning is protected by the First Amendment. I wrote a very short concurring opinion because I knew it would be very unpopular. Eighty senators went to the floor to denounce the court. President (George H.W.) Bush visited flag factories for a week.”

In that concurring decision, of 450 words, Kennedy wrote: “It is poignant but fundamental that the flag protects those who hold it in contempt.”

Not a bad notion to consider, as the 238th anniversary of our independence approaches.