Saturday, December 9, 2023

Justice Anthony Kennedy announces retirement, and two former clerks — now W&M professors — fondly remember their former boss

Supreme Court Justice Anthony Kennedy announced Wednesday he will be retiring. (WYDaily/ Courtesy Wikimedia Commons)
Supreme Court Justice Anthony Kennedy announced Wednesday he will be retiring. (WYDaily/ Courtesy Wikimedia Commons)

A law clerk in his early 30s sat at his desk in a long, narrow office, surrounded by oaken bookshelves stocked with U.S. case reports and photos of the clerks who came before him.

The clerk peered out through a brass-framed window overlooking the U.S. Capitol in Washington when the phone at his desk rang.

He answered, hearing the voice of U.S. Supreme Court Justice Anthony Kennedy on the other end.

The clerk had submitted a draft opinion for a court decision, and Kennedy briefly provided his thoughts before giving an abrupt “OK, bye.”

The line went dead and the clerk hung up the phone. Two seconds later it rang again.

“One more thing,” Kennedy said.

Kennedy was working from home that afternoon in 2011, as he often did to avoid D.C. traffic. He had his law clerk, James Stern, on speed dial, and Kennedy would buzz Stern throughout the day, spreading their conversations across several expedient phone calls.

If his boss’s procedures were eccentric, Stern sure didn’t find them irksome.

“He was a fantastic person to work for in every respect,” Stern said Thursday, one day after Kennedy announced his retirement from the Supreme Court. “Despite the responsibilities that rested on his shoulder he was entirely unflappable. He treated us all extremely well. He never created work for the sake of it and always took an interest in our families.”

William & Mary law professor James Stern (WYDaily/Courtesy W&M)
William & Mary law professor James Stern (WYDaily/Courtesy W&M)

Stern is now an associate professor of law at the College of William & Mary, specializing in property law. He clerked for Kennedy from August 2010 through 2011, during which he compiled bench memoranda, drafted decisions and sorted through appeals submitted for the Supreme Court’s discretionary docket.

Kennedy had his own unique workflow, Stern said. The justice preferred to work in fits and starts through the night, juggling sleep and work before dragging himself into the office before rush hour.

“He used to say he thrived on his insomnia,” Stern said. “If you wanted quality time with Justice Kennedy you came in at 6 a.m. because he would be there. He would come in at 6 looking sort of disheveled and his eyes were bleary.  Around 8 a.m. he would lock the door to the office — he had a private bathroom in there — and 20 minutes later he would emerge looking extremely dapper.”

Kennedy’s peculiar work habits have served him well through his three decades on the nation’s highest court, Stern said.

But now, Kennedy’s time as a Supreme Court justice is coming to an end.

Retirement after 30 years

Kennedy, 81, notified President Donald Trump of his intent to retire in a brief letter dated June 27, 2018.

The letter begins “My dear Mr. President,” and said Kennedy intends to continue serving in a “senior status.”

Read the letter in full here.

Appointed by President Ronald Reagan, Kennedy took his seat on the Supreme Court in 1988 as a member of the Republican party. Kennedy went to Harvard Law School and worked in private practice law in California from 1961 to 1975. He then became a constitutional law professor at the McGeorge School of Law, University of the Pacific.

‘Human dimensions’

The California native and associate justice has been a pivotal swing vote on the Supreme Court over the years.

William & Mary law professor Nancy Combs (WYDaily/Courtesy W&M)
William & Mary law professor Nancy Combs (WYDaily/Courtesy W&M)

Nancy Combs, now the Ernest W. Goodrich professor of law and director of the Human Security Law Center at William & Mary, clerked for Kennedy between 1995 and 1996. During that time she said she saw firsthand his commitment to understanding the facts and the “human dimensions” of each case he considered.

She said many justices designate a lead clerk to handle each case. However, Kennedy consulted each of his four clerks for nearly every case under Supreme Court review.

“I always appreciated he did things that way, because I think it was less efficient for him because he had three additional law clerks piping in,” Combs said. “That sort of collaborative impulse he had benefited him and allowed him to get a wider range of views.”

Kennedy has authored several majority opinions in important cases regarding abortion and gay rights.

He also made the deciding fifth vote on other issues including racial preferences, religious freedom, gun ownership, campaign finance and capital punishment, according to news reports.

“He’s not an ideologue,” Combs said. “He’s somebody who carefully considers every facet of the case including diverse opinions from law clerks. Only then does he come to a decision.”

Kennedy recently ruled in favor of a Colorado baker who refused to create a wedding cake for a same-sex couple, leaving the ruling undecided on whether a business owner’s religious beliefs allow them to refuse service to members of the LGBTQ population.

Setting the bar

Despite the contentious nature of the cases he considered, his clerks remember him for the courteous and respectful manner in which he carried out his work.

“He was very much opposed to the use of sarcasm in Supreme Court opinions, and one of his in-house rules was you never refer to the authors of the dissenting opinion by name if you’re writing the majority,” Stern said. You only refer obliquely to arguments the dissent is making. You don’t want to turn this into a food fight or a process of personal antagonism.”

They also said Kennedy was just as courteous and thoughtful to those who worked for him.

“I worked on one opinion with him, and basically we disagreed completely about how the case should come out,” Stern said. “He was the boss and at the end of the day his judgment is what mattered.”

Kennedy told Stern to write up the draft as the clerk saw fit. When Stern turned it in Kennedy told him “nice work,” and asked him to make one change to the draft.

Stern turned the draft in again, and again Kennedy asked for one more change.

“We went through several rounds of this until the opinion said what he wanted it to say, but he was so generous in his spirit and so open-minded, he didn’t want to tell me no right off the bat,” Stern said. “He certainly would’ve been within his rights to overrule me, but because he was such a generous man and he was interested in seeing how I would produce the argument he told me to go ahead with it.”

“To me, that’s very representative of what he was like as a boss and a jurist,” Stern added.

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