Reading Justice Kennedy’s Tea Leaves
Scholars like myself who write on the formerly-arcane-now-bizarrely-fashionable issue of the role of international law in U.S. courts were sorely disappointed by Justice Anthony Kennedy’s keynote address a few weeks ago at this year’s Annual Meeting of the American Society of International Law. The past four years of ASIL having witnessed Justices Breyer, Ginsburg, O’Connor, and Scalia speak at length on the issue, Justice Kennedy departed from established tradition and instead gave the crowd a moving (even if somewhat depressing) speech on the dangers of genocide and our obligations as lawyers to do something about it. (Peggy McGuinness at Opinio Juris blogs about it here. Tony Mauro reports on the speech here.) He even declined to answer a question asking him for his views on using international law from none other than Anne-Marie Slaughter (former president of ASIL and now dean at Princeton), simply responding that “we should be judged by what we write.” But Justice Kennedy has not always been so reticent. In a speech just last year before the Eleventh Circuit Judicial Conference, he discussed at length the numerous international law issues before the Court, and defended the Court’s use of foreign legal sources in its decisionmaking.
All of which leaves me wondering: Has Justice Kennedy suddenly lost interest in the debate over the role of foreign and international law? What explains his reluctance to share his views? Have Congressional resolutions condemning the use of foreign authority in US courts lessened his enthusiasm for the practice? Have the diatribes of irresponsible politicians — inspiring death threats from those whom Justice Ginsburg calls the “irrational fringe” – played a role? In short, is Kennedy backing away from his now-famous statement in Roper: “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom”? Or is it simply that the battle lines have now been drawn, everyone has chosen up sides in this Crossfire-esque debate, and so Justice Kennedy reasonably believed that there is nothing new to be said on the subject?
What does the CoOp crowd think? IS there anything new to be said on this subject? And will Justice Kennedy back away from Roper in future decisions?