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Kennedy & O’Connor at Stanford Law School

Earlier this month, the Stanford Law Review sponsored a symposium on the legacy of two of its most famous alums, the late Chief Justice William Rehnquist and former Justice Sandra Day O’Connor. Dan Roth attended the symposium and provides this very interesting report:

Based on the premise that one can learn a great deal about people from the way they speak of others, a rather unpublicized St. Patrick’s Day address by Justice Anthony Kennedy provided a rare glimpse into the personality of the man who most Court observers agree now occupies the ideological center of the recently constituted Roberts Court. Kennedy was the keynote speaker at “Looking Backward, Looking Forward: The Legacy of Chief Justice Rehnquist and Justice O’Connor,” a symposium sponsored by the Stanford Law Review. The venue was particularly appropriate, as both former justices graduated from Stanford Law in 1952 and Rehnquist, O’Connor, and Kennedy all attended Stanford University. Justice O’Connor was also present and concluded with remarks of her own. The standing-room-only audience was enraptured by both speakers.

Kennedy masterfully delivered an incisive, sincere, erudite homage to his former colleagues, weaving together national and personal history, quoting verse, and of course expounding on the major developments in constitutional law of the Rehnquist era. Kennedy (celebrating the holiday and his Irish heritage with a green tie and pocket square) remarked first of all upon his late boss’s similarities to the first great Chief Justice, John Marshall. Like Marshall, Rehnquist had a special way of setting others at ease despite their being in the company of a great man of unique national stature. (Perhaps unconsciously, Kennedy himself disarmed the audience by eschewing the space behind the podium and engaging the crowd from a more informal stance. He eschewed notes, as well, impressing in a “John Roberts with added gravitas” sort of way.) Continuing, Kennedy expressed his deep appreciation for Rehnquist’s sharing of his friends with Kennedy and his wife upon their arrival in Washington in 1988, and relayed a first-day-on-the-job anecdote involving a question of the average rainfall in Sacramento. Uncertain of the answer to the new boss’s query about his native city’s precipitation, Kennedy ventured the guess of 20 inches. “Too high,” responded Rehnquist. A note appeared later that day informing Kennedy that, in fact, Sacramento’s average rainfall was 18.9 inches.

It was in his discussion of each justice’s major legal legacy that Justice Kennedy’s own persona seemed to come through. He spoke with great passion of Rehnquist’s commitment to separation of powers as realized in the jurisprudence of the “new federalism,” a project in which both Kennedy and O’Connor joined the late chief, as the means to achieving the greatest amount of individual freedom. But he spoke with equal fervor and admiration for Justice O’Connor’s commitment to equality – a commitment Kennedy attributed to her western heritage and her pioneering journey to the top of the American legal profession – a topic on which Rehnquist was often on the opposite side. And, addressing by implication critiques of Justice O’Connor’s “pragmatic” jurisprudence, Kennedy embraced a definition of the term that involves cognizance of the effects of a decision, stating emphatically that “awareness of consequences is quite different from results-oriented jurisprudence.” Hearing these points expressed in succession and in a context more human than legal seemed like a revelation of the complex conservative jurist of both the federalism revolution and the soaring equal rights language of Lawrence v. Texas.

Kennedy closed by presenting Justice O’Connor (“Sandra,” as he mostly called her throughout, whereas he referred to Rehnquist as “Bill” only once, calling him “Rehnquist” almost exclusively) to the crowd. Lauding her trailblazing career and service to the country and the Constitution, Kennedy’s voice cracked with emotion.

Justice O’Connor’s concluding remarks focused on her years in college and law school at Stanford and on her concern that, with the loss of herself and the late Chief, the Court now lacks what was a strong contingent of westerners. Of Rehnquist, O’Connor noted the skill with which he perfectly distilled every idea from classes, emerging from each lecture with a perfectly honed outline. She noted fondly that the Stanford Law Review, by way of a cite-checking assignment, was responsible for her meeting her husband, John, who was a year behind her in school (and was also in attendance). And on the topic of westerners’ perspectives, O’Connor expressed concern that the decrease in their numbers imperiled the jurisprudence of western water rights – a topic of great importance in that region. With great grace and humor, O’Connor thanked everyone, likening her attendance at the symposium to being at one’s own funeral.

One could not have left the room unaware of or unmoved by the quality of the bond among the three members of the Court. The speeches were a profound reminder of the fact that the justices, though towering in their intellect, ability, and accomplishment, are also very human, and that the job they do is deeply influenced by who they are and how they relate to one another.