An observation, made by Justice Anthony Kennedy, about why it made a difference whether judicial review is implicit in the Constitution or an invention of judges.
He was giving the keynote address yesterday afternoon for the symposium "Judicial Review: Historical Debate, Modern Perspectives, and Comparative Approaches" at George Washington University Law School. (I'm on a 9 a.m. panel today.)
I was particularly interested in that comment, because I don't agree with it. I think a judge who believes that judicial review was invented might feel more inclined toward restraint, and a judge who thinks judicial review was inherent in the original Constitution might feel more inspired toward activism. But of course it could be the other way around too.
Justice Kennedy allowed questions in the end, and one of the student questioners said "I think you know the role you play on the Court" and asked if he "enjoyed" it. As you might expect, the Justice ignored the obviously intended reference to Kennedy's power as the swing vote.
He just talked about how much he enjoys the work of judging. He got into the subject of how many briefs he has to read. It is a burden, like exam reading for lawprofs. "I never read a brief I couldn't put down." He said he listens to opera while reading briefs and, some cases being harder than others, he has "1-opera" and "2-opera" cases. He wrapped up this charmingly evasive answer with an anecdote about a lawyer who wisecracked, in response to that "1-opera" and "2-opera" business — which Kennedy conceded sounded pretentious — that when he wrote those briefs, he had the "1-6-pack" and the "2-6-pack" kind.
There were anecdotes and digressions throughout his extemporaneous speech, which he made standing next to and leaning against the lectern (which he called a "podium").
Random things: He's reading his way through Thomas Jefferson's reading list. "Harry Blackmun wouldn't change a comma after April 1." When, at conference, a Justice sees that he's got 5 votes for his side, the mood remains appropriately somber — "There are not a lot of high 5s." The Framers liked metaphors having to do with clocks, gears, and pendulums. Judicial power depends on the people's reverence and allegiance toward and for the law the judges expound. Americans will fight if you take away their rights. "The law is knowable, ascertainable."