Justice Kennedy — substituting his idea of a "fair" question — stumbles through the problem of a government official faced with abiding by a Supreme Court decision she believes is morally wrong.

Justice Anthony Kennedy was taking questions from Harvard Law students last week, when one student asked a somewhat garbled question about whether government officials can act on their own understanding of the meaning of life. Scroll to 50:44 to begin at the student's question:



Kennedy says that he'll "refaze" the question "in a fair way," which seemed both disrespectful to the student and, like not bothering to enunciate all the letters in "rephrase," a bit lazy. But the crowd of students chuckled its support for the most powerful person in the room as he diminished their peer.

The "fair" rephrasing was:

Uh what what what is the duty of the public official if he or she cannot, in good conscience and consistent with her own personal and religious beliefs, enforce a law that they think is morally corrupt? 

The student had talked about "rational norms" and "judgment of the truth of new insights" and the "truth" and never used any words that connoted religion, morality, or corruption.

So, basically, Kennedy plugged in a question that the student's question reminded him of and that he had a good shot at answering in a predictable, conventional way. This is a strategy that is very commonly used by law students answering exam questions, and that I always warn my students against: I'll notice and you can't get credit for that. You must face the difficulties of answering the question in the form it is asked.

But Justice Kennedy was not writing an exam; he was talking to a friendly crowd that had just warmly chuckled its approval of his rejection of the question that was asked.

Did anyone really understand the question? I've listened to it a few times, and it is pretty hard to absorb and figure out how to approach answering. Why did the student ask it that way? Was it unfair? I'd have loved to have heard a more spontaneous dialogue between Kennedy and the student that began, perhaps, with Kennedy's saying: "Here's why I think your question is unfair: You're using words like 'rational norms' as if the official is looking, scientifically, at the facts, but I think you're really talking about religious beliefs and moral compulsions imposed not by reason and facts but by God."

But Kennedy plugged in the conventional answer, phrased — fazed — in the most noncommittal way:

"Great respect, it seems to me, has to be given to people who resign rather than do something they think is morally wrong, in order to make a point. Uh, however, uh, the rule of law is that, as a public official in performing your legal duties, you are bound to to enforce enforce the law. Um and it's it's it's difficult sometimes to see whether or not what you're doing is transgressing your own personal philosophy. This requires considerable introspection. Um and it's it's it's a fair question that officials can and should should ask ask themselves. Um but um certainly, in an offhand comment, it would be difficult for me to say that people are free to ignore decisions of the Supreme Court. Lincoln went through this in the Dred Scott case. Um and uh these are difficult moral questions."

It's the theater of thoughtfulness studded with ums and repetitions and expressions like "considerable introspection" and assertions about how "difficult" it all is, until you've either forgotten the question —  not just the original question but the substituted "fair" question, even as he reminds us "it's it's it's a fair question" — or you decide he's just said what you feel he must have said — what you want him to have said — and you go off and write a little article about it:



You know, if you're going to be mealy-mouthed, people can use you however they want.