October 28, 2015

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.

68 comments:

Bob Ellison said...

Tough crowd.

PB said...

If your employer asks you to perform a task that you find morally objectionable, you can refuse and should explain why, but be prepared to be fired or resign. After which, you are free to talk about the reason why you were fired or resigned. Your moral code does not give you the authority to override the employer-employee relationship. It is a voluntary activity.

tim maguire said...

By "meaning of life" I'm assuming the student meant abortion, even if motivated by the Kim Davis case.

As an agnostic who believes human life begins at conception (because every other place to put the transition allows for the murder of humans even by the standards and definitions of the person supporting abortion), I find his reflexive recasting of the question as one of religious beliefs offensive.

Hagar said...

The question is not about being "free" to ignore Supreme Court decisions, but what, if an official does take an opposing stand and sticks to it, should be done about it, and by who.

Hagar said...

and some people need to get it through their heads tah an elected official is not an "employee."

Anonymous said...

Blogger PB said...
If your employer asks you to perform a task that you find morally objectionable, you can refuse and should explain why, but be prepared to be fired or resign. After which, you are free to talk about the reason why you were fired or resigned. Your moral code does not give you the authority to override the employer-employee relationship. It is a voluntary activity.


Unless you are Muslim in this country....then you get awarded...http://www.csmonitor.com/USA/Society/2015/1027/Muslim-truck-drivers-refuse-to-deliver-beer-win-240-000-lawsuit

David Begley said...

Tony Kennedy is the most powerful unelected government official in US history. MacArthur was removed from command by the President. Tony is there for life.

Curious George said...

All that matters is that he is for legalized abortion and for the gays.

dc said...

I think Kim Davis should resign.After the mayor of SF resigns but not before.

Unknown said...

Didn't he take an oath to "Uphold the Constitution"?

Unknown said...

His answer reads like one of his opinions, though less pompous.

MayBee said...

The EEOC just won a case for two Muslim truck drivers who had been fired for refusing to transport alcohol.

Laslo Spatula said...

"You must face the difficulties of answering the question in the form it is asked."

What if you find this instruction morally wrong?

I am Laslo.

Theranter said...

"As an agnostic who believes human life begins at conception (because every other place to put the transition allows for the murder of humans even by the standards and definitions of the person supporting abortion), I find his reflexive recasting of the question as one of religious beliefs offensive."

Thank you. I'm pretty sick of it too--so many things are brushed off/purposely realigned to diminish the seriousness and sincerity of it by framing it as "religion," (thereby implying it is just some mere "belief" you picked up from a "sky god") so it can be used against you or simply ignored. What about those that, based on reason, education, and intution, sincerely hold a certain view? What he did, and what most do, is an easy way out and an easy way to belittle one and imply "you are just being an unreasonable religious fundy dick."

On another note, if you go to the 59 mark and hear his talk on the incoming law students in Poland, you'll see why our country (well our liberties anyhow) is doomed. If we only had that here.

damikesc said...

If you can't answer questions based on your judicial philosophy, maybe your philosophy is flawed.

Jason said...

but I think you're really talking about religious beliefs and moral compulsions imposed not by reason and facts but by God."

Watching Althouse try to grasp religion and people of faith = lulz.

Monkeyboy said...

Sanctuary Cities, Additional gun restrictions at the local levels that violate state constitutions and Heller....

or is it just bad when religious people do it?

David said...

Wow. How do you really feel?

Qwinn said...

Since Justice Kennedy, as well as the rest of the liberal bloc vote on the USSC, was unable to adhere to the obligations of their position, e.g. to not make shit up out of emanations and penumbras and to not mangle the Constitution beyond recognition in order to impose their preferred policy preferences, they should resign.

I wonder why that argument, like every single other argument, only cuts one way.

David said...

"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.""

Sort of like Scalia would do, eh?

Bob Ellison said...

America's Declaration of Independence was moored not in Marx-like dialectics but in the assertion that God gave us rights.

Ron Winkleheimer said...

What about those that, based on reason, education, and intution, sincerely hold a certain view?

What about it? Why should I give a crap about what you think about anything? Why should any of us care what anyone else thinks is right and wrong? Anyway, reason and education are patriarchal, euro-centric constructs that are inherently oppressive. And I'm pretty sure using intuition is appropriation.

Moral beliefs are inherently religious beliefs. There is no sub-atomic particle or molecule you can point to and say, "that is justice, and look there is grace." Either ideas of right and wrong are objective or your preferences are no different from liking or disliking mushrooms.

Gusty Winds said...

"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."

I don't agree with his decision. Not so much that I'm totally against Gay Marriage, but it's legalization shouldn't come from nine people in black robes. In this case Kim Davis should resign. He's right.

Gusty Winds said...

But the crowd of students chuckled its support for the most powerful person in the room as he diminished their peer.

The arrogant chuckling of the enlightened college crowd is the real story. The student asked a legitimate question.

Did the collegiate crowd get affirmative consent from Justice Kennedy before they blew him?

Fuck all the Universities. They are polluting our youth. This is the lack of critical thinking Rush was talking about. They claim to understand nuance and the gray areas of and issue, but they are complete assholes.

Ron Winkleheimer said...

They claim to understand nuance

Nuance is now a code word meaning: "I am going to start trying to bullshit you now."

Monkeyboy said...

"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."

Would the world be a better place if Rosa Parks refused to ride the bus because she didn't agree with the law?

Our side needs to stay and fight the power, your side needs to resign honorably.

YoungHegelian said...

"Dissent is the highest form of patriotism" is a great bumper sticker for every blue-state Prius. That is, until it starts showing up on the bumpers of Dodge Ram trucks in Texas.

William said...

It's not the underlying principle. It's the underlying interest. A Mayor who officiates at a gay marriage in contravention of the then current law is different from and nobler than a county clerk who refuses to issue a license. Ditto with sanctuary cities.......In resolving thorny moral issues, a sure fire way to reach the right conclusion is to decide in favor of the Democratic Party and its supporters.

Fen said...

"Harlan Fiske Stone, later Chief Justice, drew from the Nation's past when he declared that

"both morals and sound policy require that the state should not violate the conscience of the individual. All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state. So deep in its significance and vital, indeed, is it to the integrity of man's moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process." - Chief Justice Harlan Fiske Stone

Roughcoat said...

Love of country is the highest form of patriotism. Dissent is a subset of love of country and contingent.

Re Nuance is now a code word meaning: "I am going to start trying to bullshit you now.":

Perfect.

Hagar said...

The requirement for a license to marry probably is a remnant of the anti-miscenagation laws of the past.
What if the U.S. judge had declared Kentucky's law unconstitutional?
It does not serve any useful purpose that I can see.
And if you cohabit, the state can declare you to be married, whether you wnat to be married or not.

Sebastian said...

Y'all are making this too complicated.

Rational norms are those Tony declares to be such.

Opposition to SSM reflects irrational animus. Because.

He may "stumble" through a scenario affecting an actual person, but he has no trouble putting down the hammer.

Um, uh, fall in line or else.

"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."

Yeah, right. It's difficult and all. Don't like my rulings? Tough luck. Civil war is your only alternative. "Lincoln went through this." Theater of thoughtfulness, indeed. We are screwed.

BarrySanders20 said...

He's 80 and at the pinnacle of his profession. He gets to rephrase questions from law students if he wants to.

I wonder if he'll stay another 4 years. Likely that the next president gets to pick a few.

n.n said...

So, Kennedy is pro-choice. He supports constructing congruences to selectively excluded politically unfavored orientations and behaviors. Exactly like other policies under the State-established pro-choice doctrine, including class diversity policies, but with less human body parts, tissue, and blood littering his backyard.

Bob Ellison said...

Maybe he meant "re-phase", as in Captain Kirk saying That didn't stun him, Chekov-- re-phase.

Gusty Winds said...

You'd think being the adult in the room, Justice Kennedy might have reprimanded the students about the chuckling at the questioner.

Tank said...

David Begley said...

Tony Kennedy is the most powerful unelected government official in US history. MacArthur was removed from command by the President. Tony is there for life.


There are grounds to remove him.

You'd have to have a functioning Congress for that. We have a boner.

Bob Ellison said...

Tank said, "There are grounds to remove [Justice Kennedy]".

Of course, that's politically impossible.

Evidence that SCOTUS is more political than judicial.

In Pennsylvania and New Jersey, TV channels are flooded with court justice campaign commercials. Mostly they shake hands with cops.

Humperdink said...

The take for me is that our government: the Supreme Court as evidenced by the idiot above, the president with his "pen and a phone" and congress with middle of the night deals, have diminished any respect I have for their laws, rulings and regulations.

They are deserving of no respect.

Now we have the fruits of a "woman's right to choose", which results in intact baby heads for sale.

Hammond X. Gritzkofe said...

"Fair" has little to do with Law. Fair is equal distribution of satisfaction, an individual qualitative thing.

Chuck said...

I can think of about ten good questions for Justice Kennedy.

Not one if them would have been anything like this personal-morality question. And he wouldn't be able to credibly or passably get to rephrase any of my questions.

Left Bank of the Charles said...

Justice Kennedy's answer took an odd turn when he made the point that only three judges resigned after the Nazis came to power in Germany. That analogy makes Kim Davis one of the many German judges who didn't resign, and Justice Kennedy a Nazi.

Laura said...

Voters have the opportunity and resposibility to vet public officials before they are elected (i.e., John F. Kennedy and Mitt Romney). Expecting them to change beliefs midstream or resign requires an ex post facto application.

Employers are penalized in that they are prohibited from asking about religious belief in vetting employees. Free the beer distributors!

HoodlumDoodlum said...

Of course reviewing death sentence appeals is part of a Supreme Court Justice's jobs, but if some of them want to take a moral stand and "not tinker with the machinery of death," that is, not do part of their job because of a personal moral objection, well, that's DIFFERENT, you see, because of, ah, some reasons

chuck said...

Ooh, nice coinage: "theater of thoughtfulness". Could make a tag of that.

damikesc said...

They claim to understand nuance and the gray areas of and issue, but they are complete assholes.

Technically, those kids were Massholes. Worse than the usual asshole.

Time for Republicans to stop nominating lawyers. Having such a limited worldview on the Court hardly seems useful.

Gabriel said...

@Ron Winkleheimer:Moral beliefs are inherently religious beliefs

No they are not. They are demands on other people to conform their behavior to your opinion.

Religious beliefs might, or might not, be cited in support of the legitimacy of those demands, in order to influence people to conform to them. But people make moral demands all the time without invoking religion.

In this very thread. Has anyone here claimed that God requires an elected official to resign instead of disobeying a court decisions? Has anyone here claimed that God decreed the terms of the employee-employer relationship?


Gabriel said...

@YoungHegelian:"Dissent is the highest form of patriotism" is a great bumper sticker for every blue-state Prius. That is, until it starts showing up on the bumpers of Dodge Ram trucks in Texas.

Oh, it's still the "highest form of patriotism", in that case. It's just practiced by the lowest form of people.

Qwinn said...

"Dissent is the highest form of patriotism" is one of my favorite examples of how the Left has gone full Orwell.

I challenge anyone to punch a hole in this demonstration:


Dissent is the Highest Form of Patriotism
Treason is the Highest Form of Dissent
Therefore, Treason is the Highest Form of Patriotism.


mccullough said...

When anyone utter the phrase "rule of law" you know they are full of shit. It means they want you to follow the law but they consider themselves exempt from it.

Etienne said...

People like Snowden, who is getting paid a 6-figure income if he ignores his moral beliefs, finds it too hard to handle. He is offended. He posses questions to the lawyers, and they say it is all legal. Someone on high has made the legal ruling and he doesn't have to worry about it.

What if that ruling was a secret ruling, and the public can't know?

In the end he didn't just resign, which would have been the honorable thing to do, he decided that the country was immoral and the secret law was beyond what the public should suffer from a government.

Everyone yawned. It's hard to be a moral person in the 21st century.

As Patton said, be audacious. The world/enemy fears it.

Unknown said...

Gabriel, I think you missed the nuanced Winkleheimer-point. If you throw out every defined authority related to the word "moral," then the only definition left is the one that you believe is "correct." You can call it moral, but that's just another word for "belief" or "faith" or "religion."

Hence:

"Moral beliefs are inherently religious beliefs. There is no sub-atomic particle or molecule you can point to and say, 'that is justice, and look there is grace.' Either ideas of right and wrong are objective or your preferences are no different from liking or disliking mushrooms."

Al from Chgo said...

Surprise the s__t out of them and be humble enough to ask them to restate the question..if they won't ignore them,, worked for me over thirty plus years..

Hagar said...

When the subject is a county clerk and her official functions, it is about our political system, not crime and punishment.

Fernandinande said...

Refusing to answer a difficult question, and instead rambling about something similar reminds me of "A judge is a law student who grades his own papers."

The Godfather said...

I thought the student's question was clear enough. He was a 1L; if he'd been at the law school longer he might have learned to be incomprehensible. Justice Kennedy, in most cases IS the Supreme Court. Even at the age of 80 he should have been able to give a responsive answer to the question he was asked.

As for Dred Scott, almost every legal scholar agrees that this was the single worst decision ever issued by the Supreme Court (and there are some pretty strong contenders for that title). Lincoln gave lip service to the duty to follow the Court's ruling, but he never admitted the legitimacy of that ruling, and we praise him for his stance. I support gay marriage and gay rights generally, but I abhor the claim that this modern-day notion has been lurking unseen in the Constitution for lo these many years, until Justice Kennedy and his fellows perceived it.

Is that clear enough, or must the Justice re-faze it?

Nancy Reyes said...

this has broader implications than gay marriage.

Essentially he is saying that federal and state employees follow the law or resign.

But this also means doctors/nurses and pharmacists who work for the federal government (IHS, VA, military medical personnel) should be required to do abortions, and in the future, euthanize their patients or resign.

It also means that there will be a requirement in federal hiring to eliminate those who might not go along with federal or state law. Religious requirement, anyone?

The 1964 Civil Rights act says this is illegal.

Nor is this limited to fundamentalist Christians, as the recent case against a company that fired Muslim drivers for refusing to cooperate with alcohol consumption shows.

Michael K said...

He is confused and has been for several years.

JCC said...

As is well known, AJ Kennedy is the swing vote between Team Right and Team Left, so he is the default Guy In Charge of Making Sh*t Up When Deciding Social Issue Cases, and is, in effect, the King of the United States. As such, he is probably accustomed to prevaricating, mumbling, leaving sentences unfinished so the listener can fill in whatever fits his or her particular bent, and relating anecdotes that have nothing to do with the subject at hand.

Fortunately, Kennedy tends to lean right on criminal justice issues at about the same rate he leans left on social issues, although this ratio seems to be changing as he ages.

So, a mixed blessing as it were, but he's definitely on the BS end of the scale in this instance. But I can only imagine whom he would be replaced with should HRC win the next election, so we perhaps shouldn't check his teeth too closely...yet.

richard mcenroe said...

Nancy don't pick on them poor Mussulmen. It's not like they refused to bake a gay wedding cake er sumthin. Totes different, as I'm sure the SCOTUS will hold.

Gabriel said...

@Unknown:You can call it moral, but that's just another word for "belief" or "faith" or "religion."

Those words are not synonyms. Point to the people in the thread who claimed that the employee-employer relationship is decreed by God.

But that's a sideshow--you are wrong that a moral statement necessarily is belief. It is a demand, like "shut the door". Demands do not require any evidence or belief. If you are not willing to shut the door I might say that God says to shut the door, or I might say that it would be a better world if people would shut the door when asked, but only at that point has "belief" or "faith" or "religion" entered into it.

There is no sub-atomic particle or molecule you can point to and say, 'that is justice, and look there is grace.'

"Particles" and "molecules" are themselves abstractions, they cannot be perceived. The knowledge we have of them is a long train of educated guesses based on experiences which have no obvious connection. Statements made about them are essentially deductions from axioms. There is an entire universe of statements in between empirical facts and religious beliefs that belong to neither collection, it's insane to deny it.

Skyler said...

I think he meant re-phase, as in to change to another state of matter. What was solid is now gas. What was a constitution is now an opinion. What was a clearly worded law is now its opposite. What was rejected by the people will be forced on them. What your question was about will be what I want to say.

There is something fundamentally evil in a court system that can arbitrarily create law out of thin air, and then jail people for not obeying it with no jury, no representative vote, no appeal. It is sick. It is oppressive. It is the stuff of banana republics. Only one person was jailed, but the precedent was set.

The court can sua sponte declare broccoli to be illegal and jail anyone for contempt who chooses to eat it. That's what we have been reduced to by this despicable man.

Re-phase the question, Kennedy, so that you can create laws and imprison people who don't agree with you.

Saint Croix said...

I know pro-lifers have abortion on the brain, but I wonder if some of our Supreme Court Justices also have abortion on the brain? I mean, Anthony Kennedy is the guy who wrote this and this. These are opinions by a man who is really and truly upset at the killing of a baby. And note too how similar the opinions are in tone, and yet they are spaced many years apart. Many times it's a clerk who's writing an opinion. So maybe Mr. Kennedy had an outraged Republican clerk in 2000, and another outraged Republican clerk in 2007. But when I read these two opinions, I have a strong suspicion that the same guy is the author of both. That is to say, I suspect that Mr. Kennedy is the author of both.

There are some intellectual conflicts here. For instance, Carhart II overrules Carhart. What happened to "stare decisis," Mr. Kennedy? It's almost like you are free to overrule a bad opinion if you are morally outraged or something.

Another one is all the anger at the D&E abortion, and the graphic description of that killing method. If we are morally outraged about the D&E, we might start thinking about the opinion that says the D&E is a constitutional right. Maybe we ought to fix that one, too, huh?

Saint Croix said...
This comment has been removed by the author.
Saint Croix said...

Maybe he's just a bad public speaker. But maybe these intellectual conflicts, or emotional conflicts, are causing him to repeat words and say "um" over and over.

I think Scalia has a stress-free existence. "I didn't uphold Roe v. Wade!" So he can deny the humanity of the unborn child all day. I'm the only one who has an urge to throw a book at Scalia's head. And mock his non-interpretation of the word "person." Corporations are people, babies are not. Oh I just want to smack Scalia. Write another book on how how to read, jackass!

Mr. Kennedy does not have a stress-free existence. Oh sure, they are very nice to him at Harvard. But he has to know there are millions of people who think he has killed some babies. Including many people at his own church.

Man, is that stress or what?

Saint Croix said...

There are notable cases of abortion doctors becoming pro-lifers. So it's not impossible for an abortion jurist to become a pro-lifer. It's doubtful, I think. It's rather like waiting for Mr. Jefferson to recognize that he is wrong on slavery.

Jefferson: "I tremble for my country when I reflect that God is just."

(Notice how he lets himself off the hook? He's not worried about his own soul. He's worried about those bad slave-owners over there. He's worried about "his country." But his own sins and his own hypocrisy, he's not trembling about that).

Many people think Jefferson was not religious. (He had a Bible where he cut out all the miracles). And yet it's likely that Mr. Jefferson is more religious than many of us today, in our secular age.

I think this is important, because Christianity sometimes forces powerful people to confess and do the right thing. There are examples of stressed out kings begging for forgiveness in the snow.

The nice thing about Christianity is that it's the one religion where you can kill many, many people, and yet you still have a hope of redemption. So I would just say to Mr. Kennedy--it's not too late for you.

Unknown said...

Gabe, can't quite figure you out. Are you trolling or just ignorant? Are you unaware that the Bible discusses the relationship between bosses and workers? Are you unaware that molecules have been photographed?

And frankly, who made you the arbiter of what "moral" means? Have you even so much as Google'd "moral statement" before you provided YOUR definition?

Unknown said...

BBC: Subjectivism -- Subjectivism teaches that there are no objective moral truths....Moral statements are just factual statements about the attitude the speaker holds on a particular issue. So if I say "Lying is wrong", all I'm doing is telling you that I disapprove of telling lies.

Not my words.

Gabriel: ...you are wrong that a moral statement necessarily is belief. It is a demand, like "shut the door".

Not Gabriel's words either. Somebody needs to tell BBC and the 2 millennia of philosophers they are distilling into common English that THEY ARE WRONG. Gabe says so.