Before the publication of his memoirs, Life, law and libertyretired Justice Anthony Kennedy spoke with Adam Liptak about New York Times for one interview.
The book reveals (or perhaps confirms) that Justice Kennedy wrote the Court’s opinion in Bush versus Gore. In the Liptak interview, Kennedy acknowledges the problems with opinions produced under pressure:
In his book, Justice Kennedy revealed that Chief Justice William H. Rehnquist assigned him the majority opinion in the case. Bush versus Gorethe 2000 decision that handed the presidency to President George W. Bush. It was a “close affair” and a “close affair,” he wrote, and he concluded that the majority opinion should not be signed, which it was.
The court issued its decision, by a 5-4 vote on the key issue, the day after the case was debated. Justice Kennedy said this type of rapid action, like the Court’s recent series of emergency rulings, was not ideal.
“The court must do its best,” he said. “But it takes time.”
Justice Kennedy also made these comments on originalism:
In the interview, Justice Kennedy said he had reservations about originalism, which seeks to interpret the Constitution as it was originally understood and has become the intellectual core of the conservative legal movement. Originalism is a starting point, the judge said, but it cannot be the whole story.
“The creators were so insecure that they thought they knew all the components of freedom,” he said. “The meaning of freedom is revealed over time.”
He acknowledged that his view gave power to judges. “So what is stopping the Court from ruling on all the interesting, important and essential political and social issues of our time?” he asked, suggesting that there must be some constraints.
When asked to describe these constraints, he replied: “You just have to decide, on a case by case basis, whether it is absolutely essential to freedom or not.”
