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.

"Indeed, it seems to me that the more Christian a country is, the less likely it is to regard the death penalty as immoral."

"Abolition has taken its firmest hold in post-Christian Europe and has least support in the church-going United States. I attribute that to the fact that for the believing Christian, death is no big deal.... The post-Freudian secularist... is most inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.... You want to have a fair death penalty? You kill; you die. That's fair. You wouldn't have any of these problems about, you know, you kill a white person, you kill a black person. You want to make it fair? You kill; you die.... In my view... the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.... I am happy to have reached that conclusion [that the death penalty is not immoral] because I like my job and would rather not resign."

Said Justice Scalia, back in 2002. The part I've boldfaced was quoted in Slate yesterday, which links to the longer quote at (of all places) the World Socialist Web Site. The WSWS calls Scalia's statement "reactionary drivel." The Slate article, by Dahlia Lithwick is: "Pope Francis’ Message Isn’t Echoed at Red Mass/A reminder that the only faith that should matter at the Supreme Court is faith in the Constitution."

Lithwick speculates about why Justice Scalia did not show up for the Pope's lecture to Congress. That is... she doesn't speculate.... she only observes that "there was some inevitable speculation" that Scalia stayed away because he didn't want to have to be seen hearing the Pope call for the abolition of the death penalty.

But nothing in that Scalia quote is an objection to the abolition of the death penalty! I hope you can already see why, and I hate be to so pedantic as to spell out something so obvious, but Lithwick seems not to get it. She's probably only pretending not to get it, but it's significant that she doesn't mind posing publicly in the position of someone who doesn't get it.

Scalia is talking about how he can continue to be a judge when he's forced to decide death penalty cases and must decide them according to the Constitution, which, in his view, cannot be interpreted to ban the death penalty. As a judge, he's bound by the limitations of judging, which preclude importing his religion into the analysis, and at some point, his religion might require him to resign from the Court. He's explaining why he does not need to resign. There's utterly no reason to interpret that to mean he'd object if Congress or any state legislature were to pass a statute abolishing the death penalty.

There's more detail in this earlier post, from 2005, which quotes another speech of Scalia's in which he explained the difficulty which "need not be faced by proponents of the living Constitution who believe that it means what it ought to mean. If the death penalty is immoral, then it is surely unconstitutional, and one can continue to sit while nullifying the death penalty. You can see why the living Constitution has such attraction for us judges."

"Death is no big deal" wasn't a statement of callousness toward the convicted murderers our government executes. It's an observation about the mindset of societies that choose to keep the death penalty as part of their statutory law, the law that judges can only invalidate if it is unconstitutional.