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William and Mary professors reflect on their time with Justice Kennedy

aheymann@vagazette.com

After serving for a little more than 30 years, Justice Anthony Kennedy will step down from the United States Supreme Court at the end of July.

In light of this announcement, many legal professionals and journalists have looked back at Kennedy’s career and the impact it has had on our nation’s laws.

However, two William and Mary law professors took a more personal approach at reflecting on Kennedy’s career. Both served as the justice’s clerk for a year and had many personal encounters with the man. The two talked about their time serving as Justice Kennedy’s clerks, what kind of man he was and the impact he had on their lives.

Kennedy as a man

Nancy Combs, Ernest W. Goodrich Professor of Law and Director at William and Mary's Human Security Law Center, described Kennedy as a “kind, considerate courteous human being." A few weeks ago, before Kennedy’s announcement, Combs said she visited Kennedy’s former long-term secretary. She said the two of them reminisced on how well Kennedy treated everyone around him.

“He is extraordinarily gracious and down to earth and humble, particularly for a man who has achieved the kind of success and accomplishments that he has," Combs said. “If you were to meet him at the grocery store or a restaurant or something you would think ‘here’s a man who takes civility and courteousness very, very seriously.’"

James Stern, associate professor of Law and Fellow at William and Mary’s Center for the Study of Law and Markets, said Kennedy was “unflappable,” and even when upset he was “unfailingly polite.”

“The sight of Justice Kennedy angry or losing his temper I think consists of his left eyebrow arching about two millimeters,” Stern said.

Combs echoed this sentiment, saying she never saw Kennedy show any irritation towards anyone, even when another justice harshly criticized his decision.

“How did he manifest it I don’t know. Whether he was annoyed and he just hid it or if he had such an even temperament that this stuff was able to just roll off of him,” Combs said.

Rather than getting upset himself, Combs said Kennedy often helped cool the tempers of his clerks. Often times Kennedy would discuss his cases with all of his clerks, and not everyone had the same opinions.

“During some of the discussions of the cases the clerks would certainly get irritated with one another, so there would be a certain level of intensity or emotion in our discussions, and that was very visible,” Combs said. “So if we were getting bogged down or there was some irritation being shown by the clerks to one another, Justice Kennedy would skillfully turn the conversation in a more positive productive direction.”

Legal labels

Many have described Kennedy as a moderate in the Justice Department. Stern disagrees and said Kennedy was more idiosyncratic, meaning he followed a firm set of beliefs and ideas whether or not they lined up with any political group.

“I think labels are really hard to attach to him, because he was far more concerned with the principles that underlie our constitution and our democracy, and the ideals on which our nation was founded than he was about the conservative position or the liberal position,” Combs said. “I think (other justices and law professionals) should imitate his independence and his willingness to look at each case as it comes, regardless of how it's going to be viewed by this group or that party or how he himself will be perceived as a consequence.”

Stern said Kennedy hated being called a “swing justice” or “swing vote” because he had a solid stance on issues. On many cases where there might be a 5-4 vote, Stern said Kennedy usually was not on the fence about his views. In fact, Stern said of all the justices Kennedy might feel most strongly about the decision.

“Sometimes on a case, you didn’t know if he would come down this way or come down that way, but whichever way he came down it would be like a freight train coming down the mountain.”

His impact

Stern said Kennedy discussed all of his cases with all of his clerks, while most judges will only talk about a case with the clerk heading it.

“He was really interested in our views and what other people were thinking even though he had strong convictions of his own,” Stern said. “I think as clerkships went we had one of the most accessible judges, and it’s hard to have more engagement with him than we did.”

Kennedy was also dedicated to his work. Stern said when he clerked for Kennedy, the justice had already been on the Supreme Court for 25 years. Even so, he would stay up late to make sure he read every page of a brief for his cases.

“It was really quite a great example to see in all those different ways,” Stern said.

Combs said Kennedy taught her to see the law not just as an abstract phenomenon or as an intellectual exercise but to consider how the cases would impact real people in their daily life.

“You come out of law school taking a bunch of exams and looking at fact patterns in a very sort of antiseptic clinical way, and Justice Kennedy always made a point of emphasizing the real world impact of the law, and how the law has the potential to change people’s lives,” Combs said. “So among others, that was probably the most profound influence he had on me.”

Looking forward

While conservative on many financial issues, such as the Citizens United case, Kennedy also took a more liberal stance on social issues like abortion and LGBTQ rights. Stern said that set the agenda for judicial politics for the larger part of a quarter of a century.

“I think that it’s very likely (Kennedy’s) replacement will be someone who is a more mainstream judicial conservative,” Stern said. Trump released a list of 25 potential nominees he will present to Congress to replace Kennedy and Combs said the person Trump nominates is likely to be approved with a Republican-dominated Congress.

Stern does not think that a more conservative judge replacing Kennedy will mean his old rulings will be overturned en mass, and most of Kennedy’s bigger decisions will stand.

“I don’t think there will be a mad rush to remake all remake constitutional or federal law just because of a one person personnel change on the court,” Stern said. “The change of personnel on the court is much more likely to have an effect on new legal questions than the court’s willingness to change its position on old ones.”

Combs believes having five judges in the Supreme Court who will fairly reliably vote conservative is likely to halt progress on a lot controversial social issues.

“There’s no guarantee, but it's hard not to think that the court will move solidly to the right,” Combs said. “I think it’s very easy to think the kinds of issues where Justice Kennedy might have provided a fifth vote to the liberal wing are just not going to advance.”

However, both Combs and Stern emphasized there is truly no way to tell what will happen in the Supreme Court yet.

"There’s an industry in trying to predict the Supreme Court cases and you might do better at the blackjack table because it's not that easy to do," Combs said.

Heymann can be reached by phone at 757-298-5828 or on Twitter at @HeymannAmelia.

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