Kennedy: Ideological gridlock leaves too many divisive issues up to the Court

PHILADELPHIA — Justice Anthony Kennedy criticized the ideological gridlock that leaves so many divisive issues to the Supreme Court, saying a “functioning democracy” would resolve them in the political arena.

“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy,” Kennedy said Thursday at the University of Pennsylvania.

Justice Anthony Kennedy
Justice Anthony Kennedy

“I just don’t think that a democracy is responsible if it doesn’t have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court.”

Kennedy is teaching this week at the University of Pennsylvania law school. He spoke to the faculty days before the Supreme Court starts its annual term Monday.

Kennedy, a 77-year-old centrist, is often the swing vote in divisive 5-4 decisions, including this summer’s vote to overturn parts of the Defense of Marriage Act.

“DOMA writes inequality into the entire U.S. Code,” Kennedy wrote in the landmark ruling, which has renewed efforts in several states to revoke same-sex marriage bans.

Reflecting on the evolving case law on gay rights, Kennedy said he’s amazed at how quickly attitudes have changed.

“We live in an era of time compression,” Kennedy said. “It’s simply stunning to me to see the changes in attitudes” regarding sexual orientation.

“It’s something I didn’t think about or know about as a kid,” said Kennedy, who grew up in northern California. “But the nature of injustice is, you can’t see it in your own time.”

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The usual roster of difficult cases will greet the court in the year ahead, with campaign finance limits, affirmative action and other divisive issues on the docket.

Despite the present political logjam, Kennedy said that resolving such issues through litigation is still better than the alternative. He noted that court systems have been slow to catch on in some emerging democracies, including parts of Africa, where corruption therefore goes unchecked. And courts are experiencing setbacks elsewhere, he said, citing China and Russia.

“The law is a necessary infrastructure for a progressive society. I’m not sure that we are making the headway we should (around the world),” he said.

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