Washington would be
They trusted him, indicating that the framers
thought there would be an evolutionary component to the presidency
as it evolved.
The extent to which the presidency can be controlled by the
courts is not yet clear. We know that in the Youngstown case,
where the president seized the steel mills, and in the Nixon tapes
case, where the President was ordered to turn the tapes over to the
prosecutor, there was immediate compliance by the president with
the mandate of the Court.
To date, the court's authority to review the acts of the president
has not been questioned by the president. Lincoln questioned the
authority, because of the necessity of the Civil War.
Whether or not the courts are the appropriate body for the reconciliation
of all of the disputes between the political branches of
the government is a question as to which I have some doubt. In
some disputes, it may be unclear there is a case and controversy
which the courts can adequately and meaningfully interpret consistent
with the case-by-case method.
Have you expressed in your opinions or speeches
or statements a position on congressional standing?
NO, sir, I have not. It has been an issue that has
arisen principally in the District of Columbia circuit. It is an issue
on which I have not expressed myself, and have no particular fixed
views, other than, as I have indicated, to state that one of the reasons
for a case and controversy requirement is to recognize the limitations
of the judicial office.
When President Truman seized the steel mills, this was an act
that took place at a fixed time. It was like a taking under the fifth
amendment. It was something that the court could very manageably
work with. And they gave an important pronouncement in
It is a case that still has puzzles to it, but it is one of the leading
cases on presidential power. That was a circumstance that had
fixed boundaries, both as to time and to space, and the actions of
the participants involved. That is the kind of case that the court
can very manageably undertake.
Thank you, Mr. Chairman. My time is up.
The Senator from Iowa.
Thank you, Mr. Chairman.
Judge Kennedy, during the committee's consideration of Supreme
Court nominees over the past several months, it has been
asserted several times by different people that one of the jobs of a
judge is to find and create rights which are not in fact mentioned
in the Constitution, but which the Judge might deem to be very
"fundamental." Fundamental in terms of the mind of the judge
and the judge's own abstract moral philosophy.
Do you see any dangers with such an undefined standard as a
foundation for constitutional analysis? In other words, how confident
can we be that judges, fallible human beings as they are, will
exercise that mighty power appropriately?
I am not sure how you can be satisfied that a
judge will not overstep the Constitutional bounds.
What you must
do is, number one, examine the judge's record; document his or her
qualifications and commitment to constitutional rule.
As I think Mr. Justice Jackson said, judges are not there because
they are infallible; they are infallible because they are there.
I think that comment is somewhat inappropriate. I do not think
judges think of themselves as infallible at any point.
history of the Supreme Court in which the Court has been willing
to recognize its errors and to overrule its decisions, indicates that
the justices take very conscientiously their duty to interpret the
Constitution in the appropriate way.
If we do not recognize the dangers of judges
using undefined standards, aren't we doomed to end up with a
small group of unelected, unrepresentative judges making the law
in this country?
That, Senator, is one of the great concerns of
any scholar of the Constitution. This is not the aristocracy of the
Judges are not to make laws; they are to enforce the laws.
is particularly true with reference to the Constitution.
The judges must be bound by some neutral, definable, measurable
standard in their interpretation of the Constitution.
Judge Kennedy, you stated in an August 1987
speech before the Ninth Circuit Judicial Conference that there are
two limitations on judicial power. I hope I interpret the speech correctly.
The first limitation is that the Constitution is a written law to
which courts are bound when announcing constitutional doctrine.
As you know, Judge Kennedy, the Bill of Rights and many later
amendments are phrased in broad, spacious terms. If a judge were
so inclined, he or she could expand the interpretation, use, and
effect of many provisions of the Constitution.
And I believe you to be an advocate of judicial restraint. As Chief
Justice Marshall emphasized in Marbury v.
Madison, judges have a
duty to respect constitutional restraints.
How do you apply the words of the Constitution to problems that
the framers could not have foreseen?
The framers, because they wrote a constitution,
I think well understood that it was to apply to exigencies and circumstances
and perhaps even crises that they could never foresee.
So any theory which is predicated on the intent the framers had
what they actually thought about, is just not helpful.
Then you can go one step further on the progression and ask,
well, should we decide the problem as if the framers had thought
about it? But that does not seem to me to be very helpful either.
What I do think is that we can follow the intention of the framers
in a different sense. They did do something. They made certain
public acts. They wrote. They used particular words. They wanted
those words to be followed.
We can see from history more clearly now, I think, what the
framers intended, than if we were sitting back in 1789. I made that
discovery when I gave the speech to the Canadian judges.
They had just written a constitution 2 or 3 years ago. They knew
the draftsmen. And yet, they were, it seemed to me, more at sea as
to what it meant than we were in interpreting our own Constitution.
We have a great benefit, Senator, in that we have had 200 years
of history. History is not irrelevant. History teaches us that the
framers had some very specific ideas.
As we move further away from the framers, their ideas seem
almost more pure, more clarified, more divorced from the partisan
politics of their time than before.
So a study of the intentions and the purposes and the statements
and the ideas of the framers, it seems to me, is a necessary starting
point for any constitutional decision.
IS there any room for a judge to apply his or
her own values and beliefs for the purpose of interpreting the text
of the Constitution?
The judge must constantly be on guard against
letting his or her biases or prejudices or affections enter into the
Well, what other factors are there which can
affect a judge's interpretation of the text of the Constitution?
Can these factors be determined and applied without involving
the personal bias of the judge?
The whole idea of judicial independence, the
whole reason that judges are not accountable to the Congress once
they're confirmed, other than for misbehavior, the whole theory is
that the judge is impartial; that he will apply a law, or that she
will apply a law, that is higher than themselves. It is higher than
their own particular predilections.
I do not disagree, but I do not know to what
extent you mentioned other factors that can come into play to
affect a judge's interpretation of the text of the Constitution?
When a judge hears a constitutional case, a
judge gets an understanding of the Constitution from many
sources: from arguments of counsel; from the nature of the injuries
and the claims asserted by the particular person; and from the
reading of the precedents of the court, and the writings of those
who studied the Constitution.
All of these factors are, in essence, voices through which the
Constitution is being heard.
But the idea is that the Constitution is itself a law. It is a document
that must be followed.
YOU described yourself in a February, 1984
speech before the Sacramento Rotary Club as a "judicial conservative."
Does this mean that you are in any way adverse to evolving interpretations
of the Constitution that accommodate new technology
or current trends in society?
A conservative recognizes that any State must
contain within it the ability to change in order to preserve those
values that a conservative deems essential.
As applied to a judge, I think that is consistent with the idea
that constitutional values are intended to endure from generation
to generation and from age to age.
In that August, 1987 speech before the Ninth
Circuit Judicial Conference—which I previously mentioned—you
stated that the doctrine of original intent is best conceived of as an
"objective" rather than a "methodology."
I would like to have you explain the difference between using the
doctrine of original intent as an "objective," and using it as a
"methodology"; and why that is a better practice?
I think what I had in mind there was to indicate
that the doctrine of original intent is not necessarily helpful
as a way to proceed in evaluating a case; but that really it is one of
the things that we want to know.
The doctrine of original intent does not tell us how to decide a
case. Intention, though, is one of the objectives of our inquiry.
If we know what the framers intended in the broad sense that I
have described, then we have a key to the meaning of the document.
I just did not think that original intent was very helpful as a
methodology, as a way of proceeding, because it just restates the
Well, when the objective of original intent is
not met, do you reevaluate your result and underlying analysis? Or
do you accept the result despite not obtaining the objective?
Let me see if I—if you cannot find the original
intent, is that your point?
Yes, when the objective of original intent is
Judge KENNEDY, IS not met?
Original intent, broadly conceived as I have described
it, is extant in far more cases than we give it credit for.
I think that in very many cases, the ideas, the values, the principles,
the rules set forth by the framers, are a guide to the decision.
And I think they are a guide that is sufficiently sure that the
public and the people accept the decisions of the court as being
valid for that reason.
If there is not some historical link to the ideas of the framers,
then the constitutional decision, it seems to me, is in some doubt.
Well, in your role as a judge—and I do not
question your statement that original intent is more often met
than we may realize—but if it is not met, do you then at that point
reevaluate your result and underlying analysis?
Or do you accept the result, despite not attaining the objective?
Well, I do not wish to resist your line of questioning,
because I think it is very important; it goes to the judicial
But I think that in almost all cases there is an intent, at least
broadly stated; the question is whether it is narrow enough to
decide the particular case.
It is, I think, an imperative that a judge who announces a constitutional
rule be quite confident, be quite confident, that it has an
adequate basis in our system of constitutional rule; and that means
an adequate basis in the intention of the Constitution.
Over the past few months, it has been suggested
that the broad and spacious terms of the Constitution are
best utilized by the courts to relieve the political branches of their
responsibility to determine what some might consider to be the attributes
of a just society.
What is your opinion of the current perception in our society
that only the courts, rather than the political branches of government,
should address constitutional problems?
I resist that idea as a proper constitutional approach.
In my view, it is the duty of the legislative and of the executive
to act in a constitutional manner, and to make a constitutional
judgment as to the validity of each and every one of their actions.
We have a rule in the courts that we presume that a statute is
constitutional. If the legislature says, well, it is simply up to the
courts, the basis for that presumption is not there. If the legislature
does not take the responsibility of making a constitutional determination
that its actions are justified, then the presumption of
constitutionality should be destroyed. I do not think that would be
consistent with our political system.
Judge Kennedy, do you believe that one of the
consequences of this deference to the judicial branch that I have
just described is the judicial activism the Supreme Court has practiced
over the last 20 or 30 years, and that a good way to alleviate
this problem would be for the Court to begin practicing a greater
degree of judicial restraint?
I think judicial restraint is important in any
era. It is especially important if the political branches for some
reason think that they can delegate or have delegated the power to
make constitutional decisions entirely to the courts.
Your answer is yes, then?
Judge, I am sure that you will agree with me,
that there have been many unpopular, and in many cases, even
"bad" laws enacted in the history of our country.
However, many of these laws, no matter how unpopular, were, or
are, constitutional. What is the court's role when faced with a bad
or unpopular law which is nonetheless constitutional?
It is very clear. The court's role is to sustain
and to enforce that law.
IS it your judgment, then, that it is the responsibility
of the political branches of government to deal with an
Absolutely, Senator. The essence of the democratic
process is that the legislature protects citizens against unjust
laws, and acts promptly to repeal them.
DO you think it is within the jurisdiction of
the Court to address these laws, or is this an example of what you
called, in your July 1986 address to the Canadian Institute for Advanced
Legal Studies the "unrestrained exercise of judicial power"?
If a law is wrong-headed, or a bad, or an ill-conceived
law, but is nevertheless constitutional, the court has no
choice but to enforce it.
What exactly is—using your words—the "unrestrained
exercise of judicial power"?
The unrestrained exercise of judicial power is to
declare laws unconstitutional merely because of a disagreement
with their wisdom.
The second limitation of judicial power which
you discussed in your August 1987 speech before the Ninth Circuit
Judicial Conference is the constitutional requirement of "case or
However, you suggested that this requirement
is not as effective as it once was. Why do you think that this is so?
In other words, how did j'ou come to this conclusion?
The underpinning for the doctrine of Marbury
v. Madison is that the court pronounces on the Constitution because
it has no other choice. It is faced with a case, and it must
decide the case one way or the other. It cannot avoid that responsibility,
and so the constitutional question is necessarily presented to
it. Chief Justice Marshall says that very clearly. He said we do not
have the responsibility, or the institutional capability, or the constitutional
obligation, to pronounce on the Constitution, except as
we must in order to decide a case.
Now I had long thought that the case or controversy requirement
therefore was an important limit on the court's jurisdiction. The
court would not decide cases or issues that should be properly addressed
by the political branches in the first instance.
But the case or controversy rules are changing. The Court has
relaxed rules of standing in some of its own decisions. The Congress
has done the same. We have class actions. We have remedial
relief. Courts have entered the 20th century in order to make their
judgments efficient, which they must do, and their systems efficient,
which they must do.
All of this has meant that what was once a selection process has
now really diminished in its importance and its significance. The
courts are more and more confronted with cases that involve the
great, current public issues of our time.
Therefore, judicial restraint is all the more an imperative.
Could it in any way be said that part of the
blame for the ineffectiveness of the "case or controversy" requirement
must lie with Congress and its historic deference towards regulating
In other words, should Congress consider removing federal court
jurisdiction over certain controversies?
Well, that is a very delicate question, Senator.
The authority of the Congress to reduce the jurisdiction of the federal
courts in a particular class of cases presents a very difficult,
and, I think, a significant constitutional question.
It presents a question that goes perhaps to the verge of the congressional
power. Before the Congress would enact such a rule, I
would submit that it would have to have the most serious and the
most compelling of reasons, and even after that any such attempt
would present a serious constitutional issue for the Court itself to
Well, should the Supreme Court try to find
some way to make more effective the "case or controversy" requirement?
Case or controversy is requisite in the Constitution
and I agree that the Court should be very, very careful to
insure that that requirement is met in every case, and I think it
should pay very, very close attention to that.
I was asking my question based upon your
statement that in modern times there have been ways of getting
around the "case or controversy" requirement; that it is not as effective
as it once was.
Is there some answer here? I sense that you seem to feel that
this is an area in which Congress ought not to operate in, or at
least you seem to indicate that it is a very controversial area. I
think you have indicated that there is a problem; is there some
answer to the problem?
I may also have misinterpreted your earlier
question. Congress certainly can relax the rules of standing, or
tighten the rules of standing, in order to give more content to the
case or controversy rule without
Well, of course Congress has had some deference
toward regulating the courts to any great extent.
Would it be unfair to say that another reason
for the failure of the "case or controversy" requirement is the philosophy
of judicial activism which the Court has applied over the
last 20 or 30 years? In other words, because the Court has so often
extended its holdings to issues not directly presented in the cases
before it, do you think litigants and attorneys are more inclined to
go to court with attenuated, rather than direct, injuries, expecting
I would not quarrel with that characterization.
I might be a little bit hard-put to give you a specific example, but
there seems to be a thrust in favor of the courts reaching out to
decide the issues.
The previous nominee before this committee
to fill this vacancy on the Supreme Court was a strong advocate of
the belief that rationale was more important than results.
He criticized what he called result-oriented jurisprudence in
which the rationale was made secondary to the actual result
He was admittedly taken to task for his position on this matter,
especially before this committee.
What is your position regarding this so-called result-oriented jurisprudence,
and when, if ever, is it justified?
I think if a judge decides a case because he or
she is committed to a result, it destroys confidence in the legal
Senators and Representatives are completely free to vote for a
particular bill because it favors labor, or because it favors business.
That is the way politics works, and that is your prerogative. To
identify such an interest, it seems to me, is very candid.
That is improper for a court. The court must base its decision on
neutral principles applicable to all parties. That is inconsistent, in
my view, with deciding a case because it reaches a particular
Now we all know that the way we make our judgments in everyday
life is to look quickly at a result and act accordingly if the
result seems instinctively correct.
I think sometimes judges do that initially when they hear a case.
They say well, this case is just wrong, or this case is just right. But
the point of the judicial method is that after the judge identifies
the result, he or she must go back and make sure that that result
is reachable because the law requires the result, and not otherwise.
I think I liked the first half of your answer.
On the second half, are you in the middle between "results" versus
I insist that a result is irrelevant. I just have to
tell you that many judges have an instinctive feeling for a case,
and sometimes you reason backwards.
Sometimes you say the case ought to come out this way and you
begin to write it, and to prepare an opinion for your colleagues,
and it just is not working, and then you know that the result is
That is the nature of the judicial method. That is why we write.
We do not write because it is easy to read, or because we think
people enjoy reading it. We write because it is a discipline on our
Senator GRASSLEY- Judge, as we become more familiar with you
and as we study those opinions that you have written, I sense that
you are very adept at addressing the narrow question at hand without
expanding into unnecessary discussions of the law.
Can you think of any situation where it is appropriate for a Supreme
Court Justice to depart from the issue at hand, and announce
broad, sweeping constitutional doctrine?
I think that the constitutional doctrine that is
announced should be no broader than necessary to decide the case
I do have to tell you this, Senator, and it was touched on earlier.
When the Supreme Court has only 150 cases a year, and it is
charged with the responsibility of supervising the lower courts, it
has to write with a somewhat broader brush, in order to indicate
what its reasons are.
This does not mean, however, that it is free to go beyond the
facts of the particular case, or that it is free to embellish upon the
Mr. Chairman, thank you. Judge Kennedy,
Thank you, sir.
Thank you. Judge, we do not have time to get
another round in and keep the commitment to get out of here by 6
which I told my colleagues, and we have four Senators who have
yet to ask a first round. I do not know how many will have a
Judge, would you mind coming in at 9:30 tomorrow instead of 10,
so we can start a little bit earlier?
Not at all. I am here at the pleasure of the committee,
All right. Why don't we start at 9:30. We will
probably start with Senator Specter at 9:30 and Senator Metzenbaum
at 10, unless Senator Metzenbaum is here, and we would
alternate. But otherwise, I had told him he would probably start at
10, and I do not know whether he will be able to be back by 9:30. I
do not know if he will get the message.
So if you are prepared to go at 9:30, or at 10:00, if not 9:30, 10
o'clock would be the time we would start.
That is fine, Mr. Chairman. I very much appreciate
And Judge, I appreciate your being so forthcoming
today and we look forward to another day, and it is my hope
that tomorrow we can finish with your testimony.
I know several Senators will have a second round of questions,
and we will plan on going from 9:30 until noon, and break for an
hour again, and hopefully go until we finish, and then Wednesday
morning begin the public witnesses with, if all goes well, with the
American Bar Association, Judge Tyler coming before the committee
with the recommendation of the ABA.
The Senator from South Carolina.
Thank you, Mr. Chairman. I just want to
say that Judge Kennedy has handled himself in an exemplary
manner, and I feel that we stand a chance that we might be able to
finish his testimony tomorrow.
The best measure of how exemplary the manner
is, is every Senator who has spoken so far has indicated they do not
fully agree with you. You have a lot going for you.
Thank you very much, Senator.
Seriously, Judge, I appreciate you being so forthcoming.
The hearing will recess until tomorrow at 9:30.