No Man Is an Island

Anthony Kennedy’s surprising charge to the American Bar Association.

Anthony Kennedy

HONOLULU—There is something about Waikiki that can render the 5,000 lawyers swarming this town for the American Bar Association convention disinclined to think. The convention center, the streets, and what seems like every hotel in town are overrun with them, lugging around their bright yellow beach bags and their ubiquitous LexisNexis name tags. (Pity the Honolulu drivers whose chances of running down an attorney have skyrocketed to about 1-in-3 this week.)

Seemingly simple decisions, decisions attorneys make in 30 seconds if they’re on the clock, may consume 15 minutes in Hawaii. I listen to them debating—the snapper or the ahi, change before mai tais on the beach or after, attend the 11:30 panel on innovations in forensic accounting or flip over and tan the backs of their thighs—and I listen to the long pauses in between. In Waikiki, the billable hour stretches long and languid. Beach books replace case files. Deep thoughts are few and far between.

Unless you are Supreme Court Justice Anthony Kennedy. I find myself devoting 15 whole minutes, as I prepare to attend his keynote address Saturday evening, to deciding whether to shower first or to tan the backs of my thighs. As I dart for the ladies’ room outside the Hawaii Ballroom at the Sheraton Waikiki—perhaps I can at least wash the salt water off my face—I almost trip over the tall gangliness of the justice himself, flawless in a dark suit and navy tie. The stern commander has arrived to oversee his vast battalion of 60-year-old men in hibiscus-print shirts.

The conference organizers seem to have contracted this same aloha spirit of timelessness. Instead of the obligatory six minutes of musical prelude, we are treated to a gorgeous 45 minutes of song and dance from students at Kamehameha High School. Each song lasts seven minutes. The dancers’ hands convey opuses, yet no one checks their watch.

Kennedy takes an enormous amount of abuse from his critics—who have sometimes included me—for his unremitting, agonizing, thinking-ness. His speech here in Hawaii is vintage Kennedy, ranging across history (pit stops at Henry II, Newton, and Blackstone); intellectual theory (Marx, Holmes, and Solzhenitsyn); and—of course—geography. He tells of his own travels in China and Bangladesh and across Africa. He peppers his speech with language to shame a Peretzprolix, essentiality, and dualisms. The punch line to his opening joke is: “a faint reflection of my former existential self.” (This slays the lawyers.)

But Kennedy—for all that he cannot seem to stop being Kennedy, even in Honolulu—arrives with a serious project. He is charging the assembled attorneys to do the job of selling to a doubting world “the essentiality of the rule of law.” “Make no mistake,” he warns, “there’s a jury that’s out. In half the world, the verdict is not yet in. The commitment to accept the Western idea of democracy has not yet been made, and they are waiting for you to make the case.” Referring to terrorism and violence and totalitarianism, he says, “The tide has gone out, and we are on the beach.”

It’s a tall order to swallow with your aquamarine bikini-tini. But it’s a quintessentially Kennedy point: “Our best security, our only security, is in the world of ideas, and I sense a slight foreboding.” The world of ideas may be far from Honolulu. But the world of ideas is the only place Kennedy calls home. To that end, he assigns himself a seemingly impossible task: He wants to define “rule of law” so we can start to peddle the concept worldwide. It is not enough to sell the world on the U.S. Constitution, he says. That is merely a set of “negative commands.” He is looking for a positive formulation for the rule of law.

And suddenly he begins to sound like a 4 a.m. UNICEF commercial, describing the number of hours of human labor required to get clean drinking water in Africa and the number of babies who die there each year from diarrhea. “This can be fixed,” he says. “This is not rocket science.” He tells of the numbers of men who must languish in prison in Bangladesh for a year because they can’t pay the $3 fine that would keep them out of jail. (He says he offered $1,000 to keep the next year’s worth of men out of jail, and one can’t help but wonder if he’d likewise offer to personally pay for decent defense counsel for next year’s crop of indigent capital defendants in America.) “Can the world embrace the rule of law under such conditions?”

He describes the American conception of law as a “liberating force, a covenant, a promise.” And in spite of the lofty intellectualism and the big words, this speech captures my imagination and that of the assembled crowd for its two quintessential Kennedy traits. The first is the vast sprawl of his imaginative world. He travels the planet and reads widely and he attends lectures on water purification. Then he applies all that knowledge to his conception of the law. And whether you like that expansive scope, listening to him is still a tonic to the smallness and smug certainty that has characterized our political leadership in this country for the past six years. It offers a welcome break from the hermetically sealed constitutional worldview of some of his detractors. Kennedy is a legendary agonizer. But his comments here reveal the extent to which that agony is not an end in itself. His sense of justice and equality is a work in progress, informed by what he learns from people all over the planet who know more than he does. There’s something reassuring in his sense that the world is a fluid place.

Which brings us to Kennedy’s second great characteristic, the one that has launched a thousand heart attacks over at the National ReviewOnline: Kennedy believes that justice has a purpose. It is not a neutral set of ideals. It is a promise that humans “can dare, can plan, can have joy in their existence.” It’s premised on the view that poverty and hopelessness and alienation should cause us worry. Maybe that premise is too ambitious. Maybe it is truly not the province of the law to pave over the differences between those who are suffering and those who are not. But Kennedy at least recognizes that all this suffering and alienation is the handmaiden of lawlessness; and that it is as much the task of lawyers to fight lawlessness as it is to serve some dispassionate, neutral machine called the law.

We cannot sell this cold, rational notion of justice and democracy and—as he warns these lawyers—”You can make this case. You must make this case.”

Kennedy’s inability to find certain, easy answers and his tendency to hold grandiose hopes for the law are fodder for his detractors. This is the Kennedy of Casey, and Lawrence, and Rapanos, and it’s the Kennedy that plows up fields of constitutional law and sows seeds of confusion and inscrutable grandeur in their place. This is the Kennedy who drives conservatives nuts with his notion that the courts must fight injustice, regardless of the messiness that ensues. But as he concludes with the charge that our freedom rests on our ability to sell the world on democracy, the crowd is on its feet.

Maybe the fact that Kennedy is suddenly experiencing his moment in the sun isn’t just a historical accident of a four-four court with a guy in the middle who can’t seem to make up his mind. Perhaps this country is actually ready for what he’s selling: the twin notions that the world is an enormous, embattled, struggling place and that the law has a responsibility to try to fix it. Not just in service of the Constitution, but in the service of freedom.