by David F. Levi, Samuel A. Alito, Anthony M. Kennedy and Allyson K. Duncan
Vol. 103 No. 2 (2019) | Pay NCAA athletes?
On April 11, 2019, the Bolch Judicial Institute presented its inaugural Bolch Prize for the Rule of Law to Justice Anthony M. Kennedy. The award honors individuals or organizations who have worked to preserve and advance the rule of law in the United States and around the world. Presented here are excerpts of remarks from the ceremony at Duke University.
Good afternoon. By way of introduction to the remarkable experiences and contributions of Justice Kennedy that make him so eminently deserving of this recognition, Director Levi asked me to speak briefly about an object of great interest to all of us: the importance of the rule of law in the international arena.
Reflections on this theme are particularly important given the time and energy that Justice Kennedy has put not only into learning about comparative law and teaching courses on the history and case law of the European Court of Human Rights, but also teaching lawyers and judges in many countries. . . .
My much more modest experience has, nevertheless, given me a true sense of how rewarding transnational judicial engagement can be. In my 16 years on the bench, I have had the chance to work with three remarkable organizations I want to briefly describe today: the Open World leadership program created by Congress; the International Judicial Relations Committee, an organization of the federal judiciary; and the International Association of Judges, a voluntary organization composed of representatives of 94 countries.
Open World was established in 1999 and is strongly supported by former Duke professor and local congressman David Price. It was formed to foster ties initially with Russia and later with other countries in the post-Soviet region. Open World has brought almost 25,000 emerging leaders from Eurasia to the United States to engage on issues including the rule of law and corporate governance. The delegates have a one-day orientation program in Washington, and then they travel to local communities throughout the country to stay with families and continue their interaction with professional counterparts.
I have hosted a delegation of Open World every year. . . . Ambassador [John] O’Keefe, who heads the program, has commented on this and I’ve observed it firsthand: It’s the ease with which judges around the world engage with one another. And that’s understandable. We chafe under the same restraints — heavy dockets, inadequate resources, uninformed media criticism, assorted political tensions — and we can learn from and take comfort in those shared experiences.
The International Judicial Relations Committee was created in 1993 by the United States Judicial Conference in response to a flood of requests from former Soviet Bloc countries. The goal has remained the same but the scope has expanded, now responding to requests from dozens of countries all over the globe. I was appointed by Chief Justice Roberts to chair the committee after serving on it for several years.
The work of some of the members of that committee is nothing short of heroic. Vicki Miles-LaGrange, a former district court judge in Oklahoma, flew in to South Sudan before its independence, flying through Khartoum, to help this struggling, would-be country create a legal system based on common rather than Sharia law. More recently, Judge Miles-LaGrange was also instrumental in helping Sierra Leone reform its criminal justice system.
Justice Kennedy has been an invaluable resource to this committee. Namibia, which, as you know, won its independence from South Africa in 1991, came to the committee for assistance in creating an independent judiciary out of its existing Ministry of Justice. Justice Kennedy was kind enough to meet with the Namibian delegation, offering his insights, suggestions, and encouragement.
And finally, I am now immersed on a daily basis in the work of the International Association of Judges. Founded in Salzburg in the aftermath of World War II, the International Association of Judges is composed of associations of judges from more than 90 countries. I am a vice president of that organization and the regional president of a regional group non-euphoniously known as AANO, which stands for Asia, Australia, North America, and Oceania. For ease of reference, I refer to it as Everywhere Other Than Europe and Africa.
The IAJ dedicates itself primarily to safeguarding the independence of the judiciary — because it is the independence and credibility of the judiciary that are essential to the rule of law. The primary mechanism through which we do this is to come together to share experiences and best practices. Through our ongoing conferences, and for AANO, [through online meetings,] internal surveys, and questionnaires, we compile and share the experiences of members on a wide range of issues, such as how to handle domestic violence cases and how to deal with litigation involving third-party funding. We are also increasingly called upon by the United Nations to comment on issues of transnational significance, such as proposed multilateral treaties on the foreign judicial sale of ships or the uniform enforcement of foreign judges and foreign judgments.
What I appreciate most about the IAJ is the platform that it provides for judges to inform and support one another. That is also why the work of the Bolch Judicial Institute is so critical. Its Master of Judicial Studies program brings together judges from around the world to learn together from shared experiences. Efforts like these honor the legacy of Justice Kennedy’s work and continue to strengthen the rule of law and enhance shared understanding of judicial problems in ways that benefit everyone. Thank you, Justice Kennedy, and thank you all.
Good afternoon, everyone. It is a great honor for me to be here this afternoon and to have this opportunity to participate in the inaugural Bolch Prize ceremony.
The Bolch Institute now is only a few years old and yet in that short time, through the generosity of Carl and Susan Bolch and the leadership of David Levi, it has already claimed a preeminent place as a defender and a promoter of the rule of law. And now, with the Bolch Prize, it will take its message to a broader audience. And in selecting the first recipient of the prize, they have hit a home run. It’s very important, I think, when you start a new prize, to pick somebody at the beginning who really exemplifies what the prize means and what the Institute means. They could not have made a better choice than the recipient of the inaugural award.
The Bolch Institute, as we know, is devoted to the rule of law. The rule of law is a rich and complex concept. The term is used and misused by many people for a variety of reasons. But I think that, at its core, it certainly includes the message that is written on the outside of the Supreme Court building, and that, of course, is equal justice under law. The rule of law means a system in which disputes are decided based on the law and not based on the mood of the person who happens to be deciding that dispute at a particular time. It means a system in which disputes are decided based on rules that are written down and publicly known. And, perhaps most important, it means a system in which disputes are decided fairly. They are not decided based on political influence or family connections or wealth or social class or ideology or discrimination on any invidious ground. It is an important concept — it is a vital concept for us here in the United States and for other countries around the world.
Now, we know why it is important. We know that it is important for economic reasons. This is something that even autocrats can understand. It’s been shown that adherence to the rule of law promotes prosperity and economic stability. It’s also vitally important for civic health. It fosters social trust. It allows people who are not linked by kinship to engage in economic transactions and social transactions with each other and to live together harmoniously. And, of course, that is of vital importance. It’s particularly important for us in the United States because we are an enormously diverse country. We are not linked by a common race or a common religion, by common ethnic background, by family roots that go back many, many generations. But we are linked by a dedication to certain ideas that are embodied in our Constitution, and that’s why the rule of law is particularly important for us.
The first recipient of the Bolch Prize is a man whose professional life and career have been devoted to the rule of law. He exemplifies what the rule of law means. . . . I served with Justice Kennedy for 13 years, and I can’t tell you how much I learned from his example. I hope that with this award of the Bolch Prize, that example will be taken to a broader audience.
Let me say something about just a few of the lessons that I think we can take from this remarkable career, and in good lawyerly fashion, I’m going to limit myself to three. Lawyers always have three reasons for everything.
Now, the first one that I’m going to mention is something that will probably not come immediately to mind when we are talking about a man whose work will go down in the history of the Supreme Court. He is surely one of the most important Supreme Court justices of the modern era, and his work will be studied by scholars for many, many years to come. But what I want to emphasize is something else, and that is the length of his service and his dedication to an enormous number of cases.
Here are a few numbers. Now, we know he served on the Supreme Court in an active capacity for 30 years. He wrote, by my count, 266 opinions of the Court, 544 opinions in all, sat on more than 2,500 cases. And, although some of those are landmarks that will long be studied and long remembered, many of them are not glamorous. But I can tell you that every single one of them is a great effort and the product of a lot of dedication.
Before that, he sat for 12 years on the United States Court of Appeals for the Ninth Circuit, where he wrote 400 opinions. This reflects a lot of dedication — a lot of time reading briefs, a lot of sacrifice on his part, a lot of sacrifice on the part of Mary Kennedy while he had his nose buried in the briefs, and [on the part of] the Kennedy family. What I think this exemplifies is the work of the thousands of judges in this country and the even greater number of judicial staff employees whose work is indispensable to keep our legal system going. Our legal system is obviously not perfect, and those of us who work in it know, probably more than anybody else, that it has its flaws and its shortcomings. But I believe it’s the best legal system in the world. It is a complex mechanism, and it takes a lot of work by a lot of people with a lot of dedication to keep it functioning. That’s the first lesson I want to mention.
The second is a dedication to hearing both sides of every argument. We have an adversary system of justice in our country. This is fundamental. We believe that you can’t really make good decisions unless you hear from both sides, unless you are open-minded to the arguments that are made in opposition to your initial inclination about legal issues or factual issues. This is fundamental to our legal system, and I think it is a principle of great importance, of practical importance, and of importance for other even more important reasons.
I’ll tell you a little story, maybe apocryphal, about a former solicitor general. Now, he was a brilliant man, and he made an effort to read every single brief that the government submitted in the cases that came before the Supreme Court. But he often didn’t have a chance to read the brief on the other side, and it was said he was always surprised when the government lost the case. Having read the government’s brief, how could the government have possibly lost? But that’s fundamental to the decision-making process. An argument may seem good until you hear the arguments on the other side. We are so strongly dedicated to this idea in the Supreme Court that even when the party that won in the lower court refuses to defend the decision of the lower court, we will appoint an amicus to argue that point. And, not infrequently, this amicus will attract some votes on our court, sometimes even a majority vote.
So, it is vitally important in our legal system that both sides be heard. This is a lesson, I think, that our legal system can take to our broader society, a lesson that is particularly important at a time when too many people are seeking to silence those who express opinions with which they disagree. This is a lesson that the legal system can take to the society, and here within the university that the Law School can take to the broader university community.
I don’t know anybody whose work has been more dedicated to this proposition of remaining open-minded and hearing both sides of every argument than my colleague, Justice Kennedy. I saw this for 13 years in his questions at argument, in his comments at conference, in the recommendations for changes in judicial opinions that were circulated. He kept an open mind, and he was always open to hearing the opposing arguments.
That brings me to my final point, which is closely related to the one that I just mentioned, and that is the lesson of civility. We need this in our society. We need to hear opposing points of view and we need to treat each other with respect. That is fundamental to the rule of law. I said that it’s important for economic purposes, it’s important for civic health, and it reflects, at bottom, a respect for the dignity of every single person. We should treat each other civilly and we should listen to each other’s arguments because, at the most fundamental level, we are all equal. And if there’s anything that Justice Kennedy’s jurisprudence has been dedicated to, it is to the dignity of every single person. This is a lesson for our society.
I’m going to close with something that I heard Justice Kennedy say many times at conference when we were considering a particular legal issue. What he would say is: “This is an opportunity where we have to teach a lesson to the country. There’s a principle involved here, there’s a question involved here, where we can teach a lesson, we can help to instruct.” He was a great teacher. He is a great teacher in the literal sense of the word but, even more important, I think, through his judicial work, he always sought to be a teacher. And so, it is my hope, and I’m sure this will be vindicated, that giving this award, bringing his example to a broader audience, will teach very valuable lessons to lawyers and to everybody involved in the legal system and to the broader society. Thank you very much.
It is such a pleasure to be part of this award ceremony and to welcome Justice Kennedy back to Duke. . . . It’s such an honor to have you, Justice Kennedy and Mrs. Kennedy, with us here today. Thank you, Dean Powery, Dean Abrams, President Price, Judge Duncan, and Justice Alito, for your thoughtful and inspirational words.
It’s a rare privilege to have two Supreme Court justices here at the same time. As you’ve heard, Justice Alito has taught in our JD program and in our LLM program for sitting judges. We have also taught a course together on constitutional law. I want to tell you that he is a marvelous teacher. We have two justices who are wonderful teachers and wonderful examples.
I thank the board of the Bolch Institute, particularly our chair, Peter Kahn.
I thank the Bolches for their vision. Some two years ago, I asked Carl Bolch why he wanted a judicial institute dedicated to promoting the rule of law. His answer was simple. He said: Everything depends upon the rule of law; without it, no society can flourish. He and Susan know that their own success in business and in life has depended on the strong legal institutions that we have in this country, and they are motivated to share their good fortune with others around the globe. Thank you, Carl and Susan. This is a special day of fulfillment for you and your family.
As provided by the founding documents of the Bolch Institute, the Carl and Susan Bolch Prize for the Rule of Law shall be given by the Bolch Judicial Institute to recognize the lifetime achievement of an individual creating, promoting, or preserving the rule of law nationally or internationally. And how perfect that Justice Kennedy is our first recipient. Over the course of his long career as a circuit judge and a justice of the Supreme Court, Justice Kennedy has been a dedicated, unceasing advocate for the rule of law. It is fair to say that he has been our rule of law ambassador.
Soon after he joined the Ninth Circuit in 1975, the chief justice appointed Justice Kennedy to sit as a judge on the High Court of American Samoa. Article III judges sit with the local Samoan judiciary to hear cases. Before embarking, Justice Kennedy asked how he should prepare himself and what he should bring. The answer came back from his counterparts in Samoa, and it was crisp and it was clear: Just bring your robe and foot powder. No shoes. I have seen the photograph of this eminent, but barefoot, court.
Following his first trip to Samoa, Chief Justice Burger appointed Justice Kennedy to supervise all of the territorial courts in the South Pacific. Our graduate, Judge Carolyn Kuhl, who clerked for Justice Kennedy during these early years, remembers that Justice Kennedy described the importance of his visit to American Samoa. He said that access to the American justice system was the most significant advantage to American Samoa flowing from its status as a trust territory. She sees in this experience the beginning of the justice’s conviction that sharing the American justice system is important to United States foreign policy.
In addition to his activities in the South Pacific, Justice Kennedy was the first sitting justice to visit China and to speak with judges there about the rule of law. He designed a three-day educational program for Iraq’s senior judges following the overthrow of Saddam Hussein. He developed a course on fundamental rights in Europe and the United States, which he has taught in Salzburg each summer to generations of admiring students.
In a talk to the American Law Institute in 1991, Justice Kennedy referred to United States constitutionalism as “exportable technology,” and over the years, he has repeatedly called upon all of us to join him in making the case for democracy, for freedom, and for the rule of law, and to share these precious concepts and ideals with the watching and skeptical world. And, of course, he exhorts us to be worthy of our constitutional tradition and to strengthen and expand it in our own time.
His efforts have not only been abroad. In an important speech to the American Bar Association in 2003, Justice Kennedy called upon the legal profession to focus attention on our system of criminal punishment, our excessively long sentences, and our high rate of incarceration. This speech led the ABA to appoint a Justice Kennedy Commission on criminal justice. The 2004 report of this commission, according to my colleague, [Duke Law Professor] Sara Beale, was a turning point in our approach to sentencing and incarceration.
Justice Kennedy also realized that we cannot very well advocate for our constitutional ideals if we don’t actually know our history and understand our constitutional design. Therefore, he has been at the forefront of those calling for more and better civic education in our schools. He even designed an educational exercise he called Dialogue on Freedom that has been used by over a million high school students throughout the United States.
His design of the rule of law bookmark has special importance for us on this occasion. Justice Kennedy thought it was important to explain to the rest of the world “the meaning, the essentiality, and the purpose of the rule of law as it’s understood by the American people and by other democracies throughout the world.” He recognized that the phrase “rule of law” has “a resonance, an allure, that you’re reluctant to destroy through a definition that may say too much or too little” or seem inadequate to the task. [Justice Kennedy Address at 11:00, C-Span (Aug. 5, 2006)] And so, he offered a tentative suggestion, a suggestion that has been translated now into many languages and adopted by the U.N. Committee on the Empowerment of the Poor. His definition simply and elegantly explains that the rule-of-law ideal includes the concepts of freedom, equal treatment, and individual dignity within a legal system that permits redress and in which the law is superior to official will.
In awarding the Carl and Susan Bolch Prize today to you, Justice Kennedy, I’m reminded of the Duke Indenture written by James Buchanan Duke to capture the aspirations of a new university. In writing of the professions, he directed that the course of this institution be arranged first with “special reference to the training of preachers, teachers, lawyers, and physicians, because these are the most in the public eye and, by precept and example, can do most to uplift mankind.”
Justice Kennedy, in the course of your remarkable career, by precept and example, you have done much to uplift mankind as you have promoted and preserved the rule of law nationally and internationally. And so, it is our great honor to award the 2019 and inaugural Carl and Susan Bolch Prize for the Rule of Law to Justice Anthony M. Kennedy.
JUSTICE ANTHONY M. KENNEDY:
Thank you very much. Distinguished members of the judiciary and of this university, my colleague, Justice Alito, Mr. and Mrs. Bolch, and all of you who are here to show your commitment and your dedication to the idea and the reality of the rule of law, thank you for this gracious reception.
Thank you for this magnificent, beautiful, prestigious award that my family will share with me today and for many, many years to come. It is accepted, of course, in recognition of the constant efforts by hundreds of people, thousands of people, whose names we do not know, whom we have not met, but who do work day to day in the justice system to preserve and defend the ideas that underlie the rule of law, to preserve and protect the rule of law that is the only secure foundation for the freedom to which we must always aspire. Thank you very, very much.
The idea of the rule of law is so essential that it is important we always continue to define it to the rest of the nation, both in English and in other languages. It doesn’t always convey precisely what we know it must and should mean. In a way, the rule of law is confusing to some people. Under Hitler and Stalin, there were rules that were legally enforced. If you were Jewish, you had to wear a yellow star. That’s not the meaning of the rule of law. Autocrats, dictators today use the law, as they call it, to enforce inflexible decrees, decrees designed not to promote freedom but to take it away. And so, it is essential that we use this phrase in order to tell ourselves, in order to tell our children, in order to tell later generations, in order to tell the rest of the world how essential law is, when properly defined, to defend freedom and human dignity.
As indicated in Dean Levi’s recent and very complimentary remarks, it seemed to me important to define the rule of law. It was first in China when someone asked me, “What is the definition of the rule of law?” It had not occurred to me what it ought to be. In China, three is a very important number, a lucky number — four is not — and I wanted the definition to look like a pyramid.
And so, I indicated that the rule of law first means that the government is bound. But that doesn’t make sense if the rule of law is not itself one that protects freedom, is not itself a virtuous exercise of the state’s power to protect human freedom. So, the law must protect human dignity. The law must protect human freedom. The law comes from the people to the government, not the other way around. This is the meaning of the Magna Carta. This is the meaning of our legal heritage. This is the meaning of the American Constitution. The law comes from the people to the government. And that law must protect human dignity and human freedom. And that law must be accessible.
These are principles that we must learn and relearn every generation. Freedom is not something that’s on automatic pilot. It’s a phrase that’s been repeated by others — “You don’t take a DNA test to see if you believe in freedom.” Freedom is taught, and teaching is a conscious act. And it’s not just the academy that must teach. It’s not just the bench that must teach. It’s the bar that must teach. All of us in this profession must continue to teach and to learn and to teach and to learn again the meaning and the definition of the rule of law.
Now, some years ago, Aleksandr Solzhenitsyn, who wrote One Day in the Life of Ivan Denisovich — a very important work for anyone interested in corrections — was invited to give the Charter Day Speech at Harvard. This was a day pre-internet, pre-fax, even. And since he was an author of this seminal book, I wanted to see what he said. Finally, I was able to get a copy of his speech out of The New York Times a few days later, and I was puzzled and in despair that he attacked the idea of obsession with law in the Western societies. He said any society that defines the tissues of human existence in legalistic terms is condemned to spiritual mediocrity. My great author hero?
And then it occurred to me that he was from a tradition, Russian, where law is deemed a diktat, a ukase, a mandate, a decree. For us, it’s a promise. It’s a promise that freedom can enhance your life. It’s a promise that freedom can allow you to have that self-dignity, that self-assurance that makes you powerful in your community, powerful in your family, because you’re a decent person. That’s what the promise of the law is, and we must not forget it.
Judge Duncan mentioned the fascination in Eastern Europe with the rule of law. Not too long ago, I was in Eastern Europe and spoke with a young woman who was a judge. Judges in Europe are very young because in Europe, you elect, immediately after graduating with a law degree, to go either into the government and begin as a hearing examiner, work your way to be a judge — or to be a practitioner. The two do not meet again. And law in most countries of the world is an undergraduate degree. There are only [a few] countries in the world — South Africa, United States, Canada, and China — that have graduate law schools. That gives us the opportunity to develop an affinity, a loyalty, a confidence, a mutual dependence between bench, bar, and the academy, that doesn’t exist in other countries.
This young woman said: “There are two tragedies in my country. One is that the rule of law is disappearing. Two is that many of my countrymen know but few seem to care.” We must always care — but we must acknowledge that the rule of law is under attack. Mr. and Mrs. Bolch shared with me their experiences of many decades now. And in the last few decades of the last century, it looked like democracy was on the rise everywhere. And just after the first decade of this century, it became clear that democracy is slipping away, in part by deliberate attack. We must, we must understand that the rule of law as we know it — the rule of law as we define it, the rule of law as it must be defined — is under attack.
One of the first things we must do is develop in this nation a devotion to and a return to a decent, respectful, thoughtful, civic dialogue. A civic dialogue is the basis of consensus, and consensus must be the basis for our belief in the rule of law, for our belief in freedom.
Some two summers ago, it had been bothering me for some time that Aristotle and Plato gave a low grade to democracy. They defined different forms of government — monarchy, autocracy, oligarchy, democracy — and Aristotle gave a very low grade to democracy. So, it seemed important for me to reread what he said. My conclusion — and some classical scholars agree that this is a proper interpretation — was that he did not think that democracy had the capacity to mature.
It’s our destiny, it’s our heritage to prove him wrong. And we do that by a decent, civil dialogue upon which freedom and the advance of rule of law must rest. We must remember that the verdict on freedom is out around the rest of the world. The rest of the world is looking to the United States to see what freedom can and does mean. They must be impressed by what they see. And our commitment to the rule of law and our understanding of the rule of law and our ability to transmit freedom from one generation to the next and to explain that to the rest of the world are central to freedom — for so many who do not now have it and for so many who have some of it but find it in danger of slipping away.
In just the past 48 hours, it seems to me that I’ve come to know Carl and Susan Bolch. It is fascinating for me to be able to talk to Mr. Bolch and to find someone who is so conscious of the importance of duty and decency and dignity in all that he does. And you can be assured, Mr. and Mrs. Bolch, that in the years to come, I will remember not just the remarks of my distinguished colleagues, of my dear colleague, Justice Alito, and from so many of you here, but we will remember your example, your example that this award will teach me and my family and my children and later generations.
The award is made of beautiful glass, and that is symbolic. It’s brilliant; it’s made of something very precious. Light shines through glass, sometimes in a surprising way. It’s on your table or on a desk, and you haven’t seen the light that way before but it reflects a rainbow. That’s what the law does. The law shows you new beauty, the law shows you new dimensions, the more you think about it, the more you study about it, the more dedicated you are to it. But it’s also made of glass, and glass can break. Just like the law, once it’s broken, once the rule of law is broken, it requires great effort to fix it, and you’re not sure that it will be as beautiful the next time. Please be assured, Mr. and Mrs. Bolch and members of the Bolch family, that I will keep and treasure this as an example of what you have done and what you have meant to so many of us.
In conclusion, let me say that these most gracious remarks, this splendid award, inspires me to rededicate my efforts to teach, to learn, and to teach again, and to advance the rule of law that, in the end, must bind us. We define ourselves in many different ways. We’re from different ethnicities, different backgrounds, different religions, but we are bound by this thing called the Constitution of the United States. “Constitution” of the United States, we usually spell with a capital C. It’s the Constitution that was written in 1787 in that hot summer in Philadelphia, the Constitution ratified in 1789, the Constitution to which the Bill of Rights was added in 1791.
But there’s also a “constitution” with a small C, and that’s what Plato, Aristotle, Hobbes, Locke, Rousseau, and Harrington talked about. And that constitution with a small C is the constitution that is the sum total of the values, the history, the traditions, the norms, the customs of a people. And we must pay attention to this small-C constitution because that’s what the rest of the world sees. That’s how the rest of the world judges us. And it is our duty, as members of this profession, it is our duty, as those of us who admire all that the Bolch family has done and all that it means, to remember that this small-C constitution is what we must preserve and enhance. And we do this by recognizing the freedom and the dignity of all of our fellow citizens and of all of humankind. Thank you, thank you so very much.
