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Justice Kennedy on Scalia, civic duty and privacy in the age of the Internet



600 judges attend Ninth Circuit Judicial Conference in Big Sky

By Amanda Eggert EBS Associate Editor

BIG SKY – At the Ninth Circuit’s Judicial Conference, the longest-serving Supreme Court justice currently seated on the bench shared wisdom and wit stemming from his 28 years on the court.

“And Justice for All” was the title of this year’s conference, which drew a crowd of approximately 600 invited guests to Big Sky Resort from July 11-14. Many came to see Justice Anthony M. Kennedy’s insightful if somewhat freewheeling talk on the opening night of the conference.

U.S. District Judge Timothy Burgess and Margaret Foley, a Las Vegas-based civil litigator, prompted Justice Kennedy with questions of their own and relayed some from the audience.

Much of Kennedy’s talk centered on the Internet and how it’s led to what he calls a “bypass generation” and attendant changes to social discourse, political processes, commerce and privacy.

“Many in the modern age tend to confuse the selfie and your self,” Kennedy said, prompting a ripple of laughter throughout the standing room only crowd in the Missouri Ballroom at Big Sky Resort. “The self is an idea, a projection, a promise that you have formed over your past … but the Internet with the selfie focus is just on the present.”

Kennedy referenced the development of a “digitized personality” and rolled into a meditation on the surveillance theme in George Orwell’s dystopian novel “1984” and ankle bracelets with GPS trackers.

Kennedy said the idea of having others know your whereabouts at all times used to be unsettling, but, these days, many people want others to know what they’re doing at all times. “Now, young people want to be surveilled,” he said.

Turning serious, Kennedy said the whole concept of privacy has changed and the law will ultimately have to address it.

Shifting to the death of fellow Supreme Court Justice Antonin Scalia last February, Kennedy said the loss or addition of a justice profoundly impacts the Supreme Court’s dynamics, turning it into a completely different court. “We miss him greatly,” Kennedy said.

He remarked upon Scalia’s clear speech and sharp intellect. “He had a magnificent mind,” said Kennedy, 79, who demonstrated formidable powers of recall and articulation himself throughout his half-hour talk.

Civic duty emerged as prominent theme in Kennedy’s commentary. He weaved it into modern applications, including a discussion of “Hamilton,” a musical about founding father Alexander Hamilton that has taken Broadway by storm, winning 11 Tonys and setting a record for advance box office sales.

“‘Hamilton’ was fascinating,” Kennedy said. “Some of my grandchildren in New York were going to be with us … and they said, ‘Papa this is in rap!’ and they showed this look of horror.”

Kennedy responded that rap can serve as political discourse, referencing the musical’s interpretation of an argument between its title character and Thomas Jefferson.

After the performance, Kennedy met Lin-Manuel Miranda, who played the principal role in “Hamilton,” in addition to writing its script and music. “I said, ‘Thank you for bridging two generation gaps: one between our time and the founding [of our country] and the other between myself and my grandchildren.’”

Kennedy said one of his granddaughters recently turned 18 and visited Europe, and he advised her to think about the young men and women who sacrificed their lives so she could vote when looking at crosses from World War I and World War II.

“I told my kids, ‘You must always, always vote, or you can’t complain,’” said Kennedy, who served in the Ninth Circuit for 13 years before taking his seat on the Supreme Court in 1988.

Kennedy also reflected upon his first job in the oil fields near Glendive, Montana—specifically his first day, when he started at 8 a.m. in overalls, a hat and new gloves. “By 10 a.m. I was ready to go home,” he quipped.

The audience chuckled with appreciation at Kennedy’s story about accidentally nailing his work glove to a toolshed. His boss found humor in the incident and forbid the removal of the glove, turning it into a talking piece for visiting salesmen.

Approximately 1,100 people attended the conference including judges, clerks, lawyers and support staff of the Ninth Circuit as well as university professors and invited guests.

Conference sessions included a presentation on recognizing and countering implicit bias and memory errors in decision-making; a talk titled “Income Inequality and the Challenges to Achieving Justice for All”; and a panel about the difficulties that come with administering justice on 567 federally recognized tribes and five territories—each of which has a unique legal relationship to the U.S.

The Ninth Circuit includes a court of appeals and federal trial and bankruptcy courts in nine western states.

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