You Cannot Defend What You Do Not Revere: Justice Kennedy, Trial Team, and a Sad Goodbye to Uncle Ken

You cannot defend what you do not revere. - Justice Kennedy (talking about the Constitution)

Justice Kennedy visited Pepperdine a couple weeks ago. My criminal procedure professor surprised us by having Justice Kennedy teach our class that day! Then that afternoon we all went to see the Justice talk with Ken Starr and a couple Pepperdine grads.

Justice Kennedy got a lot of questions about Obama criticizing the Supreme Court during his State of the Union address. Justice Kennedy said that he has a life appointment and Obama doesn't. But he didn't give too many comments on it. Instead, he talked about the history of the SOTU. For the first 2 terms there was a SOTU, and then Jefferson stopped it. It started again under Wilson, and the Supreme Court began attending in the 1940's. Kennedy said he thought it was good to remind people that there are THREE branches of government - which I thought might be a slight shot at Obama.

Kennedy also talked about federalism and how the central government has gained more and more power. In a somewhat disturbing comment, Kennedy said that people run for political office and claim that they support federalism, but he said "do we really want to support the system where the states had a lot of power and institutionalized slavery?" He said that federalism was counterintuitive - we wanted to maximize freedom, so we set up 2 governments.

Kennedy talked about Justice Thomas. He said that people shouldn't worry about Thomas being so quiet, because that's just his style. Thomas knows the record cold, but he would rather let attorneys make their arguments rather than taking up their time - which is limited to 30 minutes a piece.

He talked about writing the majority opinion in the flag burning case - he was really criticized for that and journalists wrote articles about it without reading the opinion. He said that he does respect the flag, but he also thinks that the first amendment is intended to protect unpopular speech.
A man came up to him in Northern California in IHOP and told him that his dad was a prisoner of war, and the guy was an attorney. The attorney's dad walked in with the newspaper article and told his son he should be ashamed to be an attorney. The dad, while in prison in germany, would take pieces of fabric and sew little flags. So the son gave his dad a copy of the actual opinion, which caused his dad to agree with Kennedy.

Tracy, Erin, and I were interviewed after meeting Justice Kennedy by the Ventura County Star. This article was leaps and bounds above the NYT article (which totally took my quote out of context - I would expect nothing less). The journalist asked me if we were disappointed that the Justice didn't address his recent opinion more, giving more analysis and depth to why he wrote what he did. I tried to explain to her that it's pretty typical for justices to avoid talking too much about recent cases handed down or about issues that might come before the court, for fear that it might be inappropriate or signal how they might vote in the future on certain topics. Because of that, we weren't surprised that he didn't get to in depth into his thoughts on the case. She didn't exactly convey that in the article when she quoted me, but you can't really expect much from journalists can you?


Our trial team competed in San Diego this past weekend. Neither team did very well this semester. I think we actually performed pretty well, but these competitions are very subjective, and we know that going in. There's always next year!

On Monday we got some sad news. Dean Starr will be leaving Pepperdine to take up a position as the President of Baylor undergrad. We will all miss him a lot. He has done a lot for the law school here, and he's a very student-oriented dean. I know that Pepperdine will look for a new dean who will work hard to raise rankings just like Dean Starr, but it will be hard to fill his shoes!



Kyle had his 24th birthday on February 6, and we went to Benihana's for dinner. It was a lot of fun. It's a hibachi grill in Santa Monica. The next day we watched the Superbowl together, and Kyle's year has been made after the Saint's won! We didn't get to do Valentine's Day because I was in San Diego for my trial team competition and then I had to finish up my law review article, which has now been submitted. If anyone's interested in reading what I wrote, and what my conclusion was, let me know!