by Bradley Parsons
Staff Writer
ORLANDO — U.S. Supreme Court Associate Justice Anthony Kennedy used his Friday address to the Florida Bar to sound a rallying cry for the defense of an independent judiciary.
During his keynote address to the convention at the World Center Marriott in Orlando, Kennedy repeatedly used the term “attack” to describe growing criticism aimed at the bench from state and federal legislatures.
The attacks take the form of legislation that seeks to circumvent judicial decisions and political campaigns against judges up for election in retaliation for unpopular decisions, said Kennedy.
Dealing with criticism is nothing new for the judiciary, he said, but the latest attacks are unique in their purpose: to try to bend the decision making of the Judicial Branch to the political and moral will of the Executive and Legislative branches.
“Judges and their decisions are not immune from criticism,” said Kennedy. “But suppose the criticism is aimed, not at the decision, but at the judiciary itself.
“Don’t criticize the process. Recognize that the decision has been made following a fair, open and honest process. When judges are attacked in an unreasonable fashion, then it’s the responsibility of the Bar to, in a professional, disciplined way, explain the meaning of the rule of law.”
Ironically, the attempts to reshape the judiciary come at a time when developing democracies around the world are trying to copy the U.S. model, said Kennedy. He said the world was entering “an era of constitutionalism” with countries from the Middle East to Eastern Europe attempting to pattern their judiciary after the independent body found in America.
The foundation of the American system is rooted in the separation of powers guaranteed in the Constitution, said Kennedy. He said he was concerned that the Legislative and Executive branches seem to be more and more willing to interfere with the country’s judiciary.
“We must not put our Constitutional protections at risk,” he said. “History shows us that they are slow to come back.”
Kennedy felt comfortable in asking for the help of the Florida Bar, he said, because judges and lawyers share a common background in the organization and others across the country. American bar organizations are unique in that their membership comprises both lawyers and judges, he said, adding that most other countries ask their law school graduates at graduation to choose which side of the bench they will serve. “It’s a particular honor for me to address the state Bar because my roots are in the Bar,” said Kennedy. “It has been 30 years since I practiced, and I still miss it.”
Lawyers would be acting in their own interest in rallying to the defense of the judiciary, said Kennedy.
“Lawyers can’t think and act like lawyers unless judges are allowed to think and act like judges,” he said. “The idea of judicial independence is not so a judge can do whatever he or she wants. It’s so a judge can do what he or she must do.”