Justice Kennedy on 5-4 Opinions and “Drawing Down on the Capital of Trust”

October 10th, 2013

In a great interview with Jess Bravin, Justice Kennedy offers these comments about the difficulty of writing a 5-4 opinion that half the country will disagree with.

Q: You are in the majority more than any other justice, meaning that you cast the deciding in vote in most of the controversial cases. How do you view that responsibility?

A: When you take that vote and it’s a difficult case and, say you’re in the majority, 5-4 or 6-3, there are not a lot of high fives and backslaps. It’s a moment of silence as you realize that in a difficult case, you are going to have to write an opinion that commands the allegiance of the polity. We are judged by what we write. We don’t go around giving speeches about how great our opinion was. If it is a difficult opinion where half of the country is going to be in strong disagreement, sometimes more than half the country, we draw down on the capital of trust.

I haven’t heard of the image of the Court of the Court drawing down on the capital of trust. Of course, this may help explain the Chief’s vote in NFIB. He didn’t want to deplete the Court’s reserves of trust. Justice Kennedy though seems to have a never-ending supply of trust.

AMK had related comments about how diversity on the bench adds “legitimacy.”

Q: The Supreme Court for the first time includes three women and black and Hispanic members. Is that new diversity benefiting the court?

A: Sure, I think it’s helpful that we have different points of view. I’m not sure that rigid categories of gender and ethnic background are always proxies for diversity, but it gives legitimacy to what the court does. [Still], it used to be that diversity was geographical. [Nowadays], I’m the only justice from west of the Mississippi, [while four justices come from New York City].

Oh I wish he would’ve elaborated on that. Kudos to Jess for a great get.