Justice Kennedy Talks about Deciding Roe in 1973, the “Right to be forgotten,” and Original Intent

June 29th, 2014

In a video-conference discussion with high-school teachers, Justice Kennedy answered a wide range of questions about constitutional law. One teacher asked about Justice Ginsburg’s repeated statements that the Court moved too fast to decide Roe v. Wade in 1973:

Kennedy, himself a McClatchy High graduate, Class of ’54, referred to a statement Justice Ruth Bader Ginsburg made in which she said she wished the court had held off deciding Roe v. Wade, the 1973 case legalizing abortion.

“What Ruth meant was – and she’s right – if we come in too soon, then the public hasn’t framed the issue to where it can understand the opinion. … She didn’t say we shouldn’t have taken the case. We should have, because there is real injury. There was standing. …

“Democracy would be stronger if society reached many of these decisions itself, rather than this commanding from on high what the result is. On the other hand, if there is an injured person, a woman who cannot get an abortion, in the Roe case, and needed it for medical reasons, are we supposed to say, ‘Oh, no, we’re not ready for you yet. You go away.’? ”

Roe was not about medical necessity. I’m not sure if that is what he mean, based on how his comments were transcribed, but that seems to be the most natural reading. Also, standing was premised on the “capable of repetition yet evading review standard.”

In response to another question, AMK talks about the “European Right to be Forgotten.”

Matthew Hodgins, of Oak Ridge High School, asked about issues the court will confront in years ahead.

“If you had asked me that 10 years ago, I would have been so wrong.

“I think problems that arise out of the Internet. There is a law in Europe that there is a right to be forgotten. … Do you have that right? …

“International conventions. To what extent can international conventions supersede American constitutional structures.”

And there was this question about “original intent”:

Jed Larsen, of Kit Carson Middle School, asked about the importance of original intent.

“It is of tremendous importance. The framers wanted to preserve freedom. …

“The nature of injustice is you can’t see it in your own time. I don’t think the framers presumed to know all the elements of a functioning democracy. … They used words that were very expansive. Liberty. Due process of law.

“I don’t think they intended simply to insist that we find out what they believed and then apply it with great liberal force. The interpretation of the Constitution has to be the starting point.”

Commence reading tea leaves.