The big legal news while I was out last month was the announcement that Supreme Court Justice Anthony Kennedy, the crucial swing vote, was retiring from the court. I had a chance to listen to Justice Kennedy speak back in 2014 in Berkeley and ask him a question about judicial term limits (he was open to them).

Interestingly, his 2014 talk focused on his concerns about the U.S. citizenry taking our democracy for granted. As I summarized at the time:

But Kennedy turned more serious when discussing the state of politics and culture in the country. In short, he is quite concerned, even alarmed, at what he perceives to be the lack of civility in the country and even worse at the lack of appreciation among younger generations of our “heritage of freedom.” He said our democracy is still vulnerable, people around the world are watching us, and it’s incumbent that we teach the younger generation to appreciate what we have. He cited the example of a former communist country where democracy is breaking down and alarmingly, no one seems to care. He also described how at least in communist Poland great thinkers went into teaching and instilled democratic values in students for decades, whereas our educational system is now lagging.

Justice Kennedy with former Berkeley Law dean Sujit Choudry in 2014

Given his concerns about declining civility and attacks on democracy, it’s surprising he decided to retire when his successor will be appointed by probably the most uncivil president we’ve had in generations, who regularly attacks our democratic processes and institutions. But then again, Justice Kennedy is 81 years old and likely has strong personal reasons for stepping down now.

And in the interest of accountability, I’d also note that my take on his remarks at the time appears to be spectacularly wrong:

I found his sense of alarm surprising and something I don’t share to quite that degree. Sure, there are lots of reason for pessimism about the state of the U.S. But I don’t see our democracy as under threat from a sleep-walking public. I think our governing institutions are basically working as intended.

Given what we’ve seen so far from this administration in terms of its commitment to democracy (with candidate Trump claiming the presidential election would be “rigged” and taking no interest in investigating potential foreign interference in our elections, among other transgressions), I’d say I was pretty off.

Meanwhile, Kennedy’s retirement carries some significant implications for climate and energy law, which I’ll discuss in a subsequent post.

Happy Summer!