The Nine [101]
One day, after Bush v. Gore, Kennedy had lunch with Richard Goldstone, a former justice of the South African Constitutional Court who was in Salzburg to deliver a lecture and, like Kennedy, was eager to meet his foreign counterparts. The two men dined on the second floor of the Schloss, in a room adorned with mirrored panels and gilt sconces that had been reproduced on a soundstage to create the von Trapp ballroom.
“Do you know any of the Russian judges?” Kennedy asked Goldstone. “They are so resilient.”
“I’ve met good and bad. Now the court belongs to the president,” he said, referring to Vladimir Putin.
Kennedy mentioned that he was on the board of an American Bar Association group that advised judges and lawyers in China, where he traveled about once a year. “There was a dinner for one of their vice premiers,” he said. “I knew that I had to give a gift. We don’t have a budget for these things, so I went down to the Supreme Court gift shop, and I found one of these calendars. It was in a nice leather case, and it had some anniversary from American constitutional law for every day of the year. So we’re at this dinner, and I present the calendar to him, and he’s so pleased, so I just say, ‘When’s your birthday? Why don’t you look it up?’ And he says whatever the date was and hands the calendar to the interpreter. So the interpreter just stands there. He looks at me. He looks around. There was this silence. Clearly, he doesn’t know what to do. So I say, ‘Read it, read it.’ And the entry is for Dennis v. United States, affirming prison time for eleven American Communists. There was this silence again. My security guy headed to the door. Then the guest of honor just laughed and laughed.” Kennedy laughed too, adding, “I am not a world-class diplomat.”
These kinds of exchanges went on in Washington as well. Because Rehnquist more or less forbade discussions of Court business at the justices’ regular lunches, and because the justices could feign interest in one another’s grandchildren for only so long, they started inviting guests. The visitors included Kofi Annan, Condoleezza Rice, Henry Kissinger, the historian David McCullough, the soprano Cathy Malfitano, and Alan Greenspan (the only repeat invitee), but the most frequent guests were foreign judges. Goldstone was one, and so was Aharon Barak, the chief justice of Israel, as well as other lesser-known jurists. In the immediate post–Cold War period, these judicial exchanges may have started as a way of exporting American constitutionalism, but in time the ideas traveled in both directions—with a profound impact on the Court.
The two-way dialogue pushed the Court—and especially Kennedy—to the left. The United States is the most conservative democracy in the world, with a broad national consensus in support of limited government and low taxes. Virtually all other democracies, in Europe and elsewhere, are committed to a more robust public sector, favoring, for example, national health care as well as higher taxes. Accordingly, the judges in other countries tend to be more liberal than their American counterparts. The contrast is especially stark on the death penalty. Not only have virtually all democracies abolished capital punishment, they have tried to ban the practice from their community of nations as well. All countries seeking membership in the European Union must renounce the death penalty. Among many European judges, executions inspire not just opposition but revulsion. Kennedy’s voting shaded along with his eyeglasses—out with the seventies-style steel-framed aviators, in with a Euro-chic frameless model.
In the new century, such cosmopolitanism came at the Court from several directions, and a new generation of law clerks brought a new attitude toward homosexuality. In this period, gay