The recent SC ruling in the US has provoked a lot of comments and discussions. Justice Anthony Kennedy has proved his mettle once again much to the chagrin of the Neanderthals like Bobby Jindal who have forsaken all grace and decorum, and made some distinctly unworthy comments on the Supreme Court! Jindal's idol Clarence Thomas known for his regressive views and absence of judicial scholarship expectedly voted against the provision along with Justice Scalia, another hardcore conservative, Chief Justice Roberts and Justice Alito.
While the 5-4 judgement itself would be undoubtedly subjected to intense scrutiny, there are certain thoughts that come to my mind. I recall reading how two vacancies suddenly sprung up in the US Supreme Court in President Eisenhower's time. He nominated a lawyer William Brennan as a judge and a diehard Republican politician called Earl Warren as Chief Justice to fill the positions. Earl Warren as the Governor of California was so conservatively inclined that he had passed the executive order to intern all Japanese-Americans during the War.
The famous Brown vs. Board of Education case on the constitutionality of segregation in schools was due to come up in the Court and Eisenhower was keen to ensure that the Supreme Court would rule to keep segregation alive. Everything seemed set to uphold the constitutional validity of segregation.
In the night before the judgement Warren went for a long drive into the Virginian countryside. As it had become foggy, he decided to check into a hotel. The next morning he found his chauffeur shivering away in the car as no hotel/motel would have allowed an Afro-American to check in.
That was the moment of epiphany. Warren was immersed in deep thought during his drive back to Washington, DC. He reached the courts summoned all his fellow judges and impressed upon them that segregation was morally reprehensible which the constitution should not permit and that he wanted a unanimous 9-0 ruling. And so it was to the utmost astonishment of all observers. Warren and Brennan established themselves as shining moderates throughout their long judicial careers.
President Eisenhower in particular was specially disappointed with his appointments.In 1961, when he was about to demit office, a reporter once asked him whether he had committed any mistake as a president to which he very publicly retorted, "Yes, I have committed two-and both are in the Supreme Court."
I remember very clearly how as a newly qualified barrister, I was deeply concerned at Kennedy's appointment. He was nominated by default-Douglas Ginsberg the original nominee withdrew his nomination after disclosing that he had smoked pot as a teenager. Kennedy was seen as a conservative who would carry out Reagan's right-wing agenda, who nominated him to the Supreme Court.
Time and again Kennedy proved sceptics like myself wrong. His was the swing vote to keep Roe vs. Wade (right to abortion) alive, he wrote an absolutely brilliant judgement in Texas vs. Johnson on freedom of expression and he was the author of the judgement delivered yesterday. The analogy with Earl Warren is striking. Both were appointed to the apex court Bench for their conservative views and both proved their detractors wrong. It was only recently I came to know that Kennedy had served as a junior to Warren in his student days.
I the reckoning of a humble barrister like myself, Lord Scarman and Kennedy would qualify as the greatest judges the world has seen in the last 50 years. We all owe a huge debt of gratitude to this great propagator of judicial wisdom! And he is 79 years old!