Justice Kennedy on Vanishing Big Civil Suits

Anthony M. Kennedy
Anthony M. Kennedy (Supreme Court)

U.S. Supreme Court Justice Anthony Kennedy says the court’s upcoming 2011 term seems to have fewer high-dollar civil cases involving big business.

“The docket seems to be changing,” he said in a rare session with four reporters invited to meet with him during the 9th Circuit Judicial Conference Monday.

“A lot of big civil cases are going to arbitration,” he said.  “I don’t see as many of the big civil cases.”

And arbitration is something the high court has supported as recently as April when it approved AT&T Mobility’s consumer arbitration contract despite a California law that held the contract terms unconscionable. 

Kennedy was in Carlsbad, California to talk about art and the law during the annual judicial conference of the 9th US Circuit Court of Appeals, with roughly 600 federal judges and lawyers.

But in the wake of the high court’s decision this spring that California’s overcrowded prisons amount to cruel and unusual punishment, Kennedy also reiterated to reporters his concerns about excessive prison sentences.
Harking back to the 2004 American Bar Association’s Kennedy Commission report that recommended sentencing reforms, he told reporters, “The legal system is obsessed with guilt or innocence.  But there are no courses in law schools about punishment. 

He noted “some of the most interesting suggestions [from the 2004 commission] came from prosecutors.”  Kennedy said prosecutors were particularly concerned about the potential for abuse of mandatory minimum sentences.  Kennedy previously has said society should rethink sentencing.

He declined to comment on the California Legislature’s response to the court’s prison overcrowding decision, Brown v. Plata, pointing out that the case could still come back to the high court. 

California currently has about 150,000 inmates crowded into facilities designed for about 90,000. By a federal court order, its 33 prisons need to reduce the total population by 30,000 inmates.

 The state Legislature has focused on transferring inmates from state prison to local county jails and building new prisons to resolve overcrowding. It has not confronted sentencing reforms.

Kennedy came to the conference to talk about art, not prisons, with his former colleagues on the 9th Circuit, where he once served as an appellate judge before elevation to the Supreme Court.

 In his remarks to the jurists, he linked artists through history with past justices of the Supreme Court. At one point he told the packed ballroom, “If you want to know what a judge is like, read his dissents… there is a self-portrait in the dissents.”

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