Kennedy to Ninth: Sentencing Still an Issue

Sure Anthony Kennedy has been touted — perhaps against his wishes — as the U.S. Supreme Court’s swing vote (“It implies inconsistency,” he said Monday morning), but Justice Kennedy made his feelings on one major issue quite clear in his speech to open the Ninth Circuit Judicial Conference in Huntington Beach.

“The fact that the prison guards association lobbies for stronger sentences is sick,” Kennedy said.

The comment came toward the end of an expansive talk that touched on former colleagues William Rehnquist and Sandra Day O’Connor, as well as on the mechanics of the Supreme Court.

Kennedy is a longtime critic of U.S. sentencing policy, and lamented politicians’ slinging of soft-on-crime allegations as a key reason that “our sentences in the United States are, by a factor of eight, more severe than comparable sentences in European countries.

“I just don’t understand it,” he continued.

Kennedy, the court’s last remaining appointee from the West — and a former Ninth Circuit judge — got a warm reception from the crowd of judges and lawyers attending a conference that comes under the shadow of renewed efforts to split up the Ninth.

And while those efforts are largely unpopular among the crowd, Vikram Amar, a professor at Hastings College of the Law, pointed out in a subsequent presentation that the Ninth — whether by virtue of its size or now-fading reputation as a liberal bastion — is always granted close scrutiny.

The Supreme Court “continues to take more cases from the Ninth Circuit than its share of the national caseload would suggest,” he said.

“I don’t think there’s anyway around the fact that the Supreme Court keeps a close eye on what the Ninth Circuit does, and is more critical of its work product,” he added.

Justin Scheck


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