Supreme Justice Kennedy Speaks On Gay Marriage and Shutdown on Interview

 Comments Come in Address to Students at University of California Washington Center

Supreme Court Justice Anthony Kennedy said he was surprised the issue of gay marriage came to the high court so soon, before the nation had time to become more accustomed to the idea.

Justice Anthony Kennedy speaks at the University of California Washington Center.

 Beth Greene/University of California

WASHINGTON—Supreme Court Justice Anthony Kennedy said he was surprised the issue of gay marriage came to the high court so soon, before the nation had time to become more accustomed to the idea.

Justice Kennedy, often the deciding swing vote on important decisions, in June wrote the majority opinion striking down the 1996 Defense of Marriage Act—the third pro-gay-rights opinion he has written since 1996.

This week, speaking at the University of California Washington Center, where he addressed students after the start of the Supreme Court’s 2013-14 term, Justice Kennedy said that he never expected same-sex marriage to emerge as a cutting-edge cause—or that he would be recognized as the legal champion of gay rights.

“Most of us, even in your own young lifetimes, probably didn’t talk much about it,” he told the students. “So I think all of us were surprised at the speed of the thing.”

In some ways, he said, it was unfortunate that the issue arrived at the court so soon, instead of at some future date when society may have been more acclimated to same-sex marriage.

“We come in too soon and too broad, we terminate” the democratic debate, Justice Kennedy said. On the other hand, he said, “suppose you have a person with an injury, a person is hurting. He comes to court seeking relief.” The court could say, “You go away for 10 years, then I’ll see you,” Justice Kennedy said. “That would be maybe better for the court,” but the individual might be denied his or her rights in the interim.

Justice Kennedy, a Sacramento, Calif., native, was appointed in 1975 by President Gerald Ford to the Ninth U.S. Circuit Court of Appeals in San Francisco. In 1988, President Ronald Reagan elevated him to the Supreme Court.

The justice most often casts the deciding vote in cases that split the nine-member court along ideological lines. Although he generally sides with the court’s conservative wing, he has broken with it on some high-profile cases.

Justice Kennedy, answering questions from students and a moderator, also called on the White House and congressional leaders to resolve the federal budget impasse, saying a prolonged government shutdown could imperil public safety at home and undermine America’s influence abroad.

“You must chart a reasonable, rational course. You can’t just have name-calling and posturing,” he said at Monday’s event.

“The rest of the world is watching. Half of the world is deciding whether they want democracy or not,” Justice Kennedy said. “And they are looking at you to see what that verdict ought to be.”

The Supreme Court itself, which accounts for a tiny fraction of the federal judiciary’s budget, could continue to operation at least through the end of the year, he said. But the budget stalemate was jeopardizing many of the judicial branch’s routine functions, he said, including parts of the criminal-justice system.

“When they cut our funds, the courts, the first thing that goes are the probation officers,” he said. “And then we have an unsupervised criminal population. That’s very dangerous.”

Justice Kennedy also criticized the Senate for injecting ideological tests into the confirmation of federal judges, often stalling lower-court nominations for months and even years.

“It’s become too politicized, in my view,” he said. “The Republicans, I think, started it in the ’70s, asking what the district judge [nominee] thought about the right to life. I don’t think it makes any difference what the district judge thinks about the right to life—he’s not going to decide it, anyway,” Justice Kennedy said.

The justice made comparisons between gay rights and abortion rights. Some critics, including Justice Ruth Bader Ginsburg, have said the 1973 Roe v. Wade decision recognizing abortion rights may have contributed to polarization over the question.

“There wasn’t even the opportunity for different people to formulate their views or the polity to express its view, and she [Justice Ginsburg] was quite right about that,” he said.

All three gay-rights decisions have pitted Justice Kennedy against his fellow Reagan appointee, Justice Antonin Scalia. They have disputed not only the result, but also the method of constitutional interpretation used to reach it.

Justice Kennedy criticized the method Justice Scalia champions, originalism, which involves attempting to apply constitutional text as its authors would have understood it when it was adopted.

“I don’t think Madison and Wilson and the members of the drafting committee spent a lot of time with the dictionary. I think they wrote in expansive terms: Life, liberty, property,” Justice Kennedy said.

“You have to recognize that if the framers [of the Constitution] knew all the specifics of a just society, they would have written them down. They didn’t do that. They weren’t so cocksure,” he said. “But they had some very strong ideas, and they used words that appeal over time to our sense of justice and our sense of freedom.”

By example, he cited the 1954 Brown v. Board of Education decision, which held racial segregation in public schools unconstitutional—even though it had been practiced for centuries. And yet, even when the ruling was delivered, Justice Kennedy said he was himself blind to other forms of discrimination still in play.

“I thought, ‘Injustice is over! No more discrimination!’ ” he said. Yet he then assumed his sister would have a career as either a nurse or a secretary. “The nature of injustice is you can’t see it in your own times,” Justice Kennedy said.

When asked what injustices he saw today, he cited the criminal-justice system, which he said emphasizes harsh punishments over rehabilitation. “It isn’t working,” he said.

By Jess Bravin
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Write to Jess Bravin at jess.bravin@wsj.com