Retiring Justice Anthony M. Kennedy was not only at the center of an ideologically divided U.S. Supreme Court but was often its heart, with questions from the bench addressing the human toll of the issues before, former Maryland attorneys general said in recalling their arguments in front of the justices.
“With Justice Kennedy, the feeling was always that he was not necessarily reliably in either (ideological) camp, that he was open minded,” said Douglas F. Gansler, who served from 2007 to 2015. “You thought he was persuadable on the facts and his interpretation of the Constitution.”
J. Joseph Curran Jr., Gansler’s predecessor, said that during his two arguments before the high court, Kennedy was an “intense” questioner, whether addressing the potential trauma of a child being compelled to testify in open court or the embarrassment of a hypothetical family being ordered out of a car during a traffic stop.
“I had a very strong, positive feeling about Justice Kennedy,” said Curran, who served as attorney general as long as Kennedy was on the Supreme Court – 30 years.
The attorneys general’s reflections on their Supreme Court arguments followed Kennedy’s announcement Wednesday that he would step down from the bench on July 31. The 81-year-old appointee of President Ronald Reagan took his seat on the Supreme Court on Feb. 18, 1988.
Gansler recalled his winning argument on Oct. 5, 2009, that police did not violate a criminal suspect’s constitutional rights by questioning him again about an alleged sexual assault more than two years after he said he would not speak to the officers without an attorney present. Michael Shatzer made an incriminating statement during that controversial conversation.
The high court – in a decision Kennedy joined — ultimately held in Maryland v. Shatzer that police must wait just two weeks before the resume questioning of a suspect who asserts his right to an attorney or to remain silent.
But during arguments, Kennedy pressed Gansler on whether police should have remained bound by Shatzer’s request because he was in prison – and presumably under law enforcement control — on an unrelated offense for those more than two years.
“The possibilities for coercion or pressure are very substantial in the prison,” Kennedy said to Gansler. “I mean, there’s countless ways in which a prisoner in the general prison population would consider that he is – that there has been no break in custody.”
Kennedy’s “questions went to the crux of the issue at bar,” Gansler said, adding that the justice was essentially telling him that “we want to make sure that a confession is reliable and that there was no coercion” by police.
“That is where a judge in the middle would come from,” Gansler said.
Curran successfully argued Maryland v. Craig, in which the court held 5-4 that a child witness can testify via closed-circuit television without violating the constitutional right of criminal defendants to confront their accuser. Curran, attorney general from 1987 to 2007, also won in Maryland v. Wilson, in which the court held that police can order passengers out of the car during a traffic stop.
During the April 18, 1990 arguments in Craig, Kennedy agreed with Curran said the state had a compelling interest in protecting vulnerable child victims from the additional trauma of having to testify in court.
“I should think that some trial attorneys would find it much easier to cross-examine the child in an environment where very few people are present and where just the camera is present,” Kennedy said.
In Wilson, Kennedy voiced concern on Dec. 11, 1996, about a hypothetical family’s embarrassment and inconvenience at being told to get out of the car on a busy road.
“It’s not just physics, it’s privacy and dignity, and we all know that the police will take our decisions as far and their language and logic permit, and I’m just concerned that you’re going to have routine practices of whole families and four or five occupants of the cars being required to stand outside while the officer lectures the driver,” Kennedy told Curran. “I mean, that’s just going to happen, isn’t it?”
Kennedy ultimately dissented in the high court’s 7-2 decision that a police officer’s asserted need to ensure his or her personal safety trumps a passenger’s constitutional right to be free from unreasonable seizure when he or she would prefer to stay in the car.
“He was intense in the arguments,” Curran said. “Justice Kennedy was certainly a very wise choice by President Reagan.”