Justice Kennedy Reveals Jokes, Surprise Encounters in New Memoir

In February 2016, Justice Antonin Scalia visited Anthony Kennedy’s Supreme Court chambers to apologize for his sharp dissent in a landmark same-sex marriage ruling.

Scalia said he deeply regretted the tone of his dissent in Obergefell v. Hodges and ended the exchange with an uncharacteristic hug, Kennedy recounts in his new book, “Life, Law & Liberty: A Memoir.”

“The visit became a pleasure, even a landmark, for both us,” Kennedy, 89, recalls of their last encounter about a week before Scalia died in his sleep during a Texas hunting trip.

Kennedy, an appointee of President Ronald Reagan who served 30 years as a justice before retiring in 2018, offers no bombshells about his tenure as the Supreme Court’s pivotal swing justice. But Kennedy does include a few colorful anecdotes in the memoir scheduled for publication Oct. 14.

Unexpected Encounter

As a Ninth Circuit judge, Kennedy wrote a unanimous opinion that suspended deportation proceedings against Jagdish Chadha, who overstayed a student visa, in a decision later upheld by the Supreme Court.

A few years later, Kennedy was visiting San Francisco during a court sitting and stopped by Tower Records to buy some CDs for his wife. At the checkout counter, the clerk looked at his credit card and said, “Are you the Anthony Kennedy who is on the Court of Appeals?”

The clerk then explained that he was Chadha, “the one you allowed to stay in this wonderful country.” Chadha insisted Kennedy take the CDs for free—and go get some more, an offer Kennedy politely declined.

Red Phone

Kennedy reveals that he had a red phone in his chambers for emergencies, which rarely rang—until the day it finally did.

“I immediately picked up the phone. It turned out to be a prisoner in Ohio,” Kennedy wrote. “He had somehow gotten the number and was calling me to discuss a recent ruling that he disagreed with.”

The conversation was short; the caller recognized Kennedy’s reluctance to talk about the opinion. Nevertheless, the caller enjoyed it enough to phone again one or two more times, Kennedy said.

Practical Joke

Chief Justice John Roberts made Scalia the target of a practical joke early in his tenure during the justices’ private conference where they were to discuss a case involving illegal drugs found by a dog trained to react upon sniffing them.

At the start of the conference, Roberts said he wanted to show his colleagues one of the Supreme Court police dogs trained to detect gunpowder. The dog went straight to Scalia before starting to bark.

Only then did Roberts reveal he had planted one of the substances used to train the police dogs under Scalia’s chair. “All of us, including Nino, soon were laughing when the Chief confessed his ruse,” Kennedy wrote.

Highest Court

Chief Justice William Rehnquist handed Kennedy a tough assignment: figure out how to fix the Supreme Court’s basketball court. The linoleum floor overlaying a concrete slab had “resulted in many twisted ankles, torn ligaments, and the like.”

Government construction officials told Kennedy a solution would cost $250,000, which he considered to be “unacceptable.”

Then a solution unexpectedly presented itself when a women’s collegiate basketball team visited the court as part of a Washington tour after winning the national championship. Their coach told Kennedy a rubber mat under the linoleum would improve flexibility and reduce injuries.

The court was repaired, using attorney admission funds, Kennedy noted, rather than taxpayer dollars.

Still, Justice Clarence Thomas arrived one day in the robing room on crutches and with a cast after pulling a tendon on the court.

Kennedy joked to Justice Byron White, a former pro football player, about whether he’d injured Thomas. “If I had, it would have been both legs,” White replied, to which Thomas “roared with laughter,” Kennedy said.

Missing Scalia

Kennedy writes that Scalia’s widow Maureen later recounted why he was one of the first people she called after her husband’s sudden death in 2016.

“A week or so ago, when Nino was getting ready to leave for Texas, he came home to dinner,” Kennedy recalls Maureen Scalia telling him. “He was happier than he had been in months. He told me it was because of your conversation together. He was still excited and joyous when he left for the trip. Thank you.”

For Kennedy, the lesson was, “If friendships are slipping away, we must renew them soon, lest time does not permit us to celebrate them for long.”

“Nino and I spent twenty-eight years on the Court together,” Kennedy wrote. “We sometimes agreed and sometimes disagreed, but I respected him and miss him very much.”