Kennedy's Assault on Editorial Writers

By Charles Lane
Monday, April 3, 2006

Although the Supreme Court tries to make its opinions as clear and convincing as possible, its decisions do occasionally come in for criticism on the editorial pages of the nation's newspapers.

For the most part, the court has absorbed its negative reviews stoically. But one justice, Anthony M. Kennedy, apparently has had enough of the slings and arrows. Lately, he has been publicly lashing out at editorialists who, he says, write as if they have not even read the court's opinions.

Last week, he addressed the American Society of International Law in Washington. In response to a question about how the organization could enhance public understanding of the role of foreign law in Supreme Court opinions -- a controversial topic of late -- Kennedy replied: "One thing you can do is suggest to editorial writers that they read the opinions before they write their editorials."

Daily news reporters, despite deadline pressure, do a reasonable job of explaining what the court did, though "not why we did it," Kennedy observed. But, he said, editorial writers, who "do not have the excuse of time pressure," frequently "misinterpret" the court's reasoning.

It was the second time that Kennedy had publicly bashed editorialists for not reading the court's words. He first made the charge at the American Bar Association's symposium on the international rule of law in November.

Kennedy cited no specific editorial or newspaper, so it was not clear exactly what he had in mind. Editorial writers at major newspapers said they were mystified.

Fred Hiatt, The Washington Post's editorial page editor, said that his staff reads "all the court's opinions before writing our editorials. If he thinks we've made mistakes, I'd love to hear from him."

"I wouldn't dream of writing an editorial about a Supreme Court opinion without reading it," said Steve Chapman, who has been the Chicago Tribune's editorialist on court issues for almost 20 years. Chapman says he relies on the opinions for the facts of each case and the litigants' legal arguments. "Maybe I'm weird, but I love reading Supreme Court opinions," he said.

At the New York Times, Adam Cohen, a Harvard Law School graduate who writes that paper's legal editorials, said, "I don't know who he's referring to, but I don't think it would be fair if he's referring to us." Cohen said he reads not only the opinions but the briefs in every case.

"It's kind of ironic, because I'm right now working on a piece about Justice Kennedy, and I'm reading all of his opinions," Cohen added.

A Long-Shot Case Against Kissinger

It has been more than 32 years since Chile's armed forces toppled the elected government of Marxist President Salvador Allende. But the repercussions continue. The latest example: a long-shot Supreme Court case against Henry A. Kissinger for alleged complicity in the murder of a Chilean general.

In October 1970, Gen. Rene Schneider was commander in chief of the Chilean army, but rightists considered him soft on Allende, who had not yet taken office. He was killed during an attempted kidnapping by coup-plotters who had previously received covert U.S. support at then-national security adviser Kissinger's direction.

A Senate committee found in 1975 that U.S. support had been withdrawn by the time of the murder, and that U.S. officials did not seek Schneider's death.

Schneider's heirs, however, do not accept that account. On Sept. 10, 2001, they filed a wrongful death suit against Kissinger and former CIA director Richard Helms (since deceased and dropped from the case) in the U.S. District Court in Washington. Their complaint alleged that Kissinger's "intentional acts were the proximate cause of Gen. Schneider's death."

Lower courts have dismissed the case, ruling that it raises a "political question" beyond the competence of the courts. But in their appeal to the Supreme Court, which is on the agenda for the justices' April 14 conference, Schneider's sons Rene and Raul, and the personal representative of his estate, Washington lawyer Jose Pertierra, argue that the political question doctrine should not "preclude the adjudication of violations of individual rights."

The Bush administration has taken up Kissinger's defense, because the suit stems from allegations about his conduct while a U.S. official. Solicitor General Paul D. Clement's brief urges the court to uphold dismissal of the suit because it "would necessarily require a court to evaluate the reasonableness of the President's broader decision, at the height of the Cold War, to take actions to prevent a Marxist-led government from taking power in Chile." Historians may never settle that question. And, the administration argues, the courts should not try.

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