In a reference to global poverty and failed states, U.S. Supreme Court Justice Anthony Kennedy said July 31, "The rule of law today is in mortal danger."
Kennedy addressed the closing session of the annual Judicial Conference of the 9th U.S. Circuit Court of Appeals with a warning that two-thirds of the people of the world live outside the rule of law.
"Our security is at risk and our humanity is at risk," he told the ballroom of several hundred lawyers and judges from around the West.
Kennedy touched on how international law has influenced him, a subject that has subjected him to criticism in Congress and among conservative commentators. He said he believes the Court's recent Second Amendment decision on the private right to keep weapons, District of Columbia v. Heller, No. 07-290, will become one of the Court's great teaching opinions.
But he focused much of his talk on the lack of access to protection by the rule of law to billions of people around the world.
"Many people around the world live in failed states, where they look at law as an obstacle and not a promise," Kennedy said. He cited the rape victim in Uganda who must pay $5 to file a police report, or places where international aid is siphoned off by gangs and thugs.
If the situation does not change in the next decade "globalization will become a danger to us," he said.
Kennedy referred to the capital punishment ruling that brought him the most criticism over international law. In the 5-4 decision in Roper v. Simmons, barring executions of juveniles between 16-18 years old, Kennedy wrote that the position was affirmed by other countries. This drew an outcry from some in Congress who suggested the U.S. was deferring to international law.
"We are obligated to let people know what is shaping our thinking," Kennedy said. He wondered aloud whether he should hide that he has read French philosophers, for example.
"It is silly, this kind of know-nothing attitude," he said.
Kennedy declined to speculate on how America's conduct of the war on terror was affecting U.S. stature internationally, saying he had no basis to judge.
He received a round of applause when he added, "Our stature is enhanced when a U.S. court says we do have authority to determine these issues."
Kennedy opened with an endorsement of 9th Circuit Chief Judge Alex Kozinski by saying, "I am proud that the chief judge, Alex Kozinski, was my law clerk."