Supreme Court justice Anthony M. Kennedy had stayed up until 4:45 AM the night before he spoke at John Marshall Law School, grappling with a capital-punishment case. He explained to his audience of students, faculty, and judges that the American people like the idea of having capital punishment, but they don’t like the actual killing. His voice was tight and you could hear him exhale, as if he was forcing his words out.
Then Kennedy stopped smiling and said in a fatherly way, “That’s a very nice question. You know, I think I still don’t understand the extent to which we are the prisoners of our own biases and our own generation. When I attended law school, out of a class of 500 we had 5 women. We had a professor who had a rule that he would not call on women. They were free to volunteer. And to make up for this, we had ‘ladies’ day in which the ladies would conduct the classes.” He leaned out over the lectern, his indignation building. “And there were songs and music–and we thought of it as a joke. And even my lady classmates did not really think of it as a fundamental affront to their human personality.”
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We do not see why the State’s interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. … But we are satisfied that the requirement of these tests permissibly furthers the State’s interest in protecting potential human life, and we therefore believe [the Missouri statute] to be constitutional.
No one took the opportunity to ask Justice Kennedy how soon he and his colleagues would be afforded the occasion.
