Dear Tony,

The Honorable Anthony M. Kennedy

The Supreme Court

Washington, D.C

Dear Tony,

Please forgive the familiar form of address, but I feel like I know you.

I know and respect and like to the high heavens Pat Borchers, former Dean of the law school at Creighton. He clerked for you on the Ninth Circuit. He has nothing but wonderful things to say about you. And, of course, you reviewed two of my partial birth abortion decisions. As I recall you didn’t like them, but, hey, so what? What’s a little disagreement among friends!

Here’s why I am writing Tony. You stirred up a good part of the legal world when you wrote your concurrence in Davis v. Ayala. You purposefully invited a land slide of litigation on the issue of solitary confinement.

You wrote:

In literature, Charles Dickens recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or appreciation for time or his surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a work bench and tools to make shoes, a type of diversion no doubt denied many of today’s inmates.

. . .

These are but a few examples of the expert scholarship that, along with continued attention from the legal community, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total solation exacts a terrible price. See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations,self-mutilation, and suicidal thoughts and behaviors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” ” The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time. 

576 U. S. ____ (2015) KENNEDY, J., concurring, at slip op. for concurring opinion pp. 2, 4-5. (Emphasis added.)

I got to give it to you Tony. Those references to Dickens and Dostoyevsky are killers. Way to go, bud. For legal literature aficionados who hang out in the stacks at Stanford those are home runs! Once again, the legacy that you care so much about is burnished by your brilliance.

Literate and sensitive you are. Yes, sir.

But, Tony, here’s my problem. First, you (and much of the press you follow) really don’t know anything about “solitary confinement” in the real world. For example, I suggest reading Angola 3’s Albert Woodfox, Not Quite the Posterboy for Reform. In that post, Tamara Tabo found that “solitary confinement” is not what you claim it to be, at least not in the former hell hole known as Angola.

But that is not my major complaint, Tony, my friend. My major complaint is this: Who elected you King (or if you prefer, Queen) for a Day? Why are you stirring up solitary confinement litigation? Judges are not Jesuits. You have no roving commission to go about righting supposed wrongs based upon your peculiar conception of morality or religion. Cases are supposed to come to you. You are not supposed to be a crusading creator of cases.

This is personal in another way, my friend. I care about this, Tony, because I manage the pro se docket. I’m the guy who will have to handle the shit storm you unleashed.

I won’t use the acronym that must never be employed when speaking of the likes of you, because, although fitting, I don’t want to spend an inordinate amount of time dealing with twerps from the legal academy. So, Tony, I will, respectfully and only, say please zip the pie hole shut.



PS.  As an aside, Tony, watch out for John Roberts. He is trying to take your place. He is smarter than you are and better looking too! So, you have to figure out something special to handle him. Think, Tony, think!

Let’s end on a friendly and funny note. I know you don’t take yourself too seriously, so I am sure you will enjoy this cartoon*:Kennedy800


*The cartoon is reproduced pursuant to an Attribution-NonCommercial-NoDerivs 3.0 United States (CC BY-NC-ND 3.0 US) license. dhonig appears to be the creator of the work and apppears to claim some interest also. No changes have been made to the image.

32 responses

  1. “This is personal in another way, my friend. I care about this, Tony, because I manage the pro se docket. I’m the guy who will have to handle the shit storm you unleashed.”

    Leaving aside issues of lese majeste, Judge, are you putting your personal comfort ahead of the Eighth Amendment? Or are you telling us that you do not believe that solitary confinement can ever rise to the level of a violation of the Amendment? Or are you wishing that the Justice would keep the dirty little secret from us?

  2. Nope. Even the Supreme Court of the United States needs to remember cases and controversies and its constitutional place:

    My join in the Court’s opinion is unqualified; for, in my view, it is complete and correct in all respects. This separate writing responds only to one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions presented by this case.

  3. Dear Jon,

    No personal comfort is not important. Resource allocation at the district court level is important. Certainly, solitary confinement may pose 8th Amendment issues in given cases. I object to the Justice stirring up Constitutional litigation of any kind so he gets to decide an issue he has cherry picked.

    All the best.


  4. 1. King Kennedy satisifies his fans this week with his SSM edict.

    The most insightful fact I read about Tony from California is his list of great literature and “must reads” included some of his own decisions! Probably looking to add to the canon this month.

    Scalia is the one to read.

    2. “Judges as Jesuits” is alliterative but inaccurate. The Jesuits have never had the power and civil authority as the religious police in Islamic countries. There is no “chop chop” square in Omaha at 24th and California as there is Riyadh.

  5. About eighteen years ago I became interested in the Due process / Eighth Amendment implications of confinement in my state’s supermax facility. It is a very scary place. Having met a client there, I began to wonder if this kind of confinement would lead to insanity. I think Dickens’ American Notes, on the Eastern State Penitentiary in / near Philadelphia goes into a lot of this. If I remember correctly, at the time, there may have been some similar litigation in New York.

    I kicked this around with my law partner and staff. The problem was, and still is, what else do you do with some of these prisoners?

  6. Anon., My reference to the Jesuits was intended to capture the idea that judges are not highly educated theologians whose mission, among others, is seeking social justice. That is, Jesuits are engaged in evangelization and apostolic ministry in 112 nations on six continents. Jesuits work in education (founding schools, colleges, universities and seminaries), intellectual research, and cultural pursuits. Jesuits also give retreats, minister in hospitals and parishes, and promote social justice and ecumenical dialogue. Those things are not the job of the judge.

    All the best.


  7. It appears to me that the priorities in descending order are to protect the safety of the public, other prison inmates, prison staff members and the prisoner responsible for the threat to safety. Why and how should the order of priorities be changed?

  8. Which is why it would be inappropriate for a judge to have a blog in which he commented on various legal issues, or publish an article in a law review. Right?

  9. That sounds like he remembers his constitutional place just fine. He didn’t have any reservations in the decision based on his views on solitary confinement, because he recognized that that issued played no part in the case and controversy before him and the Court.

    I understand Judge Kopf saying STFU (or ZTPHS) because he isn’t looking forward to the flood of pro se litigation Justice Kennedy’s comments might inspire. But I don’t see any principled, much less constitutional, basis to say STFU. If you have a bully pulpit, there’s nothing wrong with using it.

    Do you have the same problem with Justice Thomas’s concurrence in the same case?

  10. Anon. There used to be punishment facility at 24th and California when Prep was there, it was called “Jug.” Has since moved west to 72 St. Also I thought Jesuits wrote “The Hammer of the Witches.” Out of date but once Riyadh like..

  11. Judge, Borchers is in China so he probably can not responded to your kind words, but I know he speaks highly of you.

  12. The Court is not a “Bully Pulpit.” The justices are not to have agendas to promote through their position. The very idea is a malfunction of constitutional understanding.

    Justice Thomas makes the same mistake, but for a different reason. The Constitution would be better served if he pointed out Justice Kennedy’s error.

  13. L, Read the blog please, all of it, and find where I ginned up the filing of cases.

    All the best.


  14. When a trial judge makes gratuitous comments in a judgment, it is a potential grounds for a claim of error on appeal. What is it when an appellate judge makes gratuitous comments in an appellate opinion (Answer: More work for trial judges and trial attorneys to figure out if those gratuitous comments portend a change in law.)

  15. The Court is a bully pulpit, and Justice Kennedy’s concurrence (among many many many many many others) proves it. That you two don’t think it should be is a different matter.

  16. I’ve been reading your whole blog, and I think I’ve read all of it.

    I also read your comment immediately above, where you listed some things that are not the job of a judge, including intellectual research, cultural pursuits, giving retreats, ministering in hospitals and parishes, promoting social justice and ecumenical dialogue. If all of that is meant to be longhand for “ginning up the filing of cases,” it’s very obscure indeed.

    But what you literally said is that intellectual research (inter alia) is not the job of the judge. I find that remarkable.

  17. I was not aware that dicta on a point of law was reversible error, citation please. Do you think this issue needed Kennedy to stir it up, it has been brewing for a long time particularly with regard to supremos?

  18. Judge,

    Unless and until you visit Death Row at San Quentin, I will respectfully have to say that I do not think you know what you are talking about in this case. Judges have pontificated for years. Gosh, there’s even a word for it. Dictum. Tony’s comments will not have 10% the effect of Crawford in terms of people who think they’re entitled to relief. Chill.

    Best, Norm

  19. If you want “Tony” (or, Justice Soprano) to read your gripe, send a letter to his residence. It’s on Wemberly Way in McLean, VA; I won’t publish the street number to keep the Marshals happy, but I’m sure you can find it. If you do write, you might want to remind him what Justice Kagan wrote in Kimble: “[I]n this world, with great power there must also come—great responsibility.”

    Doesn’t that rule also apply to Supreme Court justices, as well? (Of course not, silly me! “Trix are for kids!”)

  20. Pingback: Judge Kopf admits he looks zombie – and the rest of the Federal Judiciary? | zombielaw

  21. repenting lawyer,

    Pat is so smart. So wry. So nice. One of my favorite people in the world.

    All the best.


  22. The difference is that you consider yourself to be a judge. Anthony Kennedy considers himself a roving Philosopher King.

  23. I did say potential grounds — as in appellate court might think that it is actually a significant factor in the decision even though was not properly before the trial court. I have had several cases in which the appellate courts have used stray comments in the oral pronouncement of judgment to decide that the trial court was applying the wrong standard or considering irrelevant material in reaching its decision.

    I can’t think of the last case that the Supremes have issued on solitary confinement, but my comment was more general. An appellate opinion that includes off-topic dicta is basically an invitation to creative attorneys to raise that topic in future cases. Because it basically says that the higher courts are looking to address the issue (but have not necessarily decided it), it creates uncertainty as to what the new rule will be and turns the initial trial of the case into a practice run because nobody knows the correct rule.

  24. TMM, there is a fairly well developed body of case law on judicial review of solitary as discipline going back to cases from Lorton, the old DC prison in the 60s. These problems are not what Kennedy is talking about, he is referring to relatively permanent solitary not imposed for prison discipline but rather involving either death row as quasi permanent residences or super maxs, where there is no settled law and grave reasons for 8th Amendment concern. In this situation I do not see any evil in what Kennedy said. Some signals seem prudent. The problem of statements thought relevant by the trial court and not the appellate court is a different problem, though i have shared on occasion the view in one of the cases in The Uncommon Law that appellate opinions are acts of God which no prudence may guard against.

  25. I am a a lawyer, Hand long ago suggested that the philosopher king problem was inherent in judicial review. Kennedy is far from unique, since Thomas seems to see no role for precedents in Con. Law and Scalia thinks he is the Bridie Murphy of Con Law with a theory of reading that gives him full scope for his own prejudices under the pretense of channeling the Founders. But Marshall stoled the power fair and square so I guess we have to live with it.

  26. If Justice Kennedy’s concurrence is analogous to Judge Kopf’s blog, you have a point. The suggestion is absurd, however. Justice Kennedy should do his musing/blogging on the Internet and not through concurrences.

  27. Judge Knopf,

    As always, I enjoy reading your take, even when I respectfully disagree with you (which I do here).

    Normally I leave the discussion to you and your readers. However, I simply can’t let this conversation pass without making a few comments about the linked column regarding Albert Woodfox.

    Here’s the author:

    “Closed Cell Restriction at Angola limits the inmate to 23 hours per day in a 6-foot by 9-foot space. No doubt that is a tight squeeze. However, I have lived in more than one 10’x12’ studio apartment . . . and I was was (sic) paying exorbitant urban rent for the privilege, not being punished by the State. In CCR, Woodfox is allowed to watch television through the bars of his cell, whereas I didn’t even own a TV when I lived in those shitty studio apartments.”

    One hardly knows where to begin with this. The author may have had a less sanguine view of her supposed 10’x’12 studio apartment — or even developed serious mental health problems — had she been confined there by the state 23 hours a day for decades. I might as well argue that the homeless don’t have it so bad, as I once went camping in a tent and it was delightful.

    But wait, there’s more. Here’s the author again:

    “Woodfox (says) he has been having “panic attacks and is suffering from health problems, including diabetes. It should come as no surprise to anyone who has shared more than small talk with me that I have been having panic attacks and suffering from mental health problems since I was about ten. However, it probably would come as a surprise if my neuroses were the result of a tiny apartment. All these years, I have been paying psychiatrists when what I needed after all was a good real estate agent.”

    Setting aside the absurd glibness of this, need I point out again that there’s a difference between developing health problems independent of the state’s actions, and developing them because of them? (I would also point out that the author appears the idea of Mr. Woodfox’s health problems being linked to his solitary confinement. As study after study has linked mental and physical health problems to long-term isolated confinement, it would appear she’s as gifted a scientist as she is a writer.)

    We can argue for weeks or years about what is and is not solitary confinement in “the real world.” But it seems to me that Justice Kennedy has recognized what the scientific community has known for some time: that these conditions, no matter what label we slap on top of them, are harmful in ways that are profoundly damaging. Whether his comments were appropriate or not, I hope the rest of the judiciary catches up soon.

  28. Re: “The Terminator” post — June 22, 2015 at 9:35 PM

    Inviting everyone to write to a federal judge – let alone to a Supreme Court Justice – at his home address is highly inappropriate. Any lawyer who doesn’t know that much should be severely reprimanded (or disbarred if he/she deliberately ignored that basic rule).

    Even worse is posting part of that home address and telling people they can easily find the remainder online. While that may be true, it reads as though you (“The Terminator”) are deliberately trying to encourage the wingnut element, or to intimidate Justice Kennedy.

    I don’t know what is in your heart or in your head or what your background is — but if you truly believe that is a permissible practice, you are very mistaken.

  29. I don’t really follow your argument, but I did want to mention that, in his testimony before the House Appropriations Committee a couple months ago (he and Breyer testify every year on Supreme Court appropriations), Justice Kennedy made many of the same points, even making the same allusion to Dickens, in response to a question about prisons. Here’s the video: (The first one cuts off the question; you can see the question in this one if you start at the 28:25 minute mark.)

    Now, my question is whether you think that’s inappropriate too.

  30. Why are THEY so thhhhpecial, Anon? Their mansions are featured in galleries of celebrity homes. And if you somehow think that “Tony” is going to be intimidated by a friendly letter from a fellow federal judge….

    And if you recall, I only invited RGK to write “Tony.” Lawyers and facts don’t seem to get along too well. And can you cite a rule that forbids anyone from encouraging learned judicial colleagues to correspond? A case? Didn’t think so.

    Who doesn’t already know that their personal information is on-line? Scalia went nuts when a law professor published an array of information on him, as an object lesson in how little privacy we little people actually have. “Yet the class managed to create a dossier of 15 pages, Professor Reidenberg reported to a conference on privacy at Fordham, that included the justice’s home address and home phone number, his wife’s personal e-mail address and the TV shows and food he prefers.” Unfortunately, they couldn’t find out his taste in porn. 🙂

    Anon, Their Eminences are public servants. You treat them as if they were gods. Scalia has actually been known to correspond with real people. Tony might respond to RGK because he is a colleague. Kennedy’s home address is public information, readily obtainable by anyone with a computer. You can see the house for yourself on CelebrityHousePictures. What’s the big deal?

    I personally think that people should send copies of their petitions for cert to the Justices’ houses. They don’t bother reading them otherwise. They were hired to do a job, and they aren’t doing it competently. We are entitled to better service.

    If I were trying to encourage the wingnut element, I wouldn’t be here. They are found on sites like Clownhall.

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