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.

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