Washington Post

Justice Warns of European Courts

By Bob Egelko
Associated Press Writer
Saturday, Oct. 16, 1999; 8:01 p.m. EDT

STANFORD, Calif. –– U.S. Supreme Court Justice Anthony Kennedy warned Saturday that European courts were gaining too much power.

"European nations are surrendering their sovereignty on a scale never seen before," said Kennedy, who shared a Stanford University podium with fellow alumni Sandra Day O'Connor and Stephen Breyer. "They've committed a tremendous amount of confidence, a tremendous amount of power ... I think, too much, to the judiciary.

"All of the weight of developing this (democratic) consensus is being put on the courts, and this is dangerous for courts. You cannot overload a judicial structure with basic economic and social decisions."

He did not mention any rulings, such as the Sept. 27 decision by the European Court of Human Rights overturning Britain's ban on homosexuals in the military as a privacy violation, an argument Kennedy rejected when he was a federal appeals court judge.

But Kennedy said he would like to be a justice for a day on the separate European Court of Justice, the powerful Luxembourg-based body that oversees European economic treaties, so he could advise its members on the need for judicial restraint.

"Remember, you are in a democratic society," he said he would tell them, "and if you take on yourself all the important decisions in your society, ultimately you will cause a loss of respect for your court, a loss of respect for judicial independence and a loss of respect for the law."

Breyer, a 1994 appointee of President Clinton, normally votes more liberally than Kennedy and O'Connor, both appointees of President Reagan.

But he was cautious when asked by the panel moderator, Stanford Law Dean Kathleen Sullivan, about the effect of foreign courts' gradual assertion of the power to review legislation, pioneered by the U.S. Supreme Court in 1803.

"You hope courts will deal with the power this gives them circumspectly ... to protect basic human liberty," Breyer said.

He said Americans seem to be "reasonably satisfied" with their courts' use of its review power, "but not all people and not completely."

O'Connor, a member of the same 1952 Stanford Law School class as Chief Justice William Rehnquist, drew applause when she said the United States should not be complacent about its own legal system.

"We have a good many citizens in this country who think that justice is for just us, the privileged few at Stanford, the upper class, but not for them," she told an audience of law students and alumni, including at least two former Cabinet members and numerous judges.

"Many African-American citizens think the system operates unfairly. ... We have some work to do."

© Copyright 1999 The Associated Press

© Copyright 1999 The Washington Post Company