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I think the Supreme Court got it right, but it was far from inevitable. The words of the Second Amendment are clear in one way, but I think they could be rationally interpreted the other way as well.
reason: You’re also a big fan of the First Amendment, and Chief Justice John Roberts has since come out as a pretty interesting defender of free speech. How would you assess the current court’s movement on free speech issues over the last five or six years?
Kozinski: Actually, when it comes to free speech, I think generally the conservatives tend to be as or more supportive of free speech as the liberals. Surprisingly. Eugene Volokh, my former law clerk who teaches at UCLA, a very famous law professor, really brilliant guy, once did an array of the justices on how friendly they are to the First Amendment. It turns out, the friendliest to the First Amendment is Anthony Kennedy, my former boss. And the least friendly is Steve Breyer. Kennedy was appointed by Ford to the 9th Circuit [and] by Reagan [to the Supreme Court]; Breyer was appointed by Clinton. So that tells you something.
I think the First Amendment is in very good shape. I was gratified to see the Citizens United opinion. I think it was clearly right and inevitable and I have no idea why people are tearing out their hair. I don’t see how it can come out any other way if you are honest with the First Amendment.
reason: You’re pretty well known as not just a colorful character but as a colorful writer. What’s your approach? Is this just an expression of your personality?
Kozinski: I think law ought to be intelligible. What I tell my law clerks is: “I want you to imagine that you have a younger sibling in college. So they’re a college senior maybe. And let’s say he came to you and said, ‘I want you to tell me what you’re working on today.’ ” Now, you’re not supposed to tell your family what you’re working on, but let’s just imagine. I say, “Could you explain in words that someone like that would understand?” If you can’t explain it in such a way that someone who is an intelligent and interested layperson would understand, then you really probably don’t understand it yourself.
Law is language. The way that laws are made, they’re only made of words. And it seems to me that a lot of times, courts tend to use ponderous language and obscure language because using clear words would expose the fact that they’re not very clear about what they’re doing. It’s much harder to write an opinion in clear, simple language.
The process of writing simply, I think—I hope—leads to opinions that are more easily applied, more transparent, and a better predictor. After all, people read opinions and they say, “How is this going to apply to my life?” We want things that people can apply to their lives and have some prediction of how the next case after that will come out.
Besides that, I don’t know. I get sort of bored reading opinions. I think once in a while saying something that’s a little bit different wakes people up.
reason: Why don’t you like jury nullification?
Kozinski: It’s lawlessness.
You know, at least with the legislature you can vote the rascals out, and it’s a law that we are ultimately responsible for. But the idea that your fate—whether you’re going to be found guilty or innocent, or whether you’re going to be found liable or not liable or the amount of damages you’re going to pay—is going to be up to the law made up by 12 people who have no constituency, who got elected to nothing, who will never get elected to anything again, who have no one to respond to, who you can’t kick out of office, and your fate, your future will depend on those 12 people making up the law on the spot—it’s a horrendous idea. It’s really one of the truly evil ideas.
We always think that what juries are going to do [in nullification] is take a law that they find unjust—that we all think is unjust—and they’re not going to apply it. But what about if they take a law that is just and they say, “We don’t like this defendant”? “We don’t like this defendant because it’s a corporation, we don’t like this defendant because he’s rich, or white or black, or we don’t like him because he has an accent. And we don’t have to follow the law, so we’re going to make up the law right now and find him guilty. Or find him liable. Or ruin him financially. Because we can make up the law. We can do what the legislature does when the people assemble, we can do it in this room, we 12.” It’s a really frightening idea. If anybody has ever been in front of a jury and really had their fate in their hands, the last thing you want is for them to be able to make up the law as they wish.