Justice Anthony Kennedy Interview With David Rubenstein

welcome to everyone and especially our distinguished guests and their families who have come from all across the country it is an honor to have you all here Justice Kennedy has said quote democracy is something that you must learn each generation it has to be taught we are ready to learn from you today Justice Kennedy as we have in the past and we are ready through the great and coming work of the Carr Center for law democracy to continue to teach those values in the years to come thank you and welcome [Applause] [Music] so Justice Kennedy you've been in the news a little bit lately you've retired from the court after 30-some years on the court yes any second thoughts about retiring none at all I spent 43 years reading briefs and I never yet found one I couldn't put down in the middle and were always still my term on the court as an active judge by this time since September I would have spent probably already 200 hours reading briefs and Mary and I wanted to enjoy life in a different way so it's important why do you think they call these lawyers like to call these things briefs because they're not that brief really why don't they call them something else or you got great writing in them in the RC great writing in those briefs occasionally you know and that the English House of Lords the briefs are very skimpy but that's because there are hearings go for two or three days and and the judges are learning from the lawyers during the argument and they'll actually get books off the wall and so forth and ours is of with the briefs this is more efficient maybe not as not as much not as much fun but the English have a great tradition as you know of orality the English language is one of their one of the great treasures of the world and one time I was sitting on the House of Lords sitting in that I was in a chair the visitor and and the the one of the barristers was a lot of Queen's Counsel in the cases with involved origins and now in the Lord's I wish to turn to the statute and the Lord did block that said and then lawyers know what's coming up as you know the Maxim's of statutory construction and they cancel each other out stitch in time saves nine haste makes waste you know yeah and he said if counselor begins to cook the Maxim's of statutory construction I should be forced to leave the room and the council said oh my lord I would not wish to precipitate such a calamitous event we don't have time for that stuff because we read the big business that's why we have the briefs so Justice Kennedy Justice Stevens stayed on the court Davis I think ninety and some other Justin's that actually stayed a little bit longer than that you're obviously in good mental shape you're obviously in good physical shape so you could have stayed quite a bit longer why did you decide to retire now because it's hard to leave something you love but you can do it if you do it for something you love more so some justices retire upon the confirmation of their successor you actually did something different you retired on the date that you hand in your letter to resignation to I think president Trump why did you do it that way it seems to me that the way that you described the second way which was my choice was the traditional way I haven't researched it but to retire contingent on the appointment of your successor it seems to me not a good idea because the confirming authority is know knows that there's no urgency some people might prefer the sitting judge to the judge has been nominated I just think that they should be concentrated on the qualifications and the temperament of the judge has been nominated and not have this other background consideration you are very happy with your successor the person who was selected you think he'll be a good justices are correct that the public will see that the system works that we're the only branch of the government that gives reasons for what we do and and this is to compel allegiance to our decision we could talk about this a little more if you want but it seems to me that the the public will very soon see that the court is operating in a in a collegial deliberative thoughtful inspiring inspiring way our conferences who are being conducted with with the greatest degree of collegiality they'll see that in the opinions that are written over time and over a very short time you will see that the system has worked in these justices are working very well with their with their colleagues now you must take some pride in the fact that in the long history of the United States Supreme Court only one justice you has two former clerks who have been appointed to the Supreme Court so what we need is seven more and we can rule the world with so when they were your clerks did you ever look at them and say hey you know you what could be on the court someday I don't I don't think so I was there I always very proud I have a number of judges who are serving a number of former clerk services serving on the on the federal courts and it's fascinating for me to sit here and take some credit for Bruce's success I've been trying to figure out how to do that for a long time Justice Gorsuch who was the first one of your former clerks to become a justice you were the only I believe the only justice in the Supreme Court's history who was on the court at the same time that one of your former clerks was on the court right when you're in a meeting and you're talking about a court decision and and he has a different view than you do you say look I pointed you to my clerkship you know can't you at least have the courtesy of know I don't know I told him the opposite I said you didn't do what I told you to do when you were my clerk start doing it now right so let's go back for a moment to your earlier days and how you got into the legal world you grew up in Sacramento yes and your father did my beautiful wife Mary we know each other from childhood and you've been married how many years 50 55 still trying to get it right 55 and you have how many children three and how many grandchildren nine nine okay so obviously a very successful family and a very successful life it may not have been predictable at the beginning your father was a reasonably prominent lawyer in Sacramento did he say to you go to law school or did he not say that no he was a solo practitioner and we were we're very close I enjoy school much I've learned to read at a very early age and read a lot of things in his library so I didn't spend much time in school but I would go to his office just to keep him company and I've been pretty soon he had me staple papers and then I was proofreading things and I probably saw ten trials before I was out of high school I'd take him I'd go with him when he Sacramento was a center for people from agricultural less populated counties nearby to come to legal advice that we would go to the counties around Sacramento or to the courthouses and as so the law was part me I actually my one of my good friends was a his father was a doctor and Dave was an an athlete and so he'd be planning the football team at the basketball team in the doctor for me said we're leaving on the round I had the dive drive the doctor on his rounds after dinner and I was in the and he was a wonderful wonderful doctor and loved literature and he and my father used to talk about literature and I was in probably in the room of dying people four or five times and saw this doctor I wanted to be a doctor but I realized I didn't have the physical skills the dexterous so you must have done reasonably well at Stanford because you got in the Harvard Law School and did you why did you decide to go east you had never really lived in the East had you well I'd been at the London School of Economics after I finished my requirements at Stanford and again I did think I wanted to see what that what the East Coast was like because the London London School was was was a very important eye-opener for me so but it was pretty clear to me I don't want to go back to Tiger my father wasn't well I knew I didn't have time to be a clerk I should probably get bad you you didn't stay in the East you went back to pick up your father's practiced or did you kind of take over his practice well it took over me he died and I came in in those days David the law profession was an old boy network literally and figuratively in a small town my father knew every lawyer in town just about if not by name certainly my reputation and the judges know each other and when we went back after my father died to see if I could get the practice going to the most senior attorneys in town each with the major law firm in the town those days of major law firm 15 people took took me to lunch and they said both of us want you to come with our firm and if you're interested we'll each have a separate lunch with you and tell you why but we've talked and we think you should stay right where you are this is best for the legal profession and best for your family that you keep this practice going and you've got two trials coming up and each one of them one of us will send one of our trial attorneys to sit with you at the counsel table no charge just to make sure everything goes right that was the old boy network and then the old boy network had to change we had in my class in in in law school we had close to 500 maybe 450 and I think six women and in the Sacramento bar are very few minorities very few men that had to change and but the old boy network is where I start James Google Cousins wrote a book called Justin yeah one of my favorite American authors love possessed is his most famous work but he wrote about the the practice of law and the 30s in a mythical New England small town and it if the way the practice of law was even in Sacramento up till about the nineteen sixties nineteen sixty one everything changed what type of area did you practice in whatever your problem was I was an expert okay well I taught constitutional life by some strange accident and and there's a night Law School and Sacramento McGeorge Law School and you were teaching Constitution law there for many years is that right it's a McGeorge began as a night law school in the 1920s and then at the university of pacific and had added a day program in the late 60s but when i was started Mary and I moved back to Sacramento I was trying to see if I keep this practice going weren't enough money to buy the refrigerator and so forth and my secretary said judge shaver judge Halbert and judge Cole or in the waiting room to see you and these three had come to my office unannounced the United States District Judge the presiding judge of the Criminal Court layer presiding judge of the civil court and they said we want you to teach I said what do you teach I said I can you know barely keep this practice going they said no no it's very important for you to teach so finally I said well in a couple of years I might teach corporations a contract they said no constitutional law I said constitutional law and it turned out that I had graded constitutional on the bar the year before after I passed the bar the Bar Examiners asked if I'd read the paper and in those days you got a I think a dollar a book was it Mary dollar a book for fifteen hundred books that was a lot of money in the 60s and so I graded constitutional they so you're a constitutional expert that's right so anyway it turned out but what happened is the Warren Court then began coming out with its decisions and what we now call the Criminal Procedure area but in those days it was part of the regular common law course map and Escobedo and Gideon and I had somewhat of a criminal practice of my own but then other lawyers we take me in criminal cases then it became somewhat relevant what I was teaching to what I was practicing so you're practicing law you're teaching constitutional law at night and then eventually somebody named Ronald rye named Ronald Reagan gets elected governor right and how did you get to meet Ronald Reagan oh it's not clear he came to Sacramento and he and some of his advisers asked us about places to live and rent and Ida and and I did some legal work for them a small little matters and I've got to know him and and Nancy always liked Mary very much and I governor you know there's two things you you can't ask me about so what's that I said one thing I can't ask me whoever should be appointed a judge because I practice in the state courts I didn't go to federal court very much and if you get the reputation of the judge judge maker or a judge breaker it's not good for the relation you have of the bench David this you don't know if they're bending over against you to show how strong they are or for you so I said don't ask me to be a judge so what else I said don't ask me about politics I don't know anything about so he and Nancy knew I never had anything you know to sell if I saw something wrong I I went and was in the office one time I think it might have told you this story and to see him about something and Deaver came running in he said governor your friends from Hollywood are here today we thought they were coming tomorrow we haven't had a chance to pre-suit he's a hole what do they want and he said oh they'll tell you it's that's nothing and and so in walks John Wayne Henry Fonda and Charlton Heston and they did this thing about how good everybody looks at so fun all right I told the governor I thought I'd leave I said oh no you stay I have to see you and Deaver so rings oh oh what brings you to Sacramento and they said we're here about the Arts Commission he'd just been elected he said what's the Arts Commission I said he said well that's a commission state commission that gives grants to poets and playwrights and sculptures and and painters and the legislature has cut the budget I forget the numbers but it was from 18 million to 14 million and makes it oh I'm glad you told me about that I'm against that they said they'd say good to know I'll veto the 14 they said no no no no we have the 14 we want the 18 he says no no because I'm gonna detour the 14 which the government shouldn't get involved in saying what's good heart and what's bad art that's not much money you can get it and the world's most unsuccessful lobbying commission they begin and for the for my eyes and in any veto the whole thing and but he but he knew what he believed in it believable and then I later wrote his tax reduction so who was more impressed for Henry Fonda Charlton Heston or John Wayne I think they were all equally dismayed so you must have gotten to know President Ford at some point because he appointed to the Ninth Circuit Court of Appeals did Ronald Regan help you a bit how did you get to be known to President Ford it wasn't clear to me that I really wanted to be a judge although my practice was taking me not only around the country but around the world and I just didn't have a chance to be with the family and I really want to be a district judge that that's the the greatest job in the world is united states district there's nothing you can do with the district judges their own Empire I love it but and I like the trial but Watergate came along and they weren't making any positions for federal district judges and then the Circuit vacancy came along and president party then Governor Reagan told me that he really wanted me to take that and he called President President Ford and so I went on a ninth circuit in 1975 so you well now you went on the ninth circuit its 1975 right you were the I guess the youngest Federal Court of Appeals judge in the United States at the time right but you had to give up some income because you're practicing law presumably you're making more than a federal judge meg so did you say to your family we're gonna have to shrink our living style or what did you do well we managed married was the teacher teaching at the time and and we made it through Sacramento not it's expensive to live in as may be Los Santos or San Cisco sososo least grates when the kids have been very good they've never complained about the fact that whether there's a lot not a lot there but we thought that that's the service to the government had its own intrinsic value and then they recognized that hey so what happened is you're going the court 1975 you're confirmed I guess unanimously then for the court of appeals position as well and you're there from late 1970s through the 1980s and in 1887 I believe it was President Reagan nominated Robert Bork to the court correct that didn't get can he didn't get confirmed by the United States and what was about a three-month there were long hearings very acrimonious he was not confirmed President Reagan then appointed Harvard Law Professor Doug Ginsburg he did not appoint well he didn't think what he thought about a pony but he didn't actually appoint him and so then when justice judge or professor Ginsburg didn't get the appointment you get a call from the White House that you say how come you didn't call me earlier and what did they say when they called you I was somewhere they asked me to come back to Washington which I did and I told the president that Mary and I talked about this and we really I did not want to come to Washington the Mary had some a couple years left for her teaching retirement and this was our hometown and we thought sure the kids would be Californians and the youngest Kristen was I think a sophomore at Stanford we knew they wouldn't come back to tell us to Washington and I told him I I just rather look for somebody else and I said I don't know anybody in Washington owe me what am I supposed to do come for lunch every day but what n again and he liked Marisa don't Mary will like washing sofa yeah I guess you can't turn the president that but it's it turn out all the children move not because of us because of jobs in marriage is for the East Coast so it worked out thanks you get on the Supreme Court again confirmed unanimously so what's it like when you're the most junior member of the court I understand that you are that you have two responsibilities of the junior member one is you have to sit in the in the sessions where you're discussing cases and if anybody knocks the door you have to go answer the door right and secondly you're in charge of food the cafeteria chlamydia cafeterias had a big responsibility I was able to handle it okay but the answer in the door it doesn't happen very often and when it does you're glad this is the stretch and not have to listen to your colleagues talk about most Americans probably do not understand how the court really works and so and that's some of the time we have now let's talk about it so when people have disputes they try to appeal to the Supreme Court how many people try to apply to the Supreme Court for up for a resolution how many let's say pinions are cannot opinions but how many applications for cases to be held or come every year and how many do you actually grant there's the court initially grant the applications are called petitions you're asking the court for a writ of certiorari and we have probably close to nine thousand I think maybe recently about eighty eighty eighty two hundred petitions a year and they come in all year long and the the the clerk's are in charge of organizing them and and and doing doing memos on them so we can review them very quickly and it's you know like doing push-ups you do so many every morning they come in all year long and any one of us can make a little check mark on the petition for certiorari and if any one of us does that that means all nine of us must discuss it so out of the eight thousand plus petitions we get we discuss about five hundred a year and we do this September through June and it takes four votes to grant the case sometimes there are three votes but one of the justices who wants to hear the case thinks it's very important and asked it to be put over so that he can or she can write a memo to us and from those 8,000 we discuss 500 and we take optimum ly I think around 100 lately we've been taking less and so that's the petition has been granted you're a lawyer and you hear that your case has been granted by the Supreme Court which are very excited about if you won you're very disappointed about I mean very excited about if you lost very disappointed if you want and so then that the next aspect of it is the written written briefs are filed and I've told her already with that we have to read the briefs we were each of us has a district of the country a circuit where were the circuit justice and when I was first on the court my position my appointment was to be the circuit judges for the Eleventh Circuit which Florida Georgia Alabama and we try to meet with our lawyers and I judges once a year and we were in Alabama and it was a Saturday and the judges were dressed they were very polite to come in hear me for an hour and the attorneys but they were dressed you know to play golf or tennis and to hear me at nine o'clock in the morning something things and so one of the lawyers said how do you read all of those briefs and I said well I assigned them to my clerk they they each of them read a fourth of my I have to read them all and if they're very difficult I read them again over the weekend I play opera in the background I have what I call one opera and two opera briefs well and the minute I said that they were too polite to roll they're all rights but I thought I lost the audience sky from the east talking about the Opera and Saturday morning and so I thought well I've lost the audience but the attorney raised it he knows I have a rule like that when I write those briefs I said oh he said I have a one six back briefing a to sticker Factory I said I remember your last one I think is a three six pack we're back on the writs of certiorari if three justices say I'd like to hear this case but not four right it isn't held but to any of the justices say to their colleagues well you know I really would like to hear this one can I get you to go on this or you don't lobby each other on no we're very we're very careful both of the cert petition stage and later we'll get into the decision stage we do not we do not talk with each other one-on-one because we don't want what a cabal or a particular group of people it may be that in the petition thing I would would see something and I'd go next door to Stephen Stephen I think there's a technical thing in here that we've missed and said that's right and then we'll immediately write a memo to the conference I've just talked with Stephen and we think that just so that there's no background conversation so in every case I suppose you're hearing 90 to 100 cases a year right in every case you obviously have you know plaintiff and a defendant right in fact and so each one files a brief right which are limited in size by no 50 pages if the paper fill yeah but now we have a gigantic amicus curiae i brief kind of a bar where lots of briefs are filed as friends of the court do each of the justices read the plaintiff and the defendant brief as well as the amicus briefs or just the plaintiff and defendant brief before you hear the oral argument well we try to read most of the appellate I can't read all of the amicus week but in a way it's for us to see the systemic consequences of what we're doing and particularly in patent cases and scientific cases we learn a tremendous amount from the when they make it so the briefs are filed you read the briefs and then do the justices ever talk about the cases before you hear the oral argument oh we have a rule we do not talk okay before or argue and the first time I get an inkling if you're my colleague as to what your thinking might be from your questions one of my questions might be isn't it true counsel this is a Clean Water Act case and the Congress says you can sue and I'm saying kulit Justice Alito there's no problem of jurisdiction here but then he might say but isn't it true counsel that and he and he's saying not so fast Kennedy and and and a good or like if we behave properly which sometimes we don't and if and if the attorney knows the dynamic the attorney can enter into a conversation that justices are having with each other through the question and that's the oral argument dynamic and it's just a half hour we've gone on I guess 30 minutes typically and what are we going on here for maybe 20 minutes or something and and you get a half hour per state on a case which is you you spend months and months on most important cases it's hard but it's a very fast-moving Chief Justice Rehnquist's was famous for interrupting people in the middle of a sentence if there are 30 minutes in the middle is that in the middle of the word if you know right so okay each cuts 30 minutes and then would you say that there is now a Supreme Court Bar as there was many many years ago as well the beginning of the court where people are specialized in the Supreme Court and they make arguments they presumably understand the court and so forth are you better off if you're in front of the Supreme Court as a litigant to have a member of the Supreme Court bar or she'd get your local lawyer who might have helped you get the case all the way to the court to argue the case do you think there's a real difference between having a great experience advocate or or not we like to think that the attorneys from all over the country can and should come to us I have to say David that our dynamic our customs are such that you should you should know them and so this Supreme Court advocates I think maybe sometimes do a better job but when I was arguing cases trying cases I would never try some cases in Nevada I would never go to a court without watching them for a few days before reading the papers seeing what the local scene is so when justices ask questions are they trying to get information or they try to persuade the other justices both and and one of the things that sometimes it will occur to one of us that maybe there's the reason to decide this case that hasn't been discussed much and I always bring that up to counsel I say isn't it true that we could hope so that they're not surprised are the counsel shouldn't be surprised by having something that they didn't argue so I'm very careful if I think there's some third way to go that hasn't been mentioned that I thought that I mention it now after the oral argument is completed when did the justices get together it's called a conference you get together in your conference room and then how do I talks who decides who writes the opinions how does that work well within 48-72 hours of hearing the cases and this is basically as we say the first time we've got an inkling of our colleagues views we meet in the conference rooms and there's a an atrium a double door between the hallway and the conference conference room just remind us that it's private as the double doors just the nine of us it's absolutely confidential and the Chief Justice begins by summarizing the case and giving his views and then you go to the next most senior justice down to the junior justice who speaks last and I actually liked that regarding your last it was four to four you could kind of drag it out and just be very excited so if you were so then when everybody kind of knows their views does does the chief justice if he is in the majority will he assign the opinion - yes what we do is we can sometimes be tentative in the cases save subject to the views of my colleagues it seems to me that and in these cases are closed and and sometimes since it's private we can maybe suggest a wacky theory that we think might work and maybe it does maybe it may be that sometimes people ask me do I get nervous when I go on the bench the answer is no I don't get nervous on it but I get nervous when I go into the conference because suppose I said well Kennedy how much you thought of this case or didn't you see this point so you you you're basically arguing four to six cases that day and you want to be you want to be on your toes you know when you're an attorney and you go into a courtroom you're nervous okay so after one conference will generally be decided who's going to vote how and who's gonna write what opinion usually and sometimes this tentative that the Chief Justice if he's in the majority assigns the majority if he's in the dissent assigns a dissent the senior justice on the other side science the majority or the dissenting and we try to keep the workload even and we try not to give the junior justices all the really difficult railroad reorganization cases on the arrest cases so when the opinions are assigned then the justices go back and they they either do they write the opinion stem cells or the clerk's write the first drafts or different my practice was I talk to the clerk's I'd assign one clerk to write the opinion tell them what I thought should be there or her tell her what I thought should be there but then I would write my own thing because I can't the clerk would write something very good but I don't you know they're at level 10 and I'm at level 2 you know you have to go when you're right you have to go down and when you're in business you have to go down the blind alleys or the full starts before you get up to the level where you want to be so I have to do that myself I don't have a lot of time for all the citations and so if I let the clerk you write unto you right did you write your opinions in longhand or use a computer or I the the the technology when I was practicing law was to dictate and Turks are still amazed that I can dictate but that's what lawyers did but now I use the name but it's just like it would if you're right you're writing a letter or you write and you you think you say well this this can't be right and goes in the wastebasket or goes off the computer screen so you know you're good you have to do the false starts so you have the opinions and then the draft opinions are they circulated all the justices they see them that justices say you know what your draft opinions so influential and persuasive that I'm going to change my vote does that happen very much I wish it did no no it sometimes you'll have a five-to-four opinion and you'll circulate it you'll say you're the majority and the one of your colleagues who was with you at conferences you know I'm not so sure about this I'm waiting for the design and then the dissent comes around and they can be convinced or it can be the other way if you're right in the dissent then you can get the fifth vote so it's it's very it's very exciting to see what the judges but we give reasons for what we do and we give reasons David as you know in order to command allegiance to what we do to persuade the sometimes people say the court is anti majority the majority Rhian and that may be true in the short term we make decisions that are surprising to people and and unpopular but we think that over time I'm jumping ahead a little bit of where the decision comes out we think David that over time we're majoritarian over time I think most of the decisions of the Supreme Court have been acknowledged to be correct or if not the result you would like it at least they understand that the Constitution requires the result do the justices sort of Lobby each other in this sense go down to one of your colleagues office and say I read your opinion it's pretty good but why don't you think about this or that and maybe you could change your vote here or there does that ever happen or well we we never talk about I'll vote for you if on this case if you vote for me a decade that's the felony you can't do that no it no no this is very serious very serious stuff each case is on its own merit on its merits would you would you go but on the merits often we and this was one of the things I did quite often was to suggest changes in wording to make the opinion I thought more powerful and more persuasive but again this is done in writing or I might seek justice Brower was right next to me I said Steven I'm going to make a suggestion about part three of the opinion it seems to me you could not emphasize this part so much but then I'd write a memo to him with all the colleagues to see it now the justices socialize with each other or not so much not so much just because of workload but well and we're careful if we see each other at a social event at dinner it's not really polite to the other people for us to go off in a corner and talk about collateral estoppel or something and so so if we see each other we try to but but but we have dinners together and lunches together and we have lunch together all during the time we're sitting when you actually final finalized your opinions and they're printed I guess they're printed in the courts basement or where you have a printing press or somewhere like that I guess yes why is it that you've been so good at keeping leaks from occurring because everybody else in Washington loves the leak what's going to happen how come a no court opinion really has leaked out in advance well we've been very fortunate so far but and this is important because for every case we take many other cases are being held depending on the result and if the reward out then an attorney who heard about it could settle one of these other cases with this advanced no excuse me with this advanced knowledge so that's why it must be very good and we can we tell the clerks were boosters remember we keep talking about confidentiality confidentiality and we on the 9th circuit one time there was a party with clerks and some other people were there and the the wife of a clerk was there and somebody said where'd I'll make up the name we're Steve and he said oh he's reading about salmon again newspaper reporter was there and figured out the the clerk that this judge was working for was writing the salmon case which was one of the most controversial cases in the Ninth Circuit so you have to be very very careful and we tell our clerks about this so most cases are actually not that controversial and you'll probably decide them either unanimously or close to it but there a lot of five-to-four decisions right in your term on the court you wrote over 300 majority opinions but you wrote ninety-two majority opinions that were five to four really that's right ninety-two so let's talk about some of the opinions that you're very well known for some were five before some we're not but let me talk about for example on gay lesbian rights you are been a strong advocate that everybody should be treated equally and that there should be no discrimination and in fact you authored the opinion that allowed gay marriage to occur is that something that surprised your conservative let's say supporters and this is something you're very proud of having written that opinion in a sense it surprised me what surprised you d leave the reaction or not your decision well you know because my religious beliefs these are that's one of the reasons I wrote it it seemed to me that I couldn't hide and the nature of injustice is you can't see it in your own time and as we thought about this and I just thought about it more and more it seemed to me that just wrong under the Constitution to say that over a hundred thousand adopted children of gay parents could not have their parents married I hide I just thought that this was this was wrong but it took and I've struggled with it and wrote the case over a weekend that's the way I came out but as I say you you you as you write the reasons either compel themselves and judges I tell judges I tell doing judges or judges you're a duty in every case is to ask why are you doing what you're about to do what are the reasons and even if you've done it a hundred times you have to ask what those reasons are again and see if they are still valid that's what you must do is an introspective view and you owe that you take an oath that you're going to listen to each side and if you make up your mind in advance you're not following that oath so in abortion rights many people who were to your supporters generally of your judicial philosophy we're disappointed I think it's fair to say that you were not in favor of overturning roe v wade in fact while you may have narrowed it to some extent you never voted to overturn it what was your thinking on that particular area well our thinking is the set forth in the opinions we give reasons for what we do we don't go around later explain it's in the opinion and we hope we hope that the opinion is convincing I tell some people sometimes but there's one of the first cases on the court that was very controversial when I was first on the court was the flag-burning case but a Texas versus Johnson some young man is mad and he burns an American flag and Texas has a statute that you can't burn an American flag so he's prosecuted for a criminal offense and it comes to us and was five to four and it was David it was a generational Rehnquist white Stevens who'd been in World War one heard me World War two just couldn't understand this flag burning thing and it was five to four and I wrote a verse small short opinions and I said is it poignant but fundamental that the flag protects those who hold it in contempt and the flag is very beautiful with our symbol of national unity but that this is paradigm very vague speech and it came out 80 senators got to the floor of the Senate and denounced the court then later we were in California or there's a scene some of the children for breakfast and the pancake house is something but he comes on you Justice Kennedy on the court I said some c-span junkie I don't know so I want to tell you about your case the flag --blank' and he said I practice law in Ukiah yo-kai as a small city in Northern California and I do thought I'd lost my mom years ago but my dad lives there that's my hometown and like you I'm a solo like you were I'm a solo practitioner and he said my father never comes to the office but I had a lot of people in the office and and he came in very angry and he threw down the San Francisco Chronicle which had the flag burning headline and he said you should be ashamed to be an attorney and he said the reason is is he was a prisoner of war and Japan strike that in Germany and they would take little pieces of red white and blue cloth and make flags and they've done guards would find him take him away and he said I didn't know what to do is what I gave him your case to read because I was short and he came back two or three days later and said you could be proud to be an attorney he read the reasons he thought about it and that's what we try to do with the opinions now one of your famous five-to-four decisions is citizens united yes which you upheld the right of corporations to basically make political contributions right any second thoughts about that decision ever again the decision stance to answer stuff of course all of us are concerned with money in politics the government of the United States in that case argued before the Supreme Court were in the court and the podiums down there the attorney for the government of the United States argued that in if there was an upcoming political campaign I forget that maybe six weeks and a book was being published or a movie being produced and it was critical of a candidate that you could stop publication it was unbelievable this is a First Amendment now it's true that there's the problem of money and politics but I think we just have to address it some other way and notice that the press was exempt so the major newspapers could print what they want but you couldn't have a book or a movie the other way now the result was as you know that money flows into these campaigns and it seems to me we have to think about it and but the voters are the ones that if they see money coming in from the campaign for wrong source there should be disclosure and they can vote against the candidate if they don't like it so when you were in the court the last number of years after justice O'Connor retired you were basically seeing rightly or wrongly has the swing vote what did that put undue pressure on you and making decisions because you were principally the person who could make the court go one way or the other did you feel pressure or not because of that well I think every one of the justices feels pressure in every in every case yes it was it was a a little bit a swing vote I said the swing vote has this symbolism of swinging back and forth in space and I say the case is swing I don't like I'm consistent now if you kind of made fun of your constitutional law expertise but in fact you know the Constitution quite well and you carry it with you everywhere you go is that right yeah I haven't you have your Constitution right there what are you ready for an answer yes so so in your view when you carry the Constitution obviously know it very well what do you think about the theory that you should look at the intent of the drafters of the Constitution about what you should decide in a case this this is one of the hardest questions in constitutional law and that we have to wrestle with look at that this is a written document that the framers wanted handed down you can't just ignore what the words are on the other hand I don't think person you're a great Jeffersonian scholar and and and and in Madison spent a lot of time reading dictionaries and they use spacious language life liberty property if they had known all the specifics of a just society they would have written down they didn't do that in it and these words have to have meaning over time and Jefferson people sometimes get make declaration of independence life liberty pursuit of happiness that's Declaration of Independence life liberty property is what Madison put in the fifth amendment and it's also in the 14th and Happiness was was interesting happiness of the Greek board is UWE and the even in the Greek times there they had two meanings and one was happiness that you're have material possessions the other is you're happy because you have contributed to civic life and this enhances your own dignity and the jefferson used it in this second sense the happiness was to give to your community and the result was enriching to you so today as a retired justice you have the right to sit on Circuit Court decisions and are you thinking of doing that and what are you thinking of doing now writing memoirs teaching more you still teach in in Austria every year yeah on summer and are you thinking of doing more teaching writing your memoirs sitting on Court decisions what do you think it's unclear to me that I'll sit on other courts yet because I do have writing I want to do and teaching plus the Chief Justice has some important administrative projects for me I'm very interested in criminal justice for formal I think our prison sentences are far too long I think there's a lot we can do some of the things like that I'm an interesting law school you've taught at law schools for quite some years how has law school education of legal education change or how should it change you still think the case method is the best way to teach lawyers it seems to me so I think we're asking the Dean about this today there's more emphasis on what we call clinical studies the the classes are a little bit smaller and the law students are are asked to discuss what they would do in in real-life situation I think I think that that's very important but over the years you you at the same case as my father did and this overtime this gives us the language of the law there's a language of the law that unites our profession and unites this country I can pick up a telephone and talk to someone who is a continent away and a couple generations removed but he's a lawyer she's a lawyer and we have this common language and this is the envy of the rest of the world you know most countries very few countries have graduate law schools law is an undergraduate degree all over Europe in England in China graduate law schools on the American model exist in South Africa US Canada Japan that's about it and it's very expensive but it gives us this language of the world this this profession and it means that lawyers can talk together and do leases and contracts and and and and corporate mergers or without the intervention of the government and this is the language of the law that we use and it's one of our great national and and the law schools the law schools preserve it for us Justice Kennedy we're almost out of time I have two final questions for you first what would you like your legacy to be you've served in the court for thirty years you've written enormous number of opinions you're quite respected throughout the legal community but what would you like your legacy to be well I hope that people would look at the court and realized that not only is it possible but necessary for a democracy to have a civil rational thoughtful decent discussion so that we can plan our own destiny we are in a time with an uncivil Disko Aristotle and Plato both gave a low grade to democracy and I went back two summers ago and read we read Plato on Aristotle is that a common thing that justices do going back and reading I don't know I wanted to do it because I was gonna say and my interpretation was that Aristotle thought democracy should be given a low grade because it did not have the capacity to mature and our duty our destiny is to prove him wrong look at the rest of the world is looking at us to see what democracy means what freedom means and they see this hostile fractious discourse and we're not making the case for democracy at the end David of the last century the last quarter last 25 years of the last century it was the birth of democracy democracy is coming all over the world the first part of this century were seeing the death of democracies and in part is because of the example that were not setting and I want and that's why the the Carr Center here it seemed to me is on such an important mission and that is to restore civility and decency in our civic dialogue that's the way democracy democracy has to work Aristotle said that in a civil discussion there has to be respect moderation thought and he said the participants in a discussion in a democratic society must have you Noah which means kindness and respect I disagree with you on Proposition X but I respect you immensely and we must restore that to our public discourse final question I'd like to ask you is this what would you like the American people to most know about the Supreme Court if you could summarize for them in 30 seconds or 60 seconds what would you like them to know about the United States Supreme Court then it is dedicated to finding what the law is and the law has a moral foundation the law is interested in truth truth is often the facts was the light red was the light green and you begin there and this isn't a part of some exercise you're not a Democrat who thinks the gun was smoking and a Republican who thinks it was indoors and Democrat who thought the lights was green and the Republican thought the light was red that's crazy we want to show that facts count and that facts are found in a thoughtful rational respectful way and after that we know what principles have to come from the facts and those principles are the principles of the of the of the of the Constitution and the principles of freedom our heritage the work of freedom is never done Rajesh Kenny thank you for your great service to the American people and to our country for more than 30 years thank you and thank you for your service thank you [Applause] [Music] you

Channel: University of Virginia School of Law

Views: 7,754

Rating: 4.8588233 out of 5

Keywords: Anthony Kennedy, Supreme Court, Citizens United, Obergefell v. Hodges, Supreme Court justice, David Rubenstein, UVA Law School, law school, University of Virginia School of Law, SCOTUS, Law, UVA Law, Kennedy, Risa Goluboff, UVA, PBS

Id: wXHlwXhaWIM

Length: 56min 50sec (3410 seconds)

Published: Tue Jan 08 2019