00:00Former Supreme Court Justice Anthony Kennedy served on the nation's highest court for three
00:04decades and was often described as the swing vote in landmark decisions, from marriage equality to
00:09campaign finance. It's a label he's long resisted, even years after his 2018 retirement. When we
00:15spoke last week about his new memoir, Life, Law and Liberty, he explained why.
00:21Well, it's really the metaphor that's the problem for me. The metaphor you see this person swinging
00:27back and forth. And my comment when people say about that is that the cases swing, I don't.
00:33And so that's why it seems to me, people can disagree, that my jurisprudence is quite consistent
00:40and it doesn't swing. And so that was one of the things explained in the book.
00:48You were the pivotal voice in cases that expanded LGBTQ rights, that preserved abortion rights at
00:55the time, but also a ruling that struck down campaign finance restrictions. How do you
01:00reconcile or explain those strands of your legal philosophy?
01:05The campaign finance cases are very, very difficult. I'm sure most people don't like the idea
01:11that millionaires, maybe billionaires, come in and spend all this money in a place where
01:15they don't even live in order to get somebody elected. And why should the successful candidate
01:22be the one that has the most money? That's something is wrong with it. So then you're asking me,
01:26well, what are you talking about, Kennedy? Why did you write this? The answer was that what the
01:31Congress had done was to say that corporations could not give the money.
01:36I don't, they forgot that the New York Times was a corporation and it was exempt. The Washington Post
01:44is a corporation, it was exempt. And many corporations were small, a small chamber of commerce,
01:49a grocery store. So to me, if we had upheld it for just big corporations, we would have had endless
01:56cases on drawing the line and we had no jurisprudential reason to do it. My suggestion,
02:01and it's still my hope, is that the voters will be better informed about who is giving money,
02:12who is getting money, and take that into account when they vote. And voters should be better informed.
02:20The book talks generally about we have to be better informed about how our government works and what
02:25our great, the issues of our time are. We were talking earlier about how the book is organized
02:32because you do explain your opinions in these key cases. And the Obergefell v. Hodges case,
02:38you wrote so powerfully about the dignity of same-sex couples. And you write in the book about how
02:44someone once told you that the opinion passed the refrigerator test. Explain that for us.
02:50Somebody said, we were at some event, somebody said, your opinion passed the refrigerator test.
02:55I said, what's the refrigerator test? If there's something that's written in a newspaper article
03:02or a book, or in this case, the Supreme Court opinion, and the parents want the family to read
03:08it, they just get some adhesive tape and put it on the refrigerator. And then everybody reads
03:13it when they're going to get something out of the refrigerator. So certain parts of my opinion,
03:18they said, pass the refrigerator test. Those parts of the opinions which talk about the dignity and
03:23the sanctity of marriage. Justice Clarence Thomas recently said at Catholic University that legal
03:28precedents, this is a quote, are not the gospel. Given the current petitions seeking to revisit
03:35Obergefell, do you worry that parts of your legacy, including that case, could be undone?
03:39Well, of course, the law must stand the test of time. And if we learn or think we learn new things over the course of years, judges and the legal profession and the general public are free to examine and think about the reasons. That's why we give reasons for what we do. That's why we write about what we do. And we see if those reasons can stand the test of time.
04:08So the fact that there is reexamination and additional conversation to me is a strength of our system.
04:17I want to ask you about democracy and the court's role in preserving it. You warned this past summer in remarks that freedom and democracy are at risk. What, in your view, poses the greatest threat to our democratic system?
04:31Lack of civility. Aristotle wrote that democracy depends upon a rational, thoughtful, probing discussion in which you have disagreements but you respect the other person. And you do not, and you respect the dignity of the other person.
04:59Those with whom you disagree have a dignity that you must respect. And in this age of the cyber age, we have some problems. Initially, my thought was, oh, the cyber age is good because more people will talk to each other.
05:22And there are 39,000 books in the Library of Congress. There are close to 2 billion websites on the Internet. And the problem with the Internet, as a professor from the University of Michigan, Barbara Mecham wrote,
05:41is that, sure, we talk to each other more, but we talk only to people who feel exactly the same way as we do. The Internet doesn't lend itself to a debate. If you and I are going out to lunch, we'll find something we disagree with and we'll enjoy the lunch, but we disagree. That doesn't happen on the Internet.
06:05Beyond that, is the court doing enough to safeguard our democratic system? There are those who argue that the court, with its current trajectory, is strengthening the executive branch at the expense of Congress, at the expense of the people. Is that, in your view, a fair assessment?
06:23Well, my practice is not to comment on current issues. We have, during my time on the court, we had three times as many cases as they have now. Does that mean that we were three times as busy? No, because of all of these emergency orders.
06:41And the problem with emergency orders is that there is little time to have briefs or arguments to think about it. And the court, in my view, is beginning to recognize that and beginning to say, there'll be an executive order. Sure, we'll allow it for a couple of months, or we won't allow it for a couple of months, but we'll hear arguments and then we'll decide.
07:06It's very, it's very, very important that the court hear arguments. One of the problems that we have is, as you know, lawyers are brilliant now about finding a way for almost any social issue to become part of a lawsuit, so that courts can decide almost any social issue.
07:25This means that we have to be very, very careful about the authority and the position of the courts in deciding so many critical issues that the public should be deciding for themselves.
07:42Nino Scalia would say, oh, you ask what the framers of the Constitution would do. And if they don't give you the answer, then you can't come up with it. And many of us disagree with that. But it is quite true that we have to be very careful that we don't just jump off from what the framers said and decide whatever we like.
08:03On that point, as of last week, the court had issued 23 rulings in a row for the Trump administration. At a time when public opinion of the Supreme Court is near historic lows, do you worry that the consistent support for the Trump administration feeds into this public perception that the court is partisan or worse than that, political?
08:24The danger of the court being thought of as partisan and political is very real and of great concern to me. It begins with the confirmation process. The confirmation process is too partisan.
08:37There are very few presidents who appointed justices from a different party. Eisenhower did, Brennan, and you could argue about Warren. Warren was something of an independent. And so partisanship has always played a role. But it shouldn't dominate. We should talk about temperament and learning and moderation and thoughtful writing.
09:02We should emphasize that more than just he or she will decide this my way and therefore we're going to appoint that person as a judge. That's not right.
09:13You have shaped the law in ways that have touched millions of lives, expanding rights, defining liberty, at times dividing the nation with some of the some of the rulings. When you reflect on that, what part of your legacy feels most meaningful to you?
09:27Well, I'll think of this answer later tonight. The part that I ask is that is that we give reasons for what we do, and that it's essential for all of government, for all thoughtful people to give reasons for what we do, and to be unafraid to discuss those reasons openly and with an open and open and open and open.
09:55And with a searching, searching mindset.
10:03The book is Life, Law, and Liberty, a Memoir. Justice Anthony Kennedy. Thanks again for being here. A real pleasure to speak with you.
10:10Thank you so much. It's my pleasure and honor to be on this great, great television network.
