Justice Anthony Kennedy's book is not boring

0:00When Anthony Kennedy was a Supreme Court justice, there was a red emergency phone in his chambers that never rang. Then, one day, it did. On the end of the line was a state prisoner in Ohio who'd somehow gotten this number and was calling to tell Kennedy what he thought of a recent opinion. After that, he kept calling. So I had the prisoner on the red phone telling me how well I was doing or how poorly I was doing. And the police heard about it. They immediately wanted to change it. I said, well, no, leave it. Kennedy said he sort of liked the occasional call. That's the thing about being a Supreme Court justice.

0:40Every American, including an inmate in Ohio, is bound by your opinions. And Kennedy wrote some big ones. He was appointed by President Reagan and most often voted with conservatives. I think the Supreme Court decisions today are a big win for the First Amendment and a step in the right direction. That's then-House Republican leader John Boehner praising Kennedy's decision in Citizens United in 2010. It opened the door to vast corporate spending on politics. Kennedy's vote was often pivotal, and in several key instances, he sided with the court's liberals, never more famously than in Obergefell v.

1:17Hodgins. The decision that made same-sex marriage legal nationwide. why. Consider this. Justice Anthony Kennedy opens up about his time on the court in a new memoir and in an interview with our longtime Supreme Court reporter. He has a warning about better partisanship, even on the nation's highest court. Democracy is not guaranteed to survive.

1:50From NPR, I'm Andrew Limbaugh.

1:59It's Consider This from NPR. NPR's Nina Totenberg has reported on the Supreme Court for decades, so she's read a lot of books written by justices. For the most part, she says they're pretty boring. The new one from retired Justice Anthony Kennedy is an exception. Here's her story. I sat down with Justice Kennedy in his chambers during a week in which TV comic Jimmy Kimmel was suspended and President Trump fired his hand-picked prosecutor for failing to indict former FBI director James Comey. So I asked the justice what his thoughts were about the current turmoil. While he didn't want to get into what he called political fights, his comments were pointed.

2:41My concern is that we live in an era where reasoned, thoughtful, rational, respectful discourse has been replaced by antagonistic confrontational conversation, and I'm very worried about it. Democracy is not guaranteed to survive. And he's also worried about the growth of extreme partisanship in all branches of government, even the court. My concern is that the court, in its own opinions, in the way we talk about those who disagree with us, has to moderate and become much more respectful. Though Kennedy, a Reagan appointee, voted most often with the court's conservatives in his 30 years on the court, he was frequently the so-called swing justice whose vote was determinative in controversial cases ranging from free speech and religion to same-sex marriage and abortion.

3:38His book reveals more than usual about the personalities on the court and his own internal conflicts. Starting in 1996, Kennedy wrote every major decision about gay rights, culminating in 2015 when he wrote the court's majority opinion declaring that same-sex couples must be allowed to marry everywhere in the country. Here he is reading an excerpt from that opinion. No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. As some of the petitioners in these cases demonstrate, their hope is not to be condemned to live in loneliness excluded from one of civilization's oldest institutions.

4:26They ask for equal dignity in the eyes of the law. The Constitution grants them that right. In our conversation, Kennedy said that one of the most persuasive things for him in the case was that there were so many children who'd been adopted by gay parents, but because the law didn't recognize gay marriage, only one person could be the designated legal parent, leaving the other parent unable to sign school papers, make medical decisions, or sometimes even visit a child in the hospital. This was terribly demeaning to the children. How many children? There were hundreds of thousands of children of gay parents.

5:08This was eye-opening for me, and it was very important. Kennedy's decision in the same-sex marriage case and his decision upholding a woman's right to have an abortion are exhibits A and B of his opposition to originalism, the doctrine that now dominates the Supreme Court. Six members of the current court, including two of his former law clerks, have largely embraced the idea that the Constitution should be interpreted by following its words as understood at the time it was ratified. In contrast, Kennedy says, liberty must be understood over time and that interpreting the Constitution is not a matter of looking at dictionaries from the 1700s to figure out what the founding fathers meant.

5:54The men who wrote the Constitution, he says, were cautious enough and modest enough that they intentionally chose capacious terms that would inspire and protect freedom or, as he put it, in his same-sex marriage opinion. The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all of its dimensions. And so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. That is a view that originalists fiercely dispute.

6:39at least some of the time, and it was never more apparent than in the same-sex marriage cases, which caused a rupture in Kennedy's relationship with the court's most prominent originalist, Justice Antonin Scalia. The break came over Scalia's dissenting opinion, in which he wrote that if he ever were to join an opinion like Kennedy's, quote, I would hide my head in a bag. Kennedy says that while he was able to shrug off Scalia's dissent, his children and their spouses were devastated by its tone. Indeed, Kennedy says that Scalia, known to all as Nino, seemed to become more isolated at that time, rarely coming to lunch with his colleagues, and he no longer stopped by Kennedy's chambers to chat or debate a point.

7:25Months went by, and then one day in February of 2016, Scalia walked down the long corridor of the court to Kennedy's chambers. Once there, he got to the point. He said the language used in my dissent was intemperate and wrong, and I want to apologize. And I said, nothing is more important to me than our own friendship. And we weren't hugging people, but we gave each other a hug. And I said, Nino, now you've been traveling a lot. You should take better care of yourself. And he said, Tony, this is my last long trip. And that was his final words to me. About a week later, Scalia died in his sleep while on that trip to Texas.

8:11As Kennedy writes in his book, if friendships are slipping away, we must renew them soon, lest times not permit us to celebrate them for long. NPR legal affairs correspondent Nina Totenberg. Kennedy's new book is called Life, Law, and Liberty. Before we go, a quick plug for our recent bonus episode. An extended interview with actress Jane Fonda about her work to help revive a McCarthy-era organization dedicated to free speech. You'll find that episode just before this one. Bonus episodes of Consider This are released every other Saturday. A perk, along with sponsor-free listening, for our NPR Plus supporters.

8:52If that's not you, it could be. And you could help power the journalism you hear on this show. Learn more at plus.npr.org. Our regular weekday episodes will always remain free and available. This episode was produced by Brianna Scott and Connor Donovan, with audio engineering by David Greenberg. It was edited by Anna Yukononoff and Patrick Jaron Watanana. Our executive producer is Sam Yenigan. It's Consider This from NPR. I'm Andrew Limbaugh.

9:30Thank you.