Justice Anthony Kennedy

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0:26Perhaps the most impactful justice of the Supreme Court over the last 50 years was Justice Anthony Kennedy. He served in the court for 30 years and wrote some of the court's most impactful decisions. I had a chance recently to sit down with Justice Kennedy, talk about his life on the court, his life outside the court, and how he really tried to influence the court in many different ways that I think are quite important for the American people. Let me ask you at the outset, why did you decide to write this book now? I wanted to write about a second mile, a small town in the 30s, 40s, 50s, 60s. My children grew up in Sacramento, but they didn't know about those earlier decades, and my grandchildren didn't know Sacramento at all.

1:09So it seemed to me interesting to me to write about that time in our culture. Our generation was right after the great generation. In a small town, there was a courtesy, there was a professionalism. They were simply one of them. I wanted to write about that. Supreme Court, the first thing many people do is they forget about the sacral part. They want to read about the recent case, and so they did. But we wanted to have this for our children and our grandchildren to read. And then, as the writing went on, it seemed to me people were saying that it might be a vengeance to others. For those people that have not been a justice of the Supreme Court, and you were on the court for 30 years, what's the greatest thrill about being on the court, and what's the biggest downside to being on the court?

2:04The biggest thrill is that you have only cases in which the law has been undecided. and you recognize that what you're doing is exploring the law and you know that after you write what the law is or what you think it is, there's a whole new vista, a whole new realm to explore and that's the fascinating part of it. We only take cases in which other courts have disagreed. In India, the Supreme Court has to take every case, and they have a 50 ,000 case backlog or something. But we select only the cases in which other courts have disagreed. And so that's the fascinating part is that you are on the frontier of the law, and what you write is the beginning of a frontier because there's new things to explore.

3:04Those people aren't familiar how you decide. Let's go through the process. You have people who want to appeal to the Supreme Court. They have something called a writ of certiorari, and you accept about—you have to have four justices agreed to accept that. It's called the rule of four. You need four justices to grant a petition for certiorari. Petition for certiorari is a motion to please take our case. And the court has thousands of petitions of certiorari each year. but they select only those cases where the courts are in conflict and where they think the guidance where we think the guidance of the court will be helpful when the cases are taken do you the briefs are submitted by the lawyers do you talk to each other the justice before you actually hear oral arguments or you just read the briefs and then you go to the oral argument and you don't talk to each other before you actually hear the oral argument we're very careful not to talk to each other before impart your sincereness to the lawyers and we don't want tweaks where you and I agree or you and I disagree and I don't tell you what I could talk to the other day.

4:16We don't do that. After you hear the oral arguments, you go back to a conference and you have an airtight room so nobody can listen to what you're saying and so forth and nobody is allowed in the room other than the justices. Right. And we have a double door just to remind everybody that what goes on in there is absolutely private forever. So then you begin to say what your views are and who decides to speak first? Who gets to speak first and who speaks last? The chief justice speaks first. The next most senior justice, senior because he or she has been there the longest. Seniority is not by age, but how long you've been around.

4:54If you're the most junior and it's four to four, it's very exciting. because everybody is listening to what you're going to say. So who decides who writes the opinions? Who decides that?

5:09Let's assume there's a majority and a dissent. Sometimes they're unanimous. There are a lot more unanimous opinions than most people. The senior justice in the majority assigned the majority, and the senior justice in the dissent assigned the dissent. Does any justice ever go down to another justice's chambers and say, you know what, I really don't like your opinion, but I'll support you if you support me on another case. Did he ever do that kind of horse trading? No, that would be totally improper. Might even be illegal. You never trade votes, ever. Nothing improper or illegal in Washington, whatever happened, right?

5:48Plus, we don't go to the other chambers. We send it by memo, but everybody gets a copy of that memo. So the justices read the memos. They may change their mind and the opinions, but more times when you were on the court, you were the five to four in the majority than anybody else, I think. I think that's right. So when you're five to four in the majority and you're making the real decisions because you're the deciding vote, does that put a special burden on you to really make sure you're comfortable with the decision? You want the views of your other colleagues to indicate that you're going in the right direction or the wrong direction.

6:27And there's a lot of interchange in the memos that way. And that's how we try to put a majority together. Sometimes you're assigned a majority opinion and you'll get a memo, Dear Tony, I've read your draft opinion. It seems to me better to wait to read the dissent. Oh, that's going to go on. Or sometimes you write a dissent and say on the other way around, you convince other people. Let's talk about Bush v. Gore. You wrote the procurium opinion, which meant that it's for the whole court. You didn't put your name on it. Was that a very difficult decision for the court to get involved in the case and then make the decision that would decide the election?

7:08A, not a difficult decision at all. Seven of us agree with you to take it. When you have a state court decide who's going to be the president of the United States, you're going to say, well, we're too busy to take it. Gore bought the case, not Bush. Gore bought the case. And the rule is that if you're unsuccessful in the lower court and you come to the Supreme Court, you're the so-called petitioner and your name is first. So it was Bush who bought the case in the Supreme Court. It was called Bush versus Gore. But Gore was the one who started the case. Seven of us agreed that we should take the case.

7:46And more than a majority, six or seven, agreed that there was a legal wrong. The question was how to remedy the legal wrong. And that was five to four. Ultimately, five to four. The five people who were for Bush were Republican appointees. The four who were for Gore were the Democratic appointees. Some people said that showed that court was really political. How do you respond to that? To begin with, that's wrong. Souter and Stevens were both Republican appointees. Okay. All right, so you don't think the court was hurt by the perception that it was a political decision? Yeah, the courts always hurt, it seems to me, if we look political.

8:27One of my concerns, my present-day concerns, is there's too much partisanship. Presidents appoint justices from their same party. But the partisanship should not be an overriding factor. What you look at is temperament, learning, background, reputation, whether or not you have those qualities of independence and caution that make for a good judge. And the partisanship is overemphasized in the Senate during the nomination process. They should not emphasize it so much. So you will be always remembered for, among other things, the decision you wrote to legalize gay marriage. Yes. And was that a difficult decision for you to come to?

9:12and have you found any reason why people are upset about that or do you think the court would ever reverse that decision? Of course people are upset about it and it was a very difficult decision. When we were growing up the gay movement was something we just didn't know much about or think much about. With my clerks we spent days researching the history of marriage, reading the Bible and great works of jurisprudence before the Christian era. For me, the important and perhaps deciding factor was the children. We were amazed to find that at first it looked like 75 ,000 children were adopted by gay parents, and then it turned out they were in the hundreds of thousands.

10:13And these children were, in states that did not allow gay marriage, at a disadvantage. If the child was sick, only the adopting parent, not the spouse, could come to see the child in the hospital. The kids would have to say they don't have two parents. The stigma and the hardship on the children was a very important factor for those of us in the majority. You have been concerned about civility generally in life, and you think civil discourse is an important thing in our country. Recently, you see dissenting opinions in the Supreme Court aren't quite as civil as maybe you might prefer. and is that of concern to you?

11:02You're not on the court now, but is it a concern that sometimes the justices are very uncomplimentary of each other's views? Yes, it's of great concern to me that our civil discourse, our civic discourse, is not civil enough. Aristotle said that a democracy depends on an open debate where you respect the dignity of those with whom you disagree. He said democracies only live if they are sustained over a period of time by a thoughtful, rational discourse. A discourse in which you respect the dignity of those with whom you disagree. And I think that's a danger in our present day and age. What do they call it?

11:54Political identity. If you're a member of party X, then we just assume you have all these views and we don't like you or we do like you. This is not good for our public and for our national discourse. And we have to remember, David, the rest of the world looks at the United States to see how democracy works. Our sponsor, Wells Fargo, recently spoke to Christian Strack, president of BIMCO, about how the Fixed Income Investment Manager is helping clients build portfolios for the future. We are in a moment of radical change in technology and finance. Those will bring radical risks and radical new opportunities.

12:37We wanted to look back and say that we have brought clients these opportunities in these times of change, but also helped clients understand the risks along the way. With Wells Fargo, it really is a partnership around complementary capabilities. Discover how Wells Fargo is helping PIMCO and other clients reach the next horizon at Bloomberg.com slash The Next Horizon. Let's go back through your background for those who aren't familiar with it. You were born where? Sacramento, California. And your father was what, a lawyer? My father was a solo practitioner and had an amazing law practice. And your mother?

13:16My mother had come to Sacramento as a man from San Francisco in order to work for the state government, and she had been a teacher at Wembley. What were your interests as a Wembley? We were interested in our family in government. I learned to read it at a very early age, reading classic literature when I was 8 or 9 years old. And so I was a little bored in school, and my parents thought it would be a good idea so it made me be a page boy, the only page boy at the state senate. You must have done pretty well in high school. You got into Stanford. Yes. Hard to get into Stanford those days, or not that hard?

13:58It was hard to pay for it. Stanford has a good law school. My son went to Stanford Law School. Why wasn't Stanford Law School the one you went to? Why did you choose to go all the way to the East at Harvard Law School? And had you ever been to the East before? If you have a list of the, I'll make it up to 10 finest law professors in the country, six or eight of them would have been at Harvard. It was just simply. Stanford was also very, very good. Harvard Law School has a lot of lawyers that come to Wall Street and do something important like practice corporate law on Wall Street. And how come you decided not to do that?

14:35to go back west? It was important for me to go back home. Plus, my father was not well. It seemed to be important to help the family, and he wanted me to be at least again, even if I were practicing in Sacramento, San Francisco was a big firm. He wanted me to know what the structure of the legal profession was. Where did you meet your wife, Mary? Mary was also from Sacramento. Our families knew each other. Mary's younger, and so we didn't date. in high school because of the day of three and a half years is a pretty big thing. But we knew each other. You had three children and nine grandchildren.

15:14Nine. So you like the number nine, like on the court. Nine. The downside to being on the court is you can't talk to your wife ever about what you're doing? No. Mary would never know what I was working on, what the case was, whether I was writing a majority or dissent. She didn't even know what the case was and she'd read about it in the newspaper, said, oh, you decided that case? I said, well, yes. So you're practicing in Sacramento, and then somebody gets elected governor of California, and he asks for some advice, and that person's name was Ronald Reagan. So you got to know Ronald Reagan? Yes.

15:53We first met before he was running for governor at some event in a sense ago, Reagan, I had some friends who were mutual friends that we began to talk. And I said, there's a few things you should never ask. I said, one is about politics. I said, I know about it the way most people know about it. That's a part of all the inside of the things that you have. And he had one of the best political teams ever assembled. And he didn't need any advice from me. So I said, don't ask me about politics. And I said, second, don't ever ask me who should be appointed a judge. and he says, oh, that's where you can really help.

16:36And I said, well, maybe so and maybe no, but if you get, as a lawyer, and I had small cases, but I would go in the counties around Sacramento to appear in court, and if you get the reputation as a judgemaker or a judgebreaker, it's not good. The judge is going to either lean over towards you or lean maybe against you to show that he's there. And so I just didn't want that. So I said, don't ever ask me who should be appointed to judge. Did you ever show him your Reagan imitation? No, I don't think so.

17:16So, but he had a wonderful sense of humor. And he asked me, he wanted to have a safe California ballot. in a proposal which would cut government's standard. And so he asked me to draft the amendment. And I said, I don't know about budgets or bonds or special appropriations. He said, oh, this is an amendment to the Constitution, and you teach constitutional law. I said, no, no, no. The constitutional RIT has nothing to do with what you're talking about. You mean you can't write something that we're spending too much money?

18:09So as it turned out, I told him that if he could, there were two or three very brilliant people that were acquaintances of mine. Pretty soon Reagan got in the talk. He could absorb a briefing, David, better than any client I ever had. He later called you and said, Gerald Ford asked him for a recommendation to be on the Ninth Circuit Court of Appeals. And he recommended you, although you were only 38 years old. Right. You were confirmed easily. And then a couple of years later, Reagan is president of the United States. Yes. Did you ever think he would be president of the United States when you first met him?

18:46When his name started to surface, I thought, you know, there's a possibility here. All right. So he gets to be president of the United States. he has a vacancy on the Supreme Court and he calls you to be considered for it and you come in for the interview. Yes. He nominates you and you get confirmed by 97 to nothing. Yes. The last justice to be confirmed unanimously. So, okay. So you get on the court. This is, I think, the only time in the Supreme Court's history where you had the same nine justices for 11 years, but you worked together with these same people for 11 years. Did you get tired of seeing them every day or not, really?

19:30Just the opposite. It would be, we were together so long, you knew what I knew, and you knew what I knew you were going to say, and we could more or less begin from there. And we knew sometimes we wanted to really work hard to convince each other, which we sometimes You didn't always go into conference knowing exactly how the case should come out. So each justice gets four clerks. They're all young Supreme Court qualified people in terms of the top of their class in law schools and so forth. How did you pick your clerks? Did you ever pick any? You said, oops, I made a mistake. I shouldn't pick this person.

20:10The people that apply to you have wonderful resumes and they're toward the top of their class. and they've usually clerked with a court of appeals judge or a district court judge. It was important for me often to try to hire clerks who've been with a district court. District courts, in a way, a United States district court is the best job in the world. You're the only judge, you run your own empire. And the trial judge gets to see real people. He gets to see jurors and witnesses and attorneys. On the Court of Appeal, we don't have it. If you ever go to England, we were there one time listening to the argument, and the judge said, if counsel begins to quote the maxims of statutory construction, I shall be forced to leave the room.

21:02And the lawyer said, oh, my lord, I would not wish to precipitate such a calamitous event. So, you know, they go on like that. But being a trial judge in England or the United States is, I think, maybe the best job in the world. What would you like people to know about the court that they might get by reading your book that they might not already know? They should know more precisely how collegial it really is. We know that if you and I are a justice together, we know we would disagree. We're supposed to disagree. That's our job. But the question is how we disagree. The interaction on the court is much more fascinating than most people know.

21:50You hear things that you had not thought of before, and you see new possibilities for the law. Because after you decide something, there's a whole new realm for which to explore the future. It was my privilege to serve with 17 different justices. Your book is called Life, Law, and Liberty, and I enjoyed reading it, certainly, but I want to ask you a final question. You stayed awake? That's good. It is said by some that if you see the word liberty in an opinion, you know it's written by Justice Kennedy. Why is liberty such an important thing to you? when the authors of the constitution sat down for a period of what three months in Philadelphia if they had known all of the details of what freedom means they would have put it down but they were thoughtful enough to know that the components of freedom the components of liberty are something we must learn over time.

22:58So they use spacious words like life, liberty, and property. Incidentally, lawyers even sometimes make a mistake. We think of life, liberty, and happiness. That's the Declaration of Independence. The Constitution talks about life, liberty, and property. Why doesn't the Constitution talk about happiness? Because that's judicially unenforceable. Although perhaps some judges would be ready to try. And you always carry a copy of the Constitution with you everywhere you go? Well, usually I do. Because it's interesting. This is both the Constitution and the Declaration of Independence. If you read the Constitution of the United States, sit down cover to cover, it'll take you about two and a half hours and you'll fall asleep for part of it.

23:49The preamble, the preface is simply beautiful. The Constitution, it's fascinating that it has lasted for the... We have the 250th anniversary of the Declaration of Independence next year. And we're going to have a time capsule that people will open 250 years from now. If we put the Constitution of the United States in the time capsule 250 years from now, will it still be known? Will it still be respected? Will it still be the way in which our nation defines ourselves? It has been for the last 250 years. Thanks for listening. To hear more of my interviews, you can subscribe and download my podcast on Spotify, Apple, or wherever you listen.

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