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Speaker 1: Bloomberg Audio Studios, podcasts, radio news.

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Speaker 2: This is Bloomberg Law employer to frequently exploit the weaknesses

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Speaker 2: in the law.

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Speaker 3: Courts are going to be asking questions about separation of powers.

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Speaker 3: One by one, Google settled with all of these other

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Speaker 3: plaintiffsy interviews.

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Speaker 1: With prominent attorneys and Bloomberg Legal experts. Joining me is

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Speaker 1: immigration law expertly on Fresco, First Amendment law expert Caroline

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Speaker 1: Malick Corbin, and analysis of important legal issues, cases and headlines.

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Speaker 3: The trial judge may well want to hold a hearing.

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Speaker 3: They have never said this case should never have been

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Speaker 3: brought in the first place.

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Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio. Welcome to

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Speaker 1: the Bloomberg Law Show. I'm Nathan Hager filling in for

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Speaker 1: June Grosso on the show. Today we focus on the

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Speaker 1: Supreme Court. We'll hear a portion of a special conversation

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Speaker 1: with retired Supreme Court Justice Anthony Kennedy. He sat down

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Speaker 1: with David Rubinstein earlier this year at the ninety second

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Speaker 1: Street Y in Manhattan to discuss his three decades on

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Speaker 1: the bench some of his landmark opinions. Man More that's

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Speaker 1: on the way on the Bloomberg Law Show as we

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Speaker 1: focus on the Supreme Court. But before we hear from

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Speaker 1: a member of the court's past, let's spend some time

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Speaker 1: on some of the major cases that are expected to

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Speaker 1: face the High Court in the new year. Joining me

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Speaker 1: for a look at what to expect from the Supreme

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Speaker 1: Court in twenty twenty six is Harold Krent. He's professor

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Speaker 1: of law at the Chicago Kent College of Law. Harold,

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Speaker 1: thanks for being with us.

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Speaker 3: My pleasure.

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Speaker 4: And there's certainly some showstoppers on terms of cases coming

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Speaker 4: up in the next couple of months.

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Speaker 1: No kidding. And I think probably the one case that

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Speaker 1: Wall Street is certainly waiting for a decision on is

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Speaker 1: one that the High Court already heard about. Of course,

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Speaker 1: that's on President Trump's emergency tariffs. Should we be expecting

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Speaker 1: a decision on that in the next few weeks do

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Speaker 1: you think?

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Speaker 4: I don't think it'd be next few weeks. I think

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Speaker 4: it'd be later in the term. But certainly that's critical.

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Speaker 4: But the other critical case for Austreet has to do

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Speaker 4: with the discharge of a member of the Fed Reserve Board,

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Speaker 4: Lisa Cook. And even in the argument that was just

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Speaker 4: you had a couple of weeks ago, the members of

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Speaker 4: the Court suggested that they might deviate from President Trump

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Speaker 4: and say that even though he has the ability to

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Speaker 4: fire heads of independent agencies, he can't fire the head

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Speaker 4: or one of the members of the FED. So that

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Speaker 4: still be a great interest to Wall Street as well.

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Speaker 1: Certainly, let's talk a little bit more about what we

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Speaker 1: learned from those arguments around the possibility of firing independent

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Speaker 1: agency heads. Do we get some clues there about how

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Speaker 1: the justices could respond to the arguments that are coming

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Speaker 1: up in the FED governor Cook case in the next

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Speaker 1: couple of weeks.

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Speaker 3: Yeah.

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Speaker 4: Again, two members of the Court, Chief Justice Roberts as

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Speaker 4: well as Justice Kevanaugh, suggested that they had some kind

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Speaker 4: of reticence about following the logic of the argument from

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Speaker 4: the FTC case the Federal Trade Commission case and to

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Speaker 4: apply it to the FED. And I'm not sure that

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Speaker 4: it's a coherent distinction, but it's one that the Court

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Speaker 4: is exploring, and I think there may be a majority

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Speaker 4: to say that the Fed, because it has some private members,

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Speaker 4: because of its special role in history, might be segregated.

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Speaker 4: I mean, the interesting thing is what else will be

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Speaker 4: segregated from the sweeping ban or sweeping permission for the

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Speaker 4: president to fire at will all members of independent agencies,

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Speaker 4: maybe judicative agencies such as the Mayor Assistant Protection Board.

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Speaker 4: We don't know, but it looks like the FED will

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Speaker 4: be one of the exceptions. At the court world here too.

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Speaker 1: Are you thinking that we're going to hear arguments around

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Speaker 1: the merits of the case, the argument that President Trump

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Speaker 1: and his administration is putting forward here these allegations of

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Speaker 1: mortgage fraud that they've been using to say that the

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Speaker 1: President does have cause to fire Governor Cook.

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Speaker 4: I think they will probably not talk in detail about

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Speaker 4: the mortgage fraud issue, but they will talk about whether

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Speaker 4: or not the president needs cause to fire the Cook

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Speaker 4: Lisa Cook. I don't think they'll get into the question

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Speaker 4: about what constitutions caused, but I could be wrong. Certainly,

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Speaker 4: There's been a lot of people who have been investigated

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Speaker 4: by the Trouble administration who have similar issues, and they

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Speaker 4: seem to be pretty thin when you push on them.

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Speaker 4: But I don't think they're going to get into that

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Speaker 4: particular issue of what constitutes caused for discharge. If they

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Speaker 4: say that you need cause, I think that will be

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Speaker 4: enough of a statement from the court.

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Speaker 1: Walk us through some of the arguments that we could

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Speaker 1: hear when it comes to the idea of for cause

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Speaker 1: rationale to fire a FED official. Do you think we're

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Speaker 1: going to get a your definition from this case about

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Speaker 1: the bar that's set for the FED when it comes

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Speaker 1: to cause for firing.

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Speaker 3: Yeah.

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Speaker 4: And you know, the Court has been incredibly vague about

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Speaker 4: what constitutes cause or neglective duties in all these cases,

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Speaker 4: so it's never really given a really good blueprint about

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Speaker 4: what kind of reasons president must articulate before they can

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Speaker 4: discharge someone who's protected from discharge except for cause. You

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Speaker 4: know that has been adjudicated a lot in employee cases,

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Speaker 4: so we know cause means some kind of wrongful conduct

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Speaker 4: on the jobs. We don't know if in this case

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Speaker 4: with Lisa Cook, this was something that happened way before

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Speaker 4: she was a director of the FED. I think the

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Speaker 4: fact that it has happened before probably still could be

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Speaker 4: give reason to cause. I mean, you can think about

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Speaker 4: someone who's committed a serious crime before they're appointed and

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Speaker 4: only comes to light afterwards. But the court has not

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Speaker 4: articulated what caused us means. And I don't think this

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Speaker 4: will be a vehicle that will see it in terms

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Speaker 4: of the timing of the nature of the misconduct, how

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Speaker 4: serious the misconduct must be, how tied it is to

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Speaker 4: their ability to function the job. These are all the

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Speaker 4: questions of what cause might constitute. But I think we're

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Speaker 4: going to have to wait another day before we get

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Speaker 4: a court ruling on that issue.

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Speaker 1: And how important is this case when it comes to

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Speaker 1: preservation of federal reserve independence? Are we going to get

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Speaker 1: a really clear idea around that.

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Speaker 4: I think we will, And my guess is again, there'll

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Speaker 4: be a carve out for the FED, and it won't

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Speaker 4: necessarily be coherent, but it's something I think that the

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Speaker 4: court wants to take a position on. And you know,

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Speaker 4: the interesting issue is whether they'll give some kind of

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Speaker 4: hint about whether there are other carve outs or whether

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Speaker 4: this general rule, the fact that Congress cannot protect any

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Speaker 4: kind of agency from the president's plnary mooval authority, whether

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Speaker 4: that will be the you know, biding governing rule with

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Speaker 4: only the FED as a possible exception.

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Speaker 1: We're speaking with Harold Krant, a professor of constitutional law

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Speaker 1: at the Chicago Kent College of Law. Harold, let's talk

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Speaker 1: about some of the other cases coming before the High

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Speaker 1: Court in the next month. Here, we're expecting arguments around

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Speaker 1: the president's efforts to roll back birthright citizenship. This is

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Speaker 1: an issue that's come before the Court on a legal question,

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Speaker 1: but I think this is the first time that the

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Speaker 1: justices are actually going to be weighing in on the

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Speaker 1: order itself.

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Speaker 3: Is that right? Yeah?

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Speaker 2: I mean the Court dealt with birthright citizenship, you know,

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Speaker 2: almost hundred years ago or so in the wonkim Our case,

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Speaker 2: holding that someone who was born not a citizen, born

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Speaker 2: in this country could basically obtain birthright citizenship.

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Speaker 4: I don't think the Court's going to deviate from that

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Speaker 4: in this case. I think it will deal with Trump

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Speaker 4: administration a blow. All the lower courts have gone against

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Speaker 4: President Trump on this issue, so I would predict and

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Speaker 4: think it's quite compelling for the Court to hold that

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Speaker 4: the executive order redefining citizenship is inconsistent with the words

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Speaker 4: of the Fourteenth Amendment.

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Speaker 1: Well, what's the Trump administration's rationale it's reading on the

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Speaker 1: fourteenth Amendment? What are the arguments against it?

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Speaker 4: What Fourteenth Amendment reads, in perminent part that all persons

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Speaker 4: born or naturalizing the United States and subject to the

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Speaker 4: jurisdiction the Robert citizens It seems plain. It seems to

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Speaker 4: cover anybody who's in the United States and who was

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Speaker 4: born there. What the Trump has redefined it to say

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Speaker 4: that they need to be subject to the lawful jurisdiction

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Speaker 4: of the United States somewhere, to put lawful in front

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Speaker 4: of jurisdiction, to suggest that people who are here illegally

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Speaker 4: cannot get the benefit of this citizenship clause. I mean,

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Speaker 4: that is a plausible argument if it had been written

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Speaker 4: in the Fourteenth Amendment and if it had been interpreted

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Speaker 4: that way in the past. But the Trump administration is

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Speaker 4: going against history as well as the plain language of

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Speaker 4: the Fourteenth Amendment in making its argument.

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Speaker 1: Now, this isn't the only immigration related case. If you

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Speaker 1: want to argue that birthright citizenship is part of the

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Speaker 1: immigration issue that the High Court is going to consider

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Speaker 1: in this term. We're also awaiting arguments on the Trump

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Speaker 1: administration's practice known as asylum metering. Walk us through this.

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Speaker 4: How yeah, it actually comes from the first Trump administration

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Speaker 4: where there was a Russia at the border, and under

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Speaker 4: the immigration laws, everybody who is at our border can

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Speaker 4: apply for asylum and then they're guaranteed some kind of hearing,

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Speaker 4: which unfortunately usually takes several years before it materializes and

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Speaker 4: people are waiting around for that hearing. So to neutralize

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Speaker 4: that on the first Trump administration undertook this metering policy

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Speaker 4: which said that if there was too many people at

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Speaker 4: the border, they simply can apply for asylum.

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Speaker 3: And then the.

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Speaker 4: Question is whether that rule is consistent with Congress's statute,

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Speaker 4: which says anybody in the United States can apply for asylum.

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Speaker 4: And the argument there is, if you're two feet away

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Speaker 4: from the border and you're being held back by agents

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Speaker 4: of the immigration agents, are you therefore not in the

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Speaker 4: United States and therefore cannot apply for asylum? And the

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Speaker 4: lower courts have struck down this policy, but I think

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Speaker 4: it's an open question. I think the Trump administration might

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Speaker 4: win on the narrow ground that if you're two feet

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Speaker 4: away from the border, you're two feet away from the border,

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Speaker 4: and immigration agents can apply force to prevent somebody from

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Speaker 4: applying for asylum. That's just a guess, but I think

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Speaker 4: The's got much Trump administrations a much better chance of

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Speaker 4: succeeding on this than on birthright citizenship.

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Speaker 1: Interesting we're also awaiting some arguments on a major case

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Speaker 1: when it comes to mail in ballots. Walk us through

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Speaker 1: what the court's going to be considering here.

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Speaker 4: I'm just sort of astonished by this case. We obviously

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Speaker 4: have had the question of mail in ballots throughout you know,

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Speaker 4: most of our history as a country. And you know

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Speaker 4: that for a mail in ballot, whether it's from overseas

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Speaker 4: or from even the states, they may not arrive in

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Speaker 4: time for election day because you can't know when election

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Speaker 4: day will. I mean, you can't know when the mail

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Speaker 4: is going to arrive. So the claim here is that

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Speaker 4: when I was set a particular election day, that it

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Speaker 4: means that all votes must be in on that day

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Speaker 4: to be counted, so we as a one country can

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Speaker 4: know what the result is on that particular day. And

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Speaker 4: so that the you know, fifteen states that have mail

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Speaker 4: in ballots and the twenty nine states or so that

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Speaker 4: have military mail in ballots, they have to cut off

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Speaker 4: counting the ballots berneyballot that comes after election day. This

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Speaker 4: is going against history, is to going against sort of

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Speaker 4: practical understanding, but it will have a major impact in

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Speaker 4: the future upon the role of mail in ballots in

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Speaker 4: our elections. And if the court holds the Congress's desigh

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Speaker 4: National Election Day precludes mail in ballots, then abs into

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Speaker 4: congressional amendment. The whole notion of mail in ballots from

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Speaker 4: overseas or from the States will have to be altered significantly,

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Speaker 4: and I'm not sure that that's going to be the

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Speaker 4: best for our country.

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Speaker 1: Thanks for walking us through what's going to be a

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Speaker 1: very busy second half of the Supreme Court term heading

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Speaker 1: into twenty twenty six. That's Harold Krentz, professor of law

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Speaker 1: at the Chicago Kent College of Law. Up next, we

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Speaker 1: hear a special conversation with retired Supreme Court Justice Anthony Kennedy.

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Speaker 1: You're listening to Bloomberg Law. I'm Nathan Hager for June Grosso,

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Speaker 1: and this is Bloomberg. This is Bloomberg Law with June

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Speaker 1: Grosso from Bloomberg Radio. Thanks for listening to the Bloomberg

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Speaker 1: Law Show. I'm Nathan Hager in for June Grosso. Today's

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Speaker 1: show is focused on the Supreme Court. Earlier this year,

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Speaker 1: David Rubinstein got a chance to sit down with someone

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Speaker 1: with decades of experience on the bench, retired Justice Anthony Kennedy.

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Speaker 1: The two spoke at the ninety second Street Why in

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Speaker 1: Manhattan for an extended conversation that covered everything from some

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Speaker 1: of Kennedy's landmark decisions to his thoughts on the rule

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Speaker 1: of law. Let's listen to a portion of that conversation now,

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Speaker 1: Starting with Kennedy's decision to write his memoir Life, Law

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Speaker 1: and Liberty.

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Speaker 5: I wanted to write about a Sacramento, a small town

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Speaker 5: in the thirties, forties, fifties, sixties. My children grew up

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Speaker 5: in Sacramento, but they didn't know about those earlier decades,

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Speaker 5: and my grandchildren didn't know Sacramento at all. So it

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Speaker 5: seemed to me interesting to me to write about that

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Speaker 5: time in our culture, were our generation was right after

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Speaker 5: the Great generation. Right in the small town, there was

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Speaker 5: a courtesy, there was a professionalism that were simply wonderful.

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Speaker 5: I wanted to write about that Supreme Court. For the

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Speaker 5: first thing many people do is they forget about the

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Speaker 5: sycono part. They want to read about about the recent cases,

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Speaker 5: so they look. But we wanted to have this for

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Speaker 5: our children and our grandchildren to read. And then as

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Speaker 5: the writing went on, it seemed to me that people

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Speaker 5: were saying that it might be of interest to others, as.

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Speaker 3: Those people that have not been a justice of the

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Speaker 3: Supreme Court and you were on the court for thirty years.

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Speaker 3: What's the greatest thrill about being on the court and

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Speaker 3: what's the biggest downside of being on the court.

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Speaker 5: The biggest thrill is that you have only cases in

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Speaker 5: which the law has been undecided, and you recognize that

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Speaker 5: what you're doing is exploring the law. And you know

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Speaker 5: that after you write what the law is or what

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Speaker 5: do you think it is, there's a whole new vista,

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Speaker 5: a whole new realm to explore. And that's the fascinating

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Speaker 5: part of it. We only take cases in which other

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Speaker 5: courts have disagreed. And in India, the Supreme Court has

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Speaker 5: to take every case and they have a fifty thousand

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Speaker 5: case backlog or something. But we select only the cases

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Speaker 5: in which other courts have disagreed. And so that's the

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Speaker 5: fascinating part, is that you are on the frontier of

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Speaker 5: the law and what you write is the beginning of

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Speaker 5: a frontier because there's new things to explore.

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Speaker 3: But those people aren't familiar. How you decide, let's go

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Speaker 3: through the process. You have people who want to appeal

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Speaker 3: to the Supreme Court. They have something called a writ

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Speaker 3: ofi and you accept about you have to have four

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Speaker 3: justices agreed to accept.

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Speaker 5: They're called the rule of for you need four four

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Speaker 5: justices to grant a petition for cure petitions who are

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Speaker 5: sir sure ari is a motion to please take our case.

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Speaker 5: And the court has thousands of petitions of suari each year,

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Speaker 5: but they select only those cases where the courts are

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Speaker 5: in conflict and where they think the guidance, where we

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Speaker 5: think the guidance of the court will be helpful.

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Speaker 3: When the cases are taken, the briefs are submitted by

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Speaker 3: the lawyers. Do you talk to each other the justice

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Speaker 3: before you actually hear oral arguments? Or you just read

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Speaker 3: the briefs and then you go to the oral argument

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Speaker 3: and you don't talk to each other before you actually

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Speaker 3: hear the or RG.

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Speaker 5: We're very careful not to talk to each other before

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Speaker 5: in parts and fairness to the lawyers. And we don't

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Speaker 5: want cliques where you and I agree, or you and

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Speaker 5: I disagree, and I don't tell you what I've talked

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Speaker 5: to the other. Just we don't do that.

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Speaker 3: After you hear the oral arguments, you go back to

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Speaker 3: a conference and you have a hair tight room so

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Speaker 3: nobody can listen to what you're saying, and so forth,

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Speaker 3: and nobody is allowed in the room other than the justices, right,

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Speaker 3: and we.

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Speaker 5: Have a double door just to remind everybody that what

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Speaker 5: goes on in there is absolutely private forever.

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Speaker 3: So then you begin to say what your views are,

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Speaker 3: and who decides to speak first, who gets to speak first,

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Speaker 3: and who speaks last?

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Speaker 5: The chief Justice speaks first, the next most senior justice senior,

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Speaker 5: because you've he or she has been there. The longest

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Speaker 5: seniority is not by age, but how long you've been around.

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Speaker 5: If you're the most junior and it's four to four,

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Speaker 5: it's very exciting because everybody is listening to what you're

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Speaker 5: going to say.

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Speaker 3: So who decides who writes the opinions? Who decides that.

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Speaker 5: There's a Let's assume there's a majority and understand sometimes

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Speaker 5: they're unanimous. There's a lot more unanimous opinions than than

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Speaker 5: most most people think. The senior justice in the majority

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Speaker 5: of science the majority, and the senior justice in the

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Speaker 5: descent of science the descent.

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Speaker 3: Does any justice ever go down to another justice's chambers

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Speaker 3: and say, you know what, I really don't like your opinion,

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Speaker 3: but i'll support you if you support me. On another case,

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Speaker 3: do you ever do that kind of horse.

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Speaker 5: Training that no, that would that would be totally improper,

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Speaker 5: might even be illegal. You never you never trade.

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Speaker 3: Both everything improper or everything washed. It will ever happen. Right.

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Speaker 5: Plus, we don't go to the other chambers. We said

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Speaker 5: it by memo, But everybody gets a copy of that memo.

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Speaker 3: So the justices read the memos. They may change their

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Speaker 3: mind and the opinions. But more times when you were

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Speaker 3: on the court, you were the five to four in

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Speaker 3: the majority than anybody else. I think that's right. So

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Speaker 3: when you're five to four in the majority and you're

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Speaker 3: making the real decisions because you're the deciding vote, is

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Speaker 3: that put a special burden on you to really make

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Speaker 3: sure you're comfortable with the decision.

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Speaker 5: You want the views of your other colleagues to indicate

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Speaker 5: that you're going in the right direction or the wrong direction.

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Speaker 5: And there and there's a lot of interchange and the

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Speaker 5: memos that way and that, and that's how we want

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Speaker 5: to try to put a majority together. Sometimes you're assigning

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Speaker 5: the majority opinion and you'll get a memo. Dear Tony,

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Speaker 5: I've read your draft opinion. It seems to me better

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Speaker 5: to wait to read the descent, Oh that's going to

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Speaker 5: go on, or sometimes you write a descent and say,

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Speaker 5: you know, on the other way around, you've convinced other people.

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Speaker 3: Let's talk about Bush v. Gore. You were right. You

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Speaker 3: wrote the procureum opinion, which meant that it's for the

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Speaker 3: whole court. You didn't put your name on. It was

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Speaker 3: that of very difficult decision for the court to get

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Speaker 3: involved in the case and then make the decision that

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Speaker 3: would decide the election.

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Speaker 5: A not a difficult decision at all. Seven of us

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Speaker 5: agreed basier to take it. Can you have a state

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Speaker 5: court decide who's going to be the president of the

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Speaker 5: United States and say, well, we're too busy to take it.

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Speaker 3: Gore bought the case, not Bush. Gore bought the case.

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Speaker 5: And the rule is that if you're unsuccessful in the

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Speaker 5: lower court and you come to the Supreme Court, you're

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Speaker 5: the so called petitioner and your name is first. So

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Speaker 5: it was Bush who bought the case of Supreme Court

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Speaker 5: what it was called Bush Bush, But Gore was the

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Speaker 5: one who started the case. Seven of US agreed that

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Speaker 5: we should take the case, and more than a majority,

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Speaker 5: six or seven agreed that there was a legal wrong.

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Speaker 5: The question was how to remedy the legal wrong.

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Speaker 3: That was five to four. Ultimately five to four. The

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Speaker 3: five people who were for Bush were Republican appointees. The

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Speaker 3: four who were for Or were the Democratic appointees. Some

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Speaker 3: people said that showed that court was really political. How

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Speaker 3: do you use respond to begin with that?

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Speaker 5: That's wrong? A Suitor and Stevens were both Republican appointees.

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Speaker 3: Okay, all right, so that you don't think the Court

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Speaker 3: was hurt by the perception that it was political decision.

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Speaker 5: Yeah, the Court's always hurt, it seems to me if

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Speaker 5: they if we look political. One of my concerns, my

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Speaker 5: present day concerns, is there's too much partisanship. President's a

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Speaker 5: point justices from their same party. But the partisanship should

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Speaker 5: not be an overriding factor. What you look at is temperament, learning, background, reputation,

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Speaker 5: whether or not you have those qualities of independence and

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Speaker 5: caution that make for a good judge. And the partisanship

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Speaker 5: is overemphasized in the Senate during the nomination process. They

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Speaker 5: should not emphasize it so much so.

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Speaker 3: You will be always remembered for, among other things, the

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Speaker 3: decision you wrote to legalize gay marriage, yes, and was

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Speaker 3: that a difficult decision for you to come to and

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Speaker 3: have you found any reason why people are upset about

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Speaker 3: that or do you think the court will ever reverse

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Speaker 3: that decision.

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Speaker 5: Of course people were upset about it, and it was

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Speaker 5: a very difficult decision. When we were growing up, the

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Speaker 5: gay movement was something we just didn't know much about

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Speaker 5: or to think much about. With my clerks, we spent

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Speaker 5: days researching the history of marriage, reading the Bible and

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Speaker 5: great works of Jurisprun's in before the Christian era. For me,

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Speaker 5: they important that perhaps deciding factor was the children we

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Speaker 5: were in made us to find that at first it

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Speaker 5: looked like seventy five thousand children were adopted by gay parents,

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Speaker 5: and then it turned out they were in the hundreds

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Speaker 5: of thousands. And these children were in states that did

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Speaker 5: not allow gay marriage. At a disadvantage, if the child

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Speaker 5: was sick, only the adopting parent, not the not the spouse,

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Speaker 5: could come to see the child in the hospital. The

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Speaker 5: kids would would have to say they don't have to

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Speaker 5: have to have two parents. The stigma and the hardship

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Speaker 5: on the children was a very important factor for those

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Speaker 5: of us in the majority.

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Speaker 3: You have been concerned about civility generally in life, and

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Speaker 3: you think civil discourse is an important thing in our country. Increasingly,

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Speaker 3: you seemen our dissenting opinions in the Supreme Court aren't

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Speaker 3: quite as civil as maybe you might prefer, and are

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Speaker 3: is that of concern to you? You're not on the

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Speaker 3: court now, but if you're concerned that sometimes the justices

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Speaker 3: are very uncomplimentary of each other's views.

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Speaker 5: Yes, it's a great concern to me that our civil discourse,

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Speaker 5: our civic discourse, is not civil enough. Aristotle said that

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Speaker 5: a democracy depends on an open debate where you respect

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Speaker 5: the dignity of those with whom you disagree. He said,

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Speaker 5: democracies only live if they are sustained over a period

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Speaker 5: of time by a thoughtful, rational discourse, a discourse in

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Speaker 5: which you respect the dignity of those with whom you disagree.

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Speaker 5: And I don't I think that's a danger in our

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Speaker 5: present day and age. What do they call it political identity?

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Speaker 5: If you're a member of Party X, then we just

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Speaker 5: assume you have all these views and we don't like

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Speaker 5: you where we do like you. Uh this this, this

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Speaker 5: is not uh good for our for our public and

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Speaker 5: for our national discord.

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Speaker 1: That's former Supreme Court Justice Anthony Kennedy in an extended

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Speaker 1: conversation with David Rubinstein. You can hear the full conversation

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Speaker 1: right now. It's episode five of the latest season of

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Speaker 1: The David Rubinstein Show. Peer to Peer Conversations. Head to

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Speaker 1: Bloomberg dot com slash peer, Dash to Dash peer for more.

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Speaker 1: Up next, we'll sample a little more of that conversation

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Speaker 1: with Anthony Kennedy. I'm Nathan Hager in for June Grosso,

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Speaker 1: and you're listening to Bloomberg Law from Bloomberg Radio. You're

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Speaker 1: listening to Bloomberg Law with June Grosso from Bloomberg Radio.

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00:25:59,640 --> 00:26:02,520
Speaker 1: I'm Athan Hager in for June Grosso on this edition

440
00:26:02,600 --> 00:26:05,600
Speaker 1: of Bloomberg Law. June will be back next week. We've

441
00:26:05,600 --> 00:26:08,199
Speaker 1: been focusing on the Supreme Court and listening in on

442
00:26:08,240 --> 00:26:12,080
Speaker 1: a special conversation with former Supreme Court Justice Anthony Kennedy

443
00:26:12,240 --> 00:26:14,919
Speaker 1: from his appearance on The David Rubinstein Show Peer to

444
00:26:15,000 --> 00:26:18,560
Speaker 1: Peer Conversations. Let's listen to more of Kennedy's conversation with

445
00:26:18,680 --> 00:26:22,520
Speaker 1: David Rubinstein, recorded live on stage at the ninety second Street.

446
00:26:22,560 --> 00:26:25,040
Speaker 1: Why in Manhattan, you.

447
00:26:25,119 --> 00:26:28,960
Speaker 3: Have been concerned about the civility generally in life, and

448
00:26:29,040 --> 00:26:32,080
Speaker 3: you think civil discourse is an important thing in our country.

449
00:26:33,280 --> 00:26:36,240
Speaker 3: Increasingly you seem in our dissenting opinions in the Supreme

450
00:26:36,240 --> 00:26:39,919
Speaker 3: Court or quite as civil as maybe you might prefer,

451
00:26:40,600 --> 00:26:43,040
Speaker 3: and or of concern to you. You're not on the

452
00:26:43,080 --> 00:26:45,880
Speaker 3: court now, but is you're concerned that sometimes the justices

453
00:26:45,920 --> 00:26:50,520
Speaker 3: are very uncomplimentary of each other's views.

454
00:26:51,080 --> 00:26:55,280
Speaker 5: Yes, it's a great concern to me that our civil discourse,

455
00:26:55,920 --> 00:27:03,320
Speaker 5: our civic discourse, is not civil enough. Aristotle said that

456
00:27:03,400 --> 00:27:07,879
Speaker 5: the democracy depends on an open debate where you respect

457
00:27:08,000 --> 00:27:11,120
Speaker 5: the dignity of those with whom you disagree. He said,

458
00:27:11,119 --> 00:27:15,679
Speaker 5: democracies only only live if they are sustained over a

459
00:27:15,720 --> 00:27:21,520
Speaker 5: period of time by a thoughtful, rational discourse, a discourse

460
00:27:21,560 --> 00:27:24,800
Speaker 5: in which you respect the dignity of those with whom

461
00:27:24,960 --> 00:27:27,000
Speaker 5: you disagree.

462
00:27:27,600 --> 00:27:29,040
Speaker 3: And I don't.

463
00:27:29,760 --> 00:27:33,960
Speaker 5: I think that's a danger in our present day and age.

464
00:27:34,160 --> 00:27:37,399
Speaker 5: What do they call it political identity? If you're a

465
00:27:37,400 --> 00:27:40,919
Speaker 5: member of Party X, then we just assume you have

466
00:27:41,240 --> 00:27:43,560
Speaker 5: all these views and we don't like you, or we

467
00:27:43,600 --> 00:27:44,040
Speaker 5: do like you.

468
00:27:45,920 --> 00:27:47,240
Speaker 3: This is not.

469
00:27:49,000 --> 00:27:52,520
Speaker 5: Good for our for our public, and for our national discord.

470
00:27:53,080 --> 00:27:56,960
Speaker 5: You were born where Sacramento California.

471
00:27:56,560 --> 00:27:59,000
Speaker 3: And your father was what a lawyer?

472
00:27:59,119 --> 00:28:04,840
Speaker 5: My father was a solo practitioner and had an amazing

473
00:28:04,920 --> 00:28:08,600
Speaker 5: law practice. And your mother, my mother had come to Sacramento,

474
00:28:08,640 --> 00:28:10,840
Speaker 5: that's how she met him from San Francisco, in order

475
00:28:10,880 --> 00:28:13,520
Speaker 5: to work for the state government. And she had been

476
00:28:13,800 --> 00:28:15,560
Speaker 5: she had been a teacher as well.

477
00:28:15,880 --> 00:28:17,920
Speaker 3: What were your interests as of a boy?

478
00:28:18,480 --> 00:28:21,840
Speaker 5: We were interested in our family in government. I learned

479
00:28:21,840 --> 00:28:25,360
Speaker 5: to read at a very early age, reading classic literature

480
00:28:25,520 --> 00:28:30,000
Speaker 5: when I was eight or nine years old, and so

481
00:28:30,359 --> 00:28:34,520
Speaker 5: I was a little bored in school, and my parents

482
00:28:34,680 --> 00:28:36,280
Speaker 5: thought it would be a good idea for me to

483
00:28:36,320 --> 00:28:39,560
Speaker 5: be a page boy, the only page boy at the

484
00:28:39,600 --> 00:28:40,200
Speaker 5: state Senate.

485
00:28:40,440 --> 00:28:42,160
Speaker 3: You must have done pretty well in high school. You

486
00:28:42,200 --> 00:28:45,120
Speaker 3: got into Stanford. You hardy get into Stanford those days,

487
00:28:45,200 --> 00:28:50,080
Speaker 3: or not that hard. It was hard to pay for it.

488
00:28:51,800 --> 00:28:53,800
Speaker 3: Stanford has a good law school. My son went to

489
00:28:53,800 --> 00:28:56,280
Speaker 3: Stanford Law School. Why wasn't Stanford Law School the one

490
00:28:56,320 --> 00:28:57,800
Speaker 3: you went to. Why did you just choose to go

491
00:28:57,840 --> 00:28:59,840
Speaker 3: all the way to the east at Harvard Law School?

492
00:28:59,840 --> 00:29:01,440
Speaker 3: And had you ever been to the east before?

493
00:29:01,640 --> 00:29:05,640
Speaker 5: If you had a list of we'll make it up

494
00:29:05,640 --> 00:29:12,200
Speaker 5: the ten finest law professors in the country. Six or

495
00:29:12,240 --> 00:29:14,680
Speaker 5: eight of them would have been at Harvard, who's simply amazing.

496
00:29:14,840 --> 00:29:17,720
Speaker 3: Stanford was also very, very good. But Harvard Law School

497
00:29:17,840 --> 00:29:19,880
Speaker 3: has a lot of lawyers that come to Wall Street

498
00:29:19,920 --> 00:29:23,240
Speaker 3: and do something important like practice corporate law on Wall Street.

499
00:29:23,760 --> 00:29:26,080
Speaker 3: And how come you decided not to do that to

500
00:29:26,200 --> 00:29:26,920
Speaker 3: go back west.

501
00:29:27,240 --> 00:29:30,200
Speaker 5: It was important for me to go back home. Plus,

502
00:29:30,280 --> 00:29:33,320
Speaker 5: my father was not well. It seemed to me important

503
00:29:33,600 --> 00:29:37,680
Speaker 5: to help the family, and he wanted me to at

504
00:29:37,760 --> 00:29:40,040
Speaker 5: least begin if I were even if I were practicing

505
00:29:40,480 --> 00:29:42,720
Speaker 5: in San Francisco with a big firm, He wanted me

506
00:29:42,800 --> 00:29:46,840
Speaker 5: to know what the structure of the legal profession was.

507
00:29:46,960 --> 00:29:48,320
Speaker 3: Where did you meet your wife, Mary?

508
00:29:48,920 --> 00:29:52,040
Speaker 5: Mary was also from Sacramento. Our families knew each other.

509
00:29:52,240 --> 00:29:56,520
Speaker 5: Mary's younger, and so we didn't date in high school

510
00:29:56,520 --> 00:29:58,800
Speaker 5: because of the three and a half years is a

511
00:29:58,800 --> 00:30:01,720
Speaker 5: pretty big thing, but we knew each other.

512
00:30:02,080 --> 00:30:05,000
Speaker 3: You have three children and nine grandchildren, nine, so you

513
00:30:05,120 --> 00:30:08,160
Speaker 3: liked the number nine. Like on the court, right. The

514
00:30:08,200 --> 00:30:11,120
Speaker 3: downside of being on the court is you can't talk

515
00:30:11,160 --> 00:30:12,720
Speaker 3: to your wife ever about what you're doing.

516
00:30:13,000 --> 00:30:18,080
Speaker 5: No, Mary would never know what I was working on,

517
00:30:18,160 --> 00:30:21,080
Speaker 5: what the case was, whether I was writing a majority

518
00:30:21,160 --> 00:30:22,640
Speaker 5: of the sense. She didn't even know what the case

519
00:30:22,720 --> 00:30:25,320
Speaker 5: was and she'd read about it in the newspaper. Said, oh,

520
00:30:25,360 --> 00:30:27,440
Speaker 5: you decided that. I said, well, yes, So.

521
00:30:29,400 --> 00:30:33,480
Speaker 3: You're practicing in Sacramento. And then somebody gets elected governor

522
00:30:34,000 --> 00:30:37,640
Speaker 3: of California and he asked for some advice. And that

523
00:30:37,680 --> 00:30:40,520
Speaker 3: person's name was Ronald Reagan. So you got to know

524
00:30:40,600 --> 00:30:41,240
Speaker 3: Ronald Reagan.

525
00:30:42,080 --> 00:30:48,160
Speaker 5: Yes, we first met before he was running for governor

526
00:30:48,800 --> 00:30:53,920
Speaker 5: at some event and Sansaco. Reagan had some friends who

527
00:30:53,960 --> 00:30:57,240
Speaker 5: were mutual friends, and we began to talk and I said,

528
00:30:57,240 --> 00:31:00,440
Speaker 5: there's a few things you should never ask me. I said,

529
00:31:00,440 --> 00:31:04,480
Speaker 5: one is about politics. I said, I know about it

530
00:31:04,880 --> 00:31:07,240
Speaker 5: the way most people know about it, but so far

531
00:31:07,280 --> 00:31:09,959
Speaker 5: as all the insider things that you have. And he

532
00:31:10,040 --> 00:31:12,840
Speaker 5: had one of the best political teams ever. A sampled

533
00:31:12,880 --> 00:31:15,200
Speaker 5: that he didn't need any advice from me. So I said,

534
00:31:15,200 --> 00:31:18,200
Speaker 5: don't ask me about politics. I said, second, don't ever

535
00:31:18,240 --> 00:31:21,520
Speaker 5: ask me who should be appointed a judge. And he said, oh,

536
00:31:22,240 --> 00:31:27,960
Speaker 5: that's where you can really help. And I said, well,

537
00:31:28,360 --> 00:31:31,480
Speaker 5: maybe so, and maybe no, but if you get as

538
00:31:31,520 --> 00:31:34,280
Speaker 5: a lawyer, and I had small cases, but I would

539
00:31:34,280 --> 00:31:40,120
Speaker 5: go in the counties around around Sacramento to appear in court,

540
00:31:40,440 --> 00:31:42,719
Speaker 5: and if you get the reputation as a judge maker

541
00:31:42,880 --> 00:31:45,680
Speaker 5: or a judge breaker, it's not good that judge is

542
00:31:45,720 --> 00:31:49,640
Speaker 5: going to either lean over towards you or lean maybe

543
00:31:49,680 --> 00:31:51,080
Speaker 5: against you to show that he's there.

544
00:31:51,680 --> 00:31:52,880
Speaker 3: And so I just didn't want that.

545
00:31:52,960 --> 00:31:54,680
Speaker 5: So I said, don't ever ask me who should be

546
00:31:54,720 --> 00:31:55,680
Speaker 5: appointed to judge.

547
00:31:55,880 --> 00:31:58,280
Speaker 3: Did you ever show him your Reagan imitation?

548
00:32:00,520 --> 00:32:05,880
Speaker 5: No, I don't think so.

549
00:32:05,880 --> 00:32:06,040
Speaker 3: So.

550
00:32:07,320 --> 00:32:11,680
Speaker 5: But he had a wonderful sense of humor, and he

551
00:32:12,800 --> 00:32:18,320
Speaker 5: asked me he wanted to have a state California ballot

552
00:32:19,120 --> 00:32:28,000
Speaker 5: and a proposal which would cut governments spending. And so

553
00:32:28,080 --> 00:32:32,440
Speaker 5: he asked me to draft the amendment. And I said,

554
00:32:32,760 --> 00:32:37,760
Speaker 5: I don't know about budgets or bonds or special appropriations.

555
00:32:37,800 --> 00:32:42,239
Speaker 5: Fun He said, oh, this is an this is an

556
00:32:42,280 --> 00:32:48,920
Speaker 5: amendment to the constitution, and you teach constitutional law. I said, no, no, no,

557
00:32:49,400 --> 00:32:51,760
Speaker 5: that the constitutional I teach has nothing to do with

558
00:32:51,800 --> 00:32:54,280
Speaker 5: what you're talking about. That you mean you can't write

559
00:32:54,360 --> 00:32:56,440
Speaker 5: something that we're spending too much money.

560
00:32:57,040 --> 00:32:57,479
Speaker 3: I don't know.

561
00:32:59,240 --> 00:33:04,320
Speaker 5: So, as it turned out, I told him that if

562
00:33:04,320 --> 00:33:07,280
Speaker 5: he could. There were two or three very brilliant people

563
00:33:08,040 --> 00:33:11,520
Speaker 5: that were acquaintances of mine. Pretty soon Reagan got up

564
00:33:11,520 --> 00:33:14,719
Speaker 5: and talking. He could absorb a briefing David better than

565
00:33:14,760 --> 00:33:15,920
Speaker 5: any client I ever had.

566
00:33:16,000 --> 00:33:19,760
Speaker 3: He later called you and said Gerald Ford asked him

567
00:33:19,760 --> 00:33:21,960
Speaker 3: for a recommendation to be on the Ninth Circuit Court

568
00:33:22,000 --> 00:33:24,520
Speaker 3: of Appeals, and he recommended you. Although you were only

569
00:33:24,600 --> 00:33:28,320
Speaker 3: thirty eight years old. You were confirmed easily. And then

570
00:33:28,360 --> 00:33:31,720
Speaker 3: a couple of years later, Reagan is President of the

571
00:33:31,760 --> 00:33:34,440
Speaker 3: United States. Did you ever think he would be president

572
00:33:34,480 --> 00:33:34,920
Speaker 3: United States?

573
00:33:34,920 --> 00:33:39,240
Speaker 5: When you first met him, when his name started to service,

574
00:33:39,560 --> 00:33:42,120
Speaker 5: I thought, you know, there is a possibility here.

575
00:33:42,400 --> 00:33:44,320
Speaker 3: All right. So he gets to be president United States.

576
00:33:44,840 --> 00:33:49,080
Speaker 3: He has a vacancy on the Supreme Court, and he

577
00:33:49,240 --> 00:33:51,360
Speaker 3: calls you to be considered for it, and you come

578
00:33:51,400 --> 00:33:54,960
Speaker 3: in for the interview. Yes, he nominates you, and you

579
00:33:55,040 --> 00:33:59,320
Speaker 3: get confirmed by ninety seventh to nothing. Yes, the last

580
00:33:59,480 --> 00:34:07,280
Speaker 3: justice to be confirm unanimously. So okay, so we get

581
00:34:07,320 --> 00:34:09,439
Speaker 3: on the court. This is I think the only time

582
00:34:09,440 --> 00:34:12,040
Speaker 3: in the Supreme Court history where you had the same

583
00:34:12,239 --> 00:34:15,640
Speaker 3: nine justices for eleven years. You know, you work together

584
00:34:15,680 --> 00:34:18,239
Speaker 3: with these same people for eleven years. Did you get

585
00:34:18,320 --> 00:34:20,960
Speaker 3: tired of seeing them every day? Or not? Really? Just

586
00:34:21,040 --> 00:34:21,759
Speaker 3: the opposite.

587
00:34:22,080 --> 00:34:25,600
Speaker 5: Uh, it would be Uh. We were together so long

588
00:34:26,200 --> 00:34:28,000
Speaker 5: you knew what I knew, that you knew what I

589
00:34:28,120 --> 00:34:30,400
Speaker 5: knew you were going to say, and we could more

590
00:34:30,480 --> 00:34:34,600
Speaker 5: or less begin from begin from there, and uh, we

591
00:34:34,960 --> 00:34:37,520
Speaker 5: knew sometimes we wanted to really work hard to convince

592
00:34:37,560 --> 00:34:40,080
Speaker 5: each other, which we sometimes did in conference. You didn't

593
00:34:40,120 --> 00:34:45,520
Speaker 5: always go into conference knowing exactly how the case should

594
00:34:45,560 --> 00:34:45,839
Speaker 5: come out.

595
00:34:46,200 --> 00:34:48,640
Speaker 3: What would you like people to know about the court?

596
00:34:48,840 --> 00:34:50,920
Speaker 3: And you know they might get by reading your book

597
00:34:51,080 --> 00:34:52,759
Speaker 3: that they might not already.

598
00:34:52,440 --> 00:34:57,040
Speaker 5: Know, that they should know more precisely how collegial it

599
00:34:57,120 --> 00:35:02,160
Speaker 5: really is. Uh. We we know that if you and

600
00:35:02,200 --> 00:35:05,760
Speaker 5: I are a justice together, we know we would disagree.

601
00:35:06,440 --> 00:35:09,000
Speaker 5: We're supposed to disagree, that's our job, but the question

602
00:35:09,120 --> 00:35:15,840
Speaker 5: is how we disagree. The interaction on the court is

603
00:35:16,239 --> 00:35:21,600
Speaker 5: much more fascinating than most people know. You hear things

604
00:35:21,640 --> 00:35:26,000
Speaker 5: that you had not thought of before, and you see

605
00:35:26,080 --> 00:35:29,640
Speaker 5: new possibilities for the law, because after you decide something,

606
00:35:29,680 --> 00:35:33,720
Speaker 5: there's a whole new realm for which to explore the future.

607
00:35:34,000 --> 00:35:37,320
Speaker 5: It was my privilege to serve with seventeen different justices.

608
00:35:37,480 --> 00:35:42,480
Speaker 3: Your book is called Life, Law and Liberty, and I

609
00:35:42,600 --> 00:35:44,560
Speaker 3: enjoyed reading it certainly, But I want to ask you

610
00:35:44,560 --> 00:35:48,600
Speaker 3: a final question, I stayed a week. That's good. It

611
00:35:48,680 --> 00:35:51,560
Speaker 3: is had by some that if you see the word

612
00:35:51,640 --> 00:35:55,240
Speaker 3: liberty in an opinion, you know it's written by Justice Kennedy.

613
00:35:55,640 --> 00:36:00,000
Speaker 3: Why is liberty such an important thing to you?

614
00:36:00,400 --> 00:36:05,279
Speaker 5: When the authors of the Constitution sat down for a

615
00:36:05,280 --> 00:36:11,040
Speaker 5: period of what three months in Philadelphia, if they had

616
00:36:11,160 --> 00:36:16,920
Speaker 5: known all of the details of what freedom means, they

617
00:36:16,960 --> 00:36:20,360
Speaker 5: would have put it down. But they were thoughtful enough

618
00:36:20,680 --> 00:36:26,080
Speaker 5: to know that the components of freedom, the components of liberty,

619
00:36:26,120 --> 00:36:28,680
Speaker 5: are something we must learn over time. So they use

620
00:36:28,760 --> 00:36:35,960
Speaker 5: spacious word like life, liberty, and property. Incident lawyers even

621
00:36:36,120 --> 00:36:38,880
Speaker 5: sometimes think of this. We think of life, liberty, and happiness.

622
00:36:39,400 --> 00:36:43,760
Speaker 5: That's the Declaration of Independence. The Constitution talks about life, liberty,

623
00:36:43,800 --> 00:36:47,880
Speaker 5: and property. Why doesn't the Constitution talk about happiness? Because

624
00:36:48,040 --> 00:36:53,719
Speaker 5: that's judicially unenforceable, although although perhaps some judges would be

625
00:36:53,719 --> 00:36:54,440
Speaker 5: ready to try.

626
00:36:55,320 --> 00:36:57,920
Speaker 3: And you always carry a copy of the Constitution with

627
00:36:58,000 --> 00:37:01,239
Speaker 3: you everywhere you go, well, usually.

628
00:37:02,800 --> 00:37:08,240
Speaker 5: I do, because it's interesting. This is both the Constitution

629
00:37:08,320 --> 00:37:12,560
Speaker 5: and the Declaration of Independence. If you read the Constitution

630
00:37:12,719 --> 00:37:15,160
Speaker 5: of the United States, sit down cover to cover, it'll

631
00:37:15,160 --> 00:37:16,719
Speaker 5: take you about two and a half hours, and you'll

632
00:37:16,719 --> 00:37:20,440
Speaker 5: fall asleep a part of it. The preamble, the preface

633
00:37:20,520 --> 00:37:29,680
Speaker 5: is simply beautiful. But the Constitution, it's fascinating. That has

634
00:37:29,760 --> 00:37:34,840
Speaker 5: lasted for We have the two hundred and fiftieth anniversary

635
00:37:34,840 --> 00:37:40,120
Speaker 5: of the Declaration of Independence next year, and we're going

636
00:37:40,200 --> 00:37:43,560
Speaker 5: to have a time capsule that people will open two

637
00:37:43,640 --> 00:37:45,799
Speaker 5: hundred and fifty years from now. If we put the

638
00:37:45,840 --> 00:37:50,799
Speaker 5: Constitution of the United States in the time castle two

639
00:37:50,880 --> 00:37:53,959
Speaker 5: hundred and fifty years from now, will it still be known?

640
00:37:54,080 --> 00:37:57,160
Speaker 5: Will it still be respected? Will it still be the

641
00:37:57,200 --> 00:37:59,920
Speaker 5: way in which our nation defines ourselves It has been

642
00:38:00,040 --> 00:38:01,719
Speaker 5: for the last two hundred and fifty years.

643
00:38:01,960 --> 00:38:05,560
Speaker 1: That's retired Supreme Court Justice Anthony Kennedy speaking with David

644
00:38:05,600 --> 00:38:09,600
Speaker 1: Rubinstein in a special conversation recorded live in October. You

645
00:38:09,640 --> 00:38:12,120
Speaker 1: can check out their full conversation now on a recent

646
00:38:12,160 --> 00:38:15,760
Speaker 1: episode of The David Rubinstein Show. Peer to Peer Conversations.

647
00:38:16,000 --> 00:38:19,480
Speaker 1: Head over to Bloomberg dot com slash peer dash two

648
00:38:19,800 --> 00:38:22,759
Speaker 1: dash peer to learn more. And that does it for

649
00:38:22,840 --> 00:38:26,160
Speaker 1: this edition of Bloomberg Law. I'm Nathan Hager. June Grosso

650
00:38:26,280 --> 00:38:29,799
Speaker 1: will be back next weekend. Thanks for listening, and happy holidays.

651
00:38:30,080 --> 00:38:30,759
Speaker 3: Stay with us.

652
00:38:30,840 --> 00:38:34,040
Speaker 1: Today's top stories and global business headlines are coming up

653
00:38:34,520 --> 00:38:35,080
Speaker 1: right now,