WEBVTT - Anthony Kennedy 0:00:00.960 --> 0:00:04.280 Anthony Kennedy's decision to retire from the Supreme Court was 0:00:04.440 --> 0:00:09.240 overshadowed by the intense confirmation battle that surrounded his eventual successor, 0:00:09.480 --> 0:00:13.440 Brett Kavanaugh, but it's important to remember Kennedy's contributions to 0:00:13.480 --> 0:00:18.400 the Court as an associate Justice since in nearly three 0:00:18.440 --> 0:00:21.200 decades on the Court, Kennedy provided the swing vote in 0:00:21.239 --> 0:00:24.159 a variety of cases, siding with the liberal wing of 0:00:24.200 --> 0:00:27.400 the Court on gay rights and abortion rights, while aligning 0:00:27.480 --> 0:00:30.720 himself with conservatives in the Citizens United case in two 0:00:31.520 --> 0:00:34.560 and joining the majority in handing George W. Bush a 0:00:34.640 --> 0:00:38.880 presidential victory in the two thousand election. Kennedy recently sat 0:00:38.920 --> 0:00:41.760 down with Carlisle Group co founder David Rubinstein for an 0:00:41.760 --> 0:00:45.000 interview recorded at the University of Virginia Law School. They 0:00:45.000 --> 0:00:49.199 spoke on David Rubinstein's Bloomberg television program Peer to Peer Conversations. 0:00:49.640 --> 0:00:52.120 Let's talk about some of the opinions that you're very 0:00:52.280 --> 0:00:56.880 well known for, uh somewhere five or four somewhere not um, 0:00:56.920 --> 0:01:01.520 But let me talk about, for example, on gay lesbian rights. UM, 0:01:01.600 --> 0:01:05.120 you are been a strong advocate that everybody should be 0:01:05.160 --> 0:01:08.399 treated equally and that there should be no discrimination and 0:01:08.400 --> 0:01:11.520 in fact, you authored the opinion that allowed gay marriage 0:01:11.520 --> 0:01:17.120 to occur. Is that something that surprised your conservative let's say, supporters, 0:01:17.160 --> 0:01:19.440 And this is something you're very proud of having written 0:01:19.520 --> 0:01:23.280 that opinion. In a sense, it surprised me. What surprised 0:01:23.319 --> 0:01:28.000 you the the the reaction or not your decision. Well, 0:01:28.200 --> 0:01:31.679 you know, because my religious beliefs these are That's one 0:01:31.680 --> 0:01:33.600 of the reasons I wrote it. It. It seemed to 0:01:33.640 --> 0:01:37.040 me that I couldn't hide and the nature of injustice 0:01:37.040 --> 0:01:40.800 as you can't see it in your own time. And uh, 0:01:41.520 --> 0:01:46.039 as we thought about this, and I thought about it 0:01:46.080 --> 0:01:48.600 more and more, it seemed to me that just wrong 0:01:49.760 --> 0:01:53.360 under the Constitution to say that over a hundred thousand 0:01:54.440 --> 0:01:58.279 adopted children of gay parents could not have their parents 0:01:58.320 --> 0:02:01.600 mary did. I just thought that this was this was wrong. 0:02:01.640 --> 0:02:04.480 But it took and I struggled with it and wrote 0:02:04.520 --> 0:02:07.240 the case over a weekend, and that's the way I 0:02:07.280 --> 0:02:09.840 came out. But as I say, you, you, you, as 0:02:09.840 --> 0:02:14.920 you write the reasons either compel themselves or not. I 0:02:14.960 --> 0:02:18.919 tell judges, I tell young judges, old judges, your duty 0:02:19.560 --> 0:02:23.600 in every case is to ask why are you doing 0:02:23.680 --> 0:02:26.440 what you're about to do? What are the reasons, and 0:02:26.480 --> 0:02:28.600 even if you've done it a hundred times, you have 0:02:28.680 --> 0:02:31.400 to ask what those reasons are again and see if 0:02:31.440 --> 0:02:34.760 they are still valid. That's what you must do is introspectively. 0:02:35.080 --> 0:02:37.400 You take an oath that you're going to listen to 0:02:37.440 --> 0:02:40.000 each side, and if you make up your mind in advance, 0:02:40.080 --> 0:02:45.160 you're not following that. So Um and abortion rights, many 0:02:45.200 --> 0:02:50.079 people who were your supporters, generally of your judicial philosophy 0:02:50.320 --> 0:02:52.360 were disappointed. I think it's fair to say that you 0:02:52.440 --> 0:02:55.600 were not in favor of overturning Roe v. Wade. In fact, 0:02:55.840 --> 0:02:57.920 while you may have narrowed it to some extent, you 0:02:58.000 --> 0:03:01.320 never voted to overturn it. Um. What was your thinking 0:03:01.360 --> 0:03:05.160 on that particular area. Well, our thinking is the set 0:03:05.160 --> 0:03:07.840 forth in the opinions. We give reasons for what we do. 0:03:08.040 --> 0:03:11.760 We don't go around later explaining it is. It's in 0:03:11.800 --> 0:03:15.280 the opinion, and we hope, we hope that the opinion 0:03:15.320 --> 0:03:17.799 is convincing. Now, one of your famous five to four 0:03:17.840 --> 0:03:21.880 decisions is Citizens United, which you upheld the right of 0:03:21.880 --> 0:03:27.080 corporations to basically make political contributions. Any second thoughts about 0:03:27.120 --> 0:03:32.280 that decision, ever, I again, the decision stands to answer 0:03:32.320 --> 0:03:34.400 our stuffs. Of course, all of us are concerned with 0:03:34.480 --> 0:03:38.120 money in politics. The government of the United States in 0:03:38.160 --> 0:03:40.640 that case argued before the Supreme Court, we're in the 0:03:40.680 --> 0:03:43.840 court and the podium is down there. The attorney for 0:03:43.880 --> 0:03:48.960 the Government of the United States argued that, uh, and 0:03:49.400 --> 0:03:53.640 if there was an upcoming political campaign, I forget that. Uh, 0:03:53.840 --> 0:03:57.200 maybe six weeks h and a book was being published 0:03:57.600 --> 0:04:01.640 or a movie being produced and it was critical of 0:04:01.680 --> 0:04:07.880 a candidate, that you could stop publication. It was unbelievable. Uh, 0:04:07.920 --> 0:04:11.000 this is the first amendment right now. It's true that 0:04:11.400 --> 0:04:14.120 there's a problem of money in politics, but I think 0:04:14.160 --> 0:04:16.080 we just have to address it some other way. And 0:04:16.160 --> 0:04:21.680 notice that the press was exempt, so the major newspapers 0:04:21.720 --> 0:04:25.039 could print what they want, but you couldn't have a 0:04:25.040 --> 0:04:28.560 book or a movie the other ways. It's now The 0:04:28.839 --> 0:04:34.279 result was, as you know, uh, that money flows into 0:04:34.320 --> 0:04:38.040 these campaigns, and it seems to me we have to 0:04:38.800 --> 0:04:42.240 think about it, but that the voters are the ones 0:04:42.320 --> 0:04:44.760 that if they see money coming in from the campaign 0:04:44.800 --> 0:04:48.039 for wrong source, that they should be disclosure and they 0:04:48.080 --> 0:04:50.560 can vote against the candidate if they don't like it. 0:04:50.880 --> 0:04:54.040 So when you were in the court the last number 0:04:54.040 --> 0:04:57.159 of years, after Justice O'Connor retired. You were basically seeing 0:04:57.320 --> 0:05:00.360 rightly or wrongly as the swing vote with that put 0:05:00.480 --> 0:05:02.760 undue pressure on you and making decisions because you were 0:05:02.760 --> 0:05:04.279 the Prince will be the person who could make the 0:05:04.279 --> 0:05:06.440 court go one way or the other. Well, I think 0:05:06.440 --> 0:05:09.479 every one of the justices feels pressure in every in 0:05:09.560 --> 0:05:13.000 every case, Yes, it was. It was a little bit 0:05:13.120 --> 0:05:16.080 a little bit harder and swing vote. I said, Uh, 0:05:16.160 --> 0:05:22.159 the swing vote has this um uh symbolism uh of 0:05:22.160 --> 0:05:25.719 of this swinging back and forth in space, And I 0:05:25.760 --> 0:05:28.920 say the cases swing I don't. I'm consisted about. Now 0:05:29.080 --> 0:05:32.880 you carry the Constitution with you everywhere you go, is 0:05:32.880 --> 0:05:36.960 that right? Yeah? I have it in your view. Um, 0:05:36.960 --> 0:05:39.279 when you carry the Constitution obviously know it very well. 0:05:39.480 --> 0:05:41.320 What do you think about the theory that you should 0:05:41.360 --> 0:05:44.880 look at the intent of the drafters of the Constitution 0:05:44.920 --> 0:05:47.800 about what you should decide in a case this This 0:05:47.880 --> 0:05:50.640 is one of the hardest questions in constitutional law and 0:05:51.080 --> 0:05:53.719 that we have to to wrestle with. Look at that 0:05:53.800 --> 0:05:56.839 this is a written document that the framers wanted handed down. 0:05:58.520 --> 0:06:01.520 You can't just ignore what the words are. On the 0:06:01.560 --> 0:06:06.240 other hand, I don't think Jefferson, you're a great Jeffersonian scholar. 0:06:07.279 --> 0:06:10.280 UH and and and and and Medisine spent a lot 0:06:10.320 --> 0:06:18.640 of time writing dictionaries, and they use spacious language. Life, liberty, property. 0:06:18.680 --> 0:06:22.520 If they had known all its specifics of a jet society, 0:06:22.560 --> 0:06:24.560 they would have written down. They didn't do that in it. 0:06:25.360 --> 0:06:31.960 And these words have to have meaning over time, UM 0:06:32.000 --> 0:06:39.600 and Jefferson. Uh. People sometimes give me declaration of independent 0:06:39.760 --> 0:06:43.760 is life, liberty, pursuit of happiness. That's declaration of independent life, 0:06:43.800 --> 0:06:47.560 liberty property is what Madison put in the fifth Modment UH. 0:06:47.600 --> 0:06:51.960 And it's also in the fourteen UM. And happiness was 0:06:51.960 --> 0:06:56.040 was interesting U. Happiness of the Greek board is you 0:06:56.200 --> 0:07:01.760 delia And they even in the Greek times there they 0:07:01.839 --> 0:07:06.360 had two meanings UH. And one was happiness that you're 0:07:08.920 --> 0:07:14.840 have material possessions. The other is you're happy because you 0:07:14.960 --> 0:07:20.360 have contributed to civic life and this enhances your own dignity. 0:07:20.760 --> 0:07:24.440 And Jefferson used it in this second sense. The happiness 0:07:25.240 --> 0:07:29.960 UH was to give to your community and the result 0:07:30.240 --> 0:07:32.400 was enriching to you. You've shoved in the corp for 0:07:32.400 --> 0:07:35.920 thirty years, You've written enormous number of opinions. You're quite 0:07:35.960 --> 0:07:38.280 respected throughout the legal committee. But what would you like 0:07:38.400 --> 0:07:41.400 your legacy to be? I hope that people would look 0:07:41.480 --> 0:07:46.360 at the court and realize that not only is it possible, 0:07:46.400 --> 0:07:53.520 but necessary for a democracy to have a civil, rational, thoughtful, 0:07:54.080 --> 0:07:59.680 decent discussion so that we can plan our own destiny. Um. 0:08:00.320 --> 0:08:05.480 We are are in time with an uncivil disco. Aristotle, 0:08:06.600 --> 0:08:13.720 UM and Plato both gave a low grade to democracy. Um. 0:08:13.760 --> 0:08:19.000 And I went back to two summers ago and read um. Uh. 0:08:19.280 --> 0:08:21.960 We read Plato and Aristotle is that a common thing? 0:08:21.960 --> 0:08:23.960 That justice is due? Going back and reading Plato and 0:08:24.520 --> 0:08:29.000 I I wanted to do it because I was concerned. 0:08:29.320 --> 0:08:34.760 And my interpretation was that Aristotle thought democracy should be 0:08:34.800 --> 0:08:36.560 given in a low grade because it did not have 0:08:36.640 --> 0:08:42.160 the capacity to mature. And our duty, our destiny, is 0:08:42.200 --> 0:08:43.840 to prove him wrong. Look at the rest of the 0:08:43.840 --> 0:08:48.040 world is looking at us to see what democracy means, 0:08:48.080 --> 0:08:54.280 what freedom means. And Uh, they see this hostile, fractious discourse, 0:08:55.000 --> 0:08:58.520 and we're not making the case for democrac At the end, David, 0:08:58.600 --> 0:09:02.079 of the last century, the last quarter, last twenty five 0:09:02.160 --> 0:09:04.920 years of the last century was the birth of democracy. 0:09:05.000 --> 0:09:07.760 Democracy has come in all over the world. Um. The 0:09:07.800 --> 0:09:10.880 first part of this century, we're seeing the death of democracies, 0:09:11.360 --> 0:09:14.960 and in part is because of the example that we're 0:09:15.000 --> 0:09:21.080 not setting. Aristotle. Um said that in a civil discussion, UH, 0:09:21.240 --> 0:09:28.680 there has to be UH respect, moderation, thought, and he 0:09:28.800 --> 0:09:35.199 said the participants and UH discussion in the democratic society, 0:09:35.880 --> 0:09:41.040 UM must have NIA, which means kindness and respect. I 0:09:41.080 --> 0:09:44.080 disagree with you and proposition X, but I respect you 0:09:44.160 --> 0:09:48.040 immensely and we must restore that to our public discourse. 0:09:48.280 --> 0:09:50.599 What would you like the American people to most know 0:09:50.720 --> 0:09:54.280 about the United States Supreme Court? That it is dedicated 0:09:54.400 --> 0:09:58.240 to finding what the law is, and the law has 0:09:58.280 --> 0:10:02.320 a moral foundation. The is interested in truth. Truth is 0:10:02.360 --> 0:10:05.520 often the facts. Was the light red? Was the light green? 0:10:05.679 --> 0:10:10.040 And you begin there And this isn't the partisan exercise. 0:10:10.480 --> 0:10:14.199 We want to show that facts count and that facts 0:10:14.360 --> 0:10:20.280 are found in a thoughtful, rational, respectful way. And after 0:10:20.360 --> 0:10:24.359 that we know what principles have to come from the facts. 0:10:24.400 --> 0:10:28.680 And those principles are are the principles of the Constitution 0:10:29.200 --> 0:10:31.440 and the principles of freedom or heritage. The work of 0:10:31.520 --> 0:10:32.680 freedom is never done