Firing Line

- A former Supreme Court Justice with something to say, this week on "Firing Line".

- The rest of the world looks to us to see what democracy is, and they have to be impressed by what they see, not disappointed.

- [Margaret] Anthony Kennedy was appointed by President Reagan in 1987.

- Thank you, Mr.

President.

- [Margaret] The last Supreme Court Justice to be approved unanimously by the Senate.

- The nominee is confirmed.

- [Margaret] As a swing vote, for years, Kennedy was among the most powerful justices on the court.

- A blockbuster decision from the Supreme Court today/ - [Margaret] He authored the five-four Citizens United decision, allowing for unlimited corporate donations to political campaigns.

He also authored the five-four ruling that legalized same-sex marriage, a ruling that Justice Thomas has written should be reconsidered.

In 2018, Kennedy swore in his former law clerk Brett Kavanaugh, as his replacement on the Supreme Court.

He has written a memoir of his years of service, with a warning for the Court and the country.

- The incivility that we see in our public life generally is creeping too much into the court's opinions.

- [Margaret] What does Justice Anthony Kennedy say now?

- [Announcer] "Firing Line with Margaret Hoover" is made possible in part by Robert Granieri, Vanessa and Henry Cornell, the Fairweather Foundation, the Tepper Foundation, Peter and Mary Kalikow, the Beth and Ravenel Curry Foundation, Pritzker Military Foundation, Cliff and Laurel Asness, the Margaret and Daniel Loeb Foundation, and by the following.

- Justice Anthony Kennedy, welcome to "Firing Line".

- Well, it's my pleasure and honor to be here and to be talking with you.

- You are the 15th longest serving Justice on the Supreme Court of the United States.

For 30 years, you sat on the bench and for the deciding vote in some of the most consequential and high-stakes cases.

It has been seven years since you took senior status and stopped hearing cases.

- Yes.

- In this moment, when the rule of law is being tested and the courts are under attack, how do you see your role?

- Well, it's a very important question.

It seems to me that the role of many of us ought to be to convince the American people that democracy depends on a discourse that is thoughtful, reasoned, respectful, searching, inspirational.

And you can't have that discourse if you're attacking other people because of their political identity.

A word you didn't hear much 20 years ago is civility.

No one can disagree with civility until we say, "Well, we want civility."

But we don't have civility in our public discourse, and we must work to restore it.

But the rest of the world looks to us to see what democracy is, and they have to be impressed by what they see, not disappointed.

- There are some in our civic life and our political life now who do not value civil discourse.

They do not believe that it is a civic responsibility.

How do we change the fact that too many just disagree?

- We have to make it clear, particularly to young people, that democracy is not an automatic pilot.

Democracy has to be preserved and transmitted over time, and we must teach our young people the importance of civility to sustaining our democracy, the importance of democracy to sustaining our freedom.

- I'm sure you've seen the numbers amongst young people who don't believe that democracy is necessarily the best form of government.

- Yes, and as Aristotle put it, democracies can die.

- Yeah.

- And one reason it does is because the people don't work to preserve it, and the beginning way to preserve it is by a civil, rational, thoughtful, respectful discourse.

- In recent weeks, we have seen the Department of Justice indict two of the president's political enemies after he publicly demanded it.

We've seen National Guard troops be sent to states over governors' objections.

The President has repeatedly pushed the limits of the law.

You have written a memoir.

- Yes.

- "Life, Law & Liberty".

You write in the book, "The Constitution does not work if any one branch of government insists on the exercise of its powers to the extreme."

Is the executive branch exercising its powers to the extreme?

- It is not my practice or proper to comment on current events, but the basic concept the you've quoted and that I've written is there, and every member of the executive branch, every member of the legislative branch must remember that the Constitution guarantees, number one, equality and equal justice without bias, without personal animosity.

And you sometimes, in life, do not respect or like a certain person, and that's the way life is.

But if you're a government official, you cannot let that interfere with your neutral judgment.

You must treat all persons the same and have the same rules for everyone.

- You told Adam Liptak at the New York Times when he asked whether the principal was being tested these days, quote, "I think it's rather clear that it is."

- Yes.

- Why should Americans have faith in the rule of law right now?

- Well, the rule of law is necessary to preserve our freedom.

I used to go to China often, and in addressing an audience, my remarks were, "I'm Justice Kennedy here to tell you about the rule of law."

And some student, there were about 800 students in the class, raised her hand.

And she said, "Well, what does the rule of law mean?"

And I'd never thought about it.

And so, I had to think right away.

And I said, "Number one, the government and all of its officials are bound by the law.

Number two, the law protects human dignity.

Number three, the law is accessible."

So, we have to think more about what the rule of law means.

If we don't think about what the rest of the world thinks about what we're doing, about what our future thinks about what we're doing, about what our history will teach us about what we're doing, we put democracy in danger.

- The Supreme Court has returned to the bench for term in which it will confront significant cases that will test the power of the executive branch, and you write at length in "Life, Law & Liberty" about the importance of judicial independence.

Earlier this year, Chief Justice John Roberts also said that part of the court's role is to, quote, "Check the excesses of Congress or the executive, and that does require a degree of independence."

Now, Vice President Vance disputed Justice Roberts' comment; he said it was a "Profoundly wrong sentiment," and that the courts should actually be deferential to the president.

Should the courts be deferential to the president?

- Well, of course, in many respects, the president has an expertise, has information, has duties that are not subject to judicial review.

One of the interesting cases for people to study is Youngstown Sheet and Tube v. Sawyer.

We were at war in Korea, and there was a strike in the steel mills, and Secretary of State Vincent had earlier seen Truman, and unfortunately and wrongly indicated that he could go ahead and seize the steel mill, which Truman did.

The Supreme Court in a six-to-three decision said that this was unlawful.

And Truman, to his credit, immediately withdrew from the steel mill.

This is a lesson that the president may not cross the line.

- Well- - There was the Pentagon Papers case in which the Supreme Court said that it was lawful for the New York Times and the Washington Post to print what were confidential documents that had been wrongly released.

And it was an occasion for me, one time here in New York, to meet Ochs-Sulzberger the owner of the New York Times.

- A story you tell in your book.

- And my question to him was, "If the Supreme Court had ruled the other way, that you cannot print this-" - Would you have done it?

- "Would you have defied the Supreme Court?"

And he said, "This is a question that I've thought about a number of times, and my conclusion is that we would've followed the Supreme Court, that the New York Times, like every other citizen and entity that's bound by the Constitution should respect the Supreme Court."

- What happens if somebody doesn't?

What happens, for example, if one of the branches, for example, the executive branch, doesn't choose to follow the Supreme Court.

I mean, I don't know that we've ever had this, but, you know, I will just say the Vice President has quoted an apocryphal quote from Andrew Jackson, thanking the Chief Justice for his opinion and now inviting him to enforce it.

- Yeah, the court has made his decision, now let him enforce it.

Now let them enforce it.

- What if we were to get to that point?

- Well, our democracy and our constitution would be in danger.

One of Nixon's great acts was that Nixon was ordered to turn the tapes over.

- And he did it.

- He could've burned those tapes.

- Yeah.

- But to his credit, he obeyed the order of the Supreme Court and turned over the tapes, knowing that that would probably be the end of his presidential career.

And he had to resign or he chose to resign, what, I forget, a couple weeks later or something like that.

- Yes.

Well, President Reagan nominated you to the Supreme Court after nominating Judge Robert Bork.

So, a few months after you were confirmed, Robert Bork went on "Firing Line" with William F. Buckley Jr, and he participated in a debate with Senator George McGovern about the president and the law.

- The only oath that we require of a new president is that he uphold the constitution, which includes seeking to carry out the laws of the land, even those laws that they might not personally like.

- Presidents are entitled to take action when they think the law does not cover the situation and forbid it.

Sometimes they find out afterwards that they were wrong, but they're entitled to test it.

- So, my question to you is, is Bork correct that presidents have a right to test the limits of the law?

- Well, if the President finds that it's urgent for him to take, or her, to take a particular action, and in good faith comes to his own conclusion, or if it were lady president, her own conclusion, that this is proper under the law and that the Constitution requires the President to take this action.

And if, in good faith, that determination is made, then, of course, the President can act.

Remember, it's not just the Supreme Court that tells you what the Constitution is.

Everybody has a duty to understand the Constitution and to obey a mandate as best they can.

- You emphasize "In good faith".

- Yes.

- Why?

- Well, because public officials must always act in good faith.

It's bad faith to treat person X better than person Y.

- I'd like to ask you about the case Obergefell v. Hodges, which is the case that legalized same-sex marriage, that you authored.

You said in the past that a powerful argument against overruling Obergefell is the tremendous amount of reliance that same-sex couples and their families had placed on the decision.

Justice Thomas has said recently that the court's rulings should not be treated as gospel.

Do you understand why citizens are concerned that Obergefell and same-sex marriage could be overturned, given the current court's disregard for precedent in Dobbs, the case that overturned Roe v. Wade?

- Well, I guess the citizens are always concerned about the overruling of cases.

In Obergefell, it was very important for me and other members of the court to understand how many gay couples had adopted children.

- For a family.

- It was something that had escaped my notice until the case came before us and we looked at the statistics, but there are hundreds of thousands, hundreds of thousands of children of gay parents, and one of the motivating factors for the decision in Obergefell was to recognize that these children are hurt if they have to live under a law in which only one of their parents is lawful.

And because of that reliance, it seems to me it would be unfortunate to overrule the case.

- Would you be surprised if it were overruled?

- I don't generate comment on those issues.

- Another one of your famous free-speech cases, Citizens United, at the time, overturned the longstanding restrictions on political spending by corporations.

Dark money in politics has grown more than ninefold since Citizens United was decided.

And in 2024, more than $1.4 billion of non-disclosed dark money was spent on political advertising, trying to influence voters in the election.

Do you ever think about the unintended consequences of a case like Citizens United?

- It was not clear to me that these consequences would not occur.

They were unintended in the fact that we didn't want them to happen, but they were predictable, and this caused a problem.

But we just couldn't find a place to draw the line.

The idea of corporations (indistinct).

The last time I looked, the New York Times was a corporation.

- That was a point well taken in your book.

- The last time I looked- - An endorsement (indistinct).

- The Washington post was a cooperation.

Are they prohibited from talking about political matters?

And what about a small grocery store?

- The arguments stand up.

- Or a small chamber of commerce.

- Sure.

No, no, no, the arguments themselves stand up, and you make a very good case in the book.

My question is about the unintended consequences, which you say weren't necessarily unpredictable.

- Well, it seems to me what the voters must do is demand disclosure, see where the money's coming from.

And if they see some millionaire, billionaire from another state pouting huge amounts of money into their district, they can vote against that candidate.

- Yeah.

- You have to have informed voting, and educated citizenry is necessary to make democracy work.

You can't be indifferent.

You can't be uninterested in what your government is doing.

You must know about it, and you must insist that your views be respected.

And that comes both the voting and from the ongoing communications you should be having with your political leaders.

You can't be indifferent.

- Do you sense there is heightened indifference and complacency now?

- Yes.

- You have written that complacency is an enemy of democracy.

- Yes.

- Are we really at risk?

Can you explain that?

- Well, once again, Aristotle and other writers; Hobbes, Locke, Rousseau, said that democracy depends upon an interested, well-informed public.

- And if we have a complacent public.

- Democracy can die.

- You spent a bit of your book at the end, talking about your engagements internationally.

And in one case, you were invited to Russia to speak in St.

Petersburg in 2001 when Vladimir Putin had just been elected president of Russia.

And you tell an incredible story about meeting with Vladimir Putin.

And in that meeting, Vladimir Putin leaned over and whispered in your ear, quote, "I have sat across a table from murderers closer to them than I am to you, and I could have strangled them with my own hands."

You wrote that, "It was a chilling moment, one that reinforced my impression of Putin as fearless in imposing his own will, using the law only if convenient."

Looking back now, why do you think Putin did this to you?

- Well, he is an extremely powerful man in many respects.

He stares straight at you, and it is very powerful in his expression.

And you asked why he said that.

In a way, it was to show that people shouldn't mess around with him.

(laughs) - Did you- - I think, in retrospect, I think so.

- He just, he wanted to make sure you knew.

- Right.

- In your book, you make a point of praising the integrity, the ability, the professionalism of each of the current justices on the Supreme Court.

- Yes.

- You have also expressed your dismay at the increasing acrimony amongst them.

You have said you're concerned about the recent tone of some opinions and dissents.

Why can't nine people who you respect get along?

- Well, Justice Breyer likes to point out that, for 11 years, nine of us were in the same room, and we got along wonderfully.

And it was a remarkable time for us.

And there was a collegiality there was simply marvelous.

Many of us from my day and age know that you're supposed to disagree with the judge.

If you and I are judges or justices, I'm supposed to disagree with you.

- Right.

(indistinct) - If, in my good faith to you, you're incorrect.

But I criticize the reasoning of your opinion.

I don't criticize you as a person.

This is a tremendous difference.

It seems to me that the incivility that we see in our public life generally is creeping too much into the court's opinions.

And in my view, I think things will get better.

- I know you say you're hopeful that the sparring between the justices will become less personal.

- Yes.

- But what will it take?

- Well, I think it takes a nation that becomes more convinced that the rest of the world is looking at it, and it must have a more civil dialogue.

- You dedicate an entire chapter of your book to judicial ethics.

The Supreme Court adopted a code of ethics in 2023 for the first time, but includes no enforcement mechanisms, which some of the justices suggest it should.

Are the rules there sufficient?

- The question I've thought about, the idea of disciplining judges on the Supreme Court is difficult.

We already are divided on very difficult issues.

And to say that, make it up, five justices can somehow discipline another is it seems to me introduces a threat to our collegiality.

But an intelligent, interested, well-informed press, an intelligent interested, well-informed public can insist that violations of ethics be cured.

It seems to me that that's quite sufficient.

- Former Attorney General Alberto Gonzales was a guest on this program recently and said that he believes that the justices know that they're losing public confidence.

Do you think they know and are aware?

- I'm concerned about it.

It's odd to me that, if the public approval of the executive and/or the Congress goes down, we go down with it.

(laughs) - It's gone down dramatically since you left.

- It would seem to me to go the other way.

- It's gone down dramatically since you left the bench.

- Yes.

No, it's of extreme importance that we write our decisions in a way that we conduct our private and public interaction in a way that shows that we respect the decency and the integrity of each other.

And that's true in society as a whole.

- Justice Anthony Kennedy, thank you for your time.

Thank you for your service to the country, and thank you for joining me on "Firing Line".

- Well, you're so gracious to have me, and thank you for being with the press, which is so necessary to preserve our freedom.

- [Announcer] "Firing Line with Margaret Hoover" is made possible, in part by Robert Granieri, Vanessa and Henry Cornell, the Fairweather Foundation, the Tepper Foundation, Peter and Mary Kalikow, the Beth and Ravenel Curry Foundation, Pritzker Military Foundation, Cliff and Laurel Asness, the Margaret and Daniel Loeb Foundation, And by the following.

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