writ of certiorari. we have probably close to 9000, maybe recently about 8200, petitions a year, and they come in all year long. the clerks are in charge of organizing them and doing memos on them so we can review them very quickly. it is like doing push-ups. you do so many every morning. they come in all year long. and any one of us can make a little check mark on the petition, and if anyone of us does that, it means all nine of us must discuss it. it takes four votes to grant the case. sometimes there are three votes, but one of the justices wants to hear the case and thinks it is very important, and asks it to be put over so he or she can write a memo to us.

from those 8000, we discuss 500, and we take, optimally, around 100. lately, we've been taking less. so that's a petition that's been granted. david: if three justices want to hear the case, not four, do any of the justices say to their colleagues, well, i would really like to hear this one, can i get you to go on this? or you don't lobby each other? justice kennedy: no, we're very careful about that the petition stage, and later the decision stage. we do not talk with each other one-on-one because we don't want a cabal or a particular group of people. there's no background conversations going on. david: so in every case, you obviously have a plaintiff and defendant. each one files a brief. they are limited in size by 50 pages. now we have a gigantic amicus brief.

do each of the justices read the plaintiff, defendant, and amicus brief? justice kennedy: we try to read -- i can't read all of the amicus briefs. some of the cases we take have systemic importance. the chamber of commerce, the afl-cio, or environmental groups will say why the case is important. one time, some high school students were there and asked me a question, isn't an amicus brief like lobbying? and i thought, that was a very perceptive question. if you say the court is being lobbied, that's rather dismissive of the court's function. but in a way, it is for us to see the systemic consequences of what we are doing, and particularly in patent cases and scientific cases. we learn a tremendous amount from the amicus briefs. david: the briefs are filed, you read the briefs, and then, do

the justices ever talk about the cases before you hear the oral argument? justice kennedy: we have a rule, you do not talk before an oral argument. the first time i get an inkling, if you are my colleague, a question, one of my questions might be, isn't it true, counsel, this is a clean water act case? and the congress says you can sue? i'm saying, cool it justice, there's no problem with the jurisdiction here. he might say, isn't it true counsel that? and then he's saying, not so fast, kennedy. if we behave properly, which sometimes we don't, and if the attorney knows the dynamic, the attorney can enter into a conversation the justices are having with each other through the question, and that's the oral argument dynamic. it's just half an hour. david: after the oral argument is completed and you get together, who decides who talks and who write opinions? how does that work?

justice kennedy: within 48-72 hours of hearing the cases, and this is usually the first time we have an inkling of our colleagues' views, we meet in the conference room, just the nine of us, absolutely confidential. and the chief justice begins by summarizing the case and giving his views, and then you go to the next most senior justice, the junior justice who speaks last, and i actually liked that. when it was 4-4, you could drag it out. this will be very exciting. [laughter] david: the chief justice, if he is in the majority, will he assign the opinion himself? justice kennedy: yes, we can sometimes be tentative on the case and say, subject to the views of my colleagues, it seems to me that -- and these cases are close. sometimes, since it's private, we can maybe suggest a wacky theory we think might work but

maybe it does, maybe it doesn't. sometimes people ask me if i get nervous when i go on the bench. the answer is no. but i get nervous when i go into the conference. because, suppose i say, kennedy, haven't you thought of this case? didn't you see this point? you're basically arguing four to six cases a day, and you want to be on your toes. you know, when you're an attorney and go into a courtroom, you're nervous. david: the opinions are assigned, then the justices go back. do they write the opinions themselves or do the clerks write the first drafts? or is it different? justice kennedy: it's different. my practice was, i talked to the clerks and assigned the clerk to write the opinion, tell him or her what i thought should be there. but then i would write my own thing. the clerk would write something

and it would be very good, but they're at level 10 and i'm at level 2. when you're in business, you have to go down a blind alley, a false start, before you get to the level where you want to be, so i have to do that myself. david: the draft opinions are circulated to all the justices. the justices say, your draft opinion is so influential and persuasive that i am going to change my vote. does that happen that much? justice kennedy: i wish it did. [laughter] justice kennedy: sometimes you will have a 5-4 opinion and circulate it. you say you are the majority. and one of your colleagues will say, you know, i'm not so sure about this, i am waiting for the dissent. then the dissent comes around and they can be convinced or it can be the other way. it's very exciting to see what the judges do. we give reasons for what we do. we give reasons, david, as you know, in order to command

allegiance, to persuade. sometimes the people say the court is anti-majoritarian. and that may be true in the short term. we make decisions that are surprising to people, and unpopular. we think, david, that that over time, that we are majoritarian. over time, most of the decisions of the supreme court have been acknowledged to be correct. or, if not the result you would like, at least they understand the constitution requires the result. david: do the justices lobby each other? does that ever happen? justice kennedy: we never talk about -- i will vote for you in this case, if you vote for me in this case. that's a felony. you can't do that. [laughter] justice kennedy: no, this is serious, very serious stuff. each case is on its own merit. often we, and this was one of the things i did quite often, to

suggest changes in wording to make the opinion i thought more powerful and more persuasive. but again, this is done in writing. i might see -- justice breyer was right next to me, and i might say, i'm going to make a suggestion about part three of the opinion. it seems to me you could not emphasize this part so much. then i'd write a memo for him and for all the justices to see. david: do the justices socialize with each other, or not so much? justice kennedy: not so much because of workload. and, we are careful. if we see each other at a social event or dinner, it's not really polite to the other people for us to go off in a corner and talk about collateral, or stop work, or something. [laughter] justice kennedy: so if we see each other, we try. but we have little dinners together and lunches together. we have lunch together all during the time we are sitting. david: one of your famous 5-4 decisions was citizens united. justice kennedy: it's true that

the problem is money in politics. i think we have to address it in some other way. the voters are the ones that if they see money coming in from a wrong source, they should be disclosing it. they can vote against the candidate if they don't like it. ♪

david: in your term on the court, you wrote over 300 majority opinions, but you wrote 92 majority opinions that were 5-4. justice kennedy: really? [laughter] david: that's right. 92. so let's talk about some of the opinions you're very well known for. some were 5-4, some were not. let me talk, for example, on gay

and lesbian rights. you've been a strong advocate that everybody should be treated equally, and that there should be no discrimination. and in fact, you authored the opinion that allowed gay marriage to occur. is that something that surprised your conservative supporters, and is this something you're very proud of having written, that opinion? justice kennedy: in a sense, it surprised me. david: what surprised you? justice kennedy: the outcome. david: the reaction? or not your decision? justice kennedy: well, because my religious beliefs, that is one of the reasons i wrote it. it seems to me that i cannot hide. the nature of injustice is that you can't see it in your own time. as we thought about this and i thought about it more and more, it seems to me that just wrong, under the constitution, to say over 100,000 adopted children of

gay parents could not have their parents married. i just thought that this was wrong. but it took, and i struggled with it and wrote the case over a weekend. that's the way i came out. but as i said, as you write the reasons, they either compel themselves or not. i tell judges, i tell young judges, old judges, your duty in every case is to ask why are you doing what you are about to do, what are the reasons? and even if you've done it 100 times, you have to ask again and see if they are still valid. that is what you must do. it is introspective. you take an oath that you're going to listen to each side. if you make up your mind in advance, you're not following that oath. david: on abortion rights, many people who were your supporters generally of your traditional

philosophy, were disappointed you were not in favor of turning over roe v. wade. in fact, while you may have narrowed it to some extent, you never voted to overturn it. what was your thinking on that particular area? justice kennedy: our thinking is set forth in the opinions. we give reasons for what we do. we don't go around later explaining it. it's in the opinion. and we hope that the opinion is convincing. i tell some people sometimes that one of the first cases on the court that was very controversial when i was first on the court was the flagburning case. texas versus johnson. some young man is mad and he burns an american flag and texas has a statute that you can't burn an american flag, so he's prosecuted for criminal offense. and it comes to us, and it was 5-4. it was generational. rehnquist, white, stevens, who had been in world war ii, -- [laughter] he just could not understand the

flagburning thing. it was 5-4 and i wrote a small opinion. i said it's poignant, but fundamental, that the flag protects those that hold it in contempt. the flag is very beautiful. it's our symbol of national unity, this is paradigmatic stage. 80 senators on the floor of the senate and denounced the court, and later we were in california and were seeing some of the children for breakfast, a pancake house, or something, and somebody says, are you justice kennedy on the court? i think it's just some kind of c-span junkie, i don't know. [laughter] it's a justice kennedy: he said, i want to tell you about your case, the flagburning thing. he said i practice law in a small city in northern

california. i lost my mom years ago, but my dad lives there. that is my hometown. like you, i'm like you were, i'm a solo practitioner. he said, my father never comes to the office but a lot of people in the office, and he came in very angry and threw down the san francisco chronicle, which had the flagburning headline, and he said, you should be ashamed to be an attorney. the reason is he was a prisoner of war in germany, and they would take pieces of red, white, blue cloth and make flags. and the guards would find them and take them away. he said, i didn't know what to do. i gave them your case to read, because it's short, and he came back two or three days later and said, you can be proud to be an attorney. he read the reasons and thought about it. and that is what we try to do with the opinion. david: now, one of your famous 5-4 decisions is citizens united, in which you upheld the right of corporations to make political contributions. any second thoughts about that decision ever?

justice kennedy: i, again, the decision stands for itself. of course, all of us are concerned with money and politics. the government of the united states, in that case, argued before the supreme court, the attorney for the government of the united states argued that if there was an upcoming political campaign -- i forget, maybe six weeks, and a book was being published, or a movie being produced, and it was critical of the candidate, that you could stop publication? i thought it was unbelievable. this is a first amendment right. it's true that there's a problem of money in politics, but i think we just have to address it some other way. notice that the press was exempt, so major newspapers could print what they want, but you couldn't have a book or movie the other way.

now, the result was, as you know, that money flows into these campaigns. it seems to me we have to think about it, but the voters are the ones that if they see money coming into the campaign from wrong sources, there should be a disclosure. and they can vote against the candidate if they don't like it. david: when you were in the court the last number of years, after justice o'connor retired, you were basically seen, rightly or wrongly as the swing vote. did that put undue pressure on you to make decisions because you were the person that could make the court go one way or the other? justice kennedy: i think the justices deals pressure in every case. yes, it was a little bit hard. swing vote, i said the swing vote has this symbolism of the swinging back and forth in space. i say, the cases swing, i don't.

[laughter] justice kennedy: my interpretation was aristotle thought democracy should be given a low grade because it did not have the capacity to mature. and our duty, our destiny, is to prove him wrong. look at the rest of the world. the rest of the world is looking at us to see what democracy means, what freedom means. ♪

david: now, you carry the constitution with you everywhere you go. is that right? justice kennedy: i have it. david: you have your constitution right there. when you carry the constitution, you obviously know it very well -- what do you think about the theory that you should look at the intent of the drafters of the constitution about what you

should decide in the case? justice kennedy: this is one of the hardest questions in constitutional law that we have to wrestle with. look at this. this is a written document the framers wanted handed down. you can't just ignore what the words are. on the other hand, i don't think jefferson, and you're a great jeffersonian scholar, and madison spent a lot of time writing dictionaries. and they used to spacious language -- life, liberty, property. if they had known all the specifics, they would've written that. they didn't do that. these words have to have meaning over time. jefferson -- people sometimes get mixed -- the declaration of independence is life, liberty, pursuit of happiness.

that's the declaration of independence. life, liberty, property is what madison put in the fifth amendment, also in the 14th. and happiness was interesting, happiness, the greek word had two meanings. and even in the greek time, one was happiness that you have material possessions. the other is you're happy because you have contributed to civic life and this enhances your own dignity. and jefferson used it in this second sense, happiness was to give to your community, and the result was enriching to you. david: so today, as a retired justice, you have the right to sit on circuit court decisions. are you thinking of doing that? justice kennedy: it's unclear to me that i will sit on other courts yet. because i do have writing that i

want to do, and teaching. plus, the chief justice has some important administrative projects for me. i'm very interested in criminal justice reform. i think our prison sentences are far too long. i think there's a lot we can do. david: you served on the court for 30 years, you've written an enormous number of opinions, you are quite respected throughout the legal community. but what would you like your legacy to be? justice kennedy: i hope people look at the court and realize that not only is it possible, but necessary for a democracy to have a civil, rational, thoughtful, decent discussion so that we can plan our own destiny. we are in a time with an uncivil discourse.

aristotle and plato both gave a low grade to democracy. and i went back two summers ago and reread plato and aristotle. david: is that a common thing that justices do? go back and read plato and aristotle? [laughter] justice kennedy: i wanted to do it because i was concerned. my interpretation was that aristotle thought democracy should be given a low grade because it did not have the capacity to mature. our duty, our destiny is to prove him wrong. look at the rest of the world. it's looking at us to see what democracy means, what freedom means. and they see this hostile, fractious discourse, and we're not making the case for democracy. at the end, david, of the last century, the last 25 years of the last century was the birth of democracy. democracies all over the world. the first part of this century, we're seeing the death of democracy. in part, it's because of the example we are not setting.

aristotle said in a civil discussion that there has to be respect, moderation, thought, and he said the participants in the discussion in a democratic society must have kindness and respect. "i disagree with you on proposition x, but i respect you immensely," and we must restore that to our public discourse. david: final question i'd like to ask you is this, what would you like american people to know about the united states supreme court? justice kennedy: that it is dedicated to finding what the law is, and the law has a moral foundation. the law is interested in truth. truth is often the facts, and you begin there. and this isn't a partisan

exercise. you're not a democrat who thinks the gun was smoking, and a republican who thinks it wasn't. or the democrat who thought the light was green, and the republican thought the light was red. that's crazy. we want to show that facts count, and that facts are found in a thoughtful, rational, respectful way. and after that, we know what principles have to come from the facts, and those principles are the principles of the constitution and the principles of freedom, our heritage. the work of freedom is never done. david: justice kennedy, thank you for your great service to the american people, and to our country for more than 30 years. thank you so much. justice kennedy: and thank you for your service. [applause] ♪

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