spends advertising dollars with a message they think is going to fall on deaf ears. that, i think we draw to a close. thank you very much. [applause] >> overtime i think the supreme with is an institution, the majority of the country, the people, say that these real people, have real issues at the court addresses.

>> justice kennedy was not the president's first choice, rather his third choice. he took his seat on the court february 18th 1988. for more than three decades, kennedy played major roles in america's constitutional matters. >> will take a look at -- a look back at justice kennedy's impact

on his lasting legacy on the court. us today is the former clerk to justice kennedy from 2011 two 2012 and the former assistant to the solicitor 2 2017.from 2007 -- to 2 2017. -- to 2017. you saw a side of him that a lot of people did not see. what do clerks do and what was your experience working for justice kennedy? >> a low clerk is a unique and in some ways. they get selected by these extremely eminent judges to try to help the judges do their job that they are fantastic at doing are fantastic at doing themselves. they do not need a young, fresh law student to assist with. like i was almost -

- [indiscernible] [indiscernible] you review the briefs, you review the arguments, review the cases the parties are relying upon. you engage with justice kennedy. fresh out of law school, just like -- we would do a memo. justice kennedy read all of the breeds and examined -- all of the briefs and examined them as well.

how is this case -- we both discussed at length. it was just one of these great experiences to have justice kennedy. just sitting and chat with him. i almost pinched myself to say oh my goodness, i am talking to justice kennedy about this case. that is just an incredible experience. >> why do you think it mattered to him to know the details of particular cases? reached -- creases when the case is reached the .upreme court . it is really on the individual case. that frames that particular

person. this is a fantastic experience. host: what was it like to argue in front of justice kennedy and the rest of the justices? and did youprepare prepare? >> he definitely never came into my office.

this is some supreme court documentary -- c-span september documentary. >> i think it was my colleague.

he made a very interesting comment one day. nervous before you go on the bench? his answer, no not at all. -- universityare professors, high school teachers, it was hard to do the exam.

>> justice kennedy was talking about how each of them is going to vote and how the opinion will be assigned. that the chief is the majority, that you. that opinion. the only person who keeps notes

is the justice. as for how justice kennedy prepares for the confidence. he took this extremely seriously. he did not approach it that way at all. had a way to do it. also, it is a matter of president. he would talk about it quite a lot. what are the best counter arguments. what are the necessary things to indicate? i think he did that in part because that is the way he approached every case. --who was the deciding boast -- who was the deciding vote? history will tell.

it may surprise in which not have been justice kennedy who was the final vote to join a 5-4. i think justice kennedy for that reason is all took so seriously persuading his colleagues that he was approaching this in a rigorous manner. wait forbably he will the justices being nervous. it is interesting because what he describes as definitely help he would come across to advocates on the bench. incredibly thoughtful and respectful of his colleagues. he is not the kind of justice were caught off -- who would caught off -- cut off his colleagues. really trying to come to the right answer, admitting that it might not be easy, and that there may be tough questions either way. he would asked the advocates --

ask the advocates and say this is what is bothering me. give me your best answer for this. it makes me happy to know that when he went back to the decision-making process and talk to the other justices he was taking the same approach and doing the same thing. >> at thing for justice kennedy there was -- there were certain issues and principles that motivated him.

those visible's did not always come down. manner in thele way other justices may have been more predictable. whether it is the concept of liberty or the importance of the first amendment, the way those apply to specific facts was not always easily characterize will in what way or another. these cases present different .uestions >> in terms of constitutional law, certain principles, i would not want to be called the swing vote either.

i do not think that is what he was doing. >> what did you think his approach was? what were his guiding principles? >> i do not think there is something that captures it. it was very pragmatic. he wanted to think about the implications. had a lot of empathy. whether it was a minor -- minority viewpoint, someone in solitary confinement in prison. he would try to understand the issue affecting the person. there is whatever it george does which is looking to the relevant statutes. it was this real process to get at the best answer. he would not just consider it one factor but everything he

thought was relevant. he tried to do the right thing for this people. do justice. libertarianism? was that a guiding principle for him? >> i do not think he viewed any of those sorts of isms as guiding principles. empathy or concern about the particular individual and how this case will affect them but broader principles. the first amendment was one. a robust first amendment is critical. certainly liberty. you see this in an interesting way. liberty at times protected by federal law, at times protected by the state.

again, those were the sort of principles that really motivated a lot of his jurisdiction. before we get to some of the significant cases, do you think he wrote opinions or issued , the legacy of him or the core in mind? -- court in mind? any person especially in a position of the supreme court has to think about their own legacy and their family and their community and that sort of thing. he has a strong devotion to the institution of government, civic in beijing -- civic engagement, i think his opinions generally reflect a sense of making sure

that the american ideal continues to flourish. >> i agree completely. the roled that i think should be limited and the should be respect for the legislation. when you think about the legacy, recognizing the limited role of the supreme court even in huge cases was central to the way he thought -- thought about writing opinions. up a 1989 the court took case on free speech. justice kennedy authored his own opinion on this. let's listen to him talking about it in the documentary that

c-span did or he talked about this being a difficult decision. .> we had a case americans get inflated -- infuriated when you burn the flag. this court said that is ok. you can burn it. because of the first amendment. that gave the constitution real meaning in our own lives and in our own time. that is on the constitution -- constitution -- >> he wrote the hard fact is that we have to make decisions we do not like. so great is our commitment to

the process that accepting a rare case we do not pause to express distaste for the result. this is one of those rare cases. with do you think of of your time with him when you hear him talk about that and hearing his opinion? >> i hope this is a real anecdote because i remember him telling me this. opinion, is an enormously important decision for him. it is such a clear application that people really care about. he was in some restaurant and somebody approached him. they said to him i really disagreed with the court. -- your opinion

talked about his .ld opinions similar to a red, which is set itsimilar to what you read, is not just a judge saying one way or the other half you think social policy should be, this case encapsulates that. it isis not even -- beautifully written. he called it a lonely place of honor in society. showed -- his honest they showed what he was, going to be like as a justice really

respectful of his colleagues, trying to explain where he was and why. that it was a struggle. yo want to see a justice telling you that this is a hard case. this is clearly the right answer. your on the other side that kind of hurts -- if you are on the other side that kind of hurts. you want to think that it was a struggle and it took some work to figure out the right answer. for him to say yes, this was a struggle, it was really showing what was to come. saw, it from what i showed his process. he was willing to admit it was not always easy and that was nice. that was something that i think really came through.

justice kennedy obviously was bombarded from the outside in the public's fear with different --nions on how verys also communicating and fat ugly with each other about how rosen cases should come down. think you become very loyal to your justice and you take this all very personally. you think this is ridiculous. had this ability to chocolate off -- chuckle it off. i always have this memory of justice kennedy coming back joking with one of the other justices and he very much talked about you. going back he say,

on the first amendment when you are with him. one thing i think really does -- is this belief in liberty that this -- people should be able to express. that, and you of deny people that ability todenly the own ability challenge that existing rule is why he roles as he does in texas be johnson. >> it seems consistent with this idea of civic engagement.

>> this case that was abortion in 1992. 's obvious --thood anddecision to uphold -- want our viewers to listen to a little bit of him reading his opinions from the bench. >> i hope to reaffirm.

choices simple to personal autonomy or central to the liberty protected by the 14th amendment. part of liberty is the right to define the concept of the dass existence, meaning, the universe, it mystery of human life. woman's interest in terminating the pregnancy but cannot end it.

in -- atty at state is stake -- the mother who carries theild and has physical -- sacrifices from the beginning of the human race been injured by woman with the pride in eyes of others and gives us the bond of love cannot however dominant it has been an history of her culture. the destiny of a woman must be shaped by her own destiny and her place in society. >> your reaction? >> there was a time when roe was really an payroll there was a question about what the court would do.

there was this agreement coupled together with justice o'connor and justice kennedy where they reaffirmed roe. it was not just the state can do this and cannot do that. explanation for the rights protected under the constitution. the language came out and all types of different cases for justice kennedy about personal dignity and economy. it started to show. the empathy that says personal matters are fundamental to your dignity in the way you live your life that there are choices you need to be able to make. they came out clearly with casey. during now and not knowing what is to come in next couple of decades, it seems a foreshadowing of where justice kennedy will be and where he would be concerned. >> unwarranted government intrusion. seems to me, from what you have been saying, that is one of the guiding principles in his time on the court. this is really something that he

holds dear. he make sure the government does not intrude on liberty. -- thes not just government does not intrude on liberty when people are engaged in a public act. it is also in the intimacy of the home and the communal relationship. you could actually take some of the exact language that justice kennedy wrote and put it, whether it is the gay marriage decisions, the concept that you have certain decisions unique in the privacy of your own personal shouldand the government not inc. -- intrude on those decisions was a governing principle for him. >> did he ever talk about his case? >> i do not remove the talking about this case with him. >> what about liberty versus privacy? what is the distinction for justice kennedy? not to stump you. >> i think that justice kennedy

-- liberty and privacy are not two sides of the same coin, but if you do not have the ability to keep things out of the public's fear, the ability to make decisions is hampered. justice kennedy -- if you look at some of his positions -- had similar concept that law enforcement needs to be given its ability to carry out important duties area justice what, anytime privacy was involved, decided the outcome and one occasion or another. see him in a number of decisions recognizing the ability to keep certain things within your own domain is critical to be able to make a decision itself. >> what i like about the language he used is that he is trying to express, as best as he can, feelings people have about the way they should be able to live their lives. lawyers would get frustrated

because you learned in law school to just tell me what the relevant rules are and what part of the constitution we are talking about. he starts talking about dignity and autonomy and what does that mean? if you are a lawyer, you uncertainty. if you are a person reading opinions and they directly affect your life and a justice is telling you, i understand your concerns, i understand you do not want people intruding on your family life etc., that is very meaningful, even if this is new in which was using. >> he never said this to me, but i think part of the reason he viewed his decisions as so important is because there is a certain way you can write an opinion just covering the legal precedents of the court of appeal in district courts. recognized as a supreme court justice, the supreme court decisions apply to everybody and they are read by a variety of different constituents. he felt a certain duty to explain in terms that would be understood by a person who would

approach in a restaurant. and not just the legal rules. >> let's listen to him in 1991 on school prayer. he wrote the majority opinion upholding the previous court preference getting rid of school prayer and public schools. the government involvement with religious activity is pervasive to the point of creating a state directed religious act of -- exercise in a public school. conducting this conflicts with rules pertaining to prayer exercises for students. it is beyond dispute that at a minimum, constitution guarantees the government may not coerce anyone to support or participate in religion or otherwise act in a way established as a state religion. states involvement in school prayers is contrary to the essential principles and therefore violates the establishment clause. their involvement is as troubling as it is undeniable.

schooled officials decided that an implication and benediction should be given. it directed and controlled the content of the prayers. we recognize that it is no part of the business of government to compose official prayers or any group of people to recite as part of a religious program carried on by the government. that is what school officials attempted to do. that thers argue directions for the content of the prayer were a good faith attempt by the school to avoid divisive sectarianism. to recognize the existence of a practice of nonsectarian prayer. prayer was in the embrace of what is known as the judeo-christian tradition, more acceptable. one which makes explicit references to the god of israel or jesus christ or a patron saint. we cannot do that. first mmr religion quads says religious belief and religion expression are too precious to be prescribed by the state.

the design of the constitution is the preservation and transmission of the latest and worship and the responsibility and choice emitted to the private sphere, which itself promised freedom to pursue the mission. so just in way establish an official civic religion as a way of avoiding the establishment a more specific creeds, strikes us as a contradiction that cannot be accepted. >> what strikes you from listening to that? >> number one, justice kennedy had a very good -- unique writing style. he really felt a responsibility to explain beyond the legal rule the constitutional principles he is trying to indicate in the decision. number two, you see this strand of all of his decisions, and some respects, reflects the notion of liberty and the notion that if the government is making a choice about what somebody can or cannot say, that is

fundamentally impacting the person's ability to be a free person in society. it is interesting how he talks ofut sectarian strands schools trying to bring in and recognize that the school is making an effort, but still finds it is not permissible. it shows his consciousness of the rule and application of these decisions. >> how does he approach writing? >> there are supreme court decisions based on what you are writing or writing in a majority. , some ofity opinions which were the most important, justice kennedy often gave a draft that he himself would write with a whole opinion and then we would make suggestions, it is a difficult process to give a supreme court justice edits on their opinion. justice kennedy was such a gracious, dignified, humble boss that he would be extremely perceptive to talking about the way you phrase something, how he

would or would not like something to read, if he did not think something properly encapsulated what he thought was the correct interpretation. third i process, we would walk with him and he would be happy with the draft and we would go back-and-forth and eventually, that is the process. we had certain grammatical rules which i have subconsciously adopted in my own writing. unnecessary facts before quotes and i find myself, when i do my own writing, i sit back and think there could be 15 more words in a sentence or paragraph were it not for that excise. justice kennedy style guide. >> listening to him read from his opinion, what were you thinking about? >> i think it had many of the same themes that would come to define him in terms of personal decisions. and the private sphere. becausea difficult case

the constitution says the state cannot establish a religion, what does that mean? as per our graduation really so bad? he had to explain why he would drop a line. and his recent opinion, he had a longer discussion where he said to consider the position of a student who is not a follower of the religious faith and it is for graduation and should she have to basically be mandatory for her to go to graduate, this is the prayer and what is it like to be on a position? that showed one of the things we discussed, his ability to think about how this affected litigants. there was the impermissible state coercion that the court is trying to guard against in the establishment clause when this individual sitting at her graduation listens to that. >> let's listen to him more from this opinion. he talks more about why this violates the establishment clause. justice kennedy: the graduation prayers put school-age children

who objected any opposition. andeech of false ideas offensive content is part of learning how to live in a society, a society in which us -- insists on open discourse. intolerance does predispose mutuality of obligation. by the time they are seniors, high school students have been required to attend classes and complete assignments, exposing them to ideas defined the tasteful, moral, or of -- absurd. students may consider it an odd measure of justice to be subjected, during the course of their education, to ideas deemed offensive and irreligious, but to be denied a formal care ceremony that the school offers in -- return. it overlooks the fundamental dynamic of the constitution. in religious expression, the government -- religious establishment to freedom of all.

free exercise clause immerses the freedom of conscious and has close parallels in the speech provisions of the first amendment. the establishment clause is a specific clause on state intervention with religious affairs. a lesson in history that is the inspiration for the sabbath miklos is in the hands of government -- establishment clause is of the hands of the government. the government argues that the option of not attending graduation excuses any -- in the ceremony itself.we think the argument lacks persuasion . in our society, high school graduation is one of life's most significant occasions. you may not be required by official decree if it is apparent a student is not -- from graduation exercises -- voluntary. the constitution permits the state to exact religious can already for student as the price of attending her own high school graduation.

the question is whether religious exercises can be conducted at the ceremony and circumstances where we found young students objecting to the bar. high school cannot persuade or compel a student to take place and irreligious -- exercise. isi think one thing that always interesting about this opinion is justice kennedy very strongly indicates the establishment clause. freees not talk about exercise. elsewhere in the opinion, this is in the situation where you have a religious minority's ability to practice their religion is being impeached by the government. for him, that was an important liberty. >> it comes later. >> it does. >> let's move on to 2004. justice kennedy delivered the opinion ruling that capital punishment for juveniles was unconstitutional. justice kennedy: the majority

have's -- of states have rejected the death penalty for youth. we now hold the view. it is consistent with the eighth and 14th in moments, the death penalty may not be imposed on offenders under 18 when they committed the crime. three differences between juveniles and a doll -- adults -- first, the susceptibility of juveniles to immature and irresponsible behavior means their wrongful conduct is not as morally reprehensible as an adult. comparativeniles fault ability and lack of control over immediate surroundings we may have a greater claim than adults to be forgiven for failing to escape negative influence. third, the realities that juveniles struggle to define their identity means it is less -- to conclude that even a heinous crime committed by a juvenile is evidence of an irretrievably depraved character.

itm a moral standpoint, would be misguided to equate the salience with a minor with those of the doll. -- adults. i miners character does -- deficiencies are more lately to be reformed. it is evident the penal logical justification for the death penalty is with lesser force to adults. proportional. not if the laws most severe penalty is imposed on one whose comparability is diminished to a substantial degree by reason of youth and immaturity. reasons, wed other conclude that the differences between juveniles and adult -- larges are to bake to allow a youthful person to receive the death penalty. >> this opinion was a difficult one for the court. justice kennedy was a great person to take on writing the opinion because of the commitment, the text does not --

a commitment does not provide a lot of text in terms of what you do with cruel and unusual punishment. the courts, over time, has adopted standards where they talk about societies of open standards of decency, whether it is a punishment that make sense or is proportional to the crime. how do you apply that? it is a matter of explaining what are the purposes of punishment, of the death penalty, and do they apply to juvenile offenders? the need for retribution, the need for deterrence, whether you can rehabilitate young offenders. he said the things i think a parent might say about people under 18 and how they are not fully mature and they are susceptible to influences from her pressure. there is a significant opportunity for evolution and change and it is the right thing to recognize that. the opinion is noteworthy because it is not just i am justice kennedy and we think this, he talked about where society was. are there states

that want to impose the death penalty on people under 18? our other countries doing it? no. he has teachings and he would hear from other judges in other countries and taking into account holistically, it does not make sense anymore. that was a significant precedent in terms of one of the first times a court cut back on the death penalty. >> let me have viewers listen to him a little bit more from this opinion. he talks about international opinion, what is going on outside of the u.s.. >> our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the u.s. is the only country in the world that continues to give official sanction to the juvenile death penalty. since 1990, 7 countries other than the u.s. have executed juvenile offenders. iran, pakistan, saudi arabia, nigeria, yemen, congo, and china.

of thesen, each countries have abolished capital punishment for juveniles or made public disavowal of the practice. the u.s. now stands alone in a world that has turned its face against the juvenile death penalty.. it is proper that we acknowledge the overwhelming weight of international opinion against the penalty, resting in large part on the understanding that instability and emotional in balance of young people is a factor in the crime. at a time of the court's decision in 1958, the court has referring to the laws of other countries and to international authorities. for his interpretation of the eighth amendment's prohibition of cruel and unusual punishment. the opinion of the world community does provide respected and significant confirmation for conclusions. , from one generation to the next, the constitution has come to earn the high respect and the veneration of the american people.

the document set forth to rest upon innovative principles original to the american experience. their separation of powers. broad provisions to secure individual freedom and preserve human dignity. these doctrines and guarantees are central to the american experience. they remain essential to our present-day self-definition and our national identity. not the least of the reasons we honor the constitution, is because we know it to be our own. it does not lessen our fidelity to the constitution or our pride in its origins to acknowledge that the expressed affirmation of certain fundamental rights by other nations and people simply underscore the centrality of those same rights within our own heritage. and 14th amendments for bid and position of the death penalty on offenders under the age of 18 when crimes were committed, judgment of the missouri supreme court --

>> one of the things that is interesting and he discusses it in that clip, is his use of a variety of sources in affirming and confirming his decision. reference international sources and how the u.s. compares with other countries concerning the punishment. to theo heard reference mental abilities of juveniles and some of the medical evidence that played a role in the court's decision. justice kennedy took very --iously all of the times that are filed in important cases. the american medical association and others filed an amicus brief in the case informing the justices of the sort of medical evidence regarding the juvenile brain. you can see justice kennedy looking at a variety of sources. he has confirmed the decision.

none of these are controlling what the u.s. constitution means. justice kennedy did have an approach where he would be willing to look at a variety of sources in order to inform the decision. >> you saw him do that while you were a clerk. -- byas always surprised the time i was there, i thought he would have had his opinions that on a number of issues. i was surprised by his willingness to constantly read a meat is briefs. the course can get so many amicus briefs. he would show up and i would feel like a bad student. did you see what this person said on page 63 of this amicus brief? and i would say i haven't even gotten to read it yet. he really did take very seriously everything that was presented to the court and a variety of other sources. he was not controlled by them, but he thought they were valid to look at. >> i'm sure the court received a lot on this next case. administrationsh , detainees in guantanamo bay.

the court rolls 5-4 that detainees have the right to appear before a judge and know why they are being detained. kennedy: infidelity to freedom's first principles. chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the separation of powers. it is from these principles that the judicial authority to consider petitions for habeas corpus derives. we do not undermine the executive powers of commander in chief. the exercise of this powers is vindicated when confirmed by the judicial branch. the constitution's separation of power structure, exercises of judicial power are as legitimate or necessary as the responsibility to hear challenges to the authority of the executive. some of these petitioners have been in custody for six years with no judicial determination as to the galley of their detention.

-- lawfulnesss a of their status, even if they do not detain the belief they seek. our opinion does not address the content of the law that governs petitioner's attention. that is a matter yet to be determined. petitioners may invoke fundamental procedural protections of habeas corpus. the laws and the competent -- liberty and security can be reconciled and in our system they are reconciled within the framework of the law. the framers decided habeas corpus must be part of that remark. -- framework. --that case he said reconciling liberty and security. we were at a point, some. of time after 9/11, the u.s. made significant efforts in the

war on terror and trying to figure out who was involved in 9/11 and what threats they were against the u.s. this case had very significant congressional involvement. givings passed statutes broad wartime powers to the president and there were statutes about how you could try people at guantanamo pay -- bay. it was a difficult position to bn. there were concerns about national security, people being held at one time obey -- one time obey who are dangerous people. congress is taking action and justice kennedy does not want to step on congress's toes. we have a principal with respect to detention and the writ of habeas corpus. are able to challenge the legality of their detention, which is what they were seeking. that is where justice kennedy came out. it was not easy to get there, from the government perspective. i was there at the time. we are about guantanamo bay, not within the u.s. aboutare often questions

how the constitutional provisions provide outside the u.s. do they provide outside -- do they provide outside the u.s. at all? we have military bases in cuba and everyone admits that cuba is sovereign over the territory. how do we say that the risk of habeas corpus applies? justice kennedy wrote this opinion that was pragmatic to say that maybe not as a de jure matter, but as a de facto matter, the u.s. has control over when time obey -- one time guantanamo bay and it was a critical point at where we were in the war on terror and the government perspective. abilityt recognized the to challenge detentions and it can't change the cases we would see to come in the d.c. circuit. eventually coming back to the supreme court. this is going to be something where the court would make clear it was going to play a role. >> your thoughts on his opinion? a conflict to a

number of his principles. we have liberty in the private sphere, public place, and attention. you -- detention. the judicial role is first and foremost in these cases. the is telling you how dangerous and serious the full article were being detained for reasons that are generally classified. to see justice kennedy deal with ande two very important conflicting principles is impressive, particularly in an opinion like this for justice notedy tries to explain only the outcome but why the outcome is important to the bigger constitutional structure. if you read the opinion carefully, it also shows -- an approach. there was a debate as to whether one time obey was more similar to hanover and the time of habeas corpus or some of the other places.

addition to the lofty speech and discussion about principles, justice kennedy also gets into the weeds of trying to figure out the historical debate, as well. >> we will move on to 2009. the federal elections commission on corporate expenditures. kennedy: upheld a ban on corporate political speech and as already noted, the mcconnell decision relied upon austin. we conclude the presidents must be re-examined. the court has recognized first amendment protection extends to corporations. in accord with this, a foraustin line of cases bids restrictions on political speech based on the speaker's corporate identity. austin was the first time in this course is history that a

and on independent expenditures by corporations for political speech was upheld. if the first amendment has any force, it prohibits congress from finding or jailing citizens or association of citizens engaging in political speech. austin would allow the -- and at to corporations from expressing views from any medium. such as by printing books. political speech is indispensable to decision-making and a democracy and this is no less true, because a speech comes from a corporation rather than an individual. the rationale would produce the dangerous and unacceptable consequence that congress could ban political speech of media corporations. are nowrporations exempt from 441 b's ban on political speech. like other business corporations, the government could diminish the voice of the media business.

there is no precedent for permitting this under the first amendment. it interferes with the open marketplace of ideas protected by the first amendment and allows the government to ban the political speech of millions of associations of citizens, thereby silencing the voices that may best represent the most significant -- of the economy. the government seeks to use its full power, including criminal law to command where a person may get his or her information or what distrusted source he or she may not hear. it uses censorship to control what. this is unlawful. the first amendment confirms the freedom to think for ourselves. our president is to be respected, and less the most convincing of reasons demonstrate its appearance us to does on a course that is sure aircraft. -- ever. we now overruled austin. ,ustin was not well reasoned

experienced was undermined, and no serious reliance interests are at stake. we returned to the principles set forth in our pre-often cases that the government may not suppress political speech on the basis of the speaker's corporate identity. without austin, the government cannot bend of the corporate expenditures. b ban on corporate independent expenditures is invalid and cannot be applied. conclusion that austen must be overruled, we also overrule mcconnell that upheld for 41 these restrictions on corporate independent expenditures. >> white supreme court ruled this way? >> there was a flavor we talked about in his early opinions. a strong feature of the court opinion, a very pro-speech, pro-first amendment flavor. but is not necessarily get you to the outcome because people may have a right to go out and speak about whatever they want, but would you feel that way about corporations?

do you feel that way about corporations spending money? as spending money the same way as speaking? the court was heading that way by saying the court was spending money on pamphlet, media, that was more speech. it is the court ruled that the corporations have the first amendment right to spend money in order to do what justice kennedy would term speech. the problem he saw, which he alluded to, was the implication that it came out the other way. that was that someone who had money and wanted to put a book out talking about one of the candidates would not be able to do that. that was a question that came up in oral argument. the case was argued twice. the government defending the statute that congress put in place the first time. the government lawyer suggested that there could be a prohibition on types of electioneering books about a candidate which was an answer that concern the court.

when it was argued the second time, justice kagan argued the case and gave a different answer. it was clear from the fact that it had been be argued, these very difficult questions, the court was struggling with implications. oral argument is a big role, plays a big factor in these decisions. what would justice kennedy say about it? >> he would rarely tell me that oral argument to ask or by. watching his reactions to oral argument in the way he engaged, he viewed it as very important. justices sit at oral argument, they have a make us brief, thence numbers, all of the discussions. nonetheless, justice kennedy viewed this from his own heartbeat, how is faster when he gave oral arguments. he viewed this as a critical opportunity for litigants to make their case.

in summer cases, oral argument might literally switch the way a case comes out. that is generally unusual. it can influence away and opinion is written, and that is extremely significant when you have the u.s. supreme court, whose opinions are picked over word by word by lower courts. he viewed oral argument as a critical part of understanding the positions and testing the logical implications. >> before the next case, i want you both to give me your reaction to this decision. texas, racety of admissions process and a formative action. >> what do you make of his decision and who he agreed with of other justices on the court? >> this is another issue where i think there was not an easy way to approach the issue. a number been

of universities who wanted to consider diversity-mike factors in admissions. there was a strong opposition from folks like abigail fisher who felt like they were being discriminated against because they have the same -- they did not have the same opportunities as someone else. the supremefore court of times. just a sense of like i understand that this is a different called issue, but we -- a difficult issue, but we will not shy away from it. they sit around a table and consider lots of factors and they might have guideposts and whatever else. they tend to be pretty holistic. i think he tried to explain how best he could. we understand the universities want to take a lot of factors into account. discretion to do that. it does not mean the courts don't play a role.

it is a decision that looks like it is influenced by race. we will give it strictest constitutional scrutiny. we are not going to say you absolutely cannot do it or you can do whatever you want just because it is hard. if i have to, i will keep deciding these cases. again if wess it feel like they were not getting it right. we thought it was worth the time and effort to kind of explain what he and the other justices were. withagree completely nicole. this is a very good example of the judiciary role in justice kennedy. this is an extremely difficult issue, a hot button social issue . recognizing there are rules for judges in determining the that shouldreview apply and remanding itself to the proceedings under that standard. to me, that is in many ways justice kennedy not shying away from a difficult issue or similarly taking what he might view to be an expensive judicial

role. >> let's listen to justice kennedy in his own words. the equal protection clause, rates may not be considered by a university unless the admissions process can understand strict scrutiny, which requires the university to demonstrate with clarity that its purpose or interest is constitutionally permissible and substantial and its use of any racial classification is necessary to the accomplishment of its purpose. universitys on the the ultimate burden of demonstrating that race has a neutral alternatives that are both -- that race neutral alternatives do not achieve the purpose. the court of appeals affirmed the entry of summary judgment for the university. this court now holds that the court of appeals was correct to conclude that the university has met its burden given the state

of the record and the data available to the university in 2008 when the petitioner's application was rejected. she was not denied equal treatment. the petitioner claims the university has not articulated its compelling interest with sufficient clarity. she argues the university has failed to say precisely what level of minorities it seeks. not in interest of enrolling a certain number of minority students but rather an interest in obtaining educational benefits that flow from student body diversity. the record reveals the university articulated concrete goals with respect to its decisions which mirror the compelling interest which the court has approved in prior cases. >> justice kennedy reading his decision in fisher v university of texas. his impacting about insignificant cases and the legacy he will leave behind

after retiring at the end of the month. issue.ove on to another there are several cases that justice kennedy's opinion really is an important one here, and that is the issue of gay and lesbian rights. general aboutk in this issue and the legacy the both of you think he will leave behind on it. you want to go first? >> i think there is just no question that if you look at these lgbt decisions of the , i mean, justice kennedy is absolutely associated with those, giving he wrote very many of them. i think it is an issue that brings out -- i feel like a believes ind -- he liberty, the ability of people, and if you can go back to the language of people to determine for themselves what the mystery of life is and how they want to fit into that, these decisions show that very much, the fact of

lawrence being something that happens in the privacy of somebody's own bedroom. those sort of things are where justice kennedy, overall, though maybe there are exceptions, but overall, thought the government gould draw the line and not beyond that to make those sorts of decisions. you see it there. is taking arbitrary action against one specific group of people, denying them the rights that would be given to everyone else. these are decisions that are central to what people think of justice kennedy. >> as someone who is involved with working with the government , the question was always his justice ready to go this next step? there was a sense with gay marriage that society was changing and various states were recognizing gay marriage in a way they had not done before. the court does not want to be furrowed in advance ahead of where states are or where they

think the public is, etc., trying to respect the limited judicial role. there is evolution. that has beeniage recognized, a valid marriage, but that the federal government was not going to recognize. there was a particular problem there. is there a constitutional right to marry on the same terms as opposite sex couples? it was an evolution and building on some of these principles. >> let's begin with romer g , and listen to justice kennedy. the court ruled here 6-3 that the colorado state amendment was unconstitutional. it puts gays and lesbians in the same position as everyone else. the amendment only denies homosexuals special rights. we find that reading of the amendment in plausible --

implausible. most states choose to counter discrimination by enacting statutes and specify grounds they may not use to seize discrimination. he cannot discriminate based on it, marital status, pregnancy, parenthood, physical or mental disability, and in recent times, sexual orientation. it bars homosexuals against nullifies- and specific protections for gays in health and welfare services, private education, and employment. providing specific protections for gays or lesbians from dissemination at any level. we cannot accept the view that amendment two only to price

homosexuals of special rights. no matter how public or widespread the injury, they can assume protection from the laws only by listing colorado to amend state constitutions by trying to pass helpful laws of general applicability. taken fortions are granted by most people. they have protections against transactions that constitute ordinary civic life in a free society. if a laweld that targets -- we will uphold the legislative specifications so long as it bears rational relation to some legitimate end. amendment two fails and defies this conventional inquiry. ourt, it is not in

constitutional tradition to enact laws of this sort. to our own constitution's guarantee of equal protection, it is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. a law declaring that it should be more difficult for some than others to seek aid is a denial of equal protection of the laws in the most literal sense. second, in addition to the the principle that offends in the general sense -- a legitimate governmental purpose, and it does not. respect for other citizens freedom of association and landlords or employers who have personal or religious objections to homosexuality.

fightant to discrimination against other groups. the breadth of the amendment is so far removed that we find it impossible to credit them. we cannot say that amendment t wo has any discrete objective. any factualed from contest from which we could discern a relationship to a legitimate state interests, taken for its own sake, something the equal protection clause does not permit. we must conclude amendment two classifies homosexuals to make the money call to everyone else. -- to make them unequal to everyone else. this, colorado cannot do. they cannot make someone a stranger to his laws. inthat was justice kennedy 1995. let's listen to him in 1995, sor. the wind -- v. winds

role in the state power in making the decision enhanced the recognition, dignity, and protection of the class of marriage same-sex couples in their own community. the federal government uses this for the opposite purpose, to impose restrictions and disabilities. with the state of new york -- the federal law deems that unlike. states the same class the seeks to protect. the federal law violates equal protection principles. the avowed purpose and practical effect of the law are to impose a divisive image, a separate status, and so, a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states. enactment inf the

its own text demonstrate that interference -- the exercise of their sovereign aner was more than incidental effect of the federal statute. it was its essence. the state and purpose of the law is to promote an interest in protecting the additional moral teachings reflected in heterosexual-only laws. thedefense of marriage -- title confirms it. if any state the size to recognize same-sex marriages, the unions will be treated as second-class marriages for purposes of federal law. by creating two contradictory marriage regimes within the same of domaection three makes people married for the purpose of state law and unmarried for federal law. no legitimate purpose overcomes

injuring those who the state by its marriage laws sought to protect in personhood and dignity. by seeking to displace this projection, section three of doma is in violation of the fifth amendment. >> justice kennedy referring to the defense of marriage act, then as doma, constitutionality of it in 2013. in 2015, he sides with the this case.tices in here is him reading that decision. is most often through democracy that liberty is preserved and protected in our lives. has been substantial public deliberation over the past decades, and it is a central premise of our constitution that fundamental rights depend on the outcome of no elections. the dynamic of our competition system is individuals need not await legislative action before starting fundamental rights.

course, those who oppose same-sex marriage whether on religious or secular grounds continued to advocate that belief with the utmost conviction. believe those who allowing same-sex marriage is proper may engage those who disagree with their view in an open and searching debate. this case concerned only what states may do under the constitution. is more profound than marriage for it embodies the highest in deals -- ideals of sacrifice and family. become something greater than they once were and it would misunderstand petitioners to say they disrespect or diminish the idea of marriage in these cases. they respect it so deeply that they seek to find this for film it for themselves. they asked for equal to 90 -- dignity in the eyes of the law. >> just listening to the justice, justice kennedy over

the years on gay and lesbian rights. how do we get from those cases to this last term in the civil rights commission? >> there was an evolution over those cases from recognizing the state is doing something here. it is intruding on people's lives and their personal decisions and their marriages. some personal dignity and autonomy that is protected, and it is not just that you differently them but that there is a fundamental right, and he was in fact about that. justice kennedy said in the opinion that there are people that do not support gay marriage, and they do so based on religious and other convictions and we need to give those beliefs respect and consideration. he said i do not want to make the cake for a gay marriage. i am religious and i do not want to be supporting it. i don't think i would supporting it by making this cake.

i think that set up a pretty difficult question of the court recognizing the fundamental is playingrry that an incredibly important role in our society. there is a need for respect and other beliefs. >> let's listened to what justice kennedy wrote about masterpiece cake shop. our society has come to the recognition that gay person than couples cannot be treated as social outcast or inferior indignity and worth. the law and the constitution must protect them in the exercise of their civil rights. the exercise of their freedom on others mustto be given great weight by the court. the religious and philosophical objections to gay marriage are protected views and in some instances, protected forms of expression. , somehink if you look people look at these cases and say this is exactly why you would say he is a swing justice. he goes one way on some cases

and one way on another. he rejects that categorization. 'hat you see is justice kennedy of an, strong, and long-held belief about the importance of the free exercise clause and the importance of building on it, not being told by the government to enact other religious views that they do not believe in or subscribe to, so i think it is just another example. there are lots where if you look at the principles that have always defined him as a justice, they exist throughout these cases, but the outcomes depend on the facts presented in the case. >> i think the court to some extent got lucky, if you will, in the masterpiece cake shop case. even though he was clear about the need to protect both of those interests, how do you them? it seems like you need an answer. either the person has to make the case or the person does not have to make the case. it turned out there was a

separate problem that the colorado commission had said some things that really displayed animosity towards the cake baker's religion, so the supreme court was able to decide the case on that more narrow basis and say that happened in this particular case and it was a problem and it showed animosity. it is less the broader question of really how do you reconcile when theyinterests are completely in conflict, and those questions are not going to go away. left unresolved for future courts. the justice recently was at the ninth circuit judicial conference before he officially stepped down from the supreme court, and he talked about the decisions that we have discussed of them he and all had to make our difficult ones. take a listen. room knowse in this fascinationns -- about being a judge is the same as the duty of being a judge, and that is to ask yourself why

am i about to rule the way i am about to rule? you must always ask yourself that question. , youannot get through life cannot get through the day, without making certain assumptions, without having certain preformed ideas. , and particularly in judging, you must find a reason that is propelling your decision and you must then put that into a formal boards. you must then ask is it logical? is it fair? does it accord with president? does it accord with -- precedent? does it accord with the constitution, common sense, ethics and values that i must follow as a judge? not my personal values, but the values all of us must follow if we do our duty?

you must always ask yourself this question. and to keep an open mind and always ask yourself what it is that is driving you to make a decision is not in decision. it is -- indecision. it is fidelity to euros. it is both the responsibility and the privilege of being a judge. >> that was justice kennedy from 2016 from the ninth circuit judicial conference, so did some of that sound familiar to you from your time clicking with him? -- clerking with him? >> it did. he struggled with cases big and small, making sure he really understood why he himself was for the reasons, the right reasons, ruling for these cases, ruling one way or the other because it was governed by precedent, by his understanding of what the constitution required. given the position justice kennedy held for so long, which

decidinge was the opinion. i think it would have been easier for him to not put himself through the ringer, but he did in every case, including seven cases where he did not write the majority on very narrow points of bankruptcy law. i could see him struggling with the decision. >> how did he struggle? >> by the time a case gets to the supreme court, usually, you have two circuit courts that have ruled that the law means two identically opposed to things. in most cases, you will have good reasons that is the case. justice kennedy is digging into why these courts are willing this way and what does the law say? why are they making these arguments? it would be easy to be less rigorous because you deal with a lot of cases for the supreme court over many years, but he brought that humility may be. i do not know the law should be

and i am justice kennedy. it was great,erk, because we would talk about it and debate for a very long time. >> what do you think his legacy is? >> a lot of it is from the clip we just saw. incredibly thoughtful and going through this deliberative process and trying to get at the right answer, wanting the best you can to understand why the courts came out the way they did, what pressures the person the litigants in the cases were facing, the real world implications of the case. that does not easily fit into a defined way of approaching cases or a defined ideology, but it is honest. the thing i like so much about the clip we just saw is there he is talking to other judges. it would be so easy for him to say, just to give a prepared speech about history or something like that, and he is saying i struggled, too. not always an easy

process. if you are a person who is have asenior person, supreme court justice come in and say that sometimes it is hard. it is not easy for me just like it is not easy for you. andsty and deliberation attention to the process will be a lot of his legacy. are allnk those excellent points. in addition to that, justice kennedy has fidelity to certain principles and he has not been frightened to go where those principles took him. he has not allowed different outcomes to -- what he says in the clip, it is not about indecision. kennedy's legacy will be consistent in certain principles and an application of those depending on the facts. >> he's not done. he was at a conference this past month and he hinted at what is on the horizon for him. take a listen. >> we did not get to talk much about prison reform, and penal

reform i think is very high on my agenda of things to do. i think solitary confinement is wrong. in thissentences country are eight times longer than sentences for comparative crimes in england and western europe. so we must always think about improving the rule of law. >> so i think justice kennedy of a lot of options in terms both if he wanted to hear cases on the court's appeal as a retired justice or to really make some strides in some of these issues he really cares about. prison overcrowding, solitary confinement, mandatory minimum sentences, things that really kept him up at night, knowing that people would be put away in difficult conditions for so long. those people, too, he said, even for people convicted of heinous crimes, have the same dignity and worth as other people and need to be taken into account.

alluld not be surprised as -- at all if he spent time trying to make inroads on these issues he talked about. >> you referenced senior status. what is that that he would be able to do? >> justices take this retired set up. it is really a pretty flexible situation, but both justice haver and justice o'connor heard cases on the court of appeals close to where they live. if you are arguing a case before the first circuit, he could be on your panel, which i imagine would be kind of nerve-racking, but it would be up to justice kennedy if he wanted to do something like that. >> what do you make of him not being done? he is stepping down from the court, but prison reform is on the agenda. >> that does not surprise me at all. i think he thinks about lots of issues as a justice and he cares. he has an international perspective.

that he has lots of relationships with people overseas as well, and he probably will be active, whether it is in prison reform or more international endeavors as well. i think that motivates and very much. .> we want to thank you thank you both very much for this conversation today. we appreciate it. thank also the audio used to listen to justice kennedy. if you are interested in the c-span supreme court documentary, you can find it in our video library for all of the cases and more about what we talked about today. thank you for joining us. [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] confirmation hearings

for brett kavanaugh to be a supreme court justice are expected in september and senators questioned him about roe v. wade, the 1973 decision that struck down many decisions on abortion. c-span's landmark cases presents an in-depth look at roe v. wade. we will hear from los angeles times supreme court reporter david savage, discussing judge kavanagh's nomination and the abortion issue. c-span's washington journal, live every day with news and policy issues that impact year. coming up tuesday morning, george mason university's richard calle discusses vulnerabilities to pipelines by hackers. issue one, -- she talks about her new report, all expenses pays, which looks at are makingawmakers to pay for personal expenditures. be sure to watch c-span's

washington journal, tuesday morning. join the discussion. the association for education and journalism and mass communication is holding their annual conference in washington this week. this afternoon, a panel of journalists who have more currently covered the white house, talk about how their job has changed over the years. >> one of the things the is invitegets to do people to come give a keynote address, and as i was thinking about our locale, our lovely logo with the capital, all i had to do was turn on the news, look at the newspaper, open my twitter feed, and realize what our topic had to be. it had to be looking at the relationship between our chief executives and the white