>> our next program is in september. it will be the second monday, september 10. the topic will be the unites states getting back in the business of world affairs. until then, we are adjourned. thank you. [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] announcer: tonight on c-span, we look back at the legacy of just anthony kennedy, journalists who covered how hite house talk about their job has changed over the senior d the former director reflects on federal bureaucracy at the state department. > over time, i think the

supreme court is majority institution. the majority of the country begins to see that the these people who are real people had a real injury, court addressed and our commitment to the people and decency is such that our decisions are accepted over time. that was supreme court just anthony kennedy judicial t the ninth district days from retiring.

school prayer to the use of race gay rightsty and and to prisoners rights as well. he was often called the swing vote on the court. today we take a look back at justice kennedy's impact and and al significant cases his lasting legacy on the court. , a former today solicitor o the general and argued 29 cases before justice kennedy and the court. thank you for being here. >> a low clerk is a very unique some ways indecento sin

accuratic position that you take school students and they get aired off, selected by these extremely eminent judges to help need a a job and doesn't fresh young law student to assist with. a great e ways, it's service, i felt like to both, to get out of the way and let them do what they were doing too much.terfering as for the nuts and bolts and supreme rly on the court, they help the justice prepare for oral arguments, the briefs, review the are dents the parties relying upon. you engage and particularly with not into nnedy was long memos. different justices have preferences in that regard. just kennedy just liked to sit the cases.out

two-page do a brief memo, there was no need to parties hadwhat the said. he just wanted to talk about legal principals were, what the precedents set, the court did in recent years. ustice kennedy, the fact about how this case was framed particularly and what did that person say during trial and so we could go through with him and length and it was just one of these great experiences for me to have suddenly flop into this easy chair in my chambers and chat. i would pinch myself, i'm talking to justice kennedy about this case. it's an incredible experience. >> why do you think it mattered to know the details of particular cases? > i think when the cases reach

the supreme court, sometimes you ave the strange, almost telephonelike game and what was litigated below gets changed through the briefs and the in the parties to something different. justice kennedy felt like the this comes from being a solo practitioner is to really understand the individual case, the individual clients. that onees justice for particular person. he realized that his decisions a huge impacthave over millions of people in the country. it.'s why he cared about once oral arguments happens, we the justice write the opinions for which he was assigned. a fantastic experience. >> what was it like to argue in and the justice kennedy rest of the justices, did you prepare specifically to argue in him?t of >> he definitely never came into my office and flopped down, i wish. before the aring

justices was pretty nerve-wracking no matter what court.es are on the everyone in the solicitor general's office where i worked intently.o i did not prepare for any one particular justice. i think all of us thought we need to give the best arguments, the best arguments on government that we think makes sense and is onsistent with the court's precedence. you figure out who is going to be where. this person is most likely to be on our side or hostile. predictdn't necessarily where he was going to be. if he asked a question, you had to listen pretty carefully. that's not because of him being the swing justice. t's just because you didn't have as much foreshadowing of where he might be and his on common ere based sense and what him trying to get answer.right that made it really fun to argue before him, fun being a relative term. of course, you're scared out of

your mind the first 10 or 20 times. >> justice kennedy actually talked about what it's like to as a justice with the other justices and on conference this is from c-span's supreme court documentary. i want to show our viewers and you talk about it. >> i think it was my colleague, colleague was my just breyer who made an interesting comment one day. we were asked us, together. are you nervous before you go on no, i'm not swer, nervous when i go on the bench. it.ook forward to sometimes you hear a university professor or a high school it was hard well, to give the exam as to take it. don't believe it. with attorneys. i was always nervous when i as an d in court attorney, even when i was in sacramento, california, i went steps, i was going

to visit a judge, my heart beat, i remembered my days as an attorney. way.es don't feel that it's relaxed and easy. to ave to be courteous attorneys and we're open-minded and doing the job. justice breyer made the nervous on, he is before he goes into the conference and so do i. an attorney once again. you're arguing your case. i have eight colleagues who have on the case.hard they may have some very fixed views and may be tentative on how they felt the case through. point of view my and hopefully to persuade them. i feel a sense of anticipation, adrenaline as an rush, i don't know what they

call it. us, is a big, big day for we sometimes have as many as six the and i have to present argument as well in four cases to be ave been professional and accurate and fair and each of my colleagues feels the same way. little tension and excitement in the room but we love it. we're designed to do that. no good if you can't argue. did he prepare for conference day, explain for don't know what is conference day? hear after the justices oral argument in the cases and week lso late during the as well, they go to the conference room which is to the chief justices chambers, they'll sit the nine of them to discuss all of the that have been heard. they discuss the petitions that have been filed by the courts. part of the process to

decide what the court hears. kennedy is tice talking about is the process of deciding which is going, the is going to be assigned. if the chief justice is in the majority, the chief will sign opinion. if he is not, the most senior justice in the majority will it.gn the only person who officially junior tes is the ustice, justice breyer was doing it, justice gorsuch is doing it. justice kennedy took this seriously. matter, justice kennedy will have the deciding vote. he didn't approach it at all. rigor that hernal would decide how exactly would not merely me up, from our perspective, but as a logical matter and a matter of precedent. talk about it quite a lot. what are the best ounterarguments for this position, we're discussing at a

conference, what are the necessary things to indicate matter and from the facts. he approached it with a great rigor. i also say, i think he did that because that's the way he approached every case. perception that it must have been justice kennedy who was the deciding vote. bviously history will tell us as you look at some decisions that was the case. i don't think it's always the case. a surprise that there are situations in which it may not have been justice kennedy who the final vote to join a 5-4 but somebody else. reason kennedy for that as well took so seriously persuading his colleagues that this in a oaching rigorous manner. they'ree to the justice talking about being nervous. >> it's interesting because what he describes and what justice kennedy himself was describing as definitely how he comes across to advocates on the bench, incredibly thoughtful and respectful of his colleagues. he is not the kind of justice

that would cut off his else.agues or anything he would wait and listen to what they had to say. my perception of his questions in arguments that would go into is decision-making process, really trying to come to the right answer and admitting it easy and tough questions either way. he would ask the advocates, this is bothering me, tell me what you think about it and give best case or answer. it makes me happy when he talked justices, he was taking the same approach and doing the same thing. >> you both touched on this, him being the swing vote. 2007 he "newsweek" in never liked that term, swing vote because it indicates that elect to swing for the purpose of accommodating one side or another. biography about him, he is as saying it's the cases

that swing. your reaction. i think that's correct, not just because he was my former boss. right. justice kennedy i don't think an be easily boiled down to ism of philosophy like others. and were certain issues principals that motivated him. o the frustration of some, come principals didn't down to a case and predictable others. when you look at the concept of liberty or the importance of the the way those , applied to specific facts was easily captured in one way or another. so when justice kennedy say the ases would swing, they present different questions and he applies consistent concepts of in legal ways.

>> i take it as saying i'm doing the same thing in every case. i'm approaching these cases. i have a way of working through the cases and thinking through and looking at the precedent and looking at other sources and applying common guiding principals in terms of constitutional law. a ouldn't want to be called swing vote either that suggests 'm changing my mind willy-nilly, i don't think that's what he was doing. think his you approach was, what were his principals, how would his philosophy? >> he was pragmatic and think bout the real world implications of what he was doing. he had a lot of empathy that he other ut himself in eople's shoes, minority viewpoint, first amendment, somebody in solitary confinement in prison, how is this affecting

this person, even if it's not i have experience that had. what every judge does, look at the elevant statutes and relevant constitutional law precedents and that sort of thing. hat made justice kennedy unique, this real process to try o get at the best answer where he would consider not just one factor, but everything that he thought was relevant, cetera, tonal law, et try to do i think justice, do the right thing for these people case.is >> what about libertarianism? talk about it? was that a guiding principal for him? didn't talk about it. i didn't think he viewed any of principal at ing large. ones principals like the that have been mentioned, empathy or concern about the and how r individual this case would affect them. was irst amendment

something that justice kennedy viewed as essential to the structure and defense of the first amendment is critical to what the founders and what the constitutional structure is. similarly liberty, and you see in an interesting away, -- liberty italit alitalit ala protected, and for him, those are the sorts of principals that really motivated a lot of his jurisprudence, that is central to the constitution. delve to thoseto things that you brought up. before we get to the significant cases, do you think that he rote opinions or issued decisions with the legacy of him or the legacy of the court in mind? nicole? >> i think something more like the latter. person, especially someone who is in the position of justice in the supreme court has to think about their own legacy,

everyone thinks about that and thing.ort of i think he had a strong, has a the g devotion to nstitutions of government, to civic engagement, more speech and more participation really of s society, that sort thing. his opinions would generally making suresense of that the american ideal continues to flourish, even in trying times. pretty difficult decisions where he was in the ajority and i think he would explain that the decision was a difficult one, why and why the court had to come out where it the constitution on course. >> i agree completely with nicole. thing i'll add is i think for him, another very important, the judicial role should be a limited one and respect for the and the legislature. when you think about the legacy that he was writing for, of gnizing the limited role the supreme court, even in huge

ases of massive import were central to the way he thought about writing opinions and ruling on cases. some of the early days on the bench. texas9, the court took up v johnson, a case on free speech burning, justice ennedy altered his own opinion this. let's listen to him talking bout in the documentary that c-span did. he sat down and talked about it a difficult decision. justice kennedy: americans get flag.iated when you burn a it drives us crazy because we love the flag. can court said it's ok, you burn it, we said that because of me, fifth amended, pardon the first amendment. o that gave the constitution real meaning in our own lives and in our own time and that's most he constitution is

important. relic or ust some old did you seeies thing you read. it's yours. we make decisions we do not like. we make them because they are right, right in the sense that law and the constitution compel the result. great is our commitment to the rocess that except in the rare case, we do not pause to express distaste for the result. undermining ear of a valued principal that dictates he question, this is one of those rare cases. with a do you think of of your you hear him when talk about that and the documentary and then hearing his opinion? actually, i hope this is a real anecdote. i remember justice kennedy this, it's been some years since i was there with him. is an se and opinion enormously important decision for him. i remember him saying that v johnson ter texas

came out which was a very controversial case in the public because it's such a clear application to the first amendment, something people about.care he was in a restaurant and someone approached him, rare for kennedy, i really disagreed with the court. 'm a veteran, but your opinion explained to me why the first amendment requires that even if really ething that i hate. justice kennedy, he very rarely opinions, t his own he is an extremely humble unbelievable s an compliment that someone would come up and tell him about his opinion. to decision was important him. it encapsulates what he was saying, this judicial role, to what you read, particularly perhaps in you personally disagree with the outcome, it's not a judge saying one way or the other how he thinks social policy should be. case encapsulates that.

>> i love that opinion. concurrence. it's not a page long, it's turns of y written, phrase. the lonely place of honor in our i thought that's beautiful. his honesty i think in writing the opinion showed what he was to be like as a justice, that he was going to be really respectful of his colleagues who on the other t side of that case and trying to explain where he was and why and it was a struggle. from the perspective of someone ho has argued cases before the court or litigants to come before the court, you want to see a justice tell you that, this was a hard case. when a justice just says, oh, this was easy, this was clearly and perhaps if you're on the other side, that kind of hurts because this case going to the supreme court. you want to think it was a it took out some work that it was the right answer.

yes, it was a struggle and showing what was to come in his jurisprudence, it showed us process that he was illing to admit that it wasn't always easy. i thought that was nice. >> go ahead. > following on something that nicole said, respect for his colleagues. hat was something that i think really came through so clearly in that one year working with him. ustice kennedy was bombarded from the outside and in the news sphere and ublic within the court as well, the ustices obviously, whether in memos, they were communicating emphatically very with each other of how cases should come down. can be very sharply worded. as a law clerk, you become very you to your justice and take this personally and this is they're saying x or y about our argument. ability ennedy has the to chuckle it off, that

upset.-so -- never get after conferences which must have been very forth right in i have this memory of ustice kennedy strolling back, joking with one or the other justice, he very much took that colleagues are his and this is his role. >> what did he say when going case of texas v johnson, on the first amendment when you were with him, you a little bit.hat why do you think that was omething that guided him as much as it did? hard to ow, i think answer such a perceptive question. one that guides justice kennedy is the belief in liberty that able to express their perspective including the opposition to government. get rid of that and you deny people that ability, their own ability

vindicate liberty interests, to challenge existing law is hampered. i think that in large part is why he rules as he does in texas v johnson even on an issue that as a personal matter finds abhorrent to burn a flag. >> the remedy for speech that like is more speech, you should go out and engage on it and talk about these issues. don't want to keep things underwraps. if someone has a view, that's wants to onstitution protect is the expression of those views. >> another significant case in 1992.h abortion lanned parenthood of southeastern pennsylvania, 5-4 to uphold roe v wade. want to have our viewers listen to a alittle bit of him opinion from the bench. justice kennedy: the essential versus wade, we parts.reaffirm has three

of the the recognition woman to choose to have an abortion. not sote's interests are strong to support prohibition of abortion or the imposition to that right. of nd is the confirmation the state's power to restrict after fetal liability. protecting the health of the woman and the life of the fetus become a child, they do each other.ct to he right of the individual a person isingle -- the decision whether to bear a child. the private remember many of family lives which the state enter.

choices central to personal centraland autonomy are to the liberty protected by the 14th amendment. at the heart of liberty is the to define one's own concept of the meaning of the niverse, the mystery of human life. these considerations begin our analysis of the woman's interest terminating her pregnancy but cannot end it. it's weak to the human condition to the law. the mother who carries a child to full term is subject to anxieties, to physical constraints and pain that only she must bear. the sacrifices since the human race, it gives to the infant a bond of love cannot alone be dproundz the state to insist that she make that sacrifice. er suffering too intimate and personal for the state to insist vision more upon its own of the woman's role, no matter ow dominant it has been, the destiny of the woman must be

shaped on her on conception, her in society. >> roe was really in peril and a the court out what would do. that was s agreement cobbled together with justice uiter and o'connor and kennedy where they reaffirmed roe. it was an explanation for the ights that are protected under the constitution. this language that came out in cases forent kinds of justice kennedy later about personal dignity, personal utonomy that sort of thing started to show this empathy, there are that personal matters that are fundamental to your dignity and the way you live your life, choices that you need to make. that came up pretty clearly and lot of opinions in the

future. hearing it now and knowing what couple ome in the next of decades, it was a of where he was. > unwanted government that ion, it seems to me, was a guiding principal of his time on the court. this is something that he holds dear, making sure that the government does not intrude on liberty. >> that's exactly right. just like in texas v ohnson, the government doesn't intrude in liberty when people town public acts in the square. home and the familial relationship. you can take that language and it into the gay marriage concept later on, the that you have certain decisions personal n your own

sphere and the government should to other to him and cases. aboutyou remember talking this case? >> no, not with him. privacy, the sus distinction for justice kennedy over the years, not to stump you. >> well, i think justice kennedy liberty and privacy, i don't want to say two sides of don't havein, if you the ability to keep anything out of the public sphere, your is hampered. justice kennedy certainly, if you look at his criminal law decisions, had a very similarly law concept that enforcement needs to be given carry out to important duties. justi you do see justice kennedy in a umber of decisions recognizing that the ability to not turn

over certain information or the bility to keep certain things within your own domain is critical to be able to make the decision itself. about i like so much this language that he was using in this case and future cases to come, he is trying to express as est he can in words feelings people have about the way they are able to live their lives. sometimes lawyers get frustrated that. you learn in law school, tell me hat the relevant rules are, what is the test, he starts talking about dignity and autonomy, what does that mean. if you're a lawyer, you want certainty. if you are reading the opinions and they're affecting your life, justice is telling you understand your concerns, you don't want people intruding on life, et cetera, that's meaningful even if it was that he was using. >> part of the reason that he decisions,se sorts of

they're so important, there is a write an y you can opinion covering the legal courts.nce of other he recognized as a supreme court applies to everybody. i think he may be did feel a duty to explain by those why are they im, coming out, not just the legal include.y >> let's listen to him on on school e, 1991 prayer, upholding previous court precedent. let's listen to him on why he thought it was unconstitutional. the government: involved with the religious ctivity is pervasive to have a state sponsored or directed in a public school. that at a d dispute

minimum, the constitution guarantees the government may or coerce anyone to support participate in religion or its exercise or otherwise act in a a state h establishes religion or religious faith or tends to do so. state's involved is contrary to therefore als and olates the establishment clause. controlled thend content of the prayers 30 years ago. we recognize that it is no part business of government to compose official prayers for any roup of the american people to recite as part of a religious program carried on by the government. officials t school attempted to do. petitioners argue and we find refute it the case to that the directions for the content of the prayers were a by the schoolempt sectarianism.

-- prayer which is more acceptable and one which, for explicit akes references to the god of israel patron christ or to a saint. we cannot do so. religious beliefs and expression are too precious to be either or prescribed by the state. the responsibility and the choice committed to the private to pursue freedom that mission. the suggestion that government may establish an official or religion as a means of establishing a religion with is a pecific creeds contradiction that cannot be accepted. > what strikes you from listening to the justice there? >> well, number one, i think had a very edy unique writing style. you can hear that in his decision right there. he did feel the responsibility

to explain beyond the legal rule that these principals invigorate the constitutional principals in these decisions. number two, you see the strands n all of justice kennedy's decisions reflect this notion of liberty, this notion that if the making a choice about what someone can or can't that fundamentally impacts that person's ability to live as free person within the society. he talks about the different that the strands school was trying to bring in. the school is making an effort, permissible ot under the first amendment. it shows his consciousness of implications of these type of decisions. >> how did he approach writing these decisions? >> there are supreme court decisions, and for justice kennedy, the majority opinions, in your clips showed

as the most important, justice ennedy would give us a draft that he himself would write with the wheel opinion, we would make edits, the dping is a ifficult process to give upreme justice edits on their opinion. he was a humble boss that he would be receptive to talk about the way he phrased something, ow he would like something to read, he didn't think something encapsulated what he thought the interpretation of the law was. e would be happy with the draft, go back and forth and that's the process. had certain grammatical rules which i have adopted in my own writing. he didn't like unnecessary thats before quotes, i find myself, words in be 50 more

his sentence or paragraph and excised by justice kennedy's style guide. him reading from his opinion, what were you thinking about hearing him from there? of the same y themes that would come to define personal decisions in the private sphere, this is a case.cult the constitution says the state can't establish a religion. mean.does that is a prayer at graduation really so bad? he has to xplain why draw the line there. he says consider the position of follower who is not a of that religious faith and it's her graduation and should they to be -- it's basically mandatory for her to participate in graduation. what is it like to be in that position? that showed one of the things we discussed which is his ability to think about how this actually litigants e

beforehand and in fact there was impermissible state coercion that they are trying to protect against when this sitting at her graduation and listens to that. >> let's listen more from this opinion. elaborates more on why this iolates the establishment clause. ustice kennedy: the school-aged children objected. content and to ounter it is learning how to live in a pluralistic society. intolerance does presuppose some neutrality of obligation. seniors, e they're high school students have been equired to aattend classes and assemblies and complete assignments exposing ideas they or absurd or all of these. they may consider it an odd of justice to be

subjected to ideas deemed and to be denied a brief formal prayer ceremony in the school offers return. this argument overlooks a fundamental dynamic of the constitution. in religious debate or expression, the government is primarily participant. clause exercise embraces worship that has close parallels in the first amendment. establishment clause is a on state rohibition involving in religious affairs with no counterparts in the provisions. the inspiration is that in the hands of government what might as a tolerant expression indoctrine be to flat and coerce. attending in the ceremony itself, we think that argument oral persuasion.

high school graduation is one of most significant occasions. it is apparent that a student is not free to absent herself in word al sense of the voluntary. the question presented is mayher a religious exercise be conducted at a graduation ceremony, now hold that a school or compel a student o participate in a religious exercise. it is being done here. is also ing that interesting about this opinion. it shows justice kennedy very vindicating the establishment clause. what he doesn't talk about is access. he knows this isn't a situation where you have a religious whose ability to

practice their religion is being the government. that was an important interest. later in this past term. let's move on to 2004 and issue death penalty for juveniles. justice kennedy delivered the capitol uling that punishment for juveniles is un. of his a little bit opinion from the bench. we now hold dy: that consistent with the eighth death h amendments, the personality may not be imposed evidence under 18 when they crime.e first, the susceptibility of and iles to immature irresponsible behavior means the rongful conduct is not as reprehensible as that of an adult. juveniles have actualner

ability and lack of control over they have a n greater claim than adults to influences.ive hird, juveniles struggle to find their identity mean even a einous crime committed by a venile is evidence of a dna depraved character. greater possibility exists that a minor's character deficiencies will be reformed. the diminished capacity of it is es is recognized, to ent that it applies less them than to adults. if the law's most severe penalty imposed on one whose brain by hiness is diminished immaturity. for these and other reasons that the we conclude

diskses are too marked and well understood to risk allowing a person to receive the death penalty despite culpability. >> to this opinion was a difficult one for the court. kennedy was a great person to take on writing this opinion. amendment, the text doesn't provide a lot of uidance, what do you do with forms of punishment, the court overtime has adopted these tests where they talk about societies of decency, the punishment makes sense and proportion to the crime. that? you apply for justice kennedy, it's a matter of explaining what are punishment and death penalty and do they apply to juvenile offenders. the need for retribution, the need for you can e, whether rehabilitation young defenders, parent might say

about people under 18, they are susceptible to influences of peer pressure, here is a significant opportunity for evolution and change in their life and it's the right thing to do to recognize that. not i'm justice kennedy with the other justices who thinks it. kind of where society was. are there any states that still i am pros the death penalty on people under 18, are other countries do it? he would hear from people in other countries, other judges that into account wholistically doesn't make sense anymore. hat was a pretty significant precedent in terms of one of the imes the court cut back on the death penalty. >> he talks about international on outsideat's going of the united states. >> our determination that the penalty is disproportionate punishment for finds rs under 18

confirmation in the stark reality that the united states only country in the world that continues to given official to the juvenile death penalty. since 1990, only seven countries ther than the united states have executed juvenile pakistan, china and others. these hen, each of countries has either abolished capitol punishment for juveniles or a public disavowment of the practice. stands allow tes against a world. it is proper that we acknowledge of overwhelming weight international opinion against the juvenile death penalty part with the e understanding that the instability and i amball of oung people might be a factor of the crime. at least at the time of the of he court's decision from 1958, the court has referred to the laws of other countries and to authorities as

instructive for the interpretation of cruel and punishment. the opinion of the world while not controlling he outcome does require confirmation of the conclusions. the high respect and even as to hope, the inventory ration of the american people, the document set forth rested upon innovative original to the american experience. the separation of powers, in criminal antees cases. these doctrines and guarantees are central to the american xperience and remain essential to our present-day self-definition and our national dentity, not the least of the reasons we honor the constitution then is because we know it to be our own. it does not lessen our fidelity to he constitution or

acknowledge that the express afire ration of fundamental in other nation and people underscores the same rights the of in their own heritage freedom. judgment setting aside the affirmed.f death is >> i think one of the things that is interesting and justice discusses it in the clip you just played, using a variety in conforming and opinion.g his he did reference international the united how states compares, but similarly you had heard a rrchtion to the of juveniles es and some of the medical laiching vidence that may have played a role in the court's decision. ustice kennedy took very seriously the briefs that are

filed in these cases. the american medical association may have micus brief. you can see just kennedy marshalling a number of source comes to the decision. none are controlling on what the u.s. constitution means as united states the supreme court. i think just kennedy did have a would be here he looking at a variety of sources to inform his decision. saw that during your time clerking with him? long as always surprised, on the bench. i thought he would have his a number of n issues. cases, the court can get 10, 20 cases. see ld show up, did you 23 so and so said on page

briefs. amicus he did take very seriously, everything presented to the variety of sources. he wouldn't be controlled, but valid to look at. >> the court received a lot on next case, 2007, right of at guantanamo bay, ruled 5-4 that they have the appear before a judge and know what they're being detained for. listen. are freedomng these rom arbitrary and unlawful restraint and the personal separation of powers. our opinion does not undermine he executive's power as commander in chief. the exercise of those powers has when ated, not eroded

confirmed by the judicial branch. ithin the constitution separation of power structure, few exercises of judicial power or necessary ate as the responsibility to hear challenges. as noted, they have been in ustody for six years with no definitive determination as to detention.y of their determining the lawfulness of in the end even if relief not maintain the they seek. a matter yet to be determined, petitioner may invoke the protections. the law and constitution are to survive and remain in force in extraordinary times. security can be rescon styled and in our system, they are reconciled within the of the law. that it s decided

that law.a part of >> you're at the solicitor general's office around this time. down to what he said which is reconciling liberty and security. point, it was some period of time after 9-11, the nited states had made significant efforts in the war terror. there had been significant congressional involvement. had passed the statutes to ng broad wartime power the president and statutes how you would try people at guantanamo bay. it was a difficult situation for the court to be in. there were obvious concerns about national security. are being held at being told ay who they are enemy combatants, dangerous people. you're justice kennedy, you don't want to step on congress's the principal in

and people tates hallenging the legality of their detention. that's where justice kennedy came out. fromsn't easy to get there the government's perspective. we're talking about guantanamo bay which is not within the states. there are often questions with how do constitutional provisions the united states, do they apply outside the united states at all. indian bay in cuba where e is sovereign over the territory. justice kennedy wrote this opinion which was fairly maybe not as a jury matter, but a de facto u.s. has this control over indian bay and is holding these focus there and suspension clause do have meaning, it needs to apply there. in termscritical point of where everything was

happening on the war on tror. court t that the recognized this ability to challenge detentions really that we are to ee in d.c. court and circuit, coming back to the supreme court on issues. this is something that the court make clear to play a role. >> your thoughts. >> an interesting case for kennedy. it brings into conflict a number principals. also have the judicial role. that is first and foremost in executives are telling you how deadly and for us these people are being detained, some are lassified and can't be in open court. for justice kennedy to deal with these very important and onflicting principals is mpressive in an opinion like this. he is explaining, not only the

it's important to the bigger constitutional where we exist. there was a big debate in the whether guantanamo bay was more similar to hannover in the time of the writ of corps. justice kennedy getting into the weeds of trying to figure out as well.orical debate it shows both aspects. 2009, citizens on ed, the commission corporate expenditure. kennedy.sten to justice ustice kennedy: upholding a ban on corporate political speech. mcconnell decision in turn

relied on outstanding-up. found she had been reexamined. first amendment protection to corporations, a lines of cases -- austin was the first time in that a ban history on independent expenditures by orporations for political speech was upheld. if the first amendment has any congress prohibits from finding or jailing celtics or associations of citizens for engaging in political speech. austin in its rationale, allow with the ban corporation iews on any media, in this case, by printing books. t's indispensable to and it's true.

it would produce the dangerous unacceptable consequence that congress could ban olitical speech of media corporations. they are now exempt from 441's speech, but ical like other ealth business corporations. there is no precedent for under the first amendment. boston interferes with the open ideas protected amend.first ilencing the voices that may best represent the most significant segments of the economy. its overnment seeks to use full power including the criminal law to command where a his or her et nformation or what trusted showers they may not here and control t soreship to

thought. our precedent is to be respected that puts us on sheer error. is overrule austin, no interests are e at stake. we return to the principals set cases that the government may not suppress olitical speech based on the speaker's identity. the government annot corporate independent expenditures. this ban is therefore invalid applied.ot be given that austin must be and is verruled,

>> why did the supreme court way? this >> there was definitely a flavor, we talked about in some just kennedy's earlier opinion. first peech, pro amendment flavor. necessarily get out in this case. feel this way about corporations and spending much. had been heading in that direction. this is being spent on neithering, logical , it went to implications in this opinion. they have the first amendment in order tond money do what justice kennedy would term more speech. he problem he saw when he alluded to in that part of the discussion was what the implications would be if they way.out the other that was that in fact, someone who had money and wanted to put book out there, wanted to talk

about one of the candidates wouldn't be able to do that. that came up in oral argument in this case. the government defending the statutes, the first time the government lower suggested that there could be a prohibition on the types of election neithering books about which was an answer that concerned the court. argued the second time, a little bit different answer. from the fact that it was reargued, the difficult uestions that the court was struggling with what the implications would be on the other side. plays a big factor in these decisions. did it for justice kennedy, what it?d he say about reactions to his oral argument and the way he oral argument, it was a big part of the case process.

when the justices sit, they have discussions with their clerks and in some cases nonetheless, justice kennedy talked about this experience. sacramento, remembering when he gave arguments. cases, all argument might literally switch the way the case comes out. unusual.enerally it can influence the way the opinion is written. that is significant with the court where they're picked off word by word. argument as a critical part of understanding the logical implications. i want you both to give me your reactions to this decision, fisher v university of texas, econd case in 2015, race and

admissions process and affirmative action. make of his decision and who he agreed >> this is another issue where i think there was not an easy way to approach the issue. there had been a number of universities who wanted to consider diversity-like factors in admissions. is that the same thing as considering a person's race? not necessarily. there was a strong opposition from folks like abigail fisher , a caucasian, who felt like they were being discriminated against because they have the same opportunities as someone else. this came before the supreme court a couple of times, just the sense of, look, i understand is a difficult issue but we will not shy away from it. universities, making admissions decisions, that around a table

-- sit around a table and consider lots of factors and they might have guideposts and whatever else. they tend to be pretty holistic. that is like what justice kennedy did when he was trying cases. i think he tried to explain how best he could. we understand the universities want to take a lot of factors into account. they have some 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. we will continue to play a role, and if i have to, i will keep deciding these cases. i will address it again if we feel like they were not getting it right. he thought it was worth the time and effort to kind of explain what he and the other justices were. >> i agree completely with

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 standard of review that should 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. justice kennedy: under 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. this imposes on the university the ultimate burden of demonstrating that race-neutral

alternatives that are available and workable do not suffice. 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. this is 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. greta: justice kennedy reading his decision in fisher v. university of texas. we are talking about his impact in significant cases and the legacy he will leave behind after retiring at the end of the month. let's move on to another issue. 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. let's just talk in general about this issue and the legacy the both of you think he will leave behind on it. you want to go first? shawn: sure. i think there is no question that that if you look at these lgbt decisions of the court, 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 broken record -- he believes in 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 should draw the line and not go beyond that to make those sorts of decisions. you see it there. you see it in other cases where he thinks the government is taking 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. at the same time, with the court in general and sometimes with justice kennedy in particular, they don't want to the far ahead of where states are or where they think the public is, etc., trying to respect the limited judicial role. there is evolution. you had a marriage that has been recognized, a valid marriage, but that the federal government because of the defense of marriage at what it's 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. greta: let's begin with romer g -- let's begin with romer v. evans, 1995, and listen to

justice kennedy. the court ruled here 6-3 that the colorado state amendment was unconstitutional. >> the state's main argument it's -- is that 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 implausible by view of the state supreme court. most states choose to counter discrimination by enacting certain that identify institutions and businesses, and that specify grounds they may not use in discrimination. they cannot discriminate based on traits including age, marital status, pregnancy, parenthood, physical or mental disability, political affiliation, and, in recent times, sexual orientation.

it nullifies specific protections for gays in health housing,re services, insurance, private education, and employment. providing specific protections for gays or lesbians from discrimination by any level of colorado's government. we cannot accept the view that amendment gives homosexuals 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. the protections are taken for granted by most people. either because they already have them or do not need them. they have protections against exclusions from an almost limitless amount of transactions that constitute ordinary civic life in a free society.

we have held that if a lobby their burden a fundamental right nor targets a suspect class, 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. first, it is not in our constitutional tradition to enact laws of this sort. central both to the idea of the rule of law and to our own constitution's guarantee of equal protection 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 in general for one group of citizens rather than others to seek aid is a denial of equal protection of the laws in the most literal sense. second, in addition to the far-reaching deficiencies just noted, the principle that

offends in the general sense are conventional and venerable. a law must have a legitimate governmental purpose, and it does not. the rationale the state offers for amendment two is respect for other citizens' freedom of association and landlords or employers who have personal or religious objections to homosexuality. colorado also cites its interest in fighting discrimination against other groups. the breadth of the amendment is removed from these justifications that we find it impossible to credit them. we cannot say that amendment two is directed to any legitimate purpose or any discrete objective. it is a status-based enactment divorced from any factual context from which we could discern a relationship to a legitimate state interest, taken for its own sake, something the equal protection clause does not permit. we must conclude amendment two

classifies homosexuals not to a proper legislative end, but to make them unequal to everyone else. this, colorado cannot do. a state cannot so deem a class of persons a stranger to its laws. greta: that was justice kennedy in 1995. let's listen to him in 2013, u.s. v. windsor. kennedy: when the state of new york uses authority to thene same-sex couples, state's 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. what's the state of new york deems as like, the federal law deems that unlike. that is the same class the state

seeks to protect. the federal law violates equal protection principles. the avowed purpose and practical effect of the law are to impose a disadvantage separate status, , a and so, a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states. the history of the enactment in its own text demonstrate that interference with the dignity of was moresex marriages than an 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. were there any doubt, the title of the act confirms it -- the defense of marriage. if anything decides 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 state, section three of doma forces same-sex couples to live as married for the purpose of state law but unmarried for federal law. this diminishes the stability and predictability of basic relations the state has found it proper to protect. 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 protection and treating those people as less respected than others, section three of doma is in violation of the fifth amendment. greta: justice kennedy referring to the defense of marriage act, known as doma, the constitutionality of it, in 2013. in 2015, he sides with the liberal justices in this case. here is him reading that decision. justice kennedy: it is most

often through democracy that liberty is preserved and protected in our lives. yet there 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 -- our constitutional system is individuals need not await legislative action before asserting the fundamental right. of course, those who oppose same-sex marriage, whether on religious or secular grounds, continue to advocate that belief with the utmost conviction. in turn, those who believe allowing same-sex marriage is proper may engage those who disagree with their view in an open and searching debate. this case concerns only what states may do under the constitution. no union is more profound than marriage for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. two people 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. their plea is that they do respected. they respect it so deeply that they seek to find it's the filament for themselves. they asked for equal dignity in the eyes of the law. , just nicole saharsky listening there to justice kennedy over the years on gay and lesbian rights, how do we get from those cases to this last term in the colorado civil rights commission? nicole: 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. there is some personal dignity and autonomy that is protected, and it is not just that you cannot treat them differently but that there is a fundamental right, and he was pretty emphatic about that. then you get to masterpiece cake shop, where 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. that is what the baker said in the masterpiece cake shop case. 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. for justice kennedy, i think that set up a pretty difficult question of the court recognizing the fundamental right to marry that is playing an incredibly important role in our society. at the same time, there is this need for respect of other beliefs. greta: let's listen to what justice kennedy wrote about masterpiece cake shop. "our society has come to the recognition that gay person than -- gay persons and gay couples cannot be treated as social outcast or inferior indignity and worth. the law and the constitution can, and in some instances must, protect them in the exercise of their civil rights. the exercise of their freedom on terms equal to others must 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. " i think if you look, some people looking might -- looking at these cases might say, this is exactly why you would say he is a swing judge. he goes one way on some cases and one way on another. if you look closely at the opinion, you see why justice kennedy rejects that categorization. what you see in masterpiece, and justice kennedy's decision, is his 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 throughout justice kennedy's jurisprudence. 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

any which case. nicole: 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 reconcile them? it seems like you need an answer. either the person has to make the cake or the person does not have to make the cake. 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 left the broader question of really how do you reconcile these two interests when they are completely in conflict, and those questions are not going to go away. greta: it is 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 here today, and all of them he

had to make our difficult ones. take a listen. justice kennedy: any judge in this room knows that decisions way on you. fascination 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. you can't get through life, you can't get through the day, without making certain assumptions, without having certain preformed ideas. but in the law, and particularly in judging, you must find a reason that is impelling your proposed decision and you must then put that into a form of words. you must then ask, is it

logical? is it fair? doesn't accord with precedent? does it accord with the constitution, common sense, my own ethics and sense of 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 indecision. oh --fidelity to your your oath. this is both the responsibility and the privilege of being a judge. greta: that was justice kennedy from 2016 from the ninth circuit judicial conference, so did some of that sound familiar to you from your time clerking with him? ishan: it did.

he struggled with cases big and small, making sure he really understood why he himself was ruling, and it was for 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 is that he was the deciding vote, he wrote the majority opinion, i think it would have been easier for him to not put himself through the ringer, but he did in every case, including 7-2 cases where he did not write the majority on very narrow points of bankruptcy law. i would see him struggling with the decision. greta: how did he struggle? what did you see? ishan: 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 -- opposed things. in most cases, you will have good reasons that is the case.

justice kennedy is digging into why these courts are ruling 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 at the supreme court over many years, but he still brought that, i think humility might be the right word. i do not know the law should be and i am justice kennedy. to me, as a clerk, it was great, because we would talk about it and debate for a very long time. greta: what do you think his legacy is? nicole: a lot of it is from the clip we just saw. being incredibly thoughtful and going through this deliberative process and trying to get at the right answer, wanting the best he 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, as a supreme court justice, just to give a prepared speech about history or something like that, and he is saying i struggled, too. it is not always an easy process. if you are a person who is a less senior person, have a 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. that kind of honesty and deliberation and attention to the process will be a lot of his legacy. ishan: i think those are all 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 case outcomes to sway him from the principles. what he says in the clip, it is not about indecision. justice kennedy's legacy will be consistent in certain principles

and an application of those depending on the facts. greta: he's not done. at the ninth circuit judicial conference he was that just this past month, he hinted at what is on the horizon for him. take a listen. justice kennedy: 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. and our sentences in this 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. ishan: -- greta: so i think justice kennedy has a lot of options in terms of both if he wanted to hear cases on the court of appeals 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 people convicted of heinous crimes, have the same dignity and worth as other people and need to be taken into account. i would not be surprised at all if he spent time trying to make inroads on these issues he talked about. greta: you referenced senior status. what is that that he would be able to serve on lower courts? longer after they are no an active supreme court justice, they take this retired status and they have an office at the court. it is really a pretty flexible situation, but both justice souter and justice o'connor have heard cases on the court of appeals close to where they live. for justice souter, 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. greta: what do you make of him not being done? he is stepping down from the court, but prison reform is on the agenda. ishan: 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. he was taught -- he has taught overseas for many years. i know 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. the rule of law in other countries is something i think motivates him very much as well. greta: we want to thank you. thank you both very much for this conversation today. we appreciate it. we want to thank also the audio used to listen to justice kennedy. if you missed any of this or if you are interested in the c-span supreme court documentary, you can find it in our video library

for all 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] >> senate 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. on tuesday, at 8:00 p.m. eastern, 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. >> the association for education in journalism and mass communication is holding their annual conference in washington this week. this afternoon, a panel of