>> also tonight, book tv in prime time, with a look at ease and looks written about president trump. we will start with sean spicer on his book, the briefing. and then former house speaker newt gingrich discusses trump's america. finally, david corn and michael is a cop examine their book, "russian roulette," and the election of donald trump. book tv airs tonight, starting at 8 p.m. eastern on c-span two and on c-span3 its american history tv with programs in the 1968 presidential campaign between lyndon johnson, robert f kennedy, george wallace and ronald reagan. we hear from former nixon campaign staffer and columnist, pat buchanan, as well as barbara perry, the miller center presidential studies director. starting at 8 p.m. eastern on -- on c-span3.

the majority of the country begins to see that these litigants, these people, these real people had a real injury and our court addressed system, our commitment to the rule of law, our commitment to decency is such that i think most of our decisions are accepted overtime. >> that was supreme court justice anthony thomas the night conferencing, you, just days ahead of retiring from the nation's highest court. ronald reagan renominated him in 1987. he was not the president must first choice, it was rather his third choice. he took his seat on the court the very 18th, 1988. for over three decades he ate a

major role in some of the most complex constitutional matters in america religious liberty, school prayer, college admissions, gay rights, and prisoners rights as well areas often called the swing vote on the court, today we will take a impact ofat the justice kennedy, several existing cases on the court. joining us today is a clerk for former kennedy, and a assistant and solicitor general who served from 2007 to 2017 and argue 29 cases for justice kennedy in the court. love and you both. let me begin with you. you saw a side of him that the majority of the public doesn't get when clerking for. what do clerks do and what does -- what is your experience working for justice kennedy? guest: a law clerk is unique and

idiosyncratic position, where you take fresh out of lost his, one or two years out of all school, and they get paired off and selected by these eminent judges to help judges do a job that he or she is fantastic at doing themselves doesn't need a fresh, young law student assist with. it's a great service that law clerks are even hired. i felt i was trying to get out of the way and let them do what they do without appearing too much. as for the nuts and of what a , a does on the supreme court law clerk helps the justice prepare for oral arguments. you review the briefs, the arguments, the cases, the precedents that the parties are relying upon. you engage, particularly with justice entity, who was not into long memos -- several justices have different preferences and that regard, but it was an incredible fresh out of law

school experience. he would do a memo, a brief, two-page memo in which the justice read all the briefs or closely examined them all as well, so there was no need to regurgitate what the party said. he just wanted to talk about the legal principles and what the precedent was on them. what the court had done in recent years and also, he was very interest it in these big, seemingly tectonic like cases about the law, about the facts of that case and how the case was particularly framed. what did that person say during trial? we would go through with him and discuss at length one of these great experiences to have justice kennedy flop into his easy chair in my office's chambers and sit and chat. i will be honest with you, sometimes i pinched myself to think -- i'm talking to justice kennedy about this case. it's an incredible experience. >> why does it matter to him to know the details of particular

cases? >> i think that when they reach the supreme court, sometimes you have a strange almost telephone like game where what was litigated below gets changed from the briefs and the arguments with the arteries into something totally different. justice kennedy always felt the role of a judge, and this comes from him being a solo practitioner, was to really understand the individual case and clients. course, justice kennedy wasn't holly anna about this -- pollyannaish about this, but i think that's what he cared about. and then once oral argument happens, we would welcome the justice to writing the opinions in which he was assigned and that was a fantastic experience as well. host: what was it like to argue in front of justice and the rest of the justices? how did you prepare? did you specifically prepared to argue in front of him? guest: he

definitely never came into my office and flopped down in an easy chair. i wish. [laughter] purdue nerve-racking, no matter the justice on the court. everyone in the solicitors office prepared so intently. i certainly did not prepare for any one particular justice. we all thought that we just needed to give the best argument on behalf of the government the we thought made sense and was consistent with court precedent. and you would try to figure out in your mind who would be aware before you went into our -- oral argument that this person would be more likely to be on my side or hostile. one thing if you will about justice kennedy is that you not as surly predictor was going to be and if you asked a weston -- he asked a question, you had to listen carefully. not because he was a swing justice, but just because you didn't have as much or shadowing of where he might his questions were often based on common sense and him really trying to get to the right answer. i thought that that made it fun to argue before him.

fun being a relative term, horse, because you are scared out of your mind the first 10 to 20 times. host: this is from c-span's supreme court documentary. i want to show our viewers and have the two of you talk about it. [video clip] >> after it was my colleagues made an interesting comment one you someone asked me -- are nervous before you go on the bench? the answer is no, not at all. i look or would you it. . sometimes you are here -- you hear university professors are high school teachers say -- you know, it was hard -- as hard to give the exam is to take it. don't believe it. same thing with attorneys. i was always nervous when i appeared in court as an attorney. not long ago i was in sacramento

and i went up the court steps in my heart started to be, i remembered my days as an attorney. judges don't feel that way. it's relaxed, it's easy. we have to be careful that we are honest with the attorneys and open-minded and that we do our job. that's a preface to your question on what happens in the concert -- conference room. justice breyer was right. he gets nervous before he goes to the conference, so do i. it's like being an attorney once again. you are arguing your case. i have eight colleagues who have studied very hard on the case and may have some very fixed views that may be tentative. depending on how they ought the case through. and i have to give my point of view and hopefully to persuade them. i feel a sense of anticipation,

whether it is an adrenaline rush or i don't know what they call it. but this is a big, a big day for us. sometimes we have as many as escapes is and i have to present the argument. the cases, i have to professional and accurate and fair. feel they colleagues same way. there's tension and excitement in the room. but we love it. we are designed to do that. the job is no good if you can't argue are you host: how did he -- argue. host: how did he prepare for a conference day. the first explain what conference day is for those who don't know. will hearhe justices oral arguments in the case and then later in the week as well. they all preparedness incredible room, the conference room that is connected to the chief justice chambers. this to discuss all the cases that are being heard. they also discuss the petitions that have been wild by the

courts. it's also part of the court process to decide what they hear. but what the justices talking about here is the process of talking about how each will vote and how the opinion will be assigned and if the chief justice is in the majority, the chief will sign the opinion and if the justices not in the majority the most senior justice in the majority will assign it and the only person -- to officially keeps notes was a junior justice. i guess right now justice gorsuch is doing it. as for how he prepares for the conference, he took this extremely seriously. even in cases where from a public perception you might think -- what does it matter, kennedy will have the deciding vote. he didn't approach it that way at all. he had this internal rigor that he would go through to decide how the case should come up. not merely from our perspective but as a logical matter, as a matter of precedent. in we would talk about it quite a lot. we would talk about the best

counter arguments for the did position if you discuss it at conference. what are the necessary things to indicate it as a legal matter and from the fact. he would approach it with great vigor. i would say that i think did that in part is that is how he approached every case and the perception was that it must be justice kennedy who is the deciding vote. obviously history will tell us as we look at some decisions that that was the case, but it's not always the case. it is a surprise i think that there are situations in which it may not have been justice .ennedy who was the final vote i think that justice kennedy for that reason as well took so seriously deflating his colleague and that he was approaching this in a rigorous manner. in terms of being nervous? it's interesting. what you described and what justice kennedy himself was describing was definitely how you came across to the advocates on the bench.

incredibly thoughtful, incredibly respectful of his college. he's not the kind of justice that would cut off his colleagues or anything else. he would waive and listen to what they had to say and ask his questions. my perception of his questions from argument, when he would go into his decision process, that was trying to come to the right answer and admitting that it might not be easy in a might be tough questions either way and he would ask the advocate -- this is what is bothering me. tell me what you think about it. give me your best case or answer for this. it makes me happy to know that he went back the decision-making to the otheralked justices, taking the same approach and doing the same thing. >> you dip -- you both touched on him being the swing vote. he told newsweek and 2007 that he never liked the term because it indicated that you elect swing for the purpose of accommodating one side or the other and in a biography about knowles quotes him as

saying that it's the cases that swing. your reaction? >> i think that's correct. not just as he was my former boss. but justice kennedy, i don't, can be easily boiled down into a judicial philosophy as other eminent justices can be. for justice kennedy there were certain issues and principles that motivated him and maybe to the frustration of some, the principals didn't always tone inn in a predictable manner the way that other justices may have been more predictable. if you look at the motivating principles of the law, the concept of the birdie or the words of the wrist amendment, the weight of those applied separately was not always characterize of all in one way nothe other areas it was the cases that swing, i would interpret it as cases that are different questions and therefore he would of why consistent concept of certain

legal doctrines in different way. as i have always been his i'm not the swing vote in that way, saying i'm doing this wing -- doing the same in every case. i'm approaching them and i have a way of working and looking at the issues in the resident and other sources and applying common sense with guiding principles in terms of constitutional law. i wouldn't want to be called a swing vote either, suggesting that i'm just changing my mind willy-nilly, i don't think that's what he was doing. >> what did you think that his approach was? what were his guiding principles? how would you characterize his philosophy? >> i don't think there is any one thing that captures it. i think it was very pragmatic. he wanted to think about the real world applications of what he was doing. i think he had a lot of empathy and he would try to put himself in other people's shoes. whether it was a minority point around the first amendment, someone in solitary confinement in prison, he would try to

understand how the issue affects not person, even if it's the same experience i had. of course, what every judge does is look at the relevant statutes and constitutional law precedent. but i thought made him unique was just as real process to try to get at the best answer that he would consider. not just one factor, but everything he thought was relevant. sometimes international law, etc., trying to do justice and the right thing for these people in this case. libertarianism? and he ever talk about it? is that a guiding principle for him? >> he certainly never talked about it. and i don't think he ever viewed those as a guiding principle large. i think it was principles like exactly the ones that nicole has it is empathyther for or concern about a particular individual and how the case will spectrum -- affect the firstalso

amendment to our constitutional structure and he thought that a robust defense of the first amendment was critical to what was intended and what the constitutional structure is. interest way,an liberty at times protected by her own law or constitution is protected by the states, again for him those are the sorts of principles that really motivated a lot of interest is a think he thought that was central to. host: you are going to delve into those things that you brought up, but you think you wrote these decisions with the legacy of him or the court in i thinkcole? guest: something more like the latter.

any person in the supreme court has to think about the legacy areas every as an in life is about that. had a stronghe devotion to the institutions of government, to civic engagement, to the first amendment as an ideal of morse with more participation really helping society. that sort of thing. i think that his opinions were generally reflect this sense of making sure that the american ideal continues to flourish. even in trying times. he had some pretty difficult decisions where he was in the majority and he would explain that if the decision was difficult, why and why the work had to come out where was he the constitution on course. >> i agree completely. the only thing i will add is that i think for him, another constraint that's important are the structural constraints. the judicial role should be a limited one with respect for the executive and the legislature.

there would you think about the legacy was writing for, recognizing the limited role of the supreme tort, even in huge cases of massive import was central to the way that he thought about writing opinions in cases. the early days the bench, the court took up texas v speech, a case on free and flag burning. justice kennedy has altered his own opinion on this. let's listen to him talking about it in the documentary that c-span did. we set down and interviewed him. he talked about this is a difficult decision areas >> we had the flag earning case. the continued earning of flags. americans get in. it can you burn a flag, it drives us crazy, we love the flag during the court said that that's ok, you can burn it. we said that because of the fifth amendment -- pardon me, because of the first amendment. so, that day the constitution real meaning in our own lives

and in our own time. that's when the constitution is most of them. it's not just some old dusty thing that you read. it's yours. host: he wrote in his opinion on this case that the hard fact was that sometimes we must make we don't like and that we make them because they are right, right in the sense that the law and the cons touche and as we see them compel a result. so great is our commitment to the process that except in a rare taste, we don't pause to does -- expressed distaste for the result, perhaps for fear of undermining a valued principle that dictates the question. this is one of those rare cases. what do you think of, when your time with him, when you hear him talk about that in the documentary and then hearing his i hope this is a real anecdote because i remember him telling me this and it's been some year -- some years that i was there with him. this opinion, a concurrence, and enormously important decision for him.

i remember him saying, sometime after texas versus johnson, in the public eye it was such a clear application of the first amendment, something that people really care about. he said he was in some rest run, someone approached him, which he said was rare and they said that they really disagreed with this. i'm a veteran, this is anathema, but your opinion is doing to me why that even if it is something i hate that justice kennedy rarely talked about his own an extremelys humble person. that was an unbelievable complement that someone would come to him and tell him that about the opinion. i know that this case is very of -- important to him and that that decision was important. cap slating what you said here, this judicial role, particularly in situations where you personally disagree with the outcome, fidelity to these basic principles is so important. not just some judge saying one or the other this is how they

think social policy should be in this case encapsulates that. guest: i love that opinion. i love this concurrence. it's not even a page long and it's beautifully written. part of it he says is that the flag holds a lonely place of honor in our society. i thought that's beautiful. his honesty in writing the opinion showed what he was going to be like as a justice. that he was going to be respect all of his colleague, were very of set on the other side of the case, trying to explain where he was and why and that it was a struggle and from the first active of someone who argued cases before the court -- the court or litigants that, for the work, you want to see a justice tell you look, this was a hard case. not that this was easy, this was clearly the right answer and perhaps if you are on the other side that hurts because you wanted and it was ace drago and that it took some real work to figure out the right answer. for him to say -- yes, this was

a struggle and here are the reasons why in terms of jurisprudence, at least from what i saw, arguing before him it showed his process. he was willing to admit that it wasn't always easy and i thought that was nice. guest: following on that, it shows his respect for his colleague. that was something that i think really claim -- came through so clearly for me working for him that one year. he was obviously bombarded from the outside, in the news and in the public sphere with different opinions on how the work should on some things. but within the court as well. the justices would write memos and communicate and sometimes very emphatic each other about how rules and cases should come down and obviously, dissents can be sharp -- sharply worded. as a law clerk you become loyalty to your justice and you take it all very personally and you think -- this is ridiculous. , clearly theright

cases on our side in justice kennedy had the ability to chuckle and say that that is so and so, but never be upset about it even after conferences that i think must have been very forthright and opinions, i always have this memory of justice entity scrolling back, chatting and joking with one or the other justice and i think you very much to that view as his role. what did he say when going back to this case on the first amendment when you were with him? you talk about that little bit. why do you think that was something that guided him as much as it did? it's hard to give such a comprehensive answer to perception question, the one thing that i guided him was his belief in liberty and that should be able to express their perspectives, rooting opposition to government. and if you get rid of that, if you deny people that ability,

suddenly their own ability to vindicate liberty interests, to challenge is existing law is severely hampered. in large part i think that's why he is he does. even on an issue that i'm sure as a practical matter he finds a point, to burn a flag. >> this idea of the value of civic engagement, that the remedy for's two don't like is more speech. we don't want to keep things like this under wraps. if someone has a view, that's what the const touche and wanted another significant case. with abortion in 1992. planned parenthood of southeastern pennsylvania, a decision to uphold roe the way. justice kennedy offered his own position. i want to have our viewers listen to him reading his opinion from the bench. the holding that we today reaffirmed has three parts.

the first is a recognition of the life of death the rights of to obtain anse abortion without undue burden by the state. -- the imposition of a substantial obstacle to the woman's right to elect that procedure great second is a confirmation of the state's abortion afterct fetal liability if the law contains exceptions for pregnancy which in danger a woman's -- which endanger a woman's health. if there is legitimate interest in protecting the help of a woman or the health of a fetus that may become a child. these principles do not contradict each other and we adhere to each. our case recognizes that the right of the individual to be free from unwarranted governmental intrusion into matters that are fundamentally affecting. our precedents in respects to the private realm of family life which the state cannot enter. involved the

choices a person take that makes in a lifetime. ascent of the liberty protected by the 14th amendment. the heart of liberty is the right to define one's own concept of meeting and the mystery of human life. these considerations begin our analysis of women's interest in turning a pregnancy grant the liberty at stake is unique to the human condition. carries a child to fall term is subject to anxieties and physical pain only she must bear. thee sacrifices were beginning of the human race and have been endured by women. it gives to the infant a bond of love. they cannot be the grounds alone for the state to insist she make that sacrifice. her suffering is to intimate for the state to insist on more without its own vision of the women's role. however dominant that decision

has been in the courts in our history and culture. the destiny of the woman must be shaped to a large extent on her own exceptions. >> your reaction. >> i love hearing that. was ins a time when roe peril and there was a question about what the court would do. a lot of the justices use were unknown. there was this agreement cobbled together with three justices where they reaffirmed that it was not just the state can't do that, it is an entry for rights protected under the constitution. this language that came out in different cases for justice kennedy later about personal dignity, personal autonomy, that sort of thing. empathyrted show this and this sense that there are personal matters that are fundamental to your dignity and the way you live your life, those are choices you need to be able to make. i think that claim a pretty --

came up frequently in casey. hearing now knowing what is to come in the next couple of decades it seems like or shadowing of where justice kennedy was going to be great -- going to be. >> this phrase, unwarranted governmental intrusion, seems to you are saying, that that is one of the guiding principles of his time on the court. this is something that he holds dear, making sure the government does not intrude on liberty. >> i think that is right. it is not just like in texas the johnson, the government does not intrude on liberty when people are engaged in public acts against the government in the town square. it is in the intimacy of the home. i was thinking somewhat similar to nicole. you could take some of the exact language justice kennedy wrote and put it into, whether it is lawrence or the gay marriage decision later on, this concept that you have certain decisions you make in the privacy of your own sphere and the government

should not intrude on those decisions and it applies in a variety of cases. >> did he ever talk about this case? -- did he ever talk about this case? >> i don't remember him talking about this case. >> what about liberty versus privacy, what is the distinction for justice kennedy? >> i think that justice kennedy certainly views -- liberty and privacy, i don't want to say two sides of the same coin, but if you don't have an ability to keep things out of the public sphere, then your ability to make those decisions is hampered. i think justice kennedy, if you look at criminal law decisions, had a very similarl concept that law-enforcement has to be able to carry out certain duties. i think justice kennedy would not anytime privacy is invoked think that decide the outcome of the case.

you see justice kennedy recognizing the ability to not hand over certain information or the ability to keep certain things within your own domain is critical to be able to make the decision itself. >> what i like about the is that he was using is trying to express, as best he can, feelings people he has -- people have about the way they would live their lives -- what to live their lives right -- wants to live their lives. he starts talking about dignity and autonomy. if you're a lawyer you want certainty. if you're a person reading these opinions and they directly affect your life and a justices telling you, i understand these concerns, that you want to be able to make decisions and don't want people intruding on your family life. ift is very meaningful even this is new language he was using. >> a justice never said this to me but i think that part of the

these decisions as so important because there is a certain way you can write an opinion covering the legal precedent of the court of appeals. i think he recognized that as a supreme court justice, the supreme court decisions apply to everybody and they are read by a variety of constituents. duty toeel a certain explain in tongues by the veteran who approaches him in a restaurant why the decisions are coming out, not just the legal rules they include. >> let's go to another case, 1991 on school prayer. a majority opinion upholding court opinion limiting prayer in public schools. what he thought it was unconstitutional. government involvement with the religious activity in this case is pervasive to the point of creating a state-sponsored religious exercise in a public school. conducting this form of religious observance conflict with settled rules pertaining to prayer exercises for students.

that theond dispute constitution guarantees the government may not coerce anyone to support or participate in religion or its exercise or otherwise act in a way which establishes a state religion or religious faith or pretense to do so. state involvement in school prayers is contrary to the central principles and violence the establishment clause. that involvement is as troubling as it is undeniably school officials decided an invocation and benediction should be given, , and the participant directed him in control and content of the prayers. that it is no part of the business of the government to impose official pray for any group of americans to her site -- to recite. and we findargue nothing in the case to refute, that the direction for the content of the prayers were a good faith attempt by the school to avoid divisive sectarianism. we are asked to recognize the

existence of a practice of nonsectarian prayer, prayer within the embrace of the judeo christian tradition, prayer that is more acceptable and makes that doeseferences -- not make his was a reference to the god of israel jesus christ rate the first amendment religious clauses mean religious belief and religious expression are too precious to be either prescribed by the state. the design of the constitution is the preservation and transmission of religious beliefs and worship, the responsibility and choice committed to the private spear which itself has promised freedom to pursue that mission. suggestion that government may establish a specific religion as a means of avoiding establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted. ishan, what strikes you listening to the justice? >> i think he had a very unique writing style and you can hear

that in his decision. was hiseel like it responsibility to explain beyond the legal rule why it is these principles. the strands of all justice kennedy's decisions reflect this notion of liberty, this notion that if the government is making a choice about what somebody can or cannot say that is fundamentally imparting best impact in that person's ability to live in a society. it is interesting how he talks about the difference between the sectarian stance the school was trying to bring in and recognize. the koch assist in the real-world implications of these decisions. approach's -- he approach writing these decisions? >> it varies. for justice kennedy it was mainly majority opinions are in

-- opinions. he would have a draft that he would write with the whole opinion than we would make suggestions and edits. it is a difficult process to give a supreme court justice edits other opinion. such a kennedy was gracious and the five and humble boss that he would be extremely receptive to talk about the way he phrased something, talking about how he would or what not like something to read. or something that he did not properly encapsulate what he thought was the correct interpretation of the law. we would work with him if he would be happy with the draft. he also had certain grammatical rules which i have subconsciously adopted in my own writing. unnecessary words

before a quote. unnecessary "that"s before a quote. >> nicole, what were you thinking about hearing them there? many of thet had same themes that would come to define them in terms of personal decision and the private sphere. this is a difficult case, establishment clause cases are thehe constitution says state cannot establish a religion, but does that mean a prayer at graduation is so bad? he would explain why you have to line there. in his written opinion he says, consider the position of a student who is not a follower of that religious faith and it is for graduation. it is basically mandatory for her to participate in graduation. what is it like to be in that position? i think that showed one of the things we have discussed, his

ability to think about how this affected people. there was the impermissible state coalition that this court is trying to guard against in the establishment clause context. >> but listen to him a little more from this opinion. he elaborates more on why this violence the establishment cause. >> made it clear the graduation prayers for the intent of the state and school-aged children who object to brennan untenable position. learning how to -- a society which insists upon open discourse toward the end -- intolerance does presuppose some neutrality of obligation. by the time you are a senior high school students have been required to attend classes and assemblers and complete assignments, exposing them to ideas they find distasteful, immoral, or absurd or alternate against this background's -- or

absurd. --y are subjected to ideas it overlooks a fundamental dynamic across the constitution. in religious debate or expression the government is not a prime participant. religious establishment is antithetical to the freedom of all. the freedom of exercise clause embraces the freedom of worship and those have parallels in the speech amendment in the first amendment. a specific prohibition on states intervention in religious affairs. in lesson in history that was and is the lesson for the establishment cause, in the hands of --

we think that argument lacks persuasion. everyone knows that in our society and our culture high school graduation is one of life's most significant occasions. candidates may not be acquired -- required by specific degree -- forbids thetion state to exact religious conformity from a student at the price of attending her own graduation. whether aon is religious exercise may be conducted at a graduation -- a holding by this court suggested a court cannot -- that is being done here and it is for bitten by the establishment clause of the first amendment. one thing that is interesting about this opinion is they chose justice -- it shows justice kennedy vindicating the establishment cause. in thes elsewhere opinion that this isn't the

situation where you have a religious minority whose ability to practice the religion is being impeached by the government. to him that was unimportant liberty. you don't hear it here so much. >> and it comes later, this past term. >> let's move onto 2004 on the issue of that penalties for juveniles. theice kennedy delivered decision that capital punishment for -- >> a majority of states have rejected the imposition of the peopleenalty on under 14. the death penalty may not be imposed on offenders who are under 18 when they committed the crime. three differences between juveniles and adults diminish the culpability of juveniles. first is the susceptibility of juvenile to the mature and irresponsible behavior. as morallyct is not reprehensible as that of an

adult. juveniles comparative vulnerability and lack of control over surroundings mean they have a greater claim than adults to be forgiven or failing to escape negative influences. the realities that juveniles still struggle to define their it is lessmeans affordable to conclude that even a heinous crime committed by a juvenile is evidence of an irretrievably phrased character. marble standpoint it would be misguided to equate the feelings of a minor with those of an adult. that is because a greater possibility exists that a minor's character deficiencies will be reformed. once the diminished capacity of juveniles is dismissed -- retribution is not proportional. most severe penalty is posed on one or blameworthiness was diminished to a substantial degree by recent abuse and maturity.

for these and other reasons discussed in the opinion we concluded the difference between juvenile and adult offenders are too well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. >> nicole? >> this issue was a difficult one for the court. i think justice kennedy was a great person to take on writing the opinion. the eighth amendment, the text does not provide a lot of guidance in terms of what you do with greater terms of punishment -- forms of punishment. the court has adopted these standards and tests where the top about society's evolving standards of decency, whether it is a punishment that make sense or is proportional to the crime, but how do you apply that? ar justice kennedy it is matter of equating what other purposes of punishment and the death penalty and do they apply to juvenile defenders? he knows that the need for retribution, the need for deterrents, whether you can

rehabilitate juveniles, it is something a parent might say about children under 18 and how they are not mature and subject to influences from pure pressure. there is a significant opportunity for evolution and change in their lives. how it is the right thing to do to recognize that. not i am just justice kennedy with these other justices who think this, he was,d about where society are other countries doing this, no. some foreign teachings. he would hear from other judges in other countries. account take that into and holistically said it does not make sense anymore. that was a significant precedent in terms of one of the first time the core started cutting back on the death penalty. >> let's have our viewers listen to him more. he talks about international opinion. what is going on outside of the united states. >> our determination that the death penalty is disproportionate punishment for

offenders under 18 finds confirmation in the stark reality that the united states is the only country in the world that continues to give official sanctions to the juvenile death penalty. countries only seven have executed juvenile offenders. arabia,kistan, saudi the democratic republic of condo, and the people's republic of china. of these countries has either abolish capital punishment for juveniles or made public disavowal of the practice. it is fair to say the united states stands alone in a world --t has turned this case it's face from the juvenile death penalty. resting in large part on the understanding of the instability and emotional imbalances of young people may often be a factor in the crime. least from the time of the court's decision in trump versus referred toourt has

the laws of other countries and international authorities as instructive for its interpretation of the eighth amendment's prohibition of cruel and unusual honest the opinion of the world community while not controlling our outcome does provide confirmation for own conclusions. from one generation to the next the constitution has come to and evenhigh respect the veneration of the american people. the document set forth and rest principlesaith -- important to the market experience such as federalism. things like separation of powers and specific -- securing individual freedom and preserving individual liberty. these doctrines and guarantees are central to the american experience and 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

acknowledgens to the express affirmation of certain fundamental rights by other nations and people simply underscore the centrality of those same rights within our own heritage of freedom. eighth and 14th in moments forbid imposition of the death penalty on offenders under the age of 18 when their crimes were committed. the judgment of the supreme court of missouri -- >> i think one of the things and justiceresting kennedy discusses it, is the use of a variety of sources in informing and confirming his decision as to what the eighth amendment says about the juvenile death penalty. obviously he did reference international sources and how the united states compares to other countries vis-a-vis that punishment. you also heard reference to the mental abilities of juveniles and the medical like evidence that may have played a role in the court's decision. justice kennedy talks seriously

if i recall i think the american medical association and some others may have filed an amicus brief in that case. giving him all the source of evidence regarding a juvenile granbury can see justice kennedy -- juvenile. you can see justice kennedy marshaling a variety of sources. justice kennedy had an approach where he would be willing to look at a variety of sources to inform a decision. >> and you saw him do that? >> i was always surprised given that justin kennedy -- justice kennedy was so long on the bench. i thought that the time i was there he would have had his opinion set. i was surprised that he would read closely these amicus briefs. the court could get 10 or 20 or 50 briefs. would show up and say, did

you see what's so it is so 16 of this break. i would say, justice i have not gotten to these brief set. -- briefs yet. not bestly would controlled by any sources but i think he thought they were all ballot to look at. the court received a lot on this next case. -- the court ruled that detainees have the right to appear in front of a judge and know what they are being to pain for -- chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by here is to the separation of powers. it is from these principles that our opinion does not undermine the executive's powers as commander-in-chief. the exercise of those powers as indicated -- vindicated, not

eroded, when confirmed by the judicial branch. within the constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the executive to imprison a person. some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. it bears repeating that our opinion does not address the content of the law that governs the detention. that is a matter to be determined. we hold that petitioners may invoke fundamental procedural protections of habeas corpus. the constitution is designed to remain in force in extraordinary times. security can be reconciled and in our system there reconciled within the framework of the law. the framers decided that habeas

corpus, the right of first importance, must be a part of that framework and a part of that law. >> that case in particular. i think it came down to what he said, reconciling liberty and security. we were at a point, it was sometime after 9/11. the united states had made significant efforts in the war on terror and trying to figure out who was involved in 9/11 and what threats there were against the u.s.. this was a case in which there congressional involvement, giving broad wartime powers to the president. as to how you would try people at guantanamo bay, that was a difficult situation for the court to be in. there are obvious concerns about national security. people being held at guantanamo bay who this administration is telling you are enemy combatants and dangerous people. there is congress taking action. if you are justice kennedy you don't want to step on congress's

toes. as a general-- matter people being able to challenge the legality of their detention. that is our justice kennedy came out. it wasn't easy to get there, at least from the government perspective. i was there at the time. we are talking about 100 of is not in the u.s.. there are often questions about how do constitutional provisions apply outside of the u.s., the they apply outside the u.s. at all. even though guantanamo bay is a u.s. military base, it is in cuba, how do you say habeas corpus applies here. i think it is pragmatic to say not as a jury matter but as a defect of matter they have this control over guantanamo bay and are holding these folks there. for the suspension clause to have meaning it needs to apply there. i think it was a pretty credible

from the government's perspective, the fact that the court recognized the challenge to seecases we are going to come in d.c. courts and easy circuit of to the supreme court on some issues. but this is going to be something where the court would make clear it was going to play a role. >> your thoughts on his opinion? interesting for justice kennedy because in some case it is a conflict of his core principles. you obviously have liberty. in the private sphere -- you also have the judicial law and obviously that is first and foremost in these cases when you have executives telling you how dangerous and serious these people are. they are being detained for reasons that are often classified and can be set in open court. to see justice kennedy deal with these important and conflicting principles is impressive, particularly in an opinion like

this were justice kennedy ends not only to explain the outcome but why this outcome is important to the bigger constitutional structure within we exist. thatu read the opinion shows a great approach. there was a debate in the case over whether guantanamo bay was more similar to hanover back in the time of the writ of habeas corpus more similar to other cases outside of england that england would not have control out of. speech andfty discussion about principles of jurisprudence. justice kennedy gets into the weeds of trying to figure out this historical debate. i think it shows both aspects ar. >> will move on to citizens united versus the federal election commission on corporate expenses. >> as noted from a decision relied upon austin.

we conclude that those precedents must be re-examined. the court has recognized that first amendment protection extends to corporations for it in accordance with this principle a line of cases for -- boston was the first time in this court history that a ban on independent expenditures by corporations for political speech was upheld. if the first amendment has any course -- force it for have is congress from fining or jailing citizens were associated with visions for engaging in political speech. boston and its rationale would allow the government to ban corporations are expressing critical we used any media. including media beyond those prevented -- presented here in this case like by printing books. political speech is indispensable to political making in a democracy. this is no less true because a

speech come from a corporation rather than individual. on this rationale we produced the dangers and unacceptable consequence that congress could ban politicals beast that speech from corporations. "christians are exception -- governmentn the could diminish the voice of the media business. there is no precedent for preventing this under the first amendment. it interferes with the open marketplace of ideas protected by the first amendment. it allows the government to ban the political speech of millions of associations of citizens, silencing the voices that may best represent the most significant segments 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 and uses censorship to control thought. this is unlawful.

the first amendment confirms the freedom to think for ourselves. the president is to be respected unless the most convincing of reasons demonstrate its adherents puts us on a course that is sure error. for the reasons gestated and others explained in detail in the lengthy opinion we now overrule austin. reasoned, not well experience is undermined and no serious reliance interest are at stake it would return -- state. government may not suppress politicals beast on the basis of the speaker's corporate identity. without austin the government cannot limit corporate expenditures. ban on corporate expenditures is invalid and cannot be applied. conclusion that austin must be overruled we also overrule that part of mcconnell that upheld for 41 be's --

>> why did the supreme court decide to roll this way? -- rule this way. very pro speech pro first amendment flavor. you might think that people have a right to go out its big about whatever they want. would you feel that way about corporations and you feel that way about corporations spending money? is spending money the same thing as speaking. in thatt is heading direction, this money is being spent on electioneering, pamphlets, media, that is to support speeds for it that led to the logical implication of this opinion. the court ruled that these corporations had this first amendment right to spend money in order to do what justice kennedy would term more speech . the problem he saw was what the implications would be if they cannot the other way. that was that someone who had

money and wanted to put a book out there that talked about one of the candidates or something would not be able to do that. that was a question that came up at oral argument in that case. the case was argued twice. the government defending the statues congress have put into place. the first time the government lawyer suggested that there could be a prohibition on this type of electioneering books about a candidate, which was an answer that concerned the court. when it was argued the second time, justice kagan who was the solicitor general argued the case and gave a different answer. it was clear from the fact that it is an reargue, the court was struggling with the implications of a ruling on the other side. argument bute oral a big role in this? -- bytice kennedy watching his reactions to oral argument and the way he engaged within world argument i think he viewed it a very important part of the case decision process.

atthe time the justices sit oral argument they have 50 plus briefs, because briefs, bench numbers, all the discussion, and i think justice kennedy view this from his own experience. he talked about walking up the courthouse steps in sector meant to. i think you do this as a critical opportunity for them to make their face. in some cases oral argument may switch the way a case comes out. it can influence the way an 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. oral argumentwed as a critical part of understanding the position and testing the logical implications. mei want your both to give your reactions to this decision. fisher versus texas.

of her in admission process and affirmative action. in theuse of race admission process and affirmative action. what do you make of the case and who he agreed with. >> this was another issue where they were -- there was not an easy way to approach the issue. there had been a number of universities that wanted to consider factors, diversity like factors in admission, is that the same thing is considering race? not necessarily. there was a strong opposition from folks like abigail fisher that fell like, as a caucasian, they are being discriminated against because they did not have the same opportunities. a feature of justice kennedy's decisions in these cases was a sense of, i understand this is a difficult issue. we are not going to shy away from it just because it is difficult. it is hard to know how universities make admission decisions.

do they sit around a table and consider lots of factors? it tends to be pretty holistic. i think that is a lot like what justice kennedy did when he was deciding cases. i think he tried to explain as best he could, we understand that universities want to take a lot of factors into account when they are making admission decisions are you as a general matter they have some discretion to do that. it does not mean courts don't play a role. certainly this is a decision that looks like -- it is a decision that looks like it is decided by raphael given strict constitutional scrutiny but we are not going to say you can't do it or you can do whatever you want because it is hard. if i have to i will keep deciding these cases. i will address it again. he thought it was worth the time and effort to explain where he and the other justices were. >> i agree completely. examplethis is a good of a judicial role decision from

justice kennedy, reels and courts need to play a role. it is a hot button social issue of recognizing there are roles for judges in determining, in this case specifically. -- that is justice kennedy not shine away from a difficult or similarly taking what he might view to be an expensive judicial role in deciding this one way or another. setting the guideposts and sending it back. >> was listed justice kennedy in his own words. raceway not be considered by university unless the admission process can's withstand strict scrutiny. -- and of the use of racial a classification is necessary to the compliment of its purses. 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 -- while applying this test 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. -- minority enrollment it seeks. the compelling interest of enrolling a certain number of minority students but rather an interest in obtaining educational benefits that flow -- it is an interest 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 opinion 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. >> i think there is no question that that if you look at these lgbt decisions of the court,

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. i think 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. -- when people want to make those sorts of decisions. 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 otherwise would be allowed 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 the government when we are litigated these cases, the question was always, is justice kennedy 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, the court does not want to be far in advance up where states are where they think the public is. trying to respect the limited judicial role. there is an evolution in the gay marriage cases. in windsor you had a marriage that has been recognized, a valid marriage, but that the federal government because of the defense of marriage at what defense of marriage act was not going to recognize. 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 v. evans, 1995, and listen to justice kennedy.

the court ruled here 6-3 that the colorado state amendment was unconstitutional. -- preventing protections for homosexuals was unconstitutional. >> the state's main argument 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 statutes that identify certain institutions and businesses, and that specify grounds they may not use in discrimination. the law for this -- forbids businesses from this permitting based on traits including age, marital status, pregnancy, parenthood, physical or mental disability, political affiliation, and, in recent times, sexual orientation. amendment to bar is for my -- it

nullifies specific protections for gays in health and welfare -- housing insurance, health and welfare services, private education and employment and for beds all laws or policies providing for specific protections for gays or lesbians from discrimination by any level of colorado's government. we cannot accept the view that amendment gives homosexuals -- only deprives homosexuals special rights. no matter how public or widespread the injury, they can obtain 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 -- the protections denied to homosexuals 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

-- a law burdens a fundamental right or 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 relationship to a governmental purpose and amendment does go does not. the rationale the state offers for amendment two is respect for other citizens' freedom of association and landlords or -- and the liberties of 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 so far 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. >> that was justice kennedy in 1995. let's listen to him in 2013, u.s. v. windsor. justice kennedy: when the state of new york uses authority to define the marital relation to include same-sex couples, the 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 state defined class for the opposite purpose to impose , restrictions and disabilities. what's the state of new york traits as a light the federal law deems that unlike. it does so by a federal law aimed to injure the same class the state seeks to protect.

in doing so the federal law violates equal protection principles. the avowed purpose and practical effect of the law are to impose a disadvantage, a separate status, 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 the same-sex marriages was more -- conferred by the states in the exercise of their sovereign power was more than an incidental effect of the federal statute. it was its essence. the state and purpose of the law -- stated purpose of the law is to promote an interest in protecting the additional moral teachings reflected in heterosexual-only laws. -- marriage laws. were there any doubt, the title of the act confirms it -- the defense of marriage. demonstrated purpose is that if any state 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 personal relations the state has found it proper to acknowledge and protect. no legitimate purpose overcomes the purpose and effect of disparaging and 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. collects justice kennedy referring to the defense of marriage act, known as doma, the constitutionality of it, in 2013. then in 2015, he sides with the liberal justices in this case. -- in the case versus hodges. 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 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. been forming a marital union 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 respect it. they respect it so deeply that they seek to find it's the -- fulfillment for themselves. they asked for equal dignity in the eyes of the law. greta: nicole saharsky, just 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 -- colorado civil rights commission? nicole: there was an evolution just over those cases from recognizing the state is doing something here and it is not fair 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 think i would be supporting it by making this cake. for justice kennedy, i think that set up a pretty difficult question of the court has recognized this 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 persons and gay couples cannot be treated as social outcast or inferior in dignity 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.

at the same time, the religious and philosophical objections to gay marriage are protected views and in some instances, protected forms of expression." ishan: i think if you look, some at windsor and then masterpiece. some people 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 is his fervent 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 case. >> i think the court to some extent got lucky, if you will, in the masterpiece cake shop case. even though justice kennedy was clear about the need to protect both of those interests, how do you reconcile them? at the end of the day 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. collects a question -- >> a question still 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. and how they weighed on him. justice kennedy: any judge in this room knows that decisions way on you. the 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. it is fidelity to 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 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, but he still brought that humility. i do not know the law should be because 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. >> question for both of you. what do you think his legacy is? >> i think 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. 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. 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.

things like 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? nicole: after they are no longer 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 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. also to 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. that's tonight. we will hear from los angeles times supreme court reporter david savage, discussing judge kavanagh's nomination and the abortion issue. this week, book tv is in prime time. tonight at 8:00 eastern, sean spicer with his memoir.

and allender sure with with his book. wednesday at 8:00 p.m., lillian federman discusses her book. then richard munson on his book. 8:00 p.m., jerom lanier on his latest self-help book. and on friday at 8:00 p.m. on his, andy pusder book. watch book tv this week in prime time on c-span two. earlier today, the state department held a ceremony to mark the 20th anniversary of the bombings of the u.s. embassies in kenya and tanzania. the attacks killed more than 200 people and were the first major offensive against the u.s. from the