children just don't listen, just don't listen. should they die for the? should we accept that as a society? is the really the best we can do, to tell our children to be more responsible than the adults surrounding them, to serve their community? >> watch afterwards sunday night at 9:00 p.m. eastern on c-span2's book tv. think the supreme court is an authoritarian institution. the majority of the country begins to see the litigants, as real people who had a real injury that the court system, ournd our commitment to the rule of law, our commitment to decency that most of our decisions are accepted overtime. that was supreme court

--tice anthony kennedy, sick kennedy, speaking in california days ahead of retiring. ronald reagan nominated him in justice kennedy was not the 1987. president's first choice, rather his third choice. the senate confirmed him unanimously and he took his seat on the court february 18th, 1988. for more than three decades, justice kennedy played a major america's most complex constitutional manners -- constitutional matters. he was often called the swing vote on the court. aday, we are going to take look back at justice kennedy's impact on several important cases and his lasting legacy on the court. joining us today is the former clerk to justice kennedy from 2011 to 2012 and the former assistant to the solicitor

general from 2000 to 2017 and argued 29 cases before justice kennedy in the supreme court. you saw a side of him that a lot of the public does not get to see, clerking for him. what do clerks do and what was your experience working for justice kennedy? ishan: a law clerk is a unique and in some ways, they get selected by these extremely eminent judges to try to help the judges do their job that they are fantastic at doing themselves, and suddenly does not need a young, fresh law student to assist with. i often felt that judge garland who i clicked with, and justice kennedy, i'll most like i should get out of their way and let them do what they were doing without interfering too much.

court, a lawe clerk helps the justice prepare for supreme court arguments. so you review the briefs, you review the arguments, review the thes, the precedents parties are relying upon. you engage with justice kennedy. justice kennedy was not into long memos. i would just like to sit and talk about the cases, and we would do a memo, but just a brief, two-page memo of everything justice kennedy had read. and he just wanted to talk about what the principles were, what the president -- what the precedent was set on them, what had been done in recent years. and justice kennedy was interested in these big, teutonic like -- titanic like cases, what was this fact, what

was that fact during trial. so i would go through with him and discuss at length, and it was just an incredible experience. i would have justice kennedy in mynto an easy chair chambers, and i would have to pinch myself, my gosh, i am talking to justice kennedy about this case. it was just an incredible experience. host: why do you think it mattered to him to know the details of particular cases? ishan: when the case is reached the supreme court. it is really on the individual case. that frames that particular -- that frames justice for that particular person. and justice kennedy wasn't like pollyanna, he didn't say that he

would have a huge impact on the country, that's what he would say about it, but once the law argument happen, we would write the opinions to which was assigned. host: what was it like to argue in front of justice kennedy and the rest of the justices? how did you prepare, and did you prepare specifically to argue in front of him? he definitely never came to my office and flopped down in an easy chair. i certainly did not prepare for one particular justice. all of us thought we just needed to give the best arguments, the best arguments on behalf of the government that we think make sense and are consistent with court precedent. and you kind of think who is going to be where before you go into the oral argument, this person is likely to be on my side, this person is likely to

be hostile. with justice kennedy, you could not necessarily predict where he was going to be. and if he asked the question, you had to listen very carefully, and it was not because he might be the swing vote, it was that his questions were based on commonsense and him trying to get to the right answer. so i thought it made it really fun to argue before him, fun being a relative term because you are scared out of your mind, at least in the first 10 or 20 times. justice kennedy talked about what it was like to argue as a justice with the other justices on conference date. the c-spanm september documentary. [video clip]

justice kennedy: i think it was he made a very interesting my colleague comment one day. , are you nervous before you go he said on the bench? and i said no, not at all. sometimes you are -- university professors, high school teachers, it was hard to do the exam. i was always nervous when i appeared in court as an attorney. when i was in sacramento california, i went up the court steps to visit a judge in my heart started to beat. but judges don't feel that way. it is relaxed, it is easy. we are careful that we are courteous to the attorneys and that we are open-minded and that we do our job. that is a preface to your question, what happens in the conference room? breyer made the observation and he is very right, he gets nervous before he goes into the conference. it is like being an attorney once again. you are arguing your case.

have a colleagues who have studied very hard on a case who may have very fixed views or they may be tentative, depending on how they put the case through , and i have to give my point of view and hopefully persuade them. and i feel a sense of anticipation, whether it's an adrenaline rush are auto know what they call it, but this is a big day for us. we sometimes have as many as six cases and i have to present the arguments on maybe for cases got cases, and iour have to be professional and accurate and fair, so there is tension and excitement in the room, but we are delighted. the job is no good if you can't argue. host: how did he prepare for conference day?

first, explain what is conference day? ishan: after the justices hear the cases, they go to a conference room, just the nine of them to discuss the cases that have been heard. they also discuss the petitions , but what court justice kennedy was talking about here in this clip was the process of how each of them was going to vote and how the opinion will be assigned. if the chief justice is in the majority, the chief justice will assign the opinion. if the chief justice is not in the most senior person who is in the majority will sign it. as for how justice kennedy prepares for the conference, he

took this extremely seriously, even in cases that for public perception, you might think what does it matter, he won't have the deciding vote. he did not approach it that way at all. gohad a total rigor to through that he would decide this case, not only from his precedent, but we would talk about it a lot, one of the best counter arguments to the position, would be discussing at conference, what are the necessary things to indicate? so he approached it with a great rigor. and i will also day -- i will also say i think he did that in part because that is the way he approached every case. it is a surprise that there are situations in it may -- in which it may not have been justice kennedy who was the final vote to join a 5-4.

and so i think justice kennedy, for that reason as well, took so seriously persuading his colleagues that he was approaching this in a rigorous manner. host: you can probably relate to him talking about the justices being nervous. nicole: it is interesting because what he describes as definitely help he would come across to advocates on the bench incredibly thoughtful and , respectful of his colleagues. he is not the kind of justice who would cut off his colleagues. he would wait and listen to what they had to say, and then when there was a barrick -- when there was a break, ask his questions. really trying to come to the right answer, admitting that it might not be easy, and that there may be tough questions either way. and he would ask the advocates, he would say this is what is , bothering me. tell me what you think about it. give me your best case for this, your best answer. it makes me happy to know that when he went back to the

decision-making process and talk ed he was taking the same to the other justices approach , and doing the same thing. host: a thing for justice kennedy, there were certain issues and principles that motivated him. he never liked the term swing vote, because it indicates that you elect to swing for the purpose of accommodating one side or the other. ishan: i think that's correct. i don't think justice kennedy ism ofboiled down to an judicial philosophy. and those principles did know his come down in a predictable manner in the way other justices , may have been more

predictable. so i think if you look at the motivating principles of law whether it is the concept of , liberty or the importance of the first amendment, the way those apply to specific facts was not always easily characterized in one way or another. these cases present different questions, and i've always taken his i'm not the swing vote in that way. these cases and i have a way of working through the cases and thinking through the issues and looking at the president and looking at other sources and applying common sense and guiding principles in terms of constitutional law. >> i don't think that's what he was doing. >> what did you think his approach was?

what were his guiding principles? how would you characterize his philosophy? >> i think he was pragmatic. empathyhad a lot of trying to put himself in other people's shoes, whether it is ,inority political viewpoints summit in solitary confinement, in prison, he would try to understand how this issue is affecting this person, even if it's not the same experience that i had. what every judge does, looking for the relevant statutes and the relevant constitutional law precedent. may justiceht kennedy unique was this real process to get the best answer where he would consider not just one factor but everything he thought was relevant, international law, etc.. to do the right thing for these people in this case. >> what about libertarianism?

do you ever talk about it as a guiding principle for him? >> i don't think he used any of those as a guiding principle. weather was and that the workers certain -- whether it was empathy or concern for a particular into the jewel and how the case will spectrum -- affect them, but also the first 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. similarly, in an interest way, liberty at times protected by her own law or constitution is that by federal law or the constitution and at times protected by the states. again for him those are the sorts of principles that really motivated a lot of his jurors, because i think he thought that

was central to the constitution. host: you are going to delve into those things that you brought up, but you think you wrote opinions or issued decisions with the legacy of him or the legacy of court in mind? nicole? guest: i think something more like the latter. any person in the supreme court has to think about the legacy -- about their own legacy. everybody in life thinks about their own legacy. has a strong devotion to the institutions of government, to civic and gauge meant -- civic engagement. to the first amendment as an ideal of morse with more participation really helping society. that sort of thing. i think his opinions would generally reflect the sense that the american ideal continues to flourish, even in trying times. he had some pretty difficult decisions where he was in the

majority and i think he would explain if the decision was a difficult one, why, and why the court keeps 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, when 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. host: the early days the bench, the court took up texas v johnson, a case on free speech 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 sat down and interviewed him. he talked about this is a difficult decision.

we had a flagburning case. americans get infuriated when you burn flags. that gave the constitution real meaning in our own lives. that's when the constitution's most important. it's not some old relic. 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 constitution as we see them compel a result. so great is our commitment to the process that except in a rare case, we don't pause to express 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 opinion? guest: 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, -- some restaurant, and somebody approached him which he said was , rare and they said that they really disagreed with the court. but your opinion, explain to me why the first amendment -- rarely talkedy about his own opinions, he's an extremely 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. it's 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 it's right, clearly the 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. host: 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?

guest: 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 people 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 to ask -- protect. another significant case that dealt with a or ship in 1992,

-- with abortion in 1992, planned parenthood, a five-four decision to uphold roe v. wade. justice kennedy offering his own opinion here. i want to listen to a little bit of him reading his opinion from the bench. [video clip] first is the recognition of [indiscernible] the viability of the state interests are not so strong. or the imposition of a system and chill obstacle to the women's effective right to that procedure. second is -- after fetal viability, if the law contains exceptions. third is the principle that the state has legitimate interest in

protecting the health of the woman and the life of the fetus that may become a child. these principles do not contradict each other. and we adhere to each. our case has recognized the right of the individual in various -- so fundamentally affecting. the personal choices and personally make in a lifetime, central to the liberty protected by the 14th amendment. of liberty is the right to define one's own concept of existence. -- but theyerations cannot end it. it is unique to the human condition and so unique to the law. must carry a child to full term subject to anxiety --

the sacrifices have the beginning of the human race and have endured in the eyes of others. her suffering was to implement -- without more on its own vision on the women's role, however dominant that vision has been in the course of our history. the destiny of a woman must be shaped by her own destiny and her place in society. >> your reaction? >> there was a time when roe was really in peril there was a question about what the court would do. there was this agreement coupled together with justice o'connor and justice kennedy where they reaffirmed roe. it was not just the state can do this and cannot do that. it was an explanation for the

rights protected under the constitution. the language came out and all types of different cases for justice kennedy about personal dignity and personal autonomy. it started to show. the empathy that says personal matters are fundamental to your dignity in the way you live your life that there are choices you need to be able to make. they came out clearly with casey. hearing it now and knowing what was to come in the next couple of decades, it seems like foreshadowing. >> unwarranted government intrusion. it seems to me, from what you have been saying, that is one of the guiding principles in his time on the court. this is really something that he holds dear. he make sure the government does not intrude on liberty. >> it is not just -- the government does not intrude on liberty when people are engaged

in a public act. it is also in the intimacy of the home and the communal relationship. you could actually take some of the exact language that justice kennedy wrote and put it, whether it is the gay marriage decisions, the concept that you have certain decisions unique in the privacy of your own personal sphere and the government should not intrude on those decisions or a governing principle for him. >> did he ever talk about his case? >> i do not remove the talking that i do not remember -- i do not remember talking about this case with him. >> what about liberty versus privacy? what is the distinction for justice kennedy? not to stump you. >> i think that justice kennedy certainly views -- liberty and privacy are not two sides of the same coin, but if you do not have the ability to keep things out of the public's fear, the ability to make decisions is hampered.

justice kennedy -- if you look at some of his positions -- had a very similar concept that law enforcement needs to be given its ability to carry out important duties area justice kennedy what, anytime privacy was involved, decided the outcome and one occasion or another. see him in a number of decisions recognizing the ability to keep certain things within your own domain is critical to be able to make a decision itself. >> what i like about the language he used is that he is trying to express, as best as he can, feelings people have about the way they should be able to live their lives. lawyers would get frustrated because you learned in law school to just tell me what the relevant rules are and what part

of the constitution we are talking about. he starts talking about dignity and autonomy and what does that mean? if you are a lawyer, you uncertainty. if you are a person reading opinions and they directly affect your life and a justice is telling you, i understand your concerns, i understand you do not want people intruding on your family life etc., that is very meaningful, even if this is new in which was using. >> he never said this to me, but i think part of the reason he viewed his decisions as so important is because there is a certain way you can write an opinion just covering the legal precedents of the court of appeal in district courts. he recognized as a supreme court justice, the supreme court decisions apply to everybody and they are read by a variety of different constituents. he felt a certain duty to explain in terms that would be understood by a person who would approach in a restaurant. and not just the legal rules. >> let's listen to him in 1991 on school prayer. he wrote the majority opinion upholding the previous court preference getting rid of school

prayer and public schools. >> the government involvement with religious activity is pervasive to the point of creating a state directed religious act of -- exercise in a public school. conducting this conflicts with rules pertaining to prayer exercises for students. it is beyond dispute that at a minimum, constitution guarantees the government may not coerce anyone to support or participate in religion or otherwise act in a way established as a state religion. states involvement in school prayers is contrary to the essential principles and therefore violates the establishment clause. their involvement is as troubling as it is undeniable. schooled officials decided that an implication and benediction should be given. it directed and controlled the content of the prayers. we recognize that it is no part of the business of government to

compose official prayers or any group of people to recite as part of a religious program carried on by the government. that is what school officials attempted to do. petitioners argue that the directions for the content of the prayer 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 was in the embrace of what is known as the judeo-christian tradition, more acceptable. one which makes explicit references to the god of israel or jesus christ or a patron saint. we cannot do that. first mmr religion quads says religious belief and religion expression are too precious to be prescribed by the state. the design of the constitution is the preservation and transmission of the latest and worship and the responsibility and choice emitted to the private sphere, which itself promised freedom to pursue the

mission. so just in way establish an official civic religion as a way of avoiding the establishment a more specific creeds, strikes us as a contradiction that cannot be accepted. >> what strikes you from listening to that? >> number one, justice kennedy had a very good -- unique writing style. he really felt a responsibility to explain beyond the legal rule why the constitutional principles he is trying to indicate in the decision. number two, you see this strand of all of his decisions, and some respects, reflects the notion of liberty and the notion that if the government is making a choice about what somebody can or cannot say, that is fundamentally impacting the person's ability to be a free person in society. it is interesting how he talks about sectarian strands of schools trying to bring in and recognize that the school is making an effort, but still

finds it is not permissible. it shows his consciousness of the rule and application of these decisions. >> how does he approach writing? >> there are supreme court decisions based on what you are writing or writing in a majority. the majority opinions, some of which were the most important, justice kennedy often gave a draft that he himself would write with a whole opinion and then we would make suggestions, edit, it is a difficult process to give a supreme court justice edits on their opinion. justice kennedy was such a gracious, dignified, humble boss that he would be extremely perceptive to talking about the way you phrase something, how he would or would not like something to read, if he did not think something properly encapsulated what he thought was

the correct interpretation. third i process, we would walk with him and he would be happy with the draft and we would go back-and-forth and eventually, that is the process. we had certain grammatical rules which i have subconsciously adopted in my own writing. he never liked unnecessary facts before quotes and i find myself, when i do my own writing, i sit back and think there could be 15 more words in a sentence or paragraph were it not for that excise. justice kennedy style guide. >> listening to him read from his opinion, what were you thinking about? >> i think it had many of the same themes that would come to define him in terms of personal decisions. and the private sphere. this is a difficult case because the constitution says the state cannot establish a religion, what does that mean? as per our graduation really so bad? he had to explain why he would drop a line.

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

a speech of false ideas and offensive content is part of learning how to live in a society, a society in which us -- insists on open discourse. intolerance does predispose mutuality of obligation. by the time they are seniors, high school students have been required to attend classes and complete assignments, exposing them to ideas defined the tasteful, moral, or of -- -- in this tasteful, or immoral, or absurd. distasteful, or immoral, or absurd. students may consider it an odd measure of justice to be subjected, during the course of their education, to ideas deemed offensive and irreligious, but to be denied a formal care ceremony that the school offers in -- return. his argument can't prevail, it overlooks the fundamental dynamic of the constitution. in religious expression, the government -- religious establishment to freedom of all. free exercise clause immerses -- embraces the freedom of conscious and worship and has close parallels in the speech provisions of the first amendment. the establishment clause is a specific clause on state intervention with religious

affairs. a lesson in history that is the inspiration for the establishment clause, in the hands of government may expressed intolerant views. the government argues that the option of not attending graduation excuses any -- in the ceremony itself. we think the argument lacks persuasion. in our society, high school graduation is one of life's most significant occasions. you may not be required by official decree if it is apparent a student is not -- from graduation exercises -- voluntary. the constitution permits the state to exact religious can already for student as the price of attending her own high school graduation. the question is whether religious exercises can be conducted at the ceremony and circumstances where we found young students objecting to the bar.

high school cannot persuade or compel a student to take place and irreligious -- exercise. >> i think one thing that is always interesting about this opinion is justice kennedy very strongly indicates the establishment clause. he does not talk about free exercise. elsewhere in the opinion, this is in the situation where you have a religious minority's ability to practice their religion is being impeached by the government. for him, that was an important liberty. >> it comes later. >> it does. >> let's move on to 2004. justice kennedy delivered the opinion ruling that capital punishment for juveniles was unconstitutional. justice kennedy: the majority have's -- of states have rejected the death penalty for youth.

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

to a greater extent, a minor's deficiencies are more lately to be reformed. it is evident the penal logical justification for the death penalty is with lesser force to adults. retribution is not proportional. if the laws most severe penalty is imposed on one whose comparability is diminished to a substantial degree by reason of youth and immaturity. for these and other reasons, we conclude that the differences between juveniles and adult defendants are to bake -- large to allow a youthful person to receive the death penalty. >> this opinion was a difficult one for the court. justice kennedy was a great person to take on writing the opinion because of the -- a commitment does not provide a lot of text in terms of what you do with cruel and unusual punishment. the courts, over time, has adopted standards where they talk about societies of open standards of decency, whether it is a punishment that make sense or is proportional to the crime.

how do you apply that? it is a matter of explaining what are the purposes of punishment, of the death penalty, and do they apply to juvenile offenders? he discussed the need for retribution, the need for deterrence, whether you can rehabilitate young offenders. he said the things i think a parent might say about people under 18 and how they are not fully mature and they are susceptible to influences from her pressure. there is a significant opportunity for evolution and change and it is the right thing to recognize that. the opinion is noteworthy because it is not just i am justice kennedy and we think this, he talked about where society was. our states -- are there states that want to impose the death penalty on people under 18? our other countries doing it? no.

he has teachings and he would hear from other judges in other countries and taking into account holistically, it does not make sense anymore. that was a significant precedent in terms of one of the first times a court cut back on the death penalty. >> let me have viewers listen to him a little bit more from this opinion. he talks about international opinion, what is going on outside of the u.s.. >> our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the u.s. is the only country in the world that continues to give official sanction to the juvenile death penalty. since 1990, 7 countries other than the u.s. have executed juvenile offenders. iran, pakistan, saudi arabia, nigeria, yemen, congo, and china. since then, each of these countries have abolished capital punishment for juveniles or made public disavowal of the practice. the u.s. now stands alone in a world that has. turned its face against the juvenile death penalty.

it is proper that we acknowledge the overwhelming weight of international opinion against the penalty, resting in large part on the understanding that instability and emotional in balance of young people is a factor in the crime. at a time of the court's decision in 1958, the court has referring to the laws of other countries and to international authorities. for his interpretation of the eighth amendment's prohibition of cruel and unusual punishment. the opinion of the world community does provide respected and significant confirmation for conclusions. over time, from one generation to the next, the constitution has come to earn the high respect and the veneration of the american people. the document set forth to rest upon innovative principles original to the american experience. proven balance their separation of powers.

broad provisions to secure individual freedom and preserve human dignity. these doctrines and guarantees are central to the american experience. they remain essential to our present-day self-definition and our national identity. not the least of the reasons we honor the constitution, is because we know it to be our own. it does not lessen our fidelity to the constitution or our pride in its origins to acknowledge that the expressed affirmation of certain fundamental rights by other nations and people simply underscore the centrality of those same rights within our own heritage. the eighth and 14th amendments for bid and position of the death penalty on offenders under the age of 18 when crimes were committed, judgment of the missouri supreme court -- >> one of the things that is interesting and he discusses it in that clip, is his use of a variety of sources in affirming and confirming his decision. he did reference international sources and how the u.s. compares with other countries concerning the punishment. you also heard reference to the mental abilities of juveniles

and some of the medical evidence that played a role in the court's decision. justice kennedy took very seriously all of the times -- that are filed in important cases. the american medical association and others filed an amicus brief in the case informing the justices of the sort of medical evidence regarding the juvenile brain. you can see justice kennedy looking at a variety of sources. he has confirmed the decision. none of these are controlling what the u.s. constitution means. justice kennedy did have an approach where he would be willing to look at a variety of sources in order to inform the decision. >> you saw him do that while you were a clerk. >> i was always surprised -- by clerk.

>> i was always surprised -- by the time i was there, i thought he would have had his opinions that on a number of issues. i was surprised by his willingness to constantly read a meat is briefs. the course can get so many amicus briefs. he would show up and i would feel like a bad student. did you see what this person said on page 63 of this amicus brief? and i would say i haven't even gotten to read it yet. he really did take very seriously everything that was presented to the court and a variety of other sources. he was not controlled by them, but he thought they were valid to look at. >> i'm sure the court received a lot on this next case. 2007, george bush administration, detainees in guantanamo bay. the court ruled 5-4 that detainees have the right to appear before a judge and know why they are being detained. justice kennedy: infidelity to

freedom's first principles. chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the separation of powers. it is from these principles that the judicial authority to consider petitions for habeas corpus derives. we do not undermine the executive powers of commander in chief. the exercise of this powers is vindicated when confirmed by the judicial branch. the constitution's separation of power structure, exercises of judicial power are as legitimate or necessary as the responsibility to hear challenges to the authority of the executive. some of these petitioners have been in custody for six years with no judicial determination as to the galley of their detention. their access is a -- lawfulness of their status, even if they do not detain the belief they seek. our opinion does not address the content of the law that governs petitioner's attention.

that is a matter yet to be determined. we hold that petitioners may invoke fundamental procedural protections of habeas corpus. the laws and the competent -- -- lawn constitution are designed special law and constitution are designed -- liberty and security can be reconciled and in our system they are reconciled within the framework of the law. the framers decided habeas corpus must be part of that framework. >> that case -- >> he said reconciling liberty and security. we were at a point, some. -- some period of time after 9/11, the u.s. made significant efforts in the war on terror and trying to figure out who was involved in 9/11 and what threats they were against the u.s. this case had very significant congressional involvement. congress passed statutes giving broad wartime powers to the

president and there were statutes about how you could try people at guantanamo bay. it was a difficult position to bn. there were concerns about national security, people being held at guantanamo bay who are dangerous people. congress is taking action and justice kennedy does not want to step on congress's toes. we have a principal with respect to detention and the writ of habeas corpus. people are able to challenge the legality of their detention, which is what they were seeking. that is where justice kennedy came out. it was not easy to get there, from the government perspective. i was there at the time. we are about guantanamo bay, not within the u.s. there are often questions about how the constitutional provisions provide outside the u.s. do they provide outside -- do they provide outside the u.s. at -- do they apply outside the u.s. at all? we have military bases in cuba and everyone admits that cuba is sovereign over the territory.

how do we say that the risk of habeas corpus applies? justice kennedy wrote this opinion that was pragmatic to say that maybe not as a de jure matter, but as a de facto matter, the u.s. has control over when time obey -- one time obey -- guantanamo bay and it was a critical point at where we were in the war on terror and the government perspective. the court recognized the ability to challenge detentions and it can't change the cases we would see to come in the d.c. circuit. eventually coming back to the supreme court. this is going to be something where the court would make clear it was going to play a role. >> your thoughts on his opinion? >> it brings a conflict to a number of his principles. we have liberty in the private sphere, public place, and attention.

-- detention. the judicial role is first and foremost in these cases. for reasons that are often classified. to see justice kennedy deal with these two very important and conflicting principles is impressive, particularly in an opinion like this for justice kennedy tries to explain not only the outcome but why the outcome is important to the bigger constitutional structure. if you read the opinion carefully, it also shows -- an approach. there was a debate as to whether guantanamo bay was more similar to hanover and the time of habeas corpus or some of the other places. in addition to the lofty speech and discussion about principles, justice kennedy also gets into the weeds of trying to figure out the historical debate, as well.

>> we will move on to 2009. the federal elections commission on corporate expenditures. justice kennedy: upheld a ban on corporate political speech and as already noted, the mcconnell decision relied upon austin. we conclude the presidents must be re-examined. the court has recognized first amendment protection extends to corporations. in accord with this, a pre-austin line of cases for bids restrictions on political speech based on the speaker's corporate identity. austin was the first time in this course is history that a and on independent expenditures by corporations for political speech was upheld. if the first amendment has any force, it prohibits congress from finding or jailing citizens or association of citizens engaging in political speech.

austin would allow the government to -- and a corporations from expressing views from any medium. including those presented here. political speech is indispensable to decision-making and a democracy and this is no less true, because a speech comes from a corporation rather than an individual. the rationale would produce the dangerous and unacceptable consequence that congress could ban political speech of media corporations. media corporations are now exempt from 441 b's ban on political speech. like other business corporations, the government could diminish the voice of the media business. there is no precedent for permitting this under the first amendment. it interferes with the open marketplace of ideas protected by the first amendment and allows the government to ban the political speech of millions of associations of citizens, thereby silencing the voices

that may best represent the most significant -- of the economy. the government seeks to use its full power, including criminal law to command where a person may get his or her information or what distrusted source he or she may not hear. it uses censorship to control what. this is unlawful. the first amendment confirms the freedom to think for ourselves. our president is to be respected, and less the most convincing of reasons demonstrate its appearance us to does on a course that is sure were --re -- sure it sure error. we now overruled austin. austin was not well reasoned, experienced was undermined, and no serious reliance interests are at stake. we returned to the principles set forth in our pre-often cases that the government may not suppress political speech on the

basis of the speaker's corporate identity. without austin, the government cannot bend of the corporate expenditures. section 441 b ban on corporate independent expenditures is invalid and cannot be applied. given our conclusion that austen must be overruled, we also overrule mcconnell that upheld for 41 these restrictions on corporate independent expenditures. >> white supreme court ruled this way? >> there was a flavor we talked about in his early opinions. a strong feature of the court opinion, a very pro-speech, pro-first amendment flavor. but is not necessarily get you to the outcome because people may have a right to go out and speak about whatever they want, but would you feel that way about corporations? do you feel that way about corporations spending money? as spending money the same way as speaking? the court was heading that way by saying the court was spending money on pamphlet, media, that was more speech.

it is the court ruled that the corporations have the first amendment right to spend money in order to do what justice kennedy would term speech. the problem he saw, which he alluded to, was the implication that it came out the other way. that was that someone who had money and wanted to put a book out talking about one of the candidates would not be able to do that. that was a question that came up in oral argument. the case was argued twice. the government defending the statute that congress put in place the first time. the government lawyer suggested that there could be a

prohibition on types of electioneering books about a candidate which was an answer that concern the court. when it was argued the second time, justice kagan argued the case and gave a different answer. it was clear from the fact that it had been be argued, these very difficult questions, the court was struggling with implications. >> oral argument is a big role, plays a big factor in these decisions. what would justice kennedy say about it? >> he would rarely tell me that oral argument to ask or by. watching his reactions to oral argument in the way he engaged, he viewed it as very important. by the time the justices sit at oral argument, they have amicus numbers, all of the discussions. nonetheless, justice kennedy viewed this from his own experience, how is heartbeat faster when he gave oral arguments. he viewed this as a critical opportunity for litigants to make their case. in summer cases, oral argument might literally switch the way a case comes out. that is generally unusual. it can influence away and opinion is written, and that is extremely significant when you

have the u.s. supreme court, whose opinions are picked over word by word by lower courts. he viewed oral argument as a critical part of understanding the positions and testing the logical implications. >> before the next case, i want you both to give me your reaction to this decision. the university of texas, race admissions process and affirmative action. what do you make of your decision? >> 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, 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. realizing the courts need to play a role here. 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. rather than setting the guidepost and sending it back for further proceedings. >> 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 withstand such 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 -- wasn't 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 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 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. 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 and welfare services, housing, 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 -- personal 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. greta: 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 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 class 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, 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 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. in 2015, he cited the liberal case.es in the here it is time that decision from the bench. it is most often through the democracy that liberty is protected in our life. there has been substantial operation over the decades the fundamental rights of outcome of elections. it individuals need not await legislative action. opposese those who same-sex marriage, they continue to keep that belief with the utmost conviction.

allowing believe same-sex marriage is proper -- this case concerns only what states may do under the constitution. no union is more profound than marriage for it embodies the highest ideal of love fidelity devotion sacrifice and family. people come to be greater than they once were. for petitioners decided disrespect or diminish the idea of marriage, they do respect it. theyrespected so deeply -- ask for equal dignity and eyes of the law. 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?

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. 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." 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. 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. 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? 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. how did he struggle? what did you see? 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. 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. 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. you referenced senior status.

what is that that he would be able to serve on lower courts? 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. what do you make of him not being done? he is stepping down from the court, but prison reform is on the agenda. that does not surprise me at all. i think he thinks about lots of issues as a justice, and he cares. he has an international perspective. 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 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]

former clerks of supreme court nominee spoke earlier this week heritage foundation about working for him on the federal appeals court in d.c.. they touched on his philosophy, his interactions with clerks, and his life outside the courtroom. welcome to the here to -- heritage foundation. of the vice president institute for constitutional government. i would ask you to take a moment to please silence your cell phones so they don't go off inadvertently during the program. todayy one month ago