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Supreme Court Special: Previewing 2026 & A Conversation With Anthony Kennedy · Bloomberg Law

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  Speaker 1: Bloomberg Audio Studios, podcasts, radio news.
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  Speaker 2: This is Bloomberg Law employer to frequently exploit the weaknesses
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  Speaker 2: in the law.
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  Speaker 3: Courts are going to be asking questions about separation of powers.
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  Speaker 3: One by one, Google settled with all of these other
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  Speaker 1: With prominent attorneys and Bloomberg Legal experts. Joining me is
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  Speaker 1: immigration law expertly on Fresco, First Amendment law expert Caroline
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  Speaker 1: Malick Corbin, and analysis of important legal issues, cases and headlines.
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  Speaker 3: The trial judge may well want to hold a hearing.
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  Speaker 3: They have never said this case should never have been
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  Speaker 3: brought in the first place.
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  Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio. Welcome to
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  Speaker 1: the Bloomberg Law Show. I'm Nathan Hager filling in for
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  Speaker 1: June Grosso on the show. Today we focus on the
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  Speaker 1: Supreme Court. We'll hear a portion of a special conversation
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  Speaker 1: with retired Supreme Court Justice Anthony Kennedy. He sat down
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  Speaker 1: with David Rubinstein earlier this year at the ninety second
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  Speaker 1: Street Y in Manhattan to discuss his three decades on
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  Speaker 1: the bench some of his landmark opinions. Man More that's
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  Speaker 1: on the way on the Bloomberg Law Show as we
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  Speaker 1: focus on the Supreme Court. But before we hear from
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  Speaker 1: a member of the court's past, let's spend some time
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  Speaker 1: on some of the major cases that are expected to
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  Speaker 1: face the High Court in the new year. Joining me
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  Speaker 1: for a look at what to expect from the Supreme
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  Speaker 1: Court in twenty twenty six is Harold Krent. He's professor
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  Speaker 1: of law at the Chicago Kent College of Law. Harold,
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  Speaker 1: thanks for being with us.
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  Speaker 3: My pleasure.
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  Speaker 4: And there's certainly some showstoppers on terms of cases coming
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  Speaker 4: up in the next couple of months.
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  Speaker 1: No kidding. And I think probably the one case that
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  Speaker 1: Wall Street is certainly waiting for a decision on is
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  Speaker 1: one that the High Court already heard about. Of course,
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  Speaker 1: that's on President Trump's emergency tariffs. Should we be expecting
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  Speaker 1: a decision on that in the next few weeks do
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  Speaker 1: you think?
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  Speaker 4: I don't think it'd be next few weeks. I think
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  Speaker 4: it'd be later in the term. But certainly that's critical.
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  Speaker 4: But the other critical case for Austreet has to do
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  Speaker 4: with the discharge of a member of the Fed Reserve Board,
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  Speaker 4: Lisa Cook. And even in the argument that was just
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  Speaker 4: you had a couple of weeks ago, the members of
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  Speaker 4: the Court suggested that they might deviate from President Trump
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  Speaker 4: and say that even though he has the ability to
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  Speaker 4: fire heads of independent agencies, he can't fire the head
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  Speaker 4: or one of the members of the FED. So that
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  Speaker 4: still be a great interest to Wall Street as well.
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  Speaker 1: Certainly, let's talk a little bit more about what we
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  Speaker 1: learned from those arguments around the possibility of firing independent
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  Speaker 1: agency heads. Do we get some clues there about how
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  Speaker 1: the justices could respond to the arguments that are coming
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  Speaker 1: up in the FED governor Cook case in the next
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  Speaker 1: couple of weeks.
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  Speaker 3: Yeah.
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  Speaker 4: Again, two members of the Court, Chief Justice Roberts as
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  Speaker 4: well as Justice Kevanaugh, suggested that they had some kind
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  Speaker 4: of reticence about following the logic of the argument from
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  Speaker 4: the FTC case the Federal Trade Commission case and to
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  Speaker 4: apply it to the FED. And I'm not sure that
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  Speaker 4: it's a coherent distinction, but it's one that the Court
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  Speaker 4: is exploring, and I think there may be a majority
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  Speaker 4: to say that the Fed, because it has some private members,
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  Speaker 4: because of its special role in history, might be segregated.
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  Speaker 4: I mean, the interesting thing is what else will be
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  Speaker 4: segregated from the sweeping ban or sweeping permission for the
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  Speaker 4: president to fire at will all members of independent agencies,
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  Speaker 4: maybe judicative agencies such as the Mayor Assistant Protection Board.
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  Speaker 4: We don't know, but it looks like the FED will
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  Speaker 4: be one of the exceptions. At the court world here too.
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  Speaker 1: Are you thinking that we're going to hear arguments around
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  Speaker 1: the merits of the case, the argument that President Trump
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  Speaker 1: and his administration is putting forward here these allegations of
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  Speaker 1: mortgage fraud that they've been using to say that the
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  Speaker 1: President does have cause to fire Governor Cook.
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  Speaker 4: I think they will probably not talk in detail about
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  Speaker 4: the mortgage fraud issue, but they will talk about whether
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  Speaker 4: or not the president needs cause to fire the Cook
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  Speaker 4: Lisa Cook. I don't think they'll get into the question
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  Speaker 4: about what constitutions caused, but I could be wrong. Certainly,
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  Speaker 4: There's been a lot of people who have been investigated
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  Speaker 4: by the Trouble administration who have similar issues, and they
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  Speaker 4: seem to be pretty thin when you push on them.
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  Speaker 4: But I don't think they're going to get into that
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  Speaker 4: particular issue of what constitutes caused for discharge. If they
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  Speaker 4: say that you need cause, I think that will be
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  Speaker 4: enough of a statement from the court.
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  Speaker 1: Walk us through some of the arguments that we could
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  Speaker 1: hear when it comes to the idea of for cause
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  Speaker 1: rationale to fire a FED official. Do you think we're
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  Speaker 1: going to get a your definition from this case about
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  Speaker 1: the bar that's set for the FED when it comes
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  Speaker 1: to cause for firing.
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  Speaker 3: Yeah.
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  Speaker 4: And you know, the Court has been incredibly vague about
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  Speaker 4: what constitutes cause or neglective duties in all these cases,
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  Speaker 4: so it's never really given a really good blueprint about
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  Speaker 4: what kind of reasons president must articulate before they can
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  Speaker 4: discharge someone who's protected from discharge except for cause. You
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  Speaker 4: know that has been adjudicated a lot in employee cases,
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  Speaker 4: so we know cause means some kind of wrongful conduct
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  Speaker 4: on the jobs. We don't know if in this case
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  Speaker 4: with Lisa Cook, this was something that happened way before
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  Speaker 4: she was a director of the FED. I think the
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  Speaker 4: fact that it has happened before probably still could be
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  Speaker 4: give reason to cause. I mean, you can think about
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  Speaker 4: someone who's committed a serious crime before they're appointed and
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  Speaker 4: only comes to light afterwards. But the court has not
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  Speaker 4: articulated what caused us means. And I don't think this
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  Speaker 4: will be a vehicle that will see it in terms
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  Speaker 4: of the timing of the nature of the misconduct, how
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  Speaker 4: serious the misconduct must be, how tied it is to
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  Speaker 4: their ability to function the job. These are all the
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  Speaker 4: questions of what cause might constitute. But I think we're
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  Speaker 4: going to have to wait another day before we get
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  Speaker 4: a court ruling on that issue.
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  Speaker 1: And how important is this case when it comes to
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  Speaker 1: preservation of federal reserve independence? Are we going to get
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  Speaker 1: a really clear idea around that.
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  Speaker 4: I think we will, And my guess is again, there'll
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  Speaker 4: be a carve out for the FED, and it won't
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  Speaker 4: necessarily be coherent, but it's something I think that the
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  Speaker 4: court wants to take a position on. And you know,
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  Speaker 4: the interesting issue is whether they'll give some kind of
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  Speaker 4: hint about whether there are other carve outs or whether
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  Speaker 4: this general rule, the fact that Congress cannot protect any
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  Speaker 4: kind of agency from the president's plnary mooval authority, whether
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  Speaker 4: that will be the you know, biding governing rule with
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  Speaker 4: only the FED as a possible exception.
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  Speaker 1: We're speaking with Harold Krant, a professor of constitutional law
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  Speaker 1: at the Chicago Kent College of Law. Harold, let's talk
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  Speaker 1: about some of the other cases coming before the High
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  Speaker 1: Court in the next month. Here, we're expecting arguments around
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  Speaker 1: the president's efforts to roll back birthright citizenship. This is
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  Speaker 1: an issue that's come before the Court on a legal question,
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  Speaker 1: but I think this is the first time that the
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  Speaker 1: justices are actually going to be weighing in on the
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  Speaker 1: order itself.
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  Speaker 3: Is that right? Yeah?
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  Speaker 2: I mean the Court dealt with birthright citizenship, you know,
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  Speaker 2: almost hundred years ago or so in the wonkim Our case,
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  Speaker 2: holding that someone who was born not a citizen, born
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  Speaker 2: in this country could basically obtain birthright citizenship.
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  Speaker 4: I don't think the Court's going to deviate from that
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  Speaker 4: in this case. I think it will deal with Trump
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  Speaker 4: administration a blow. All the lower courts have gone against
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  Speaker 4: President Trump on this issue, so I would predict and
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  Speaker 4: think it's quite compelling for the Court to hold that
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  Speaker 4: the executive order redefining citizenship is inconsistent with the words
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  Speaker 4: of the Fourteenth Amendment.
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  Speaker 1: Well, what's the Trump administration's rationale it's reading on the
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  Speaker 1: fourteenth Amendment? What are the arguments against it?
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  Speaker 4: What Fourteenth Amendment reads, in perminent part that all persons
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  Speaker 4: born or naturalizing the United States and subject to the
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  Speaker 4: jurisdiction the Robert citizens It seems plain. It seems to
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  Speaker 4: cover anybody who's in the United States and who was
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  Speaker 4: born there. What the Trump has redefined it to say
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  Speaker 4: that they need to be subject to the lawful jurisdiction
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  Speaker 4: of the United States somewhere, to put lawful in front
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  Speaker 4: of jurisdiction, to suggest that people who are here illegally
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  Speaker 4: cannot get the benefit of this citizenship clause. I mean,
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  Speaker 4: that is a plausible argument if it had been written
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  Speaker 4: in the Fourteenth Amendment and if it had been interpreted
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  Speaker 4: that way in the past. But the Trump administration is
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  Speaker 4: going against history as well as the plain language of
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  Speaker 4: the Fourteenth Amendment in making its argument.
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  Speaker 1: Now, this isn't the only immigration related case. If you
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  Speaker 1: want to argue that birthright citizenship is part of the
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  Speaker 1: immigration issue that the High Court is going to consider
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  Speaker 1: in this term. We're also awaiting arguments on the Trump
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  Speaker 1: administration's practice known as asylum metering. Walk us through this.
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  Speaker 4: How yeah, it actually comes from the first Trump administration
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  Speaker 4: where there was a Russia at the border, and under
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  Speaker 4: the immigration laws, everybody who is at our border can
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  Speaker 4: apply for asylum and then they're guaranteed some kind of hearing,
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  Speaker 4: which unfortunately usually takes several years before it materializes and
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  Speaker 4: people are waiting around for that hearing. So to neutralize
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  Speaker 4: that on the first Trump administration undertook this metering policy
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  Speaker 4: which said that if there was too many people at
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  Speaker 4: the border, they simply can apply for asylum.
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  Speaker 3: And then the.
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  Speaker 4: Question is whether that rule is consistent with Congress's statute,
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  Speaker 4: which says anybody in the United States can apply for asylum.
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  Speaker 4: And the argument there is, if you're two feet away
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  Speaker 4: from the border and you're being held back by agents
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  Speaker 4: of the immigration agents, are you therefore not in the
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  Speaker 4: United States and therefore cannot apply for asylum? And the
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  Speaker 4: lower courts have struck down this policy, but I think
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  Speaker 4: it's an open question. I think the Trump administration might
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  Speaker 4: win on the narrow ground that if you're two feet
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  Speaker 4: away from the border, you're two feet away from the border,
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  Speaker 4: and immigration agents can apply force to prevent somebody from
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  Speaker 4: applying for asylum. That's just a guess, but I think
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  Speaker 4: The's got much Trump administrations a much better chance of
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  Speaker 4: succeeding on this than on birthright citizenship.
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  Speaker 1: Interesting we're also awaiting some arguments on a major case
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  Speaker 1: when it comes to mail in ballots. Walk us through
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  Speaker 1: what the court's going to be considering here.
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  Speaker 4: I'm just sort of astonished by this case. We obviously
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  Speaker 4: have had the question of mail in ballots throughout you know,
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  Speaker 4: most of our history as a country. And you know
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  Speaker 4: that for a mail in ballot, whether it's from overseas
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  Speaker 4: or from even the states, they may not arrive in
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  Speaker 4: time for election day because you can't know when election
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  Speaker 4: day will. I mean, you can't know when the mail
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  Speaker 4: is going to arrive. So the claim here is that
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  Speaker 4: when I was set a particular election day, that it
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  Speaker 4: means that all votes must be in on that day
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  Speaker 4: to be counted, so we as a one country can
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  Speaker 4: know what the result is on that particular day. And
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  Speaker 4: so that the you know, fifteen states that have mail
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  Speaker 4: in ballots and the twenty nine states or so that
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  Speaker 4: have military mail in ballots, they have to cut off
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  Speaker 4: counting the ballots berneyballot that comes after election day. This
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  Speaker 4: is going against history, is to going against sort of
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  Speaker 4: practical understanding, but it will have a major impact in
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  Speaker 4: the future upon the role of mail in ballots in
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  Speaker 4: our elections. And if the court holds the Congress's desigh
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  Speaker 4: National Election Day precludes mail in ballots, then abs into
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  Speaker 4: congressional amendment. The whole notion of mail in ballots from
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  Speaker 4: overseas or from the States will have to be altered significantly,
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  Speaker 4: and I'm not sure that that's going to be the
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  Speaker 4: best for our country.
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  Speaker 1: Thanks for walking us through what's going to be a
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  Speaker 1: very busy second half of the Supreme Court term heading
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  Speaker 1: into twenty twenty six. That's Harold Krentz, professor of law
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  Speaker 1: at the Chicago Kent College of Law. Up next, we
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  Speaker 1: hear a special conversation with retired Supreme Court Justice Anthony Kennedy.
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  Speaker 1: You're listening to Bloomberg Law. I'm Nathan Hager for June Grosso,
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  Speaker 1: and this is Bloomberg. This is Bloomberg Law with June
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  Speaker 1: Grosso from Bloomberg Radio. Thanks for listening to the Bloomberg
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  Speaker 1: Law Show. I'm Nathan Hager in for June Grosso. Today's
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  Speaker 1: show is focused on the Supreme Court. Earlier this year,
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  Speaker 1: David Rubinstein got a chance to sit down with someone
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  Speaker 1: with decades of experience on the bench, retired Justice Anthony Kennedy.
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  Speaker 1: The two spoke at the ninety second Street Why in
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  Speaker 1: Manhattan for an extended conversation that covered everything from some
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  Speaker 1: of Kennedy's landmark decisions to his thoughts on the rule
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  Speaker 1: of law. Let's listen to a portion of that conversation now,
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  Speaker 1: Starting with Kennedy's decision to write his memoir Life, Law
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  Speaker 1: and Liberty.
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  Speaker 5: I wanted to write about a Sacramento, a small town
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  Speaker 5: in the thirties, forties, fifties, sixties. My children grew up
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  Speaker 5: in Sacramento, but they didn't know about those earlier decades,
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  Speaker 5: and my grandchildren didn't know Sacramento at all. So it
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  Speaker 5: seemed to me interesting to me to write about that
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  Speaker 5: time in our culture, were our generation was right after
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  Speaker 5: the Great generation. Right in the small town, there was
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  Speaker 5: a courtesy, there was a professionalism that were simply wonderful.
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  Speaker 5: I wanted to write about that Supreme Court. For the
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  Speaker 5: first thing many people do is they forget about the
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  Speaker 5: sycono part. They want to read about about the recent cases,
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  Speaker 5: so they look. But we wanted to have this for
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  Speaker 5: our children and our grandchildren to read. And then as
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  Speaker 5: the writing went on, it seemed to me that people
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  Speaker 5: were saying that it might be of interest to others, as.
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  Speaker 3: Those people that have not been a justice of the
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  Speaker 3: Supreme Court and you were on the court for thirty years.
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  Speaker 3: What's the greatest thrill about being on the court and
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  Speaker 3: what's the biggest downside of being on the court.
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  Speaker 5: The biggest thrill is that you have only cases in
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  Speaker 5: which the law has been undecided, and you recognize that
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  Speaker 5: what you're doing is exploring the law. And you know
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  Speaker 5: that after you write what the law is or what
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  Speaker 5: do you think it is, there's a whole new vista,
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  Speaker 5: a whole new realm to explore. And that's the fascinating
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  Speaker 5: part of it. We only take cases in which other
• 15:35
  Speaker 5: courts have disagreed. And in India, the Supreme Court has
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  Speaker 5: to take every case and they have a fifty thousand
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  Speaker 5: case backlog or something. But we select only the cases
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  Speaker 5: in which other courts have disagreed. And so that's the
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  Speaker 5: fascinating part, is that you are on the frontier of
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  Speaker 5: the law and what you write is the beginning of
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  Speaker 5: a frontier because there's new things to explore.
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  Speaker 3: But those people aren't familiar. How you decide, let's go
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  Speaker 3: through the process. You have people who want to appeal
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  Speaker 3: to the Supreme Court. They have something called a writ
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  Speaker 3: ofi and you accept about you have to have four
• 16:14
  Speaker 3: justices agreed to accept.
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  Speaker 5: They're called the rule of for you need four four
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  Speaker 5: justices to grant a petition for cure petitions who are
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  Speaker 5: sir sure ari is a motion to please take our case.
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  Speaker 5: And the court has thousands of petitions of suari each year,
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  Speaker 5: but they select only those cases where the courts are
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  Speaker 5: in conflict and where they think the guidance, where we
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  Speaker 5: think the guidance of the court will be helpful.
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  Speaker 3: When the cases are taken, the briefs are submitted by
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  Speaker 3: the lawyers. Do you talk to each other the justice
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  Speaker 3: before you actually hear oral arguments? Or you just read
• 16:54
  Speaker 3: the briefs and then you go to the oral argument
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  Speaker 3: and you don't talk to each other before you actually
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  Speaker 3: hear the or RG.
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  Speaker 5: We're very careful not to talk to each other before
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  Speaker 5: in parts and fairness to the lawyers. And we don't
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  Speaker 5: want cliques where you and I agree, or you and
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  Speaker 5: I disagree, and I don't tell you what I've talked
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  Speaker 5: to the other. Just we don't do that.
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  Speaker 3: After you hear the oral arguments, you go back to
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  Speaker 3: a conference and you have a hair tight room so
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  Speaker 3: nobody can listen to what you're saying, and so forth,
• 17:23
  Speaker 3: and nobody is allowed in the room other than the justices, right,
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  Speaker 3: and we.
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  Speaker 5: Have a double door just to remind everybody that what
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  Speaker 5: goes on in there is absolutely private forever.
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  Speaker 3: So then you begin to say what your views are,
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  Speaker 3: and who decides to speak first, who gets to speak first,
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  Speaker 3: and who speaks last?
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  Speaker 5: The chief Justice speaks first, the next most senior justice senior,
• 17:44
  Speaker 5: because you've he or she has been there. The longest
• 17:48
  Speaker 5: seniority is not by age, but how long you've been around.
• 17:52
  Speaker 5: If you're the most junior and it's four to four,
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  Speaker 5: it's very exciting because everybody is listening to what you're
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  Speaker 5: going to say.
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  Speaker 3: So who decides who writes the opinions? Who decides that.
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  Speaker 5: There's a Let's assume there's a majority and understand sometimes
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  Speaker 5: they're unanimous. There's a lot more unanimous opinions than than
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  Speaker 5: most most people think. The senior justice in the majority
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  Speaker 5: of science the majority, and the senior justice in the
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  Speaker 5: descent of science the descent.
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  Speaker 3: Does any justice ever go down to another justice's chambers
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  Speaker 3: and say, you know what, I really don't like your opinion,
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  Speaker 3: but i'll support you if you support me. On another case,
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  Speaker 3: do you ever do that kind of horse.
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  Speaker 5: Training that no, that would that would be totally improper,
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  Speaker 5: might even be illegal. You never you never trade.
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  Speaker 3: Both everything improper or everything washed. It will ever happen. Right.
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  Speaker 5: Plus, we don't go to the other chambers. We said
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  Speaker 5: it by memo, But everybody gets a copy of that memo.
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  Speaker 3: So the justices read the memos. They may change their
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  Speaker 3: mind and the opinions. But more times when you were
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  Speaker 3: on the court, you were the five to four in
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  Speaker 3: the majority than anybody else. I think that's right. So
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  Speaker 3: when you're five to four in the majority and you're
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  Speaker 3: making the real decisions because you're the deciding vote, is
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  Speaker 3: that put a special burden on you to really make
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  Speaker 3: sure you're comfortable with the decision.
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  Speaker 5: You want the views of your other colleagues to indicate
• 19:22
  Speaker 5: that you're going in the right direction or the wrong direction.
• 19:24
  Speaker 5: And there and there's a lot of interchange and the
• 19:27
  Speaker 5: memos that way and that, and that's how we want
• 19:31
  Speaker 5: to try to put a majority together. Sometimes you're assigning
• 19:34
  Speaker 5: the majority opinion and you'll get a memo. Dear Tony,
• 19:37
  Speaker 5: I've read your draft opinion. It seems to me better
• 19:40
  Speaker 5: to wait to read the descent, Oh that's going to
• 19:43
  Speaker 5: go on, or sometimes you write a descent and say,
• 19:47
  Speaker 5: you know, on the other way around, you've convinced other people.
• 19:50
  Speaker 3: Let's talk about Bush v. Gore. You were right. You
• 19:54
  Speaker 3: wrote the procureum opinion, which meant that it's for the
• 19:57
  Speaker 3: whole court. You didn't put your name on. It was
• 19:59
  Speaker 3: that of very difficult decision for the court to get
• 20:01
  Speaker 3: involved in the case and then make the decision that
• 20:03
  Speaker 3: would decide the election.
• 20:06
  Speaker 5: A not a difficult decision at all. Seven of us
• 20:09
  Speaker 5: agreed basier to take it. Can you have a state
• 20:12
  Speaker 5: court decide who's going to be the president of the
• 20:14
  Speaker 5: United States and say, well, we're too busy to take it.
• 20:16
  Speaker 3: Gore bought the case, not Bush. Gore bought the case.
• 20:20
  Speaker 5: And the rule is that if you're unsuccessful in the
• 20:24
  Speaker 5: lower court and you come to the Supreme Court, you're
• 20:27
  Speaker 5: the so called petitioner and your name is first. So
• 20:30
  Speaker 5: it was Bush who bought the case of Supreme Court
• 20:33
  Speaker 5: what it was called Bush Bush, But Gore was the
• 20:35
  Speaker 5: one who started the case. Seven of US agreed that
• 20:38
  Speaker 5: we should take the case, and more than a majority,
• 20:45
  Speaker 5: six or seven agreed that there was a legal wrong.
• 20:48
  Speaker 5: The question was how to remedy the legal wrong.
• 20:51
  Speaker 3: That was five to four. Ultimately five to four. The
• 20:54
  Speaker 3: five people who were for Bush were Republican appointees. The
• 20:58
  Speaker 3: four who were for Or were the Democratic appointees. Some
• 21:01
  Speaker 3: people said that showed that court was really political. How
• 21:04
  Speaker 3: do you use respond to begin with that?
• 21:06
  Speaker 5: That's wrong? A Suitor and Stevens were both Republican appointees.
• 21:11
  Speaker 3: Okay, all right, so that you don't think the Court
• 21:14
  Speaker 3: was hurt by the perception that it was political decision.
• 21:18
  Speaker 5: Yeah, the Court's always hurt, it seems to me if
• 21:21
  Speaker 5: they if we look political. One of my concerns, my
• 21:26
  Speaker 5: present day concerns, is there's too much partisanship. President's a
• 21:30
  Speaker 5: point justices from their same party. But the partisanship should
• 21:35
  Speaker 5: not be an overriding factor. What you look at is temperament, learning, background, reputation,
• 21:43
  Speaker 5: whether or not you have those qualities of independence and
• 21:48
  Speaker 5: caution that make for a good judge. And the partisanship
• 21:52
  Speaker 5: is overemphasized in the Senate during the nomination process. They
• 21:56
  Speaker 5: should not emphasize it so much so.
• 21:58
  Speaker 3: You will be always remembered for, among other things, the
• 22:02
  Speaker 3: decision you wrote to legalize gay marriage, yes, and was
• 22:07
  Speaker 3: that a difficult decision for you to come to and
• 22:11
  Speaker 3: have you found any reason why people are upset about
• 22:15
  Speaker 3: that or do you think the court will ever reverse
• 22:17
  Speaker 3: that decision.
• 22:20
  Speaker 5: Of course people were upset about it, and it was
• 22:24
  Speaker 5: a very difficult decision. When we were growing up, the
• 22:31
  Speaker 5: gay movement was something we just didn't know much about
• 22:35
  Speaker 5: or to think much about. With my clerks, we spent
• 22:39
  Speaker 5: days researching the history of marriage, reading the Bible and
• 22:43
  Speaker 5: great works of Jurisprun's in before the Christian era. For me,
• 22:52
  Speaker 5: they important that perhaps deciding factor was the children we
• 22:59
  Speaker 5: were in made us to find that at first it
• 23:02
  Speaker 5: looked like seventy five thousand children were adopted by gay parents,
• 23:07
  Speaker 5: and then it turned out they were in the hundreds
• 23:09
  Speaker 5: of thousands. And these children were in states that did
• 23:16
  Speaker 5: not allow gay marriage. At a disadvantage, if the child
• 23:22
  Speaker 5: was sick, only the adopting parent, not the not the spouse,
• 23:27
  Speaker 5: could come to see the child in the hospital. The
• 23:30
  Speaker 5: kids would would have to say they don't have to
• 23:34
  Speaker 5: have to have two parents. The stigma and the hardship
• 23:37
  Speaker 5: on the children was a very important factor for those
• 23:40
  Speaker 5: of us in the majority.
• 23:41
  Speaker 3: You have been concerned about civility generally in life, and
• 23:46
  Speaker 3: you think civil discourse is an important thing in our country. Increasingly,
• 23:50
  Speaker 3: you seemen our dissenting opinions in the Supreme Court aren't
• 23:54
  Speaker 3: quite as civil as maybe you might prefer, and are
• 23:58
  Speaker 3: is that of concern to you? You're not on the
• 24:00
  Speaker 3: court now, but if you're concerned that sometimes the justices
• 24:02
  Speaker 3: are very uncomplimentary of each other's views.
• 24:08
  Speaker 5: Yes, it's a great concern to me that our civil discourse,
• 24:12
  Speaker 5: our civic discourse, is not civil enough. Aristotle said that
• 24:20
  Speaker 5: a democracy depends on an open debate where you respect
• 24:24
  Speaker 5: the dignity of those with whom you disagree. He said,
• 24:28
  Speaker 5: democracies only live if they are sustained over a period
• 24:33
  Speaker 5: of time by a thoughtful, rational discourse, a discourse in
• 24:38
  Speaker 5: which you respect the dignity of those with whom you disagree.
• 24:44
  Speaker 5: And I don't I think that's a danger in our
• 24:49
  Speaker 5: present day and age. What do they call it political identity?
• 24:53
  Speaker 5: If you're a member of Party X, then we just
• 24:57
  Speaker 5: assume you have all these views and we don't like
• 25:00
  Speaker 5: you where we do like you. Uh this this, this
• 25:03
  Speaker 5: is not uh good for our for our public and
• 25:08
  Speaker 5: for our national discord.
• 25:09
  Speaker 1: That's former Supreme Court Justice Anthony Kennedy in an extended
• 25:13
  Speaker 1: conversation with David Rubinstein. You can hear the full conversation
• 25:17
  Speaker 1: right now. It's episode five of the latest season of
• 25:20
  Speaker 1: The David Rubinstein Show. Peer to Peer Conversations. Head to
• 25:24
  Speaker 1: Bloomberg dot com slash peer, Dash to Dash peer for more.
• 25:30
  Speaker 1: Up next, we'll sample a little more of that conversation
• 25:32
  Speaker 1: with Anthony Kennedy. I'm Nathan Hager in for June Grosso,
• 25:36
  Speaker 1: and you're listening to Bloomberg Law from Bloomberg Radio. You're
• 25:54
  Speaker 1: listening to Bloomberg Law with June Grosso from Bloomberg Radio.
• 25:59
  Speaker 1: I'm Athan Hager in for June Grosso on this edition
• 26:02
  Speaker 1: of Bloomberg Law. June will be back next week. We've
• 26:05
  Speaker 1: been focusing on the Supreme Court and listening in on
• 26:08
  Speaker 1: a special conversation with former Supreme Court Justice Anthony Kennedy
• 26:12
  Speaker 1: from his appearance on The David Rubinstein Show Peer to
• 26:15
  Speaker 1: Peer Conversations. Let's listen to more of Kennedy's conversation with
• 26:18
  Speaker 1: David Rubinstein, recorded live on stage at the ninety second Street.
• 26:22
  Speaker 1: Why in Manhattan, you.
• 26:25
  Speaker 3: Have been concerned about the civility generally in life, and
• 26:29
  Speaker 3: you think civil discourse is an important thing in our country.
• 26:33
  Speaker 3: Increasingly you seem in our dissenting opinions in the Supreme
• 26:36
  Speaker 3: Court or quite as civil as maybe you might prefer,
• 26:40
  Speaker 3: and or of concern to you. You're not on the
• 26:43
  Speaker 3: court now, but is you're concerned that sometimes the justices
• 26:45
  Speaker 3: are very uncomplimentary of each other's views.
• 26:51
  Speaker 5: Yes, it's a great concern to me that our civil discourse,
• 26:55
  Speaker 5: our civic discourse, is not civil enough. Aristotle said that
• 27:03
  Speaker 5: the democracy depends on an open debate where you respect
• 27:08
  Speaker 5: the dignity of those with whom you disagree. He said,
• 27:11
  Speaker 5: democracies only only live if they are sustained over a
• 27:15
  Speaker 5: period of time by a thoughtful, rational discourse, a discourse
• 27:21
  Speaker 5: in which you respect the dignity of those with whom
• 27:24
  Speaker 5: you disagree.
• 27:27
  Speaker 3: And I don't.
• 27:29
  Speaker 5: I think that's a danger in our present day and age.
• 27:34
  Speaker 5: What do they call it political identity? If you're a
• 27:37
  Speaker 5: member of Party X, then we just assume you have
• 27:41
  Speaker 5: all these views and we don't like you, or we
• 27:43
  Speaker 5: do like you.
• 27:45
  Speaker 3: This is not.
• 27:49
  Speaker 5: Good for our for our public, and for our national discord.
• 27:53
  Speaker 5: You were born where Sacramento California.
• 27:56
  Speaker 3: And your father was what a lawyer?
• 27:59
  Speaker 5: My father was a solo practitioner and had an amazing
• 28:04
  Speaker 5: law practice. And your mother, my mother had come to Sacramento,
• 28:08
  Speaker 5: that's how she met him from San Francisco, in order
• 28:10
  Speaker 5: to work for the state government. And she had been
• 28:13
  Speaker 5: she had been a teacher as well.
• 28:15
  Speaker 3: What were your interests as of a boy?
• 28:18
  Speaker 5: We were interested in our family in government. I learned
• 28:21
  Speaker 5: to read at a very early age, reading classic literature
• 28:25
  Speaker 5: when I was eight or nine years old, and so
• 28:30
  Speaker 5: I was a little bored in school, and my parents
• 28:34
  Speaker 5: thought it would be a good idea for me to
• 28:36
  Speaker 5: be a page boy, the only page boy at the
• 28:39
  Speaker 5: state Senate.
• 28:40
  Speaker 3: You must have done pretty well in high school. You
• 28:42
  Speaker 3: got into Stanford. You hardy get into Stanford those days,
• 28:45
  Speaker 3: or not that hard. It was hard to pay for it.
• 28:51
  Speaker 3: Stanford has a good law school. My son went to
• 28:53
  Speaker 3: Stanford Law School. Why wasn't Stanford Law School the one
• 28:56
  Speaker 3: you went to. Why did you just choose to go
• 28:57
  Speaker 3: all the way to the east at Harvard Law School?
• 28:59
  Speaker 3: And had you ever been to the east before?
• 29:01
  Speaker 5: If you had a list of we'll make it up
• 29:05
  Speaker 5: the ten finest law professors in the country. Six or
• 29:12
  Speaker 5: eight of them would have been at Harvard, who's simply amazing.
• 29:14
  Speaker 3: Stanford was also very, very good. But Harvard Law School
• 29:17
  Speaker 3: has a lot of lawyers that come to Wall Street
• 29:19
  Speaker 3: and do something important like practice corporate law on Wall Street.
• 29:23
  Speaker 3: And how come you decided not to do that to
• 29:26
  Speaker 3: go back west.
• 29:27
  Speaker 5: It was important for me to go back home. Plus,
• 29:30
  Speaker 5: my father was not well. It seemed to me important
• 29:33
  Speaker 5: to help the family, and he wanted me to at
• 29:37
  Speaker 5: least begin if I were even if I were practicing
• 29:40
  Speaker 5: in San Francisco with a big firm, He wanted me
• 29:42
  Speaker 5: to know what the structure of the legal profession was.
• 29:46
  Speaker 3: Where did you meet your wife, Mary?
• 29:48
  Speaker 5: Mary was also from Sacramento. Our families knew each other.
• 29:52
  Speaker 5: Mary's younger, and so we didn't date in high school
• 29:56
  Speaker 5: because of the three and a half years is a
• 29:58
  Speaker 5: pretty big thing, but we knew each other.
• 30:02
  Speaker 3: You have three children and nine grandchildren, nine, so you
• 30:05
  Speaker 3: liked the number nine. Like on the court, right. The
• 30:08
  Speaker 3: downside of being on the court is you can't talk
• 30:11
  Speaker 3: to your wife ever about what you're doing.
• 30:13
  Speaker 5: No, Mary would never know what I was working on,
• 30:18
  Speaker 5: what the case was, whether I was writing a majority
• 30:21
  Speaker 5: of the sense. She didn't even know what the case
• 30:22
  Speaker 5: was and she'd read about it in the newspaper. Said, oh,
• 30:25
  Speaker 5: you decided that. I said, well, yes, So.
• 30:29
  Speaker 3: You're practicing in Sacramento. And then somebody gets elected governor
• 30:34
  Speaker 3: of California and he asked for some advice. And that
• 30:37
  Speaker 3: person's name was Ronald Reagan. So you got to know
• 30:40
  Speaker 3: Ronald Reagan.
• 30:42
  Speaker 5: Yes, we first met before he was running for governor
• 30:48
  Speaker 5: at some event and Sansaco. Reagan had some friends who
• 30:53
  Speaker 5: were mutual friends, and we began to talk and I said,
• 30:57
  Speaker 5: there's a few things you should never ask me. I said,
• 31:00
  Speaker 5: one is about politics. I said, I know about it
• 31:04
  Speaker 5: the way most people know about it, but so far
• 31:07
  Speaker 5: as all the insider things that you have. And he
• 31:10
  Speaker 5: had one of the best political teams ever. A sampled
• 31:12
  Speaker 5: that he didn't need any advice from me. So I said,
• 31:15
  Speaker 5: don't ask me about politics. I said, second, don't ever
• 31:18
  Speaker 5: ask me who should be appointed a judge. And he said, oh,
• 31:22
  Speaker 5: that's where you can really help. And I said, well,
• 31:28
  Speaker 5: maybe so, and maybe no, but if you get as
• 31:31
  Speaker 5: a lawyer, and I had small cases, but I would
• 31:34
  Speaker 5: go in the counties around around Sacramento to appear in court,
• 31:40
  Speaker 5: and if you get the reputation as a judge maker
• 31:42
  Speaker 5: or a judge breaker, it's not good that judge is
• 31:45
  Speaker 5: going to either lean over towards you or lean maybe
• 31:49
  Speaker 5: against you to show that he's there.
• 31:51
  Speaker 3: And so I just didn't want that.
• 31:52
  Speaker 5: So I said, don't ever ask me who should be
• 31:54
  Speaker 5: appointed to judge.
• 31:55
  Speaker 3: Did you ever show him your Reagan imitation?
• 32:00
  Speaker 5: No, I don't think so.
• 32:05
  Speaker 3: So.
• 32:07
  Speaker 5: But he had a wonderful sense of humor, and he
• 32:12
  Speaker 5: asked me he wanted to have a state California ballot
• 32:19
  Speaker 5: and a proposal which would cut governments spending. And so
• 32:28
  Speaker 5: he asked me to draft the amendment. And I said,
• 32:32
  Speaker 5: I don't know about budgets or bonds or special appropriations.
• 32:37
  Speaker 5: Fun He said, oh, this is an this is an
• 32:42
  Speaker 5: amendment to the constitution, and you teach constitutional law. I said, no, no, no,
• 32:49
  Speaker 5: that the constitutional I teach has nothing to do with
• 32:51
  Speaker 5: what you're talking about. That you mean you can't write
• 32:54
  Speaker 5: something that we're spending too much money.
• 32:57
  Speaker 3: I don't know.
• 32:59
  Speaker 5: So, as it turned out, I told him that if
• 33:04
  Speaker 5: he could. There were two or three very brilliant people
• 33:08
  Speaker 5: that were acquaintances of mine. Pretty soon Reagan got up
• 33:11
  Speaker 5: and talking. He could absorb a briefing David better than
• 33:14
  Speaker 5: any client I ever had.
• 33:16
  Speaker 3: He later called you and said Gerald Ford asked him
• 33:19
  Speaker 3: for a recommendation to be on the Ninth Circuit Court
• 33:22
  Speaker 3: of Appeals, and he recommended you. Although you were only
• 33:24
  Speaker 3: thirty eight years old. You were confirmed easily. And then
• 33:28
  Speaker 3: a couple of years later, Reagan is President of the
• 33:31
  Speaker 3: United States. Did you ever think he would be president
• 33:34
  Speaker 3: United States?
• 33:34
  Speaker 5: When you first met him, when his name started to service,
• 33:39
  Speaker 5: I thought, you know, there is a possibility here.
• 33:42
  Speaker 3: All right. So he gets to be president United States.
• 33:44
  Speaker 3: He has a vacancy on the Supreme Court, and he
• 33:49
  Speaker 3: calls you to be considered for it, and you come
• 33:51
  Speaker 3: in for the interview. Yes, he nominates you, and you
• 33:55
  Speaker 3: get confirmed by ninety seventh to nothing. Yes, the last
• 33:59
  Speaker 3: justice to be confirm unanimously. So okay, so we get
• 34:07
  Speaker 3: on the court. This is I think the only time
• 34:09
  Speaker 3: in the Supreme Court history where you had the same
• 34:12
  Speaker 3: nine justices for eleven years. You know, you work together
• 34:15
  Speaker 3: with these same people for eleven years. Did you get
• 34:18
  Speaker 3: tired of seeing them every day? Or not? Really? Just
• 34:21
  Speaker 3: the opposite.
• 34:22
  Speaker 5: Uh, it would be Uh. We were together so long
• 34:26
  Speaker 5: you knew what I knew, that you knew what I
• 34:28
  Speaker 5: knew you were going to say, and we could more
• 34:30
  Speaker 5: or less begin from begin from there, and uh, we
• 34:34
  Speaker 5: knew sometimes we wanted to really work hard to convince
• 34:37
  Speaker 5: each other, which we sometimes did in conference. You didn't
• 34:40
  Speaker 5: always go into conference knowing exactly how the case should
• 34:45
  Speaker 5: come out.
• 34:46
  Speaker 3: What would you like people to know about the court?
• 34:48
  Speaker 3: And you know they might get by reading your book
• 34:51
  Speaker 3: that they might not already.
• 34:52
  Speaker 5: Know, that they should know more precisely how collegial it
• 34:57
  Speaker 5: really is. Uh. We we know that if you and
• 35:02
  Speaker 5: I are a justice together, we know we would disagree.
• 35:06
  Speaker 5: We're supposed to disagree, that's our job, but the question
• 35:09
  Speaker 5: is how we disagree. The interaction on the court is
• 35:16
  Speaker 5: much more fascinating than most people know. You hear things
• 35:21
  Speaker 5: that you had not thought of before, and you see
• 35:26
  Speaker 5: new possibilities for the law, because after you decide something,
• 35:29
  Speaker 5: there's a whole new realm for which to explore the future.
• 35:34
  Speaker 5: It was my privilege to serve with seventeen different justices.
• 35:37
  Speaker 3: Your book is called Life, Law and Liberty, and I
• 35:42
  Speaker 3: enjoyed reading it certainly, But I want to ask you
• 35:44
  Speaker 3: a final question, I stayed a week. That's good. It
• 35:48
  Speaker 3: is had by some that if you see the word
• 35:51
  Speaker 3: liberty in an opinion, you know it's written by Justice Kennedy.
• 35:55
  Speaker 3: Why is liberty such an important thing to you?
• 36:00
  Speaker 5: When the authors of the Constitution sat down for a
• 36:05
  Speaker 5: period of what three months in Philadelphia, if they had
• 36:11
  Speaker 5: known all of the details of what freedom means, they
• 36:16
  Speaker 5: would have put it down. But they were thoughtful enough
• 36:20
  Speaker 5: to know that the components of freedom, the components of liberty,
• 36:26
  Speaker 5: are something we must learn over time. So they use
• 36:28
  Speaker 5: spacious word like life, liberty, and property. Incident lawyers even
• 36:36
  Speaker 5: sometimes think of this. We think of life, liberty, and happiness.
• 36:39
  Speaker 5: That's the Declaration of Independence. The Constitution talks about life, liberty,
• 36:43
  Speaker 5: and property. Why doesn't the Constitution talk about happiness? Because
• 36:48
  Speaker 5: that's judicially unenforceable, although although perhaps some judges would be
• 36:53
  Speaker 5: ready to try.
• 36:55
  Speaker 3: And you always carry a copy of the Constitution with
• 36:58
  Speaker 3: you everywhere you go, well, usually.
• 37:02
  Speaker 5: I do, because it's interesting. This is both the Constitution
• 37:08
  Speaker 5: and the Declaration of Independence. If you read the Constitution
• 37:12
  Speaker 5: of the United States, sit down cover to cover, it'll
• 37:15
  Speaker 5: take you about two and a half hours, and you'll
• 37:16
  Speaker 5: fall asleep a part of it. The preamble, the preface
• 37:20
  Speaker 5: is simply beautiful. But the Constitution, it's fascinating. That has
• 37:29
  Speaker 5: lasted for We have the two hundred and fiftieth anniversary
• 37:34
  Speaker 5: of the Declaration of Independence next year, and we're going
• 37:40
  Speaker 5: to have a time capsule that people will open two
• 37:43
  Speaker 5: hundred and fifty years from now. If we put the
• 37:45
  Speaker 5: Constitution of the United States in the time castle two
• 37:50
  Speaker 5: hundred and fifty years from now, will it still be known?
• 37:54
  Speaker 5: Will it still be respected? Will it still be the
• 37:57
  Speaker 5: way in which our nation defines ourselves It has been
• 38:00
  Speaker 5: for the last two hundred and fifty years.
• 38:01
  Speaker 1: That's retired Supreme Court Justice Anthony Kennedy speaking with David
• 38:05
  Speaker 1: Rubinstein in a special conversation recorded live in October. You
• 38:09
  Speaker 1: can check out their full conversation now on a recent
• 38:12
  Speaker 1: episode of The David Rubinstein Show. Peer to Peer Conversations.
• 38:16
  Speaker 1: Head over to Bloomberg dot com slash peer dash two
• 38:19
  Speaker 1: dash peer to learn more. And that does it for
• 38:22
  Speaker 1: this edition of Bloomberg Law. I'm Nathan Hager. June Grosso
• 38:26
  Speaker 1: will be back next weekend. Thanks for listening, and happy holidays.
• 38:30
  Speaker 3: Stay with us.
• 38:30
  Speaker 1: Today's top stories and global business headlines are coming up
• 38:34
  Speaker 1: right now,