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Supreme Court Justice Anthony Kennedy stepped down from the court in 2018. He's now written a book about his life on the court and off. Kennedy is perhaps best known for his same-sex marriage opinion. NPR legal affairs correspondent Nina Totenberg reports that the memoir is way more revealing than most books written by justices.
NINA TOTENBERG, BYLINE: I sat down with Justice Kennedy in his chambers during a week in which TV comic Jimmy Kimmel was suspended, and President Trump fired his handpicked prosecutor for failing to indict former FBI director, James Comey. So I asked the justice what his thoughts were about the current turmoil. While he didn't want to get into what he called political fights, his comments were pointed.
ANTHONY KENNEDY: My concern is that we live in an era where reasoned, thoughtful, rational, respectful discourse has been replaced by antagonistic confrontational conversation. I'm very worried about it. Democracy is not guaranteed to survive.
TOTENBERG: And he's also worried about the growth of extreme partisanship in all branches of government, even the court.
KENNEDY: My concern is, is that the court in its own opinions, in the way we talk about those who disagree with us, has to be asked to moderate and become much more respectful.
TOTENBERG: Though Kennedy, a Reagan appointee, voted most often with the court's conservatives in his 30 years on the court, he was frequently the so-called swing justice whose vote was determinative in controversial cases ranging from free speech and religion to same-sex marriage and abortion. His book reveals more than usual about the personalities on the court and his own internal conflicts. Starting in 1996, Kennedy wrote every major decision about gay rights, culminating in 2015, when he wrote the court's majority opinion declaring that same-sex couples must be allowed to marry everywhere in the country. Here he is reading an excerpt from that opinion.
KENNEDY: (Reading) No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. As some of the petitioners in these cases demonstrate, their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
TOTENBERG: In our conversation, Kennedy said that one of the most persuasive things for him in the case was that there were so many children who'd been adopted by gay parents. But because the law didn't recognize gay marriage, only one person could be the designated legal parent, leaving the other parent unable to sign school papers, make medical decisions or sometimes even visit a child in the hospital.
KENNEDY: This was terribly demeaning to the children. How many children? There were hundreds of thousands of children of gay parents. This was eye-opening for me, and it was very important.
TOTENBERG: Kennedy's decision in the same-sex marriage case and his decision upholding a woman's right to have an abortion are Exhibits A and B of his opposition to originalism, the doctrine that now dominates the Supreme Court. Six members of the current court, including two of his former law clerks, have largely embraced the idea that the Constitution should be interpreted by following its words as understood at the time it was ratified.
In contrast, Kennedy says, liberty must be understood over time and that interpreting the Constitution is not a matter of looking at dictionaries from the 1700s to figure out what the Founding Fathers meant. The men who wrote the Constitution, he says, were cautious enough and modest enough that they intentionally chose capacious terms that would inspire and protect freedom, or as he put it in his same-sex marriage opinion...
KENNEDY: The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all of its dimensions. And so they entrusted to future generations, a charter protecting the right of all persons to enjoy liberty as we learn its meaning.
TOTENBERG: That is a view that originalists fiercely dispute, at least some of the time. And it was never more apparent than in the same-sex marriage cases, which caused a rupture in Kennedy's relationship with the court's most prominent originalist, Justice Antonin Scalia. The break came over Scalia's dissenting opinion in which he wrote that if he ever were to join an opinion like Kennedy's, quote, "I would hide my head in a bag."
Kennedy says that while he was able to shrug off Scalia's dissent, his children and their spouses were devastated by its tone. Indeed, Kennedy says that Scalia, known to all as Nino, seemed to become more isolated at that time, rarely coming to lunch with his colleagues, and he no longer stopped by Kennedy's chambers to chat or debate a point. Months went by, and then one day in February of 2016, Scalia walked down the long corridor of the court to Kennedy's chambers. Once there, he got to the point.
KENNEDY: He said, the language used in my dissent was intemperate and wrong, and I want to apologize. And I said, nothing is more important to me than our own friendship. And we weren't hugging people, but we gave each other a hug. And I said, Nino, now, you've been traveling a lot. You should take better care of yourself. And he said, Tony, he said, this is my last long trip. And that was his final words to me.
TOTENBERG: About a week later, Scalia died in his sleep while on that trip to Texas. As Kennedy writes in his book, if friendships are slipping away, we must renew them soon, lest times not permit us to celebrate them for long. Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF TRENT REZNOR AND ATTICUS ROSS' "IN MOTION") Transcript provided by NPR, Copyright NPR.
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