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Justice Anthony Kennedy served on the Supreme Court for 30 years before he stepped down in 2018. Now he's written a memoir about his life on and off the high court. Yesterday, on All Things Considered, NPR legal affairs correspondent Nina Totenberg talked to Kennedy about his opinions on gay rights and same-sex marriage. This morning, we hear more of his thoughts on abortion, capital punishment cases and changing his mind. Here's Nina.
NINA TOTENBERG, BYLINE: By the time Kennedy joined the court in 1988, abortion was a well-established right. But in 1992, the court had become more conservative. And the state of Pennsylvania, backed by the George H. W. Bush administration, asked the court to reverse Roe versus Wade, the 1973 decision that had legalized abortion. Kennedy, a devout and mass-attending Catholic, then as now viewed abortion as morally wrong.
ANTHONY KENNEDY: The idea of abortion was quite shocking to me.
TOTENBERG: As he writes in the book, another life is involved, one that cannot speak for itself. For many of us, the unborn child cries out from the womb - cries out with a soulful voice, let me live. At the same time, though, Kennedy writes that a judge should not allow his own personal views to control his legal decisions.
KENNEDY: It is important for you to try to set aside your own values, your own beliefs and determine what the Constitution should and does mean.
TOTENBERG: For him, that meant also weighing the interests of the woman to her liberty.
KENNEDY: It seemed to me that the woman's position was very important. She has liberty, and sometimes you have liberty to do the thing that many people disagree with.
TOTENBERG: Seeking answers, Kennedy did an enormous amount of research. At one point, he says, the conflict between personal and constitutional values was so intense that he briefly considered resigning. Indeed, the papers of the late Justice Harry Blackmun indicate that Kennedy at first leaned towards reversing Roe, but changed his mind. Ultimately, it was his concept of liberty that prevailed. As he writes in the book, the Constitution protects a realm of personal liberty which the government may not enter. And the mother's choice to bear or not bear a child is the most personal known to our law, he said. Ironically, it was his retirement two decades later that would open the door to the court reversing Roe in 2022 and letting states ban abortions.
In our interview, I reminded him that shortly after he stepped down from the court, he told a small group of reporters that he was confident the court's major precedents would remain intact. But when I asked him in our interview if he still thinks that's true, he demurred, deftly changing the subject. Abortion wasn't the only case in which Kennedy changed his mind. In 1989, he provided the critical fifth vote to allow juveniles to be sentenced to death. But in his book, he says, quote, "I was simply wrong."
KENNEDY: To have the United States being the only major country in the world that allowed execution for minors seemed to me evidence that we were missing something.
TOTENBERG: In 2005, he voted the other way, resulting in a nationwide ban on the death penalty for crimes committed by minors. He acknowledges that in both cases, the murders were gruesome. But by 2005, most states had outlawed the death penalty for juveniles. And only a handful of foreign countries, among them China, Iran, North Korea and Saudi Arabia, allowed it. Then, too, there had been new research about how the brain works in juveniles, showing a marked lack of impulse control.
KENNEDY: The urge to act without thinking is much more prevalent in minors than in - than adults.
TOTENBERG: All of that caused Kennedy to reexamine his views. As he writes, these cases illustrate the importance of the continued self-reflection required for a judge. Not everything in Kennedy's book is serious. There are some hilarious moments, too. My personal favorite is the red emergency phone in his chambers that never rang - until it did. Somehow, a state prisoner in Ohio had gotten hold of the phone number and was calling to tell Kennedy what he thought of a recent opinion. Having gotten hold of the justice once, he called again.
KENNEDY: So I had the prisoner on the red phone telling me how well I was doing or how poorly I was doing. And the police heard about it. They immediately wanted to change it. And I said, well, no, leave it.
(LAUGHTER)
TOTENBERG: Kennedy says he sort of liked the occasional call from the prisoner. The book is "Life, Law & Liberty."
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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