# Supreme Court Special: Previewing 2026 & A Conversation With Anthony Kennedy

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 26 Dec 2025, 39 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/04fdcd4c-8a75-48bd-9653-b3bf0180a215/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

On this special edition of Bloomberg Law, guest host Nathan Hager speaks with Harold Krent, professor of law at the Chicago-Kent School of Law to preview some of the high profile cases before the Supreme Court in the New Year. Plus, we hear an extended conversation with former Supreme Court justice Anthony Kennedy. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: Bloomberg Audio Studios, podcasts, radio news.
[0:08] Speaker 2: This is Bloomberg Law employer to frequently exploit the weaknesses
[0:12] Speaker 2: in the law.
[0:12] Speaker 3: Courts are going to be asking questions about separation of powers.
[0:15] Speaker 3: One by one, Google settled with all of these other
[0:18] Speaker 3: plaintiffsy interviews.
[0:19] Speaker 1: With prominent attorneys and Bloomberg Legal experts. Joining me is
[0:22] Speaker 1: immigration law expertly on Fresco, First Amendment law expert Caroline
[0:27] Speaker 1: Malick Corbin, and analysis of important legal issues, cases and headlines.
[0:31] Speaker 3: The trial judge may well want to hold a hearing.
[0:34] Speaker 3: They have never said this case should never have been
[0:36] Speaker 3: brought in the first place.
[0:38] Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio. Welcome to
[0:46] Speaker 1: the Bloomberg Law Show. I'm Nathan Hager filling in for
[0:49] Speaker 1: June Grosso on the show. Today we focus on the
[0:52] Speaker 1: Supreme Court. We'll hear a portion of a special conversation
[0:55] Speaker 1: with retired Supreme Court Justice Anthony Kennedy. He sat down
[0:59] Speaker 1: with David Rubinstein earlier this year at the ninety second
[1:02] Speaker 1: Street Y in Manhattan to discuss his three decades on
[1:05] Speaker 1: the bench some of his landmark opinions. Man More that's
[1:09] Speaker 1: on the way on the Bloomberg Law Show as we
[1:11] Speaker 1: focus on the Supreme Court. But before we hear from
[1:13] Speaker 1: a member of the court's past, let's spend some time
[1:16] Speaker 1: on some of the major cases that are expected to
[1:18] Speaker 1: face the High Court in the new year. Joining me
[1:21] Speaker 1: for a look at what to expect from the Supreme
[1:23] Speaker 1: Court in twenty twenty six is Harold Krent. He's professor
[1:26] Speaker 1: of law at the Chicago Kent College of Law. Harold,
[1:29] Speaker 1: thanks for being with us.
[1:30] Speaker 3: My pleasure.
[1:31] Speaker 4: And there's certainly some showstoppers on terms of cases coming
[1:36] Speaker 4: up in the next couple of months.
[1:37] Speaker 1: No kidding. And I think probably the one case that
[1:40] Speaker 1: Wall Street is certainly waiting for a decision on is
[1:44] Speaker 1: one that the High Court already heard about. Of course,
[1:46] Speaker 1: that's on President Trump's emergency tariffs. Should we be expecting
[1:51] Speaker 1: a decision on that in the next few weeks do
[1:53] Speaker 1: you think?
[1:53] Speaker 4: I don't think it'd be next few weeks. I think
[1:55] Speaker 4: it'd be later in the term. But certainly that's critical.
[1:58] Speaker 4: But the other critical case for Austreet has to do
[2:00] Speaker 4: with the discharge of a member of the Fed Reserve Board,
[2:04] Speaker 4: Lisa Cook. And even in the argument that was just
[2:09] Speaker 4: you had a couple of weeks ago, the members of
[2:12] Speaker 4: the Court suggested that they might deviate from President Trump
[2:16] Speaker 4: and say that even though he has the ability to
[2:19] Speaker 4: fire heads of independent agencies, he can't fire the head
[2:23] Speaker 4: or one of the members of the FED. So that
[2:26] Speaker 4: still be a great interest to Wall Street as well.
[2:29] Speaker 1: Certainly, let's talk a little bit more about what we
[2:33] Speaker 1: learned from those arguments around the possibility of firing independent
[2:40] Speaker 1: agency heads. Do we get some clues there about how
[2:44] Speaker 1: the justices could respond to the arguments that are coming
[2:49] Speaker 1: up in the FED governor Cook case in the next
[2:51] Speaker 1: couple of weeks.
[2:52] Speaker 3: Yeah.
[2:52] Speaker 4: Again, two members of the Court, Chief Justice Roberts as
[2:56] Speaker 4: well as Justice Kevanaugh, suggested that they had some kind
[3:01] Speaker 4: of reticence about following the logic of the argument from
[3:05] Speaker 4: the FTC case the Federal Trade Commission case and to
[3:08] Speaker 4: apply it to the FED. And I'm not sure that
[3:13] Speaker 4: it's a coherent distinction, but it's one that the Court
[3:16] Speaker 4: is exploring, and I think there may be a majority
[3:19] Speaker 4: to say that the Fed, because it has some private members,
[3:22] Speaker 4: because of its special role in history, might be segregated.
[3:26] Speaker 4: I mean, the interesting thing is what else will be
[3:30] Speaker 4: segregated from the sweeping ban or sweeping permission for the
[3:36] Speaker 4: president to fire at will all members of independent agencies,
[3:40] Speaker 4: maybe judicative agencies such as the Mayor Assistant Protection Board.
[3:46] Speaker 4: We don't know, but it looks like the FED will
[3:48] Speaker 4: be one of the exceptions. At the court world here too.
[3:51] Speaker 1: Are you thinking that we're going to hear arguments around
[3:54] Speaker 1: the merits of the case, the argument that President Trump
[3:57] Speaker 1: and his administration is putting forward here these allegations of
[4:02] Speaker 1: mortgage fraud that they've been using to say that the
[4:04] Speaker 1: President does have cause to fire Governor Cook.
[4:09] Speaker 4: I think they will probably not talk in detail about
[4:12] Speaker 4: the mortgage fraud issue, but they will talk about whether
[4:14] Speaker 4: or not the president needs cause to fire the Cook
[4:21] Speaker 4: Lisa Cook. I don't think they'll get into the question
[4:24] Speaker 4: about what constitutions caused, but I could be wrong. Certainly,
[4:28] Speaker 4: There's been a lot of people who have been investigated
[4:30] Speaker 4: by the Trouble administration who have similar issues, and they
[4:33] Speaker 4: seem to be pretty thin when you push on them.
[4:36] Speaker 4: But I don't think they're going to get into that
[4:38] Speaker 4: particular issue of what constitutes caused for discharge. If they
[4:42] Speaker 4: say that you need cause, I think that will be
[4:45] Speaker 4: enough of a statement from the court.
[4:47] Speaker 1: Walk us through some of the arguments that we could
[4:49] Speaker 1: hear when it comes to the idea of for cause
[4:54] Speaker 1: rationale to fire a FED official. Do you think we're
[4:59] Speaker 1: going to get a your definition from this case about
[5:02] Speaker 1: the bar that's set for the FED when it comes
[5:05] Speaker 1: to cause for firing.
[5:07] Speaker 3: Yeah.
[5:07] Speaker 4: And you know, the Court has been incredibly vague about
[5:10] Speaker 4: what constitutes cause or neglective duties in all these cases,
[5:15] Speaker 4: so it's never really given a really good blueprint about
[5:18] Speaker 4: what kind of reasons president must articulate before they can
[5:23] Speaker 4: discharge someone who's protected from discharge except for cause. You
[5:28] Speaker 4: know that has been adjudicated a lot in employee cases,
[5:31] Speaker 4: so we know cause means some kind of wrongful conduct
[5:35] Speaker 4: on the jobs. We don't know if in this case
[5:37] Speaker 4: with Lisa Cook, this was something that happened way before
[5:42] Speaker 4: she was a director of the FED. I think the
[5:47] Speaker 4: fact that it has happened before probably still could be
[5:50] Speaker 4: give reason to cause. I mean, you can think about
[5:52] Speaker 4: someone who's committed a serious crime before they're appointed and
[5:56] Speaker 4: only comes to light afterwards. But the court has not
[5:59] Speaker 4: articulated what caused us means. And I don't think this
[6:02] Speaker 4: will be a vehicle that will see it in terms
[6:04] Speaker 4: of the timing of the nature of the misconduct, how
[6:07] Speaker 4: serious the misconduct must be, how tied it is to
[6:11] Speaker 4: their ability to function the job. These are all the
[6:14] Speaker 4: questions of what cause might constitute. But I think we're
[6:17] Speaker 4: going to have to wait another day before we get
[6:19] Speaker 4: a court ruling on that issue.
[6:22] Speaker 1: And how important is this case when it comes to
[6:25] Speaker 1: preservation of federal reserve independence? Are we going to get
[6:29] Speaker 1: a really clear idea around that.
[6:31] Speaker 4: I think we will, And my guess is again, there'll
[6:34] Speaker 4: be a carve out for the FED, and it won't
[6:37] Speaker 4: necessarily be coherent, but it's something I think that the
[6:41] Speaker 4: court wants to take a position on. And you know,
[6:44] Speaker 4: the interesting issue is whether they'll give some kind of
[6:48] Speaker 4: hint about whether there are other carve outs or whether
[6:52] Speaker 4: this general rule, the fact that Congress cannot protect any
[6:56] Speaker 4: kind of agency from the president's plnary mooval authority, whether
[7:00] Speaker 4: that will be the you know, biding governing rule with
[7:06] Speaker 4: only the FED as a possible exception.
[7:09] Speaker 1: We're speaking with Harold Krant, a professor of constitutional law
[7:12] Speaker 1: at the Chicago Kent College of Law. Harold, let's talk
[7:16] Speaker 1: about some of the other cases coming before the High
[7:19] Speaker 1: Court in the next month. Here, we're expecting arguments around
[7:22] Speaker 1: the president's efforts to roll back birthright citizenship. This is
[7:26] Speaker 1: an issue that's come before the Court on a legal question,
[7:29] Speaker 1: but I think this is the first time that the
[7:31] Speaker 1: justices are actually going to be weighing in on the
[7:34] Speaker 1: order itself.
[7:34] Speaker 3: Is that right? Yeah?
[7:35] Speaker 2: I mean the Court dealt with birthright citizenship, you know,
[7:39] Speaker 2: almost hundred years ago or so in the wonkim Our case,
[7:44] Speaker 2: holding that someone who was born not a citizen, born
[7:48] Speaker 2: in this country could basically obtain birthright citizenship.
[7:53] Speaker 4: I don't think the Court's going to deviate from that
[7:55] Speaker 4: in this case. I think it will deal with Trump
[7:57] Speaker 4: administration a blow. All the lower courts have gone against
[8:02] Speaker 4: President Trump on this issue, so I would predict and
[8:05] Speaker 4: think it's quite compelling for the Court to hold that
[8:10] Speaker 4: the executive order redefining citizenship is inconsistent with the words
[8:16] Speaker 4: of the Fourteenth Amendment.
[8:17] Speaker 1: Well, what's the Trump administration's rationale it's reading on the
[8:21] Speaker 1: fourteenth Amendment? What are the arguments against it?
[8:24] Speaker 4: What Fourteenth Amendment reads, in perminent part that all persons
[8:27] Speaker 4: born or naturalizing the United States and subject to the
[8:30] Speaker 4: jurisdiction the Robert citizens It seems plain. It seems to
[8:33] Speaker 4: cover anybody who's in the United States and who was
[8:37] Speaker 4: born there. What the Trump has redefined it to say
[8:41] Speaker 4: that they need to be subject to the lawful jurisdiction
[8:44] Speaker 4: of the United States somewhere, to put lawful in front
[8:47] Speaker 4: of jurisdiction, to suggest that people who are here illegally
[8:50] Speaker 4: cannot get the benefit of this citizenship clause. I mean,
[8:54] Speaker 4: that is a plausible argument if it had been written
[8:58] Speaker 4: in the Fourteenth Amendment and if it had been interpreted
[9:01] Speaker 4: that way in the past. But the Trump administration is
[9:04] Speaker 4: going against history as well as the plain language of
[9:07] Speaker 4: the Fourteenth Amendment in making its argument.
[9:10] Speaker 1: Now, this isn't the only immigration related case. If you
[9:13] Speaker 1: want to argue that birthright citizenship is part of the
[9:15] Speaker 1: immigration issue that the High Court is going to consider
[9:20] Speaker 1: in this term. We're also awaiting arguments on the Trump
[9:23] Speaker 1: administration's practice known as asylum metering. Walk us through this.
[9:28] Speaker 4: How yeah, it actually comes from the first Trump administration
[9:33] Speaker 4: where there was a Russia at the border, and under
[9:36] Speaker 4: the immigration laws, everybody who is at our border can
[9:40] Speaker 4: apply for asylum and then they're guaranteed some kind of hearing,
[9:44] Speaker 4: which unfortunately usually takes several years before it materializes and
[9:48] Speaker 4: people are waiting around for that hearing. So to neutralize
[9:52] Speaker 4: that on the first Trump administration undertook this metering policy
[9:56] Speaker 4: which said that if there was too many people at
[9:58] Speaker 4: the border, they simply can apply for asylum.
[10:02] Speaker 3: And then the.
[10:03] Speaker 4: Question is whether that rule is consistent with Congress's statute,
[10:07] Speaker 4: which says anybody in the United States can apply for asylum.
[10:11] Speaker 4: And the argument there is, if you're two feet away
[10:14] Speaker 4: from the border and you're being held back by agents
[10:19] Speaker 4: of the immigration agents, are you therefore not in the
[10:23] Speaker 4: United States and therefore cannot apply for asylum? And the
[10:27] Speaker 4: lower courts have struck down this policy, but I think
[10:31] Speaker 4: it's an open question. I think the Trump administration might
[10:34] Speaker 4: win on the narrow ground that if you're two feet
[10:37] Speaker 4: away from the border, you're two feet away from the border,
[10:40] Speaker 4: and immigration agents can apply force to prevent somebody from
[10:45] Speaker 4: applying for asylum. That's just a guess, but I think
[10:48] Speaker 4: The's got much Trump administrations a much better chance of
[10:51] Speaker 4: succeeding on this than on birthright citizenship.
[10:54] Speaker 1: Interesting we're also awaiting some arguments on a major case
[10:58] Speaker 1: when it comes to mail in ballots. Walk us through
[11:02] Speaker 1: what the court's going to be considering here.
[11:04] Speaker 4: I'm just sort of astonished by this case. We obviously
[11:07] Speaker 4: have had the question of mail in ballots throughout you know,
[11:12] Speaker 4: most of our history as a country. And you know
[11:15] Speaker 4: that for a mail in ballot, whether it's from overseas
[11:18] Speaker 4: or from even the states, they may not arrive in
[11:21] Speaker 4: time for election day because you can't know when election
[11:27] Speaker 4: day will. I mean, you can't know when the mail
[11:30] Speaker 4: is going to arrive. So the claim here is that
[11:35] Speaker 4: when I was set a particular election day, that it
[11:40] Speaker 4: means that all votes must be in on that day
[11:43] Speaker 4: to be counted, so we as a one country can
[11:46] Speaker 4: know what the result is on that particular day. And
[11:49] Speaker 4: so that the you know, fifteen states that have mail
[11:53] Speaker 4: in ballots and the twenty nine states or so that
[11:56] Speaker 4: have military mail in ballots, they have to cut off
[12:00] Speaker 4: counting the ballots berneyballot that comes after election day. This
[12:04] Speaker 4: is going against history, is to going against sort of
[12:09] Speaker 4: practical understanding, but it will have a major impact in
[12:13] Speaker 4: the future upon the role of mail in ballots in
[12:17] Speaker 4: our elections. And if the court holds the Congress's desigh
[12:23] Speaker 4: National Election Day precludes mail in ballots, then abs into
[12:27] Speaker 4: congressional amendment. The whole notion of mail in ballots from
[12:32] Speaker 4: overseas or from the States will have to be altered significantly,
[12:37] Speaker 4: and I'm not sure that that's going to be the
[12:38] Speaker 4: best for our country.
[12:40] Speaker 1: Thanks for walking us through what's going to be a
[12:42] Speaker 1: very busy second half of the Supreme Court term heading
[12:45] Speaker 1: into twenty twenty six. That's Harold Krentz, professor of law
[12:49] Speaker 1: at the Chicago Kent College of Law. Up next, we
[12:52] Speaker 1: hear a special conversation with retired Supreme Court Justice Anthony Kennedy.
[12:57] Speaker 1: You're listening to Bloomberg Law. I'm Nathan Hager for June Grosso,
[13:01] Speaker 1: and this is Bloomberg. This is Bloomberg Law with June
[13:11] Speaker 1: Grosso from Bloomberg Radio. Thanks for listening to the Bloomberg
[13:16] Speaker 1: Law Show. I'm Nathan Hager in for June Grosso. Today's
[13:20] Speaker 1: show is focused on the Supreme Court. Earlier this year,
[13:23] Speaker 1: David Rubinstein got a chance to sit down with someone
[13:26] Speaker 1: with decades of experience on the bench, retired Justice Anthony Kennedy.
[13:30] Speaker 1: The two spoke at the ninety second Street Why in
[13:33] Speaker 1: Manhattan for an extended conversation that covered everything from some
[13:37] Speaker 1: of Kennedy's landmark decisions to his thoughts on the rule
[13:40] Speaker 1: of law. Let's listen to a portion of that conversation now,
[13:44] Speaker 1: Starting with Kennedy's decision to write his memoir Life, Law
[13:48] Speaker 1: and Liberty.
[13:50] Speaker 5: I wanted to write about a Sacramento, a small town
[13:54] Speaker 5: in the thirties, forties, fifties, sixties. My children grew up
[14:00] Speaker 5: in Sacramento, but they didn't know about those earlier decades,
[14:04] Speaker 5: and my grandchildren didn't know Sacramento at all. So it
[14:07] Speaker 5: seemed to me interesting to me to write about that
[14:16] Speaker 5: time in our culture, were our generation was right after
[14:19] Speaker 5: the Great generation. Right in the small town, there was
[14:24] Speaker 5: a courtesy, there was a professionalism that were simply wonderful.
[14:28] Speaker 5: I wanted to write about that Supreme Court. For the
[14:30] Speaker 5: first thing many people do is they forget about the
[14:33] Speaker 5: sycono part. They want to read about about the recent cases,
[14:37] Speaker 5: so they look. But we wanted to have this for
[14:42] Speaker 5: our children and our grandchildren to read. And then as
[14:45] Speaker 5: the writing went on, it seemed to me that people
[14:48] Speaker 5: were saying that it might be of interest to others, as.
[14:50] Speaker 3: Those people that have not been a justice of the
[14:52] Speaker 3: Supreme Court and you were on the court for thirty years.
[14:56] Speaker 3: What's the greatest thrill about being on the court and
[14:59] Speaker 3: what's the biggest downside of being on the court.
[15:01] Speaker 5: The biggest thrill is that you have only cases in
[15:07] Speaker 5: which the law has been undecided, and you recognize that
[15:14] Speaker 5: what you're doing is exploring the law. And you know
[15:19] Speaker 5: that after you write what the law is or what
[15:23] Speaker 5: do you think it is, there's a whole new vista,
[15:28] Speaker 5: a whole new realm to explore. And that's the fascinating
[15:32] 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
[15:40] Speaker 5: to take every case and they have a fifty thousand
[15:42] Speaker 5: case backlog or something. But we select only the cases
[15:47] Speaker 5: in which other courts have disagreed. And so that's the
[15:50] Speaker 5: fascinating part, is that you are on the frontier of
[15:56] Speaker 5: the law and what you write is the beginning of
[15:59] Speaker 5: a frontier because there's new things to explore.
[16:01] Speaker 3: But those people aren't familiar. How you decide, let's go
[16:04] Speaker 3: through the process. You have people who want to appeal
[16:08] Speaker 3: to the Supreme Court. They have something called a writ
[16:10] Speaker 3: ofi and you accept about you have to have four
[16:14] Speaker 3: justices agreed to accept.
[16:17] Speaker 5: They're called the rule of for you need four four
[16:19] Speaker 5: justices to grant a petition for cure petitions who are
[16:23] Speaker 5: sir sure ari is a motion to please take our case.
[16:29] Speaker 5: And the court has thousands of petitions of suari each year,
[16:35] Speaker 5: but they select only those cases where the courts are
[16:40] Speaker 5: in conflict and where they think the guidance, where we
[16:43] Speaker 5: think the guidance of the court will be helpful.
[16:44] Speaker 3: When the cases are taken, the briefs are submitted by
[16:48] Speaker 3: the lawyers. Do you talk to each other the justice
[16:51] 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
[16:56] Speaker 3: and you don't talk to each other before you actually
[16:59] Speaker 3: hear the or RG.
[17:00] Speaker 5: We're very careful not to talk to each other before
[17:04] Speaker 5: in parts and fairness to the lawyers. And we don't
[17:07] Speaker 5: want cliques where you and I agree, or you and
[17:10] Speaker 5: I disagree, and I don't tell you what I've talked
[17:12] Speaker 5: to the other. Just we don't do that.
[17:14] Speaker 3: After you hear the oral arguments, you go back to
[17:16] Speaker 3: a conference and you have a hair tight room so
[17:20] 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,
[17:27] Speaker 3: and we.
[17:27] Speaker 5: Have a double door just to remind everybody that what
[17:30] Speaker 5: goes on in there is absolutely private forever.
[17:33] Speaker 3: So then you begin to say what your views are,
[17:36] Speaker 3: and who decides to speak first, who gets to speak first,
[17:38] Speaker 3: and who speaks last?
[17:40] 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,
[17:55] Speaker 5: it's very exciting because everybody is listening to what you're
[17:58] Speaker 5: going to say.
[17:59] Speaker 3: So who decides who writes the opinions? Who decides that.
[18:06] Speaker 5: There's a Let's assume there's a majority and understand sometimes
[18:09] Speaker 5: they're unanimous. There's a lot more unanimous opinions than than
[18:13] Speaker 5: most most people think. The senior justice in the majority
[18:17] Speaker 5: of science the majority, and the senior justice in the
[18:21] Speaker 5: descent of science the descent.
[18:23] Speaker 3: Does any justice ever go down to another justice's chambers
[18:26] Speaker 3: and say, you know what, I really don't like your opinion,
[18:29] Speaker 3: but i'll support you if you support me. On another case,
[18:32] Speaker 3: do you ever do that kind of horse.
[18:34] Speaker 5: Training that no, that would that would be totally improper,
[18:37] Speaker 5: might even be illegal. You never you never trade.
[18:41] Speaker 3: Both everything improper or everything washed. It will ever happen. Right.
[18:45] Speaker 5: Plus, we don't go to the other chambers. We said
[18:48] Speaker 5: it by memo, But everybody gets a copy of that memo.
[18:51] Speaker 3: So the justices read the memos. They may change their
[18:54] Speaker 3: mind and the opinions. But more times when you were
[18:57] Speaker 3: on the court, you were the five to four in
[19:00] Speaker 3: the majority than anybody else. I think that's right. So
[19:05] Speaker 3: when you're five to four in the majority and you're
[19:07] Speaker 3: making the real decisions because you're the deciding vote, is
[19:11] Speaker 3: that put a special burden on you to really make
[19:14] Speaker 3: sure you're comfortable with the decision.
[19:16] 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,

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