>>> THERE ARE ONLY TWO LIVING RETIRED SUPREME COURT JUSTICES.

AND OUR NEXT GUEST IS ONE OF THEM.

ANTHONY KENNEDY STEPPED DOWN IN 2018, AND HE JOINS WALTER ISAACSON NOW TO TALK ABOUT THE MAJOR CASES OF HIS CAREER.

THE TOP COURT TODAY, AND HIS NEW BOOK.

>> THANK YOU, CHRISTIANE, AND MR.

JUSTICE ANTHONY KENNEDY.

THANK YOU FOR JOINING US.

>> IT'S AN HONOR AND A PLEASURE TO BE WITH YOU, WALTER.

>> WE'RE GOING TO BE TALKING ABOUT YOUR GREAT NEW BOOK LIFE, LAW, AND LIBERTY, WHICH IS A COMBINATION OF A MEMOIR AND A LOOK AT THE CASE AS YOU DECIDED WHEN YOU WERE ON THE SUPREME COURT.

BUT I WANT TO START AT THE BEGINNING.

IN THE VERY BEGINNING OF THE BOOK, YOU WRITE "TO UNDERSTAND OURSELVES, WE SHOULD UNDERSTAND THE TIME AND PLACE OF OUR BIRTH AND ORIGINS.

MY OWN VIEW OF THE WORLD WAS DEFINED BY THE WEST. "

SACRAMENTO, CALIFORNIA.

TELL ME HOW THAT DEFINED YOUR VIEW OF LIFE, LAW, AND LIBERTY.

>> WELL, FOR 100 YEARS, BEGINNING AROUND THE GOLD RUSH, 1845 AND THEN 1848, PEOPLE CAME WEST.

AND BEFORE THEY CAME TO CALIFORNIA, THEY CAME TO WHAT WE NOW CALL THE MIDWEST.

AND THE UNSETTLED PARTS OF OUR COUNTRY ALWAYS HAD GREAT HONOR FOR OUR PROCLAMATION.

YOU WENT TO A PLACE WHERE YOU COULD DEFINE YOUR FUTURE, YOU COULD DEFINE YOUR PROPERTY, YOU COULD MAKE YOUR LIFE, YOU COULD SEE NEW HORIZONS BEYOND WHERE YOU ARE.

AND THE QUESTION IS WHEN YOU GET TO CALIFORNIA, CAN YOU STILL GO WEST?

WELL, I SUPPOSE YOU CAN GO TO HAWAII.

STEINBECK WROTE "EAST OF EDEN. "

WE'RE ALWAYS JUST EAST OF PERFECT.

IN CALIFORNIA, ARE YOU IN EDEN?

NOT QUITE.

BUT YOU ARE IN A PLACE WHICH IS SO RICH IN SO MANY WAYS AND SO SATISFYING IN SO MANY WAYS THAT YOU CAN FIND YOURSELF AND SEE THE WORLD BEYOND.

>> WHEN READING THIS BOOK, I WAS REMINDED OF JUSTICE SANDRA DAY O'CONNER TOO WHOSE EXPERIENCE IN THE WEST, EXPERIENCE AS A LEGISLATOR TURNED HER IN SOME WAYS INTO A SWING VOTE ON THE COURT.

SOMETIMES WE DON'T LIKE USING THE WORDS "SWING VOTE" BECAUSE IT'S THE LAW THAT SWINGS, NOT THE JUSTICE.

BUT YOU ALL WERE BOTH PRAGMATIC WESTERN PEOPLE WHO COULD GO EITHER WAY ON IDEOLOGICAL ISSUES.

IS THAT TRUE?

>> WELL, IT SEEMS TO ME EITHER WAY IT SEEMS THAT MY PHILOSOPHY WAS CONSISTENT.

AND AS YOU HAVE INDICATED IN THE CASES, THE ONES THAT WENT EITHER WAY.

THE CASES WERE SWINGING.

I WASN'T SWINGING.

BUT THE DUTY OF A JUDGE, OF COURSE, IS TO --OR A JUSTICE IS TO LOOK AT EVERY CASE AND TO ASK IN EVERY CASE WHAT IS MOTIVATING ME, WHAT INSTINCTS, WHAT PRINCIPLES?

IS THERE SOMETHING UNKNOWN TO MYSELF THAT'S MOTIVATING ME?

AND SO EVERY JUDGE IN EVERY CASE, JUST LIKE PEOPLE IN OTHER PROFESSIONS AND OTHER PURSUITS MUST HAVE ASKED THEMSELVES WHY AM I ABOUT TO DO THIS.

BUT WE HAVE THE SWORN DUTY TO DO THAT.

AND EVEN SUPPOSE YOU DECIDED A CASE THREE WEEKS AGO, AND YOU HAVE ANOTHER CASE THAT PRESENTS ALMOST THE SAME ISSUE.

WELL, IN THE LAW, WE WANT TO BE CONSISTENT.

SO THERE IS A RULE THAT YOU SHOULD FOLLOW PRECEDENT IF NECESSARY.

I MEAN, IN MOST CASES, BUT YOU STILL OWE IT TO THOSE PARTIES WHO WERE IN FRONT OF YOU TO LISTEN TO THEIR ARGUMENT AND TO THINK ABOUT IT AGAIN.

AND MAYBE YOU'LL FIND THAT YOU WEREN'T RIGHT THE FIRST TIME.

>> LET ME TAKE TWO CASES, ONE IN WHICH YOU WERE CONSIDERED TO BE ON THE MORE LIBERAL SIDE, THE OTHER THE MORE CONSERVATIVE SIDE, AND THAT'S YOU WERE ON THE SIDE OF ALLOWING PEOPLE TO BURN THE AMERICAN FLAG AS PART OF FREE SPEECH, BUT THEN YOU ALSO I THINK WROTE THE DECISION IN CITIZENS UNITED THAT ALLOWED CORPORATIONS AND BIG MONEY TO BE USED IN CAMPAIGNS.

THAT SEEMS CONFLICTING, BECAUSE ONE WAS SORT OF MORE LIBERAL, ONE IS MORE CONSERVATIVE.

BUT THE THROUGH-LINE SEEMS TO BE A DEFENSE OF FREE SPEECH.

THAT SOMETHING THAT MOTIVATED YOU?

>> THE FLAG BURNING CASE WAS INTERESTING.

THE COURT DIVIDED ALONG UNUSUAL LINES.

THOSE WHO DISSENTED, WHO WOULD HAVE ALLOWED THE PROSECUTION FOR BURNING THE FLAG, WHO SAID THE FLAG BURNING LAW, THE FLAG- BURNING PROHIBITION WAS UNCONSTITUTIONAL, THEY FOUGHT IN WORLD WAR II, WHITE, REHNQUIST, STEVENS.

AND THEY HAD PUT THEIR LIVES ON THE LINE PROTECTING THE AMERICAN FLAG.

SO WHEN THEIR COLLEAGUES THAT LOST THEIR LIFE PROTECTING THE AMERICAN FLAG.

BUT FOR US, IT WAS A DIFFICULT CASE BECAUSE THE FLAG IS A BEAUTIFUL FLAG, AND IT SYMBOLIZES ART HISTORY IN MANY WAYS.

AND TO SAY THAT YOU COULD BURN THE FLAG, WE KNEW WOULD BE CONTROVERSIAL.

AFTER THE OPINION CAME OUT, SOMETHING WALTER, LIKE 80 U.S.

SENATORS GOT TO THE FLOOR OF THE SENATE TO DENOUNCE THE COURT AND DENOUNCE THE DECISION.

AND THERE WERE NEWSPAPER ARTICLES WHAT IS THE MATTER WITH THE COURT, BURNING THE FLAG.

WELL, TO BEGIN WITH, IT WAS A DIFFICULT PLACE.

IF YOU CAN'T BURN THE AMERICAN FLAG, WHAT ABOUT THE TEXAS FLAG, THE LONE STAR STATE, WHAT ABOUT THE CALIFORNIA FLAG, THE BEAR REPUBLIC.

DO YOU INCLUDE THOSE?

NOW YOU HAVE 50 STATES PLUS THE UNITED STATES.

WHERE DOES THIS STOP?

SECOND THESE PEOPLE SAID BURNING SOMETHING IS SPEECH?

WELL, YES, IT WAS EXPRESSION AND IN A VERY POWERFUL WAY.

AND IT WAS INTERESTING TO ME THAT OVER THE COURSE OF ABOUT THREE MONTHS, MANY OF THE PEOPLE READ THE OPINION.

WHEN YOU WRITE AN OPINION IN A CASE LIKE THAT, YOU WANT TO WRITE IT SO THAT THE PUBLIC AT LARGE CAN READ THE CASE AND UNDERSTAND ITS REASONING.

AND IN JUST THOSE FEW MONTHS, WE NOTICED THAT THE ATTITUDE TOWARD THE OPINION, THE UNDERSTANDING OF THE OPINION BEGAN TO CHANGE.

>> NOW THAT CONCEPT OF FREE SPEECH, YOU APPLY IT NOT ONLY TO DONATIONS TO POLITICAL CAMPAIGNS, BUT TO CORPORATIONS AND BUSINESSES DONATING TO CAMPAIGNS.

THAT SEEMS LIKE A WHOLE DIFFERENT WAY OF LOOKING AT FREE SPEECH.

WHY DO YOU SEE THOSE AS CONSISTENT?

>> WELL, IF SOMEBODY SAID SPEECH IS SPENDING MONEY, ARE YOU CRAZY?

WHAT ABOUT "THE NEW YORK TIMES"?

WHAT ABOUT IF "WASHINGTON POST"?

WHAT ABOUT "THE WALL STREET JOURNAL"?

THEY'RE CONTROLLED BY CORPORATIONS, AND IT SEEMS TO ME THAT THEY HAVE A TREMENDOUS INFLUENCE ON CAMPAIGNS AND POLITICAL DEBATES AND POLITICAL - - >> BUT CITIZENS UNITED, WHICH WAS THE CASE THAT YOU WROTE THE OPINION OF, THAT ALLOWS THESE CONTRIBUTIONS, ALLOWED BIG BUSINESSES TO ACT AS IF THEY WERE INDIVIDUALS.

DO YOU CECI ANY BAD EFFECTS NOW FROM THAT CITIZENS UNITED DECISION?

>> IT WAS A DECISION DECISION.

THE IDEA OF MILLIONAIRES OR MAYBE BILLIONAIRES POURING MONEY INTO CAMPAIGNS IN A STATE WHERE THEY DON'T EVEN LIVE, THE IDEA THAT THE CANDIDATE WHO GETS THE MOST MONEY IS GOING TO WIN THE ELECTION IS TRULY TROUBLING.

BUT WHERE IS THE ANSWER?

ARE YOU GOING SAY THAT A SMALL CORPORATION, A GROCERY STORE OR A CHAMBER --CHAMBERS OF COMMERCE ARE USUALLY A CORPORATION, THAT THEY CAN'T PARTICIPATE IN CAMPAIGNS?

WHERE IS THE STOPPING POINT?

THE ANSWER IS AN INFORMED PUBLIC.

THE VOTERS OUGHT TO KNOW WHO IS GIVING MONEY.

AND AS THEY SEE TONS OF MONEY BEING POURED INTO A CAMPAIGN, THEY SHOULD VOTE FOR THE OTHER PERSON.

YOU NEED INFORMED VOTERS FOR DEMOCRACY TO WORK.

>> DO YOU THINK THAT MEANS, THOUGH, THAT THESE SUPERPACs THAT PEOPLE CAN DONATE TO ANONYMOUSLY IS NOT BE COVERED BY THAT SUPREME COURT DECISION YOU WROTE?

>> WELL, IT SEEMS TO ME THAT WE CAN LOOK CLOSELY AT DISCLOSURE TO SEE IF OUR DISCLOSURE LAWS ARE ADEQUATE.

AND, AGAIN, IF YOU DON'T KNOW WHO IS GIVING THEM MONEY, AND THEY DON'T WANT TO TELL YOU WHO'S GOT THE MONEY, THAT'S A REASON TO VOTE AGAINST THE CANDIDATE AS WELL.

>> BACK WHEN YOU WERE JUST GRADUATING FROM HIGH SCHOOL, ONE OF THE MOST SEMINOLE CASES IN OUR COUNTRY WAS DECIDED, WHICH WAS BROWN VERSUS THE BOARD OF EDUCATION.

WHICH OVERTURNED A LONG-STANDING PRECEDENT OF PLESSIV FERGUSON.

HOW DID THAT AFFECT YOUR THINKING ABOUT LIBERTY?

>> IT AFFECTED IT IN THE LONG-TERM.

MY FATHER WHO WAS AN ATTORNEY, AND THIS WAS DAYS BEFORE THE INTERNET AND THE FAX, HE WAS ABLE TO GET A COPY OF THE OPINION IN JUST A COUPLE OF DAYS, AND HE HAD ME READ IT.

AND WE READ IT TOGETHER.

AND HE TOLD ME THIS IS ONE OF THE MOST IMPORTANT OPINIONS IN THE HISTORY OF THE SUPREME COURT.

AND IT SEEMS TO ME AS A TEENAGER, WELL, WE'VE SETTLED IT.

WE SAID YOU CAN'T DISCRIMINATE AGAINST MINORITY RACES AND THAT'S THE END OF IT.

WE CAN GO ON TO SOME OTHER THINGS.

THIS WAS TOTALLY NAIVE.

BROWN WAS JUST THE BEGINNING, NOT AN ENDING.

RACIAL MINORITIES, PARTICULARLY IN OTHER PARTS OF THE COUNTRY HAD HURT AND DISCRIMINATION AND INSULT EVERY DAY.

AND IT TOOK AND IT STILL TAKES A SENSITIVE, DECENT, CARING SOCIETY TO RECOGNIZE THIS AND TO TRY TO DO BETTER.

>> IN THE FIRST NINE MONTHS OF THIS CURRENT PRESIDENT TRUMP'S TERM, THERE HAVE BEEN SO MANY THINGS ON THE EMERGENCY DOCKET THAT HAVE ENABLED HIM TO DO THINGS WHERE THE COURT IS NOT EXPLAINING THE REASONING.

DOES THAT BOTHER YOU?

>> YES.

IT'S CALLED THE SHADOW DOCKET, A NEW TERM FOR US.

AND MY YEARS ON THE COURT, WE HAD PROBABLY THREE TIMES AS MANY CASES AS THE PRESENT COURT DOES.

AND WE HAD EMERGENCY MOTIONS WHERE WE GET A CALL IN THE MIDDLE OF THE NIGHT IN DEATH PENALTY CASES.

BUT WE DIDN'T HAVE AS MANY -- NEARLY AS MANY MOTIONS NOW WITH RESPECT TO EXECUTIVE ORDERS.

THAT IS DIFFERENT.

AND THE TIME FACTOR IS IMPORTANT BECAUSE THE ORDER GOES INTO EFFECT RIGHT AWAY.

PEOPLE'S RIGHTS AND PRIVILEGES ARE AFFECTED RIGHT AWAY.

WHAT'S THE SUPREME COURT SUPPOSED TO DO, WAIT FOR A YEAR?

WELL, IT SEEMS TO ME THERE IS A GROUND THAT THEY SHOULD TRY TO WAIT FOR AT LEAST A COUPLE OF WEEKS SO THEY CAN GIVE A RECENT OPINION.

BUT THE COURT IS STRUGGLING WITH THAT AND THE COURT FULLY UNDERSTANDS THE NECESSITY OF GIVING REASONS WHENEVER IT CAN.

>> FROM THE GAY MARRIAGE CASE, YOU HAD WRITTEN THAT 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 THAT IMPLIES THAT THE CONSTITUTION IS A LIVING THING, THAT THE CONCEPT OF LIBERTY KEEPS EXPANDING IN EACH NEW GENERATION HAS TO UNDERSTOOD IT BETTER, THAT IT'S NOT CARVED IN STONE FROM 250 YEARS AGO.

I SOMETIMES ASK MY TULANE STUDENTS HERE TO TRY WHEN THEY'RE WANTING TO TAKE DOWN SOME MONUMENT OR SOME STATUE, SAY WHAT IS IT THAT 50 YEARS FROM NOW PEOPLE WILL SAY WE DID NOT UNDERSTAND ABOUT LIBERTY, AND MAYBE THEY SHOULD TAKE OUR STATUES DOWN BECAUSE OF IT.

WHAT DO YOU THINK WE MAY NOT BE GETTING ABOUT LIBERTY.

>> IT SEEMS TO ME THAT WE HAVE TO UNDERSTAND THAT PROTEST IS A PART OF FREE SPEECH.

IT'S NECESSARY.

THE HOME WITH IDEA OF FREE SPEECH IS THAT YOU AND I CAN DISAGREE WITH EACH OTHER AND HAVE AN EARNEST, INTENSE INFORMED RESPECTFUL DEBATE.

BUT IT HAS TO BE RESPECTFUL.

AND WE HAVE TO UNDERSTAND THIS.

AND THIS IS THE WAY -- THIS IS THE WAY WE LEARN, IS PROTESTS ARE AN IMPORTANT PART OF FREE SPEECH.

BUT IT'S A VERY DIFFICULT AREA OF THE LAW.

CAN YOU BLOCK TRAFFIC FOR FIVE MINUTES WHILE YOU HAVE A PROTEST?

IF THE ANSWER IS YES, CAN YOU BLOCK IT FOR FIVE DAYS OR FIVE WEEKS?

THE ANSWER TO THAT HAVE TO BE NO.

YOU CAN'T PROTEST IN A WAY THAT INJURES OTHER PEOPLE.

CAN YOU STAND ON MY FRONT LAWN?

ANSWER.

NO CAN YOU STAND IN FRONT OF MY HOUSE?

PROBABLY YES.

THERE'S THIS --THERE'S THIS BALANCE WHICH IS ONE IN WHICH AN EDUCATED REPUBLIC WHO RESPECTS THE IDEA OF SPEECH MUST FIND, MUST STRUGGLE TO FIND THE RIGHT BALANCE.

>> YOU HAVE WRITTEN THIS.

LET ME READ IT TO YOU.

"PRESIDENTS HAVE THE DUTY, AND PERSONAL OBLIGATION, TO MAKE JUDGMENTS BASED ON A GOOD-FAITH INTERPRETATION OF THE CONSTITUTION, BUT THEY MUST GIVE PROPER DEFERENCE TO SUPREME COURT RULINGS. "

WHAT MOTIVATED YOU TO WRITE THAT?

AND IS THERE SOMETHING TODAY THAT WORRIES YOU IN THAT REGARD?

>> WELL, IN TEACHING CONSTITUTIONAL LAW, IT SEEMED TO ME IMPORTANT TO DISCUSS WITH THE STUDENTS THAT EVERY GOVERNMENT OFFICIAL, WHETHER THAT OFFICIAL IS IN THE LEGISLATURE OR THE EXECUTIVE BRANCH HAS THE DUTY TO OBEY THE CONSTITUTION AND TO UNDERSTAND THE CONSTITUTION AND TO FOLLOW THE CONSTITUTION IN ALL THEIR OFFICIAL ACTS.

AND SIMPLY JUST BECAUSE A QUESTION CAN'T BE PUT INTO THE CONTEXT OF THE CASE THAT GOES TO THE COURT DOESN'T MEAN THAT THE CONSTITUTION DOESN'T APPLY.

IT'S EVEN MORE IMPORTANT TO APPLY THE CONSTITUTION WHEN THE CASE CAN'T COME TO THE COURTS.

THAT'S WHEN IT'S REALLY IMPORTANT.

>> AND WHAT WORRIES YOU ABOUT THAT TODAY?

>> IT'S JUST NOT CLEAR TO ME THAT EACH --THAT ALL OFFICIALS ARE CONSCIOUS OF THE FACT THAT NUMBER ONE, THEY SHOULDN'T EXERCISE THEIR POWERS TO THE EXTREME, BECAUSE THAT INTRUDES ON OTHER BRANCHES.

>> MR.

JUSTICE KENNEDY, THANK YOU SO MUCH FOR JOINING US.

>> WELL, THANK YOU SO MUCH FOR YOUR QUESTIONS AND FOR SAYING THAT YOU'VE READ THE BOOK WITHOUT FALLING ASLEEP.