Quote:In an interview with NPR to be aired in October, [former Justice Anthony] Kennedy said that he is "very worried" about America today.
"We live in an era where reasoned, thoughtful, rational, respectful discourse has been replaced by antagonistic, confrontational conversation," he said, adding that "Democracy is not guaranteed to survive."
Indeed, he says that he is worried even about the tone of some Supreme Court opinions.
"It seems to me the idea of partisanship is becoming much more prevalent and more bitter," he said. "And my concern is that the court in its own opinions…has to be asked to moderate and become much more respectful."
When he retired from the court in 2018, Kennedy told a small group of journalists that he was confident that the court's major decisions would remain intact. But when I asked him if he still thinks that is true, he demurred.
Though Kennedy, in close cases, voted most often with the court's conservatives, perhaps most revealing in the book are his accounts of how and why he cast decisive votes with the court's liberals on abortion and same-sex marriage. Of the two issues, it turns out that same-sex marriage was easier for Kennedy to resolve, but harder on his relationship with his conservative colleague, Justice Antonin Scalia.
Gay marriage decision
Starting in 1996 Kennedy wrote every major decision about gay rights, culminating in 2015 when he wrote the court's majority opinion in Obergefell v. Hodges declaring that same-sex couples must be allowed to marry everywhere in the country.
"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family," he wrote.
Kennedy says that perhaps the most persuasive argument for gay marriage came with his realization that many states barred gay couples from adoptions, so that only one could be the legal parent, and the other had no legal right to make decisions for the child, sign school papers for the child, in some cases could not visit the child in the hospital, and the children could not say they had two parents, which was "terribly demeaning for the children of gay parents."
That was the situation faced by "hundreds of thousands of children of gay parents," he observed in our interview. "That was eye-opening for me, and it was very important in influencing me for the result."
It was the gay marriage cases, however, that for almost a year led to a rupture with his colleague, Justice Antonin Scalia. The break came over Scalia's dissenting opinion in the same-sex marriage case in which he wrote that if ever he were to join an opinion like Kennedy's "I would hide my head in a bag." According to Kennedy, the other conservatives thought the dissent "offensive" and "intemperate" and tried to get Scalia to modify it. But they failed, prompting Chief Justice John Roberts to write the lead dissent.
Kennedy says that while he was able to "shrug off" the Scalia dissent, his children and their spouses "were devastated" by its tone." And by the beginning of the next term Scalia, known to all as Nino, "rarely came to lunch" with his colleagues and no longer stopped by Kennedy's chambers to chat.
Months went by and then one day in February of 2016 Scalia "came down the long corridor of the court to my chambers to talk." Once there, "he turned to the subject on both our minds: our own relationship. Nino said he had come to regret deeply his Obergefell dissent" and he apologized for being intemperate. "The visit became a pleasure, even a landmark for us," writes Kennedy. "Neither of us was big on hugging but we hugged, both of us smiling."
[...]
The other emotional legal issue that Kennedy talks about in the book is abortion. A devout and Mass-attending Catholic, Kennedy then, as now, views abortion as a moral wrong. And at one point he was so conflicted that he even considered resigning. "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 to us and the law: let me exist, let me live," he writes.
Ultimately, though, he concluded that "a moral wrong is not necessarily a legal wrong, nor do my own personal views control what I must decide as a judge." As a co-author of the decision that upheld the right to abortion, he writes, "The constitution promises…a realm of personal liberty which the government may not enter" and among those decisions, the mother's choice to bear a child is among the most personal known to our law."
https://www.npr.org/2025/09/27/nx-s1-555...nnedy-book
There's a lot more to read in the article and I hope members head over there and read it in its entirety. I miss moderates like him.
