The David Rubenstein Show• Nov 13, 2025• 24:02Interview

The David Rubenstein Show: Justice Anthony Kennedy

From The David Rubenstein Show

Anthony Kennedy•Former Associate Justice of the Supreme Court

Executive Summary

Former Justice Anthony Kennedy provides an inside look at the Supreme Court's deliberative process, emphasizing its collegial nature, the 'rule of four' for case selection, and the strict confidentiality of conferences.
Kennedy reflects on landmark cases, explaining the 7-2 decision to take *Bush v.
Gore* and the 5-4 split on the remedy, while also detailing how the impact on children was a key factor in his majority opinion legalizing gay marriage.
He expresses significant concern over the rise of partisanship in the judicial confirmation process and the broader decline of civil discourse in American society, viewing it as a danger to democracy.
Kennedy discusses his personal history, including his relationship with Ronald Reagan, his unanimous confirmation (97-0), and his core judicial belief in the evolving meaning of liberty as enshrined in the Constitution.

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Concerns Raised

The overemphasis on partisanship in the judicial nomination process.
The decline of civil discourse and its negative impact on democracy.
The public perception of the Supreme Court as a political institution.
The potential for the U.S. Constitution to lose its respected status in the future.

Opportunities Identified

To foster a more collegial and less partisan approach to judicial appointments.
To restore a culture of thoughtful, rational discourse in public life.
For the public to gain a better understanding of the Supreme Court's deliberative process.

Key Themes

The Inner Workings of the Supreme Court

Justice Kennedy demystifies the Supreme Court's procedures, from the 'rule of four' used to grant certiorari for cases with conflicting lower court rulings, to the confidential, seniority-based conferences where cases are debated. He stresses that justices do not 'horse trade' votes and that opinions evolve through a rigorous process of memos and debate.

This provides a foundational understanding of how the highest court in the U.S. functions, countering common misconceptions and highlighting the deliberative, rather than purely political, nature of its work.

The Rise of Partisanship and Decline of Civility

Kennedy voices strong concern that partisanship is 'overemphasized' in the Senate's judicial confirmation process, arguing that temperament and qualifications should be paramount. He connects this to a broader societal decline in civil discourse, where political identity trumps rational debate, which he believes is a danger to the health of the democracy.

This theme directly addresses the current political climate and the perceived legitimacy of the judiciary, highlighting a key risk to institutional stability and effective governance.

Jurisprudence at the Intersection of Law and Politics

Through the lens of *Bush v. Gore*, Kennedy pushes back on the narrative of a purely political decision, noting that seven justices (including Republican appointees who sided with the dissent) agreed to hear the case. He acknowledges that the court is hurt by the perception of being political, but maintains that the legal reasoning, not party affiliation, drives decisions.

Understanding this tension is crucial for analyzing the court's role in society. It underscores the challenge the judiciary faces in maintaining its status as an impartial arbiter in a hyper-partisan environment.

The Evolving Nature of Liberty

Kennedy identifies 'liberty' as the central theme of his jurisprudence, arguing the Constitution's authors used 'spacious words' because they knew freedom's components would be learned over time. He cites his opinion on gay marriage as an example, where the 'stigma and the hardship on the children' of same-sex couples became a decisive factor in interpreting liberty's application.

This explains the judicial philosophy of one of the most influential 'swing votes' in modern history, demonstrating how constitutional interpretation can adapt to changing societal realities, which has profound implications for civil rights and social policy.

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Topics

Supreme Court Anthony Kennedy Judicial Philosophy Constitutional Law Bush v. Gore Obergefell v. Hodges Gay Marriage Judicial Nominations Partisanship Civil Discourse Ronald Reagan U.S. Constitution Writ of Certiorari Legal History Geopolitics

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