By MARK SHERMAN
WASHINGTON (AP) — Retired Supreme Court Justice Anthony Kennedy said Wednesday he was troubled that partisanship seemed to be “creeping its way into the court,” and that the state of political discourse in the country has gotten so vulgar and vile that he worries for the country.
The tone of recent opinions bothers him more than outcomes of cases, Kennedy said in an interview with The Associated Press in his court office in advance of next week’s publication of his memoir, “ Life, Law & Liberty.”
“The justices have to resist thinking of themselves as being partisan,” he said. “In our current discourse, it seems to me, partisanship is creeping its way into the court.”
He declined to identify any justices or opinions, but at another point he returned to the personal nature of some court opinions.
“Of course, when you disagree, you criticize the other, but you criticize the opinion and the reasoning. You don’t criticize the author,” he said during the nearly hourlong interview. “And that point seems to be eclipsed. Some of the recent opinions are attacks on your colleagues, on the judges. I was astounded, very worried about it.” From members of Congress who use “ the four-letter F-word ” in public to President Donald Trump, Kennedy said he is routinely put off by what he is hearing.
“Concerned. Worried. Disappointed with,” Kennedy said. “The rest of the world looks to us to see how free speech works, how democracy works, and in many respects they will not be impressed by what they see,” he said. ”I think our high officials ought to elevate the content and elegance of our discourse.” With the nation’s 250th birthday approaching next year, the 89-year-old Kennedy cast a baleful eye at the future. “What about the next 250? I’m not so sure. I’m not so sure,” he said.
A nominee of Republican President Ronald Reagan, Kennedy was the decisive vote in many of the court’s most impactful cases, leaning left on abortion and gay rights and right on guns and campaign finance.
He has had little to say publicly since he stepped down from the court in 2018.
The memoir, published by Simon & Schuster, explores his roots in Sacramento, California, before turning to his 43 years as a federal judge, including 30 on the Supreme Court. The writer, Joan Didion, a childhood friend who died in 2021, looked at some early drafts and offered encouragement, Kennedy said.
It is being issued as Kennedy still is grieving the sudden death of his son, Gregory, in January. When the conversation turned to family, Kennedy retrieved a picture of his son and daughter-in-law on their wedding day some 30 years ago.
A copy of Justice Sonia Sotomayor’s latest book, “Just Shine!” lay on a bookshelf, a level below a photograph of a granddaughter who is a professional ballerina in New York.
The Supreme Court, decidedly more conservative after Kennedy’s retirement and the death of Justice Ruth Bader Ginsburg two years later, has overturned several of his opinions, including a decision he co-authored in 1992 that had preserved the right to an abortion.
“That was a close and difficult case. In my view, our earlier decision was correct,” he said.
In the same 2022 case from Mississippi, Justice Clarence Thomas suggested that Kennedy’s opinion giving constitutional protection to same-sex marriage should be next.
Uncomfortable discussing the case, Kennedy said he thought the decision might survive because so many people have relied on it and overturning it “would cause great hurt” to same-sex couples and their children.
As it happens, the court will soon consider an appeal from Kim Davis, a former county clerk in Kentucky, who is asking the justices to overturn the 2015 decision in Obergefell v. Hodges. The court wasn’t immune from individual criticism when he served, but they were exceedingly rare. In the book, Kennedy recounts one occasion, Justice Antonin Scalia’s dissent in the same-sex marriage case, in which a personal attack led to cooled relations between the two men.
Scalia noted that he’d rather “hide my head in a bag” than join Kennedy’s opinion and also said Kennedy was not a genuine Westerner because “California does not count.”
Seven months later, Scalia apologized in a visit to Kennedy’s office that ended with a hug. Scalia was about to leave for a hunting trip in Texas that, he told Kennedy, would be his last long trip. Scalia died in Texas just over a week later.
Kennedy’s views about Trump are difficult to pin down. Several passages in the book seem to be written with him in mind.
“The Constitution does not work if any one branch of the government insists on the exercise of its powers to the extreme,” Kennedy wrote.
Responding to questions Wednesday, he said the president was among those who make intemperate remarks.
But when Kennedy wrote about his visit to the White House after he told his colleagues of his plans to retire, he described Trump as “gracious, cordial and eager to talk.”
He acknowledged that the White House consulted with him on Trump’s choice of Justice Brett Kavanaugh and other judicial nominees.
But he said there was no discussion of his plans with Trump or anyone else in the Republican administration beforehand and no effort by the president to induce his departure.
Kennedy also sought to explain a comment he made to Trump that was picked up by microphones following the president’s address to Congress in March.
“Thank you for teaching young people to love America,” Kennedy said.
He confirmed the remark while wondering how the seemingly private moment went public.
“I said that. Sure. I said, that should be your principal mission,” Kennedy said on Wednesday.
Asked to evaluate how Trump is doing in that regard, Kennedy said, “Well, I’m not totally sure.”
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