Justice Kennedy reflects on this year's tough cases, Scalia and 'Hamilton'

Story highlights

  • In a wide-ranging talk, Kennedy pulled back the veil on his decision-making process
  • He discussed his last conversation with Justice Antonin Scalia and revealed his horror of rap music before seeing "Hamilton"

Big Sky, Montana (CNN)Anthony Kennedy fled the confines of Washington for the big skies of Montana to deliver his first public comments since the grand finale of a tumultuous term.

The 79-year-old justice -- who two weeks ago sided with the court's liberals on critical issues, infuriating and surprising his conservative critics -- appeared tan, rested and philosophical about the weight of having to make big decisions.
"Do these things weigh on you? Of course," he told an audience of judges before the 9th Circuit judicial conference Monday night here when asked in general about having to decide the big cases.
    "The fascination about being a judge is the same as the duty of being a judge and that is to ask yourself: Why am I about to rule the way I'm about to rule?" he said.
    In a wide-ranging talk, Kennedy pulled back the veil on his decision-making process, he discussed his last chilling and poignant conversation with Justice Antonin Scalia, and he revealed his horror of rap music that was somewhat soothed by seeing "Hamilton" on Broadway.
    Kennedy was not asked directly about his votes in the big cases last month when he supplied the deciding vote to strike down a Texas abortion access law, wrote the majority opinion upholding the race-conscious admissions plan at the University of Texas and deadlocked with his seven colleagues dooming at least for now President Barack Obama's controversial executive actions on immigration.
    "Kennedy was in the majority in 98% of the opinions last term," former acting Solicitor General Neal Katyal said in an interview last week. "It is very much Justice Kennedy's court."
    Kennedy revealed how he looks at the big cases in general terms. He said he asks himself a series of questions: Is it logical, is it fair, does it accord with precedent, does it accord with common sense?
    "You must always ask yourself what is it that is driving you," he said. "This is both the responsibility and the privilege of being a judge."
    He reflected on the impact of losing Scalia, whose death sent shockwaves through Washington and triggered a debate on the campaign trail when Senate Republicans refused to hold hearings for Judge Merrick Garland, Obama's nominee to fill Scalia's seat.
    Kennedy relayed a story of his last conversation with Scalia, who died suddenly in February after traveling to Singapore and later a hunting trip in Texas.
    "He came by to see me just before he left for Singapore," Kennedy said.
    Kennedy -- referring to Scalia by his nickname "Nino" -- said, "I said, 'Nino, you have to take care of yourself.'"
    And Scalia told him, "This is my last long trip." It was the last conversation that they had.
    Kennedy said that while they never sat together on the bench because of their closeness in seniority, they did sit next to each other in the conference room when the justices meet in private to discuss cases. "I sat next to him for 28 years," Kennedy said. "He had a magnificent mind."
    The two justices didn't always see eye to eye on the major legal issues of the day. For instance, when Kennedy issued a landmark same-sex marriage opinion in 2015, Scalia wrote a blistering dissent, calling it "pretentious" and "egotistic." But Kennedy clearly admired his late colleague and they remained friends off the bench.
    Scalia and Kennedy would likely not have been on the same side in the affirmative action case decided this term, when Kennedy voted, for the first time, in favor of a race-conscious admissions plan at a public university.
    The case concerned a challenge brought by Abigail Fisher, a white woman, who argued she had been denied admission to the University of Texas based on her race.
    Kennedy's vote surprised those who had been following the issue and thought Kennedy might vote with the conservatives to narrowly strike down the plan. Instead, he penned the opinion that went in favor of the school.
    "Justice Kennedy had voted pretty consistently to invalidate racial preferences, though there was some evidence that his views were evolving," said Kannon Shanmugam, a lawyer who frequently argues before the court.
    Shanmugam noted that it was the second time Fisher's challenge had reached the high court. In 2013, Kennedy wrote an opinion remanding the case back to the lower court to take another look. As recently as December in oral arguments, Kennedy expressed some skepticism.
    "Given the tortuous history of the case, it raises the possibility that Justice Kennedy changed his mind relatively late in the process," Shanmugam said.
    Katyal called Kennedy's final vote "remarkable" noting that "for decades, he has been the court's most eloquent voice on the need to be colorblind."
    Justice Stephen Breyer also played an important role in Whole Woman's Health v. Hellerstedt, concerning a Texas abortion access law that opponents said was the most strict nationwide.
    Kennedy supplied the deciding vote in the 5-3 case, striking down two provisions of the law. As the most senior justice in the majority, he had the power to assign the opinion, and instead of saving it for himself, he gave it to Breyer.
    The decision not to write surprised most court watchers who thought that if Kennedy was in the majority, he would have assigned himself the opinion. Kennedy is the only member still on the court who voted to reaffirm the core holding in Roe v. Wade in a 1992 case called Planned Parenthood v. Casey.
    Leaving behind Washington and those contentious cases, Kennedy -- a son of the West having been raised in California -- was at ease before the Montana crowd. He left his judicial robes in Washington and sat comfortably in an armchair whose upholstery decorating had moose on it.
    He revealed he had seen the blockbluster musical "Hamilton" in New York recently with his grandchildren and had recoiled at first when he learned it contained rap music. But he called the musical fascinating, and called the performance of Lin-Manuel Miranda "splendid."
    He said he thanked the actor "for bridging two generation gaps -- one between our time and the founding and the other between myself and my grandchildren."