Legally Speaking: Antonin Scalia

this program is a presentation of uctv for educational and non-commercial use only well it's certainly my honor and privilege to have the opportunity to chat with you in this format and I'd like to give you my personal thanks that you're doing in today is a 24th anniversary of your confirmation by unanimous Senate vote as an Associate Justice of the Supreme Court so you've been there almost a quarter century how would you characterize the role of the court in American society now that you've been a part of it well I don't think it's changed any over over over that period and I think it's a I think it's a highly respected institution it was when I came and I don't think I've destroyed it I I've been impressed that even when we come out with opinions that are that are highly unpopular or even highly what should I say a emotion raising the the people accept them as as as they should the case that comes most to mine is is the the election case Bush versus gore nobody on the court liked to to wade into that controversy and there was no way the court was going to come out more popular than when it went in no matter which way it came out but there was certainly no way we could turn down the petition for certiorari I what are you going to say the case isn't important enough to take and I I think that the public ultimately realized even those who felt passionately that it should have come out the other way that we had to take the case and I think the court took the courts reputation survived which after all is why it has its reputation I mean you you don't have it to put it up on a shelf and admire it you you have it precisely so that when there comes a time with difficult decisions like that have to be made it's it's it's a sort of armor that enables the decisions to have the kind of public acceptance that they ought to have I was very very proud of the way the the courts reputation survived that even though there are a lot of people today probably still mad about it so I'd say it's one of one of them one of the most respected institutions in American life Justice Robert Jackson once said I think in perhaps the last lecture he gave before his death that the Supreme Court was not only a law court but the apex of a branch of government is the fact that the court is at the top of a coordinate branch of the federal government shape or should it shape our notions of constitutional interpretation or is it purely a law court well it's you know any any appellate court does does more than decide the case in front of it in fact that's the to my mind the least important thing that the court does any appellate court shakes the law which is why appellate judges ask hypothetical questions you know which which lawyers don't like but the reason you asked them is is because frankly sir or madam I I don't care whether your client wins or loses this case I am not about to give victory to a seemingly deserving party in this one case at the at the cost of causing injustice in hundreds of cases down the road so the primary role of an appellate court and especially that appellate court which is at the apex is to decide cases on grounds on basis that that will produce justice overall in the long haul and the opinions have to be clear enough that the lower courts can follow them and you know it's one reason I do not like totality-of-the-circumstances tests which we which we occasionally use it gives no guidance whatever to the lower courts and therefore does just does not lay a sound foundation for for justice thinking about the court as an institution we actually had a brief conversation at lunch about televising arguments before the Supreme Court and I wonder if you'd share some of your thoughts about the wisdom or lack of wisdom of allowing cameras into the into the courtroom I was in favor of cameras when I first arrived that's one of the perhaps few things on which I've changed over the years I've come to believe it's a bad idea the argument usually made in favor of it is you know we want to educate the American people concerning the court now if I really thought that that it would educate the American people I would remain in favor of it but I've come to realize that it really will not if the American people sat down gavel-to-gavel if they watched the entire feed of our of our cases you know yes they would learn what the court is like they would come to realize that we're not spending most of our time speculating about whether there ought to be a right to suicide whether there ought to be a right to this or that you know whether there ought to be and therefore is but rather then in fact we spend most of our time on pretty dull very legal stuff like the Internal Revenue Code the Bankruptcy Code and no one would ever again come up to me and say as Believe It or Not people frequently do what Justice Scalia why do you have to be a lawyer to be on the Supreme Court the Constitution doesn't say so no if you think we're contemplating our naval most of the time you know contemplating grandiose philosophical principles about whether this that or the other right ought to exist sure well you don't have to be a lawyer but in fact most of the time we're doing law and so they would be educated but for every ten people who watched us gavel-to-gavel there would be ten thousand who would see 30-second takeouts that would appear on the nightly network news there's no way to stop that and I guarantee you that those takeouts will not be characteristic of what we do they will be uncharacteristic it will be you know Man Bites Dog so so why should I be in favor of something that I think will distort the public perception the court do you think it would besides which I I must admit III have something of an old-fashioned the notion that familiarity breeds contempt now III think there's something to the fact that the institution is is is somewhat remote and and it isn't coming into everybody's living room every night anyway do you think it would alter the way that counsel would argue before the court sound so I think sure it certainly would you think it would make it better or worse I think make it worse I think they'd be grandstanding I think they'd be showing off i I don't want to see counsel show up just just just the facts you know just the facts man right as sergeant Webb said and some people propose this has been current in academia mostly and so one wonders whether it'll ever have any traction in the real world but some people in academia have proposed that the justices terms ought to be limited and there have been various inventive proposals of style that might be done without amending the Constitution's guarantee of life tenure however it's done do you think that's a good or a bad idea well you know so long as you grandfather you know oh well stipulate to that your dead father you I it has always seemed to me that this is a solution in search of a problem what is the problem why they are there too many doddering the justices on the court I don't in the time I've been there there's nobody who stayed around longer than then ought to have been and and they were all still hitting on all cylinders when they left Brennan could have stayed around longer Lewis Powell could have certainly Sandra could what what is the problem the problem is that presidents don't don't get enough appointments if that the problem that you know Jimmy Carter had none and what is the problem I'm not sure there is one unless it's the age of the justices I do not either that or the fact you want every president to have a certain number of appointments unless it's one or the other of those two things I don't see what it accomplishes or maybe there's a third I don't know who's in third maybe you want you want you I think there's a great advantage in having a huge time span I mean when I came on the court there there there was someone who had been appointed by Dwight Eisenhower I mean bill Brennan had been appointed by Eisenhower the court makes cust its most important aspect there's constitutional decisions it makes a judgment for a you know a society over time and I think there's a lot to be said for having sitting on that Court men and women who represent the society over time and not the not just the current the current society I mean the current society expressed expresses its wishes through the legislature you no doubt about what that society wants but if you do believe that a constitution places some limits on the current society in light of the society over time you it seems to me would prefer a court that represents the society time Oh hmm you're well-known for for what has been variously characterized as being a textualist in constitutional interpretation some characterize you as an originalist there let's sharpen that a bit and suggest that originalism is the search for the original meaning of provisions of the Constitution and I believe at one point you may have defended your methodology because you believe in an enduring Constitution as you put it rather than an evolving Constitution I hope I'm not quoting you indirectly very well-put so well but I want to hear more for you I wonder if you could explain what you mean by the concept of an enduring Constitution well look what in its most important aspects most of what you're in the Bill of Rights I suppose the Constitution tells the current society that it cannot do what it wants to do it is a decision that the society has made that in order to take certain actions you need the extraordinary effort that it takes to amend the Constitution now if if you you give to those many provisions of the Constitution that that are necessarily broad such as due process of law cruel and unusual punishments equal protection of the laws if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have they are no they are no limitation on the current society at all and the whole purpose of them is eliminated if the Crillon our usual punishments Clause simply means that today's society should not do anything which it considers cruel and unusual I mean it means nothing except to thine own self be true we think thumb screws are bad but you know if you think thumb screws are okay god bless you it's not crow unusual if you don't think it's cool in a usual so you know I I interpret it the way it was understood by the Society at the time and if you don't it now this doesn't mean that there aren't new things that come up of course you have to apply the text to new phenomena which the founding generation didn't even know about but as to the extant phenomenon whether the death penalty is cruel and unusual whoever whoever voted to make it impossible to have the death penalty or to make it impossible for that matter to have the death penalty for anyone younger than 21 years of age whoever voted for that nobody you make out of the Constitution something that it was never meant to be and it's all done you buy a Supreme Court which is probably of our of our political institutions the one least capable of understanding what the current society really wants we're not supposed to know what the current society wants that's not how we're supposed to vote so why are you going to be you're going to entrust this institution with keeping the Constitution up to date if that's what you want to do which it shouldn't be you know even if that were the object you've you've picked the worst institution do it the way England does it if you want to keep the constant make nothing of the Constitution that is to say the English Constitution is whatever Parliament says there's no such thing as a as a law of Parliament that violates the Constitution Parliament is the trustee of the Constitution well if you believe in the evolving Constitution that's what we ought to have here Marbury vs. Madison assumes that that what the Supreme Court is doing is lawyers work lawyers work not evolutionists work anyway yeah well I call for another hand I'd be happy to listen to you but yeah but I want to pick up on that with a a question about the meaning of the Fourteenth Amendment in in 1868 when the 39th Congress was debating and ultimately proposing the 14th amendment I don't think anybody would thought that equal protection would have applied to sex discrimination or certainly not to sexual orientation discrimination so does that mean that that we've gone off on a in air by line yes to both sexes to sex discrimination sorry to tell you that no no that's fine I'm I'm happy to but if indeed the current society has come to different views that's fine you do not need the Constitution to reflect the wishes of the current society certainly if the Constitution does not require sexual discrimination discrimination on the basis of sex the only issue is whether it prohibits it it it doesn't nobody ever thought that that's what it meant nobody ever voted for that so where do you get it from if the current society wants to outlaw discrimination by sex hey we have things called legislators and the enact things called laws you don't need a constitution to keep things up to date all you need is a legislature in a ballot box things will be as up-to-date as you like you don't like the death penalty anymore that's fine the Constitution doesn't require it it simply doesn't forbid it if you want to eliminate it you know vote to eliminate you want to write to abortion to tell you the truth there's nothing in the Constitution about that but that doesn't mean you you cannot prohibit it persuade your fellow citizens it's a good idea and pass a law you've got the right to abortion and that's what democracy is all about it's not about a nine-nine superannuated judges who have been there too more imposing these these demands on society I don't know how we ever came to that notion that it's any way well as a methodological matter let's let's take for the moment that you're correct and that we should trust me you're correct so our search now is for original meaning what do we do when when when the original meaning of a constitutional provision is is either in doubt or is unknown well how do we proceed that look well this is the argument often made about originals Oh what do you are you historian you're not a historian you know back in here I do not pretend that originalism is perfect there there's some some questions you have no easy answer to and you have to take your best shot and in some cases the phenomenon did not exist at the time you're going to have to figure out the trajectory of the first amendment you know I mentioned at lunch famous old case New York versus SIA when the city of New York in the 20s enacted an ordinance forbidding the use of sound trucks after ten o'clock it was challenged on First Amendment grounds well what did the framers think about sound trucks I mean you have to figure out the trajectory of the First Amendment they didn't have sound trucks they did have nuisance laws would they have you know so some questions are hard the only other true-blue originalist on the Supreme Court is Clarence Thomas and he and I have disagreed on on what what the approach of originalism would be you want to want to hear about that is a very interesting case John ever since I was a little kid growing up in New York you you'd see political posters on the telephone poles and they always said on the bottom you know published by citizens for Schwartz or whoever whoever for any it was a law in every state and in California as well until your Supreme Court held it was unconstitutional so it came before us a woman asserted that she had the right not only to conduct political campaigns but to do so anonymously so all of these laws had been around for ever since we had almost ever since we adopted the Australian ballot almost a century every state hadn't the Supreme Court held Clarence wrote the opinion that it was indeed unconstitutional to forbid anonymous campaigning I dissented i dissented because i knew when when i can't figure out what the framers would have thought and I really couldn't on this because we have a secret ballot back then you know voting was by a show of hands or by voice it wasn't even secret so I thought if every state has done it for a century and I I have no indication that it's wrong it must be constitutional Justice Thomas came out the other way because of the Federalist Papers which were written by Madison Hamilton and J but were signed police he was of the view that anonymous political tracks were very important to the founding generation so you know originalist can have fun too we can argue and disagree with each other we do think that you might not well I'm sorry let me finish it it is it is wrong to demand perfection of originalism while we don't have the answer to everything but by god we have a answer to a lot of stuff a lot of stuff especially the most controversial whether the death penalty is unconstitutional whether there's a constitutional right to abortion to suicide and I could go on or all the most controversial stuff you go back and look nobody thought that that's what the Equal Protection Clause meant what the Eighth Amendment it easy easy answers I don't have to read the briefs for pete's sake so whereas if you are an evolutionist you don't have any answers I mean you don't have any answers when we when we held that there was no constitutional right to assist in suicide we said we are not yet prepared to announce a constitutional right you know stay tuned in the fullness of time another 20 years or whatever you know every day is a new day for the evolutionist you know last last year or well once the the death penalty couldn't be imposed 221 and it couldn't be imposed at 18 and then everything changes Pont awry so you're right originalism is not perfect boy in his so much it's so much more perfect than evolutionism where you just just looking up at the ceiling and it's a new day every day is a new day I wonder if the death penalty is unconstitutional yet well let me pursue another difference if you will between originalist justice Thomas's has said that he thinks that that at the time of the Constitution's creation and he argues that this is borne out with the Constitution's text that the Constitution permits Congress to regulate commerce among the several states but not commerce that might have a substantial effect or activities that might have a substantial effect upon Interstate Commerce and you don't seem to agree with that view so is he wrong and why do you want he may well be right there by the brother Clarence I I don't want to go too far I want to say he doesn't believe in starry decisis but he doesn't much believe in starry decisis I'll put it that way he is willing to go back and and and get it right even if it's even it's even if we've gotten it wrong for a long long time I am on the other hand inclined to acknowledge that any any legal philosophy whatever it is has to make an exception for story decisis you cannot it reinvent the wheel so you know for example the the most of the decisions that have been made erroneously under the Equal Protection Clause or the Eighth Amendment of what now I'm willing to you know say well you know its water over the dam not all of them some of them I I will not I will not accept one of one of the ones I won't accept is is is Roe versus Wade or Casey whatever whatever the current evolution of that is that's a special category of case that I cannot accept because it puts me in the position of being a legislator rather than a rather than a judge when we have our next our next abortion rights case let's assume it's a it's a state statute that requires a certain staffing of abortion facilities you need so many doctors so many nurses you need a certain type of equipment all of which makes it much more expensive to have an abortion the question for me under Casey is is this does this impose an undue burden on the woman's constitutional right to abortion type undue growing I'm a lawyer I run to the law books to look up under what do you know no burden was an undue burden for for several centuries I can't use the law books what do I use what do I use I mean what do you think we're going to talk about when that next case comes up I guarantee we're going to it we're going to sit around the nine of us and nobody else in the room you say yeah I see nine doctors five nurses and you're gonna prove I don't think that's an undue burden you think it's an undue burden how many think it's an undue burden right right that's five it's an undue burden that's not law and I won't do that so that you know that's a category of case that I will not accept started decisis on but most of them I will and and we've been we've been going down the the Commerce Clause thing for so long I think it's too late to turn around the court often says that starry decisis is at its weakest in constitutional this is because when the court gets it wrong it stays wrong that's true less you know we can amend the Constitution or some other cumbersome way of its children but the court has not said it doesn't exist no no I understand okay but I guess that raises the question then if yeah you've given one explanation why you would have here the stare decisis and some instances and not another right but outside of that area should we always should precedent bind us under what circumstances should we abandon it well of course it should normally bind I mean you know when counsel gets up and and is making a an argument that a certain statute is unconstitutional am I supposed to interrupt and say well now wait wait counsel first of all are you sure we have a right to say that a statute enacted by Congress is unconstitutional let's think about that he's a well yes well Marbury vs. I know Marbury vs. Madison what was it right you cannot reinvent the wheel every time a case comes up you have to accept the basic stuff that's that's been around for a long time if somebody came up from the basement of White House they found a you know piece of paper down there demonstrating the Marbury vs. Madison was wrong I would shrug too late society has moved on I don't need to teach Marbury any longer in my bed comes fatigue but don't forget Marbury was based upon the concept that when the court was deciding the Constitution it was doing law it was not doing sociology the reason it was the responsibility of the court to apply the Constitution was because it was lawyers work it was lawyers work now the Constitution's of some kind of modern countries copying ours after World War 2 they say the Supreme Court shall be the authoritative interpreter but ours doesn't say that the only reason we do it is because it's lawyers work and if it isn't lawyers work if it's philosophers work or sociologists work we shouldn't be in the business so if you believe in that evolutionary stuff you should think that Marbury was wrong and that Congress ought to be doing this stuff there are lawyers do a lot of lawyers work in countries other than the United States should we ever pay attention to their work product when it comes to constitutional decision of other countries well it depends it depends if you're an originalist of course not what can what can the France is modern attitude towards the French Constitution have to say about what the framers of the American Constitution met or what the American Constitution met what if you're an evolutionist I guess that should be absolutely if you're an evolutionist in the world's your oyster I mean the evolutionist believes that the Constitution says what it ought to say well let's look to what wise men and women in other countries think ought to be the law so you know absolutely all right a staple of our constitutional jurisprudence though is what you know we all sometimes refer to as tiered review the sort of the notion that the default position is that actions of legislators are valid and and and unless they're not rationally related to some legitimate interest but under some circumstances we'll treat the work product of legislators is being presumptively invalid a racial classification for example we apply strict scrutiny and we make the government prove a very strong justification some people say that's breaking down that the peer review you guys really don't do what you say you do I'm not even familiar with the terminology tiered review all tiered review oh I just you weep gier you know the upper tier of the Opera House it might make you weep - I mean that's entirely possible but what I meant to convey was the the various standards of review that the true folks use to apply rational basis scrutiny a strict scrutiny or intermediate scrutiny right yeah so is that breaking down we pretty much made it up yes that's that's true that's not the Constitution are you going to keep making it up I have never been a fan of it and you know it partly it's breaking down because predictably it's it's expanded so you know you have strict scrutiny intermediate scrutiny should there be semi intermediate scrutiny and whatnot I mean it's a it's a shell game of loading the it's a thumb on the scale and I don't think there ought to be a thumb on the scale so how do we how do we go about then and professor Mitch Burman that believe he's at the University of Virginia where at least his article was published in Virginia's Law Review made the argument that there are constitutional operative provisions and then there are decisional rules that implement them we might you know for example say cruel and unusual punishments are prohibited but we have to come up with some rules to figure out which ones now originalism is one rule but if we if we abandon the various levels of judicial scrutiny rational basis strict semi intermediate whatever what are we put in our place and why do you need anything in their place why can't you ask whether whether this this this piece of legislation is unconstitutional why you have to come up with a reason and if they're the only reason is that it treats taxpayers differently some pay more money than others the answer is that's not a good enough reason you're permitted to discriminate in the taxing in taxing on the basis of wealth I'm not sure the system would break down without without these thumbs on the scale I mean you you you would you would end up with the same need to show justification for those provisions that that run head-on against against provisions of the Constitution such as discrimination on the basis of race of course anything that overtly discriminates on the basis of race I mean if you want to call it strict scrutiny you can call it that but the simple fact is that the mere fact that it does that it makes you think right up right at the outset that it's that it's no good so unless a provision were to either conflict with with the plain text of the Constitution or the original public meaning of the provisions of the Constitution we should assume its validity and leave it to the representative branches no I well yeah unless there is reason to believe that the provision of the Constitution was directed against this which you know it was not nobody thought it was directed against sex discrimination that's a that's a modern invention I there those who think it shouldn't exist and of course it shouldn't exist but you don't need the Constitution you don't have to distort the Constitution to achieve that result what about something like the ninth amendment which says that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage the rights retained by the people does that mean what when I was in law school if my life had depended upon telling you not what the 9th amendment meant but what the ninth amendment was I wouldn't be here but he ever used the 9th amendment I didn't teach it at Harvard beg the court didn't and all of a sudden after you know the total absurdity of substantive due process has you know we become obvious sub substantive you know that's how we get Roe vs. Wade and a lot of these invented constitutional rights it is the due process clause which says no person shall be deprived of life liberty or property without due process of law which is a procedural guarantee can you be deprived of life yo yeah but not without due process Liberty yeah but not you can be put in prison but not without due but the Supreme Court is there are some liberties that are so important that no process work will suffice I mean you know converting a procedural guarantee into a substantive guarantee and law professors walk around talking as though it made any sense of a substantive process what is substantive process close your eyes and try to imagine substantive process it's the opposite of procedural substance if that will help it's totally absurd and and and it has become increasingly obviously so we have to find another ship for all the rats to run over to and there is the ninth amendment which has been there this huge charter of responsibility to the Supreme Court that it has never used for 200 years what the 9th amendment meant to the framers was quite simply their belief in the natural law and what it said is look at simply because we've listed certain rights here that will be enforceable against the legislature by the courts that doesn't mean there aren't other rights for example the right of a parent to dictate the education of the parents children we haven't mentioned that because our bill of rights unlike the Bills of Rights of modern European countries does not purport to be a compendium of all of mankind's rights it I mean it would go through the list it's a weird list it doesn't include some very important things such as a generalized right of privacy or the right of a parent to raise children the way the parents want those are very important I you know I'd fight a revolution for those rights but it does include you know the right to trial by jury in all matters at civil law involving more than more than 20 dollars who cares you know you're gonna fight and die for that one No so how do you explain it what they picked were simply those rights that a tyrannical government had traditionally moved against they don't care how Scalia raises his kids but they do try to impose religion they try to stifle speech they conduct unreasonable searches and seizures they want to get rid of juries and so forth and so on man that's how they were selected it wasn't Oh all that's good and true and beautiful is contained within this bill of rights not at all nobody can regard it as having been intended to be that and when you try to make it that you're just distorting it how did I get onto this what was the well I invited the door to the ninth amendment which is where the rats had fled to it would they same be true all it meant to the framers was we believe in the natural law and just because there are some rights here doesn't mean that that that you cannot come before a legislature and say I have a natural right to abortion or I have a natural right to this that or the other I have a natural right to raise my children the way I want or for that matter it doesn't say that you cannot engage in a revolution if that right is taken away from you this is not meant to be the totality of all human rights that's all a minute we is the privileges and immunities and privileges and immunities Clause of the Fourteenth Amendment a similar kind of refuge for expensive natural rights terminology yeah that that's the next shift over that there okay because when I use my brother Clarence exact likes that as you know and you didn't join him in McDonald I didn't want to tell you the truth my new grounded a non substantive due process indeed late at night I told you but I accept starry decisis I'm not going to create any new stuff under substantive due process I'm not going to invent new ones but you know it's most of the stuff that's there you know seems for British water over the dam the incorporation so you based on subsidies assets of your city what's your limited to those textually expressed rights in the Constitution Yeah right good Brian can I now I I don't I have never done a intensive study of the privileges and immunities clause for the simple reason that we've been living with substantive due process for what three-quarters of a century anyway no arguably even longer yeah all right well Dred Scott was the first case it used in a lovely heritage in it I'd like to change our conversation a little bit from constitutional interpretation to some of your thoughts about you sometimes express thoughts about the culture in which we live for example in Lee against Weissman you wrote that we indeed live in a vulgar age now I don't disagree with you I quite strongly second that point of view I'm just curious what what do you think accounts for our present civic vulgarity where anything seems to go gee I don't know you know I occasionally watch movies or television shows in which the F word is used constantly not just by you know mafiosi or drug addicts or you know the criminal class but by supposedly elegant well-educated well-to-do people and they're going around use I work where they get it from I the society I move in doesn't behave that way will who imagines this I haven't met maybe here in California I don't know you guys really talk this way I I just I just do not know is this an expression of post-modernism do you think you know in Cohen against California second justice Harlan said you're famously one man's vulgarity is another man's lyric that's silly all right so it's vulgar I think on the other hand that vulgarity is vulgarity hello defend that position and you know wouldn't you see it okay right right all right you you've said it that's her in a previous interview you said that there you thought that their eras of genius the fifth century BC Athens for philosophy the fifteenth century Florence for the Arts in 18th century America for government I think that's true so what's our era are we well not every era is an era of genius yeah that goes along with this being a vulgar era but I consider any hope for our do you think wouldn't you know I'm for yeah I mean it seriously it is if we are indeed living in a vulgar age if this is not an era of genius I know you're you're a lawyer you want do lawyers where can I'm asking you to speculate about things that are beyond that well it's the thing I'm most worried about we will never be a distinguished age if we do not believe in excellence if if we have a hostility towards a quote elitism to the very notion that there are some modes of behavior some usages of language that are better than others a very notion that anything is better than anything else it what you reject that notion you're here you're never going to improve and I'm afraid we we have bought into that in a lot of fields one man's vulgarity is another man's lyric I mean that's that's terrible I mean what do you expect your language to come to if you believe in that but it's not true there are dignified and excellent ways to behave and there are undignified and base ways to behave and people who regularly do the former are better than people who regularly do the latter and unless you believe that you're going to have a vulgar society you've been quoted as saying that the last lesson that you learned as a Georgetown undergraduate was not to separate your religious life from your intellectual life he's a very Catholic thing you don't want me to talk about why not that sets that's part of who you are and you don't have to talk about it but I'm curious not ashamed to talk good it was from the days when Georgetown was a very Catholic very Catholic school and I often tell it to indicate how much things have changed I was a history major and in those days you had to take a comprehensive oral examination in your major before you could graduate so I go before this this board of professors from the history department chaired by dr. Wilkinson a layman chairman chair of the history department and he's given me these questions for all the history I'm learning and I'm not gonna bow to the ball I'm really feeling good so you know the time is almost up and he says well mr. Scalia 'but you know that's very good you've done a very good job i have one last question for you know if you had to look back over all this history learned here at georgetown had to pick one event that was the most significant for mankind what it would what would it be and I'm feeling good I'm saying genes he told me I've done terrific up to now and there is no wrong answer to this one I might even would I answer yeah battle of thermopylae or you know I don't remember what they shook his head very sad Lisa no mr. Scalia no the incarnation mr. Scalia boom it was like a sledgehammer hitting me on the head because you knew you separate your your religious life from your intellectual life and I've never forgotten that lesson because I was as he was talking about history wasn't talking about religion you know he had religion courses but I am that's separate from history and it was a powerful lesson last thing I ever learned in George Tabb so how does that manifest if one keeps a I'm not just speaking of you if one believes that one has an intellectual life in a spiritual or religious life and that they are not separate but yet one is cast in a role in a secular role do you have to consciously separate the two when you when you assume that secular role no not at all any more than I have to consciously separate my social views that have nothing to do with religion I'm not authorized to impose those on the society and I'm not authorized to impose my religious views I have them but they they are not to play any role in a their you know people often ask me how are you your religious man how do you think your Catholicism affection I say I hope it doesn't affect it all except in one respect I try to observe whatever commandment is six seven no not to say thou shalt not lie I try to try to observe that faithfully but other than that there there's nothing in my religious belief that the that I hope has any effect upon my the other nine Commandments are off-limits I observe them personally but I have no authority to impose that I see I see your are you with the comment you made about thou shalt not lie is also against me I try to be honest in my opinions I don't you know don't talk about substantive due process in their eyes and all you seem very honest in your opinions and I must say for those of us who read your opinions and teach them I personally find the very refreshing I mean do you have past justices of the court that you especially admire I'm going to talk about your John Marshall of course but but in more recent times Robert Jackson Roberts excellent what about Jackson especially Wow he's a wonderful stylist I don't think there's anybody who writes opinions as beautifully as he did with justice scalia's of competitively I don't know I don't think so he is and you know he was a self educated man he never he never never went too commonly never went to law school you know some of the days when you could read law but he never went to college yeah I think you didn't go to the Albany Law School what's nine years so I don't think I graduated yeah but uh anyway I and he's usually on the right side of things you read his opinion in in Korematsu god it's beautiful and a number of other cases perhaps he's living proof of the adage that you don't want to let school interfere with your education roughly right it's uh only right my father was a was a college professor of Romance languages in the days when you had to take a language to graduate so he had a lot of students who couldn't care less about the Italian or French or Spanish what everybody's teaching and he was of the view that every American child should be endowed with a Bachelor of Arts degree at birth thereby eliminating the necessity of their going to college unless they were really interested in it electric death okay okay Oh I hope we don't go so far as to endow everyone with a JD I don't know that put me out of a job and put you in it yeah do you think contemporary legal scholarship has any significance to the venture bar less and less what has happened over the years is that the legal Academy has grown away from the bar and and grown towards the University I think I'm right that the first law school Harvard was was founded by the by the bar not didn't come out of the university came out of the bar and over the years I don't know whose fault it is maybe it's the bars fault maybe it's the academics fault but more and more the law schools regard themselves as much closer to the university than they are to the to the practice and you go back and look at the law reviews the kind of articles they used to carry fifty years ago were of some practical use you know analysis of the treatment of certain issues by courts around the country there's not much of that stuff anymore and it sort of looked down upon and it's highly philosophical abstract it's you read these pieces there they are just you know philosophers talking to each other all right which I guess is okay but in some law schools I have no reason to think this is one of them I hope it isn't there is on the faculties a positive contempt for the practice even though their students are mostly going to go into the practice when I when I was on the faculty at Chicago it and I was on the on the appointments committee it was not uncommon that you keep an eye on your own graduates because they always have a certain affection to come back to them to their old alma mater but you know we'd keep an eye on graduates and sometimes person's name would come up should we approach this person and we would say yeah let's let her practice for you know a couple more years get some seasoning that doesn't happen anymore you you have to go go into law school go go into the job market in academia what within two years after your outer or somehow you're damaged goods you've been practicing law and that's too bad that is really too bad I had almost seven years of practice before before I I went into teaching at the University of Virginia so that's changed and I think it's it's partly the bars for at the bar the borrow to pay more attention to bringing bringing young professors into the into the activities of the bar Law Reform and so forth take a professor's lunch I tell them that all the time I'm not sure Oh for that what what did you most enjoy about teaching when you you know what you you were taught at the University of Virginia in the University of Chicago or in Chicago yeah I am the only the only thing I didn't enjoy is grading the dog on exams yeah I guess that's still true I love the classroom I like to try to explain abstruse things and try to make them clear I like the freedom of researching what I want to research and not not what some advocate shoves under my nose I mean that's a great luxury it really is yeah not to mention you know working only four hours a week that's a come on that's what my friends would practice I'm sure well you only work a few months a year too we are always in session yeah yeah that's true okay oh you know you you seem to inspire in some people I think this is probably people who've never met you because but of those people who have never met you you seem oftentimes to inspire either love or hate why do you think that so is it because you're outspoken because you because you don't lie I don't know I I think I think my views are often misrepresented and people have a misimpression of what I what I would do as a result of which you know I often make a terrific impression because people expect me to have horns and a tail and when I know gee what a great guy he is you know I'm actually not that good but you know I I blame it on misrepresenting my position yeah okay and that aren't sticking with that all right well go back to originalism of sorts that's a question that one of my colleagues actually wanted to be sure that I asked you and that is if you'd been alive in 1788 do you think you'd have been a federalist or an anti federalists this is of course imaginary because we're not alive until federal list in fact you know I was I was one of I was the faculty advisor for the one of the two first chapters of the Federalist Society the chapter at Chicago was was founded when I was on the faculty and and the people who started it came to they needed a faculty sponsor and I was likely sponsored and I spoke at the first national convention of the Federalist Society not a very large affair which was at Yale as I recall and what I spoke to at that was the absolute absurdity of the hostility that many of the young Federalists had towards the federal government I mean your Federalists for pete's sake it critics liked it it means that you should like the federal government for what the federal government ought to be doing and dislike it for the stuff that it shouldn't be doing but don't dump on you know on on federalism and as such no I would have been a federalist they had reasons to have the federal government and it's it's it's good that we have it and by and large it's done good things for us and for the world do you think federalism the principle of federalism you know the allocation of authority between the federal government in the States do you think that should be primarily enforced by the political process or or or by the judicial Oh by the courts hmm well I think look at your you're crazy if you think I am sometime when I teach separation of powers I put this question now who do you think is the protector of the states within our structure of government who protects the states and sometimes it was a world with a Supreme Court the Supreme Court is going to protect the states I'm a Fed I'm appointed by a federal president confirmed by a Federal Senate why federal power is my power why should I have any incentive to protect the states to give the protection of the state's over to a a federally constituted Supreme Court is crazy and the framers were not that stupid the protection for the States and the Constitution was eliminated by the 17th amendment it was the fact that the states used to own the Senate the Senate was elected by the state legislatures realize what a difference that is nothing could get through the this no law could be passed if it you know came down on the states that we tossed that away in thoughtlessly I think and and you can trace the decline of so-called states rights from the from 1913 when the 17th amendment was eliminated so you know you can go around wringing your hands about states rights and whatnot but the the essential structure of the Constitution that protected the states is not there and occasionally you will get a Supreme Court a quirky Supreme Court that will indeed vindicate states rights like holding that the Commerce Clause do not allow you to regulate the use of a gun in a school yard which has nothing to do with Commerce but hold long haul you cannot expect the Supreme Court to protect the states so I don't I don't know who should protect the states when you say the political system I mean I don't think the political system will achieve that the Virginia there are certain legislators in Virginia who have been proposing most recently what they call the repeal amendment you know I just read aloud that the you know tell me about that that's a good moment okay I thought that I want to hear you talk about the repeal amendment is would be a proposal that would give two-thirds of the states if they United in passing the same measure to repeal a specifically identified law or regulation that it would be repealed and thus having been repealed Congress could repass it and I suppose subject to presidential signature but it would give two-thirds of the states if they unite in a particular course of action the ability to repeal federal legislation very imaginative I know yeah I think so too what do you think from being imagined if you think it's good idea I don't know I think about okay okay it's well we'll just leave that for all of us to chew on I have encountered people who characterized the religion clauses as guaranteeing freedom from religion I've actually heard that how would you respond to such person freedom from religion they say that's what the religion clauses protect now I'm surprised I think I certainly think at least as it has been as they have been interpreted it certainly ensures freedom from establishment all open that that's not what they originally as you know that's not what they originally meant I mean the Establishment Clause is very carefully worded it is not that Congress shall not establish a religion it is Congress shall make no law respecting an establishment of religion which originally meant they wouldn't either establish a church nor dis establish a church because several of the states had established churches Congregationalism in New England and Anglicanism in Virginia and the purpose of that was to make sure that Congress would would leave that be but over the years the the Establishment Clause has come to mean that that the establishment of religion is forbidden so in that case in that sense it does it does ensure freedom from religion from having an established religion imposed upon you know I think when I've heard that phrase I've I've usually interpreted to mean that that it's a guarantee of a secular society oh I don't think no I don't think it was ever thought of as a guarantee of that the very fact that you should select freedom of religion as as one of the few freedoms that are identified in the Bill of Rights shows quite the contrary that religion was specially favoured by the by the framers we are not we are not the nations of Europe that were conquered by a Napoleon well I'll tell the story I think I wrote in one of my opinions I remember on 9/11 I was I was at a conference in Rome I had just arrived I was unpacking marina and I are on packing our suitcases with the television on and we're seeing these planes go into the Twin Towers that night the president gave gave an address to the people and he ended it the way our presidents usually end their addresses god bless america the next morning one of the other judges at the conference from one of the European countries that I will identify came up to me and he said you know I saw the tape of the speech and the wonderful speech how I wish that the President or the Prime Minister of my country at a time of national emergency or disaster could say god bless but absolutely forbidden to invoke the deity in in in Germany in in Italy no Italian politician will do it dear you're just not allowed to it is called secularism and in the countries conquered by Napoleon that that was the deal drive religion from the public square it is supposed to have nothing that is not us it has never been us now it's it's a possible way to do things and there are people who like like it that way that's fine if you don't have to have religion in the public square I suppose if you want to make a proposal that we adopt that kind of a society fine but don't tell me that the framers of the American Constitution ever had that in mind they didn't quite quite to the contrary they gave religion a special status you can't impose it on people but but on the other hand we've always had it's been part of our political life always it's still I mean my court begins it says and god save the United States in this honorable Court it's not unconstitutional and I also said that I think I put this in the opinion well one of one one famous states and it's been attributed to a lot of people Bismarck among them but I think it fits best in the mouth of Charles de Gaulle he is supposed to have said on one occasion God protects little children drunkards and the United States of America and I think one of the reasons is we we do we do him honor as many of the countries of the world do not in and the affirmative action race-based of preferences whatever you want to call it I've been around now for some time in their volatile and controversial and and you have a clearly expressed view on that you've written among other things that under our Constitution there can be no such thing as a debtor or creditor race yep I think it's probably fair to say that there are many Americans who think that african-americans and other minorities have been systematically disadvantaged by American law in society and that the majority Oh for lack of a better word reparations of some kind how would you reply to such a person I have no problem with helping the disadvantaged but I'm talking about racial entitlement that somehow you're setting the record right by enabling the the children of black professionals in Chicago to have preference in admissions to to the best colleges I mean these are not people who are disadvantaged to to help the disadvantaged you don't have to use race as a basis in fact if if blacks have been held back and continued to be held back they they will be among the most disadvantaged and then simply a scholarship programs that aid the disadvantaged will disproportionately aid the blacks once you depart from that you're engaging in racial entitlements that each race is entitled to a certain slice of the pie and once you get into that game you will never get out of it you will never get out of it those countries that have gone into racial entitlement of have lived to regret it and you cannot abolish it once once that's been generally accepted so I don't know justice O'Connor said how many years do we have left she said 25 years oh let's see that was in Grutter woman yeah that's a few years ago we got 20-some years left I think us and 20 baby yeah oh there's my Apple B on the supreme court I can say you know 15 years 10 years whatever they don't know what we're talking about it yes yeah that's true where we apologize justice o'connor said and in her majority opinion in greta against Bollinger that you know there's no 25 years for affirmative action yet not permanently okay but for another 25 years it's okay so is that sort of a prescriptive easement kid let me think you mention 9/11 and your in your comments about religion how much do you think that decisions in cases like holder against humanitarian law project which was decided this past this past term I think in which the court upheld the the provisions of federal law that prohibit expert advice or assistance to designated terrorist organizations held that that's not a violation of free speech how much do you think though that decision might was affected by 9/11 would it come out the same way if that had come up in 1990 well I think the reasonable list of restrictions on speech always depends upon what a situation you're dealing with is I mean certain words that are fine and in a calm setting are incitement to riot in a different setting I I don't I don't know that that's that's so remarkable about public Quran Bernie that fellow down in Florida who was going to have a bonfire of the Koreans given the inflammatory on one of them I think it was just one I thought it was all ton of this but I didn't know but however many I assume even a single Koran would probably being burned would probably be quite inflammatory to what may be the overly sensitive conscious of Muslims around the world but but given that reality this is Koran burning an exception to well unless it's going to cause a riot here immediately meat brand which which the police cannot cannot effectively stop no ok maybe a very bad idea but you know a lot of stupid stuff is perfectly constitutional here I think it was Winston Churchill and once said that wherever there's a lot of free speech there's a lot of stupid speech of course and and and it's no justification for this speech I'm always amazed people gonna ask well it's okay he was exercising his First Amendment rights you know as OA as though rights are like muscles the more you use them the better it is he could be executing is exercising his First Amendment he's an idiot okay was it another one of my colleagues thinks it in the area Criminal Procedure you you adhere much less to original meaning than in other areas of constitutional interpretation why you think that's so I hope not well I don't know he'll give me here some examples CIA react to it and the keidel case where thermal imaging was done from a public street as a search requiring a war it's one of those areas where new technology requires you to figure the trajectory of the original Fourth Amendment and you know I figured it the best I can I think that that was a search in the house well how about a case like Crawford where I think you wrote for the majority that confrontation the confrontation Clause which requires confrontation of a witness requires it hearsay and other witness not president ever not present evidence be barred but only if it's testimonial which is a word that's not found in the sixth amendment oh no but that's that's what witness man testimony alright we can extract you get there from the word witness God that if there was any purely originalist opinion it's it's Crawford unless it's the Second Amendment case which is also pure originalism right all right so you're consistent across the board I try to be you know I mean if you show me that that that's what it meant and you know there is not a long tradition of ignoring it which I feel starry decisis of obliges me to accept yeah you got me okay I mean just a couple of things that I was nothing up your sleeve now laughs I have something up my sleeve when I teach but I don't have anything I mostly with you know all my cards are on the table all right okay I've always liked this quote it was attributed to Yale Law professor grant Gilmore who at the end of a lecture he gave him aegis of American law said that in heaven there will be no law my favorite quote I don't like that yeah let me share with you all in heaven there will be no law and the little lion will lie down a little a and in Hell there will be nothing but law due process will be rigorously observed so you want to expand on that well they had some Gloucester Gilmore well it's it's it's a reality that those institutions that we care most about family church are destroyed by the law when the law enters in it destroys them and all religions have had this notion that at the end the laws will be eliminated you'll be freed from the law now the laws is is a as Madison put at a concession to the weakness ability nature if men were angels we would need no laws so you know I don't go around celebrating the need for a lot of laws but now that's a great line by Grant so one of the things we should derive from that I suppose it would be that that we should shape our laws to create spaces for these non legal institutions to affect our lives and shape our society would that be fair to say I think that's right I think we should be very careful about about the laws intruding into enter into those sorts of institutions which which I think we have been I think we're we we don't allow the law to get in to family matters too much unless the child's being physically abused mm-hmm there's another quote that's I don't know if I'd like it as much as grant Gilmore's but it's two of them that are Holmes Holmes is very codable and he once wrote that the life of the law has not been logic it has been experience and then he also said in another setting a page of hit on this point well we forget what that point is a page of history is worth a volume of logic yeah hmmm I think it depends on what you're talking about if you're talking about the original meaning of the Constitution of course history is says what it what it meant but if you're talking about applying applying the Constitution to events phenomena that didn't occur at the time if you're talking about establishing a realistic law that that can be followed by by the lower courts the only tools you have our Lodge is is logic I mean logic is essential to to a genuine system of laws if you're not bound by logic you you just have random random decisions by judges who think this ought to be the case or that ought to be the case in his reason and logic that provides order and and and justice fairness so the evolutionists are not logical then I take it I guess you could be a logical evolutionist until you until you adopt your next evolution I mean iterative logic all right I believe you're you're an only child Loreena oh don't rub it in no no I'm the father of an only child so I sort of summon a yeah yeah my wife is always pointing that out oh it isn't and she says about my you know modern China would they were their one-child policy and the awarding of a lot of female can you imagine a whole nation of only sons God well you maybe answered the question I was gonna ask you which is how do you think you've been shaped by being an only child you know I mean it's hard to know since you've never had any other experience but it's hard and I know my mother spent an awful lot of time which I didn't realize at the time making sure that I did the right things and hung hung with the right people and so forth which you're I'm sorry Quinn no it's all right but you more or less grew up in New York City I believe I mean I'm born in Trenton but then move to move to your new kindergarten Leon Queens a great place to grow up in those days yeah and New York's a special place to be sure absolutely I resent the fact that my kids too haven't grown up there oh you saw me make it there you make it anywhere I think that's true what about my question is a little more frivolous and that really is a lot of people including one of my best friends who's the son of a first-generation Italian immigrant men who grew up in New York claims that the best pizzas from Naples and being a child of Sicilian immigrants in a product in New York City what do you think oh that is unquestionably true how does New York City pizza rate I think it's close to Naples it is infinitely better than Washington and infinitely better than Chicago these deep-dish pizzas there that's not pizza it's not beets it's very good but why do you have to call it pizza all the tomato pie or something I'm a traditionalist what can I tell are you uh are you still in New York Yankee fan absolutely right he spent three years at Harvard that couldn't convert you to the Red Sox yeah Maureen however is a Red Sox fan Oh how's your marriage well we had our 50th anniversary last last weekend I congratulate you know I thought on that occasion speaking of the nature of Arts of our modern society I am sure that that was once simply a celebration of longevity okay it has turned into a celebration of fidelity yes that that's a that's a comment on the state of our modern society well would let me I think I might winded up with this what would you think is your proudest achievement whoa oh well look I have nine kids and I I'm not sure it's my achievement it's much more Maureen's not the fact of having them but the fact of raising them to be you know good good human beings and I'm proud of that's probably more Maureen's work than mind but I'd have to say that that's that's what I'm what I'm most proud of my family and in my own professional life I I like to think that I have brought to the fore at least discussion about more traditional ways of interpreting the Constitution that used to be orthodoxy I mean originalism which is not new it's it's it's old it used to be Orthodox I don't think I've persuaded even a majority of the court much less a majority of the professorial to accept originalism but I it's I've brought it into the into the discussion anyway and I'm proud of that well we thank you very very much for playing with you you

Channel: University of California Television (UCTV)

Views: 566,640

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Keywords: Legally Speaking, Antonin Scalia, Supreme Court, Bush v Gore, 14th Amendment

Id: KvttIukZEtM

Length: 81min 8sec (4868 seconds)

Published: Thu Mar 17 2011