The Kalb Report - Ruth Bader Ginsberg & Antonin Scalia

the kalbarri port is funded by a grant from the ethics and excellence in journalism foundation from the National Press Club in Washington DC this is the kalbarri port with Marvin Kallen hello and welcome to the National Press Club and to another edition of the cab report I'm Marvin Kalb and our program tonight 45 words a conversation about the First Amendment with Supreme Court justices Antonin Scalia and Ruth Bader Ginsburg it would be an honor obviously to have one Supreme Court justice as my guest but to have two is indeed a very special privilege especially these two who generally represent contrasting opinions on the court one liberal the other conservative and yet they are great friends who dined together travel together loved going to the Opera together in fact they inspired a new opera called of all things Scalia Ginsburg they are like the old days in this capital when political differences would not stop a good friendship from flourishing Justice Scalia is the longest serving justice on today's Supreme Court appointed by President Ronald Reagan in 1986 he's called an originalist meaning he believes that the Constitution ought to be interpreted more or less as the founding fathers meant for it to be interpreted you want change he says change the legislature changed the law his job is to interpret the law Justice Ginsburg was appointed to the Supreme Court by President Bill Clinton in 1993 her view is that the Constitution is what has been called a living document meaning it changes as society changes one link to the other tradition and precedent matter of course but they do not necessarily determine her legal judgment both justices despite this difference between them have devoted their lives to the law to teaching to democracy and freedom we're going to discuss freedom of the press but let's start with what the concept of freedom means its origin its meaning at the time of the American Revolution and its meaning in today's America I've always been fascinated by the fact that the first commandment of the Ten Commandments in the Bible and the first amendment in the Constitution both stressed the central importance of freedom the first commandment saying I'm the LORD thy God who brought the forth out of Egypt out of the house of bondage and thou shalt have no other God before me out of bondage to what if not freedom the first amendment guarantees as freedom of religion of speech or of the press of the right peaceably to assemble to petition our government for a redress of grievances Justice Scalia in your view is there a link between the first commandment and the First Amendment did one possibly inspire the other oh I doubt it okay I think our Constitution was inspired by the traditions of the common law and I think what our framers meant by the freedom of speech for example was that freedom of speech which was the birthright of Englishmen at the at the time I don't think it had anything to do with Moses there's I think what freedom meant at the time was the absence of constraint the absence of coercion so freedom of religion for example meant that you you could not be constrained to contribute to the support of a church that you didn't believe in you could not be disabled from from holding certain public offices because of your religion the absence of coercion and I think it was the same for freedom of speech and Justice Ginsburg your view Marvin this is the one question you told us you might ask us I was puzzled by it because as I read the 10 commandments the first four of them are not about freedom they're about humans obligations to God so thou shalt have no other God before me no graven images keep the Sabbath holy everything obligations the people owe to the Almighty but I also mentioned to you that your question is comes at just the right season because this is Passover and the Passover is indeed a celebration of the liberation of a people and there are many words in the Hagana that celebrate freedom so I would pick the Passover service rather than the stern first four Commandments as advancing the idea of freedom well I knew I'd be wrong I knew that to start with but you thought you'd be wrong on a law not on theology no but I would like to get at is really what your sense is that the people who wrote the Constitution had in their minds when they talked about freedom now you mentioned common law common law was not explicit about freedom many different interpretations were there and what I'm trying to get at is before we get into the specifics of freedom of the press I would like to know what the concept meant in your understanding oh I don't think the common law was that diverse as far as what every aspect of freedom consisted of the freedom of speech for example it was very clear that that did not include the freedom to libel that you could be subject to a lawsuit for for libel and that that type of coercion was not considered incompatible with the freedom of speech now some aspects of it I suppose were were more vague but but some things were pretty clear and Justice Ginsburg the concept of freedom is very prominently featured in the Constitution it's right there in the in the First Amendment and the writer Tom Paine had a simple explanation he wrote it would be strange indeed if so celestial and article is freedom should not be highly rated so it does seem to me and I'll get back to this again and again I think that if you're going to feature the concept of freedom right up there at the top you had to have had something in your head about the importance of freedom to what it is that you were doing at that time which was beginning to build a democracy there's a point Justice Scalia made in his opening remarks constraint government constraint and there I think our expression of the First Amendment is quite different from for example the expression in the Declaration of the Rights of Man the great French doctor this first amendment is saying hands off government it says doesn't say everyone shall have the right to speak freely that's what the Declaration of the Rights of Man says everyone shall have the right to speak freely not at all this says Congress shall make no law abridging the freedom of speech or of the press so it's it's directed to government and it says government hands off these rights already exist and you must not touch them John Stuart Mill I'm sorry I was going to be dead it should not be painted as the foundation of the American democracy this concept of freedom to don't forget that the Bill of Rights was an afterthought it was not what they debated about in Philadelphia in 1787 now a couple of the states that ratified the Constitution made it clear that they expected there to be a bill of rights added but it was added in 1791 on the proposal of the first Congress what they thought would would preserve a free society was the structure of the government that's what they debated about in 1787 and if you think that's false just look around the world every every tinhorn dictator in the world today has a bill of rights it isn't the Bill of Rights that that that produces freedom it's the structure of government that that prevents anybody from seizing all the power once that happens you you you you ignore the Bill of Rights so you know keep your eye on the ball structure is structure is destiny the eye on the wall being to keep your eye on the structure of the government where our structure is so different from that of most of the world there are very few countries for example that have a bicameral legislature a genuine one even including England they don't have a real bicameral house of lords can't do anything they can make the comments pass the bill a second time and when they pass it a second time it becomes law there are very few countries none of the parliamentary countries that have a separately elected president the chief executive in all the countries of Europe is the tool of the Parliament there's never any serious disagreement between them when there is they kick them out they have a no-confidence vote and have an election and appoint a new tool I mean we are so different from the rest of the world and it is that that has more than anything else preserved our liberties and you you wouldn't want to live in most of the countries of the world that have a bill of rights which guarantees freedom of speech and of the press you want to live there I have to disagree with my colleague and that was glad that you can do it I guess I don't think that the rest of the world is regarding our legislature at the current moment as a model to be followed and and second however it was understood in the beginning yes the structure of government was to protect our liberties but there was always the idea of rights think of our first great document the Declaration of Independence also it is true that the great protections that the press now has came rather late if the first amendment he was developed in a serious way around the time of the First World War it began so the freedom that's enjoyed today the freedom to speak and to write was not a big-ticket item in the Supreme Court until rather late mm-hmm well it was a big-ticket item mostly because until the middle of the 20th century but we believe in the middle of the 20th century it was not thought that the bill of rights applied to the states it was only a limitation on what the federal government could do not a limitation on what the states could do that that was that's why we never had you know until the middle of the 20th century these cases about whether you can have a crash in the in the city square is it okay if you have a menorah next to it maybe Santa Claus on top me we didn't have any of those silly cases it was only only when the the Bill of Rights was was imposed upon the states that that we began to have him and so a lot of the restrictions on speech that you know that that would be imposed by states would not have been thought to violate our Bill of Rights maybe the states Bill of right spun cars but I'm wondering at the time that the structure of government was set up plus 200 years ago what is it that the founding fathers had in mind when they thought about freedom and one definition advanced by John Stuart Mill I found very compelling but I don't know whether that's what they had in mind he spoke about absolute freedom of opinion and sentiment on all subjects practical or speculative scientific moral or theological I'm wondering if that is what Madison Monroe had in mind at that time or whether they had a more narrow vision of freedom Justice Ginsburg I wouldn't call the vision narrow but there are no absolute rights even though if you read the First Amendment it does sound that way it says Congress shall pass no law but of course there are laws that Congress can pass so the idea of an absolute right I don't know any right that doesn't have limitations even at that time in the minds of the fam yeah I think so explain why in the First Amendment after listing the phrase freedom of speech the founding fathers found it necessary you wanted to add four crucially important words or of the press freedom of the press is what they were talking about but why did they add that phrase why was it necessary Justice Scalia I think it's a natural addition all it means is the freedom to speak and to write it wasn't it wasn't referring to the institutional press two guys that run around with a fedora hat with a sticker in if it says press that that was I'm not sure that that they even referred to the institutional press in those days I mean met the freedom to speak and to publish and that and that Clause has been interpreted not to give any special prerogatives to the institutional press it gives prerogatives to anybody who has a Xerox machine what do you mean institutional press forgive me but what does that mean I mean those organizations whose whose business is writing and publishing NBC CBS you like that one idea that we didn't take from England was the office of the censor who censored books before they were published and that I think was part of putting in this protection of the press and we have never had in the United States government and offer office of the sensor which plagued people in England and on the continent think of the think of Verdi and having to put his opera platz oh you have to bring opera into it don't you I knew you were gonna do that were there was it understood that there were limitations on the press fact then was it understood that there were limitations well I guess yes on speech and and on on oral speech and written speech both I told you libel libel laws were one thing yes but what a what about the press at that time what were they thinking about at that time I don't know that there were any special rules applicable to the press the press did not have to get permission of a censor to publish okay but neither did anybody else and in the present or just some very important figures in our history like Thomas Jefferson yes indeed and it's interesting that Jefferson before he became president spoke very highly of the press but while he was president spoke about it as a polluted area and you couldn't believe a thing in any newspaper but how it survived one thing that epitomizes for me the importance of freedom of speech is in the ballot for America the right to speak my mind out that's America mm-hmm to me mm-hmm I think if you had to pick hay and you probably shouldn't have to but if you had to pick one freedom that was that is the most essential to the functioning of a democracy it has to be freedom of speech because democracy means persuading one another and and then ultimately voting in the majority the majority rules you you can't run such a system if if there is muzzling of one point of view so it's a fundamental freedom and democracy much much more necessary in a democracy than in any other system of government I guess you can run a an effective monarchy without the freedom of speech I don't think you can run an effective democracy about it but on this matter of press freedom John Adams wrote that mankind cannot now be governed without it nor at present with it and it seems that the idea of a free press has always been a problem for a succession of American presidents but in a broader sense do you feel we could have endured as a democracy from then to now without a free press what do you think Justice Ginsburg I don't think so I think the press has a pay played a tremendously important role as watchdog over what the government is doing and that keeps the government from getting too far out of line because they will be in in the limelight so yes there are all kinds of excesses in the press too but we have to put up with that I think given the alternative yes Justice Scalia you want to come in on that issue no I agree with it of course you it it's hard to keep the freedom of the press because there are many people who don't like what the press is and there was a cartoon around the time and just after the Revolutionary War and it shows a Tory being caught it off by the police and the caption is Liberty of speech to those who speak the speech of Liberty so the right to speak against government against what is the prevailing view of society is tremendously important it's interesting of numbers including the right to speak against democracy I mean don't forget that some of the biggest fights are whether whether free speech included includes includes freedom to speak against freedom of speech or against democracy and it's it's plausible that it doesn't but of course we we have rejected that view communists were were entitled to say this democratic system does not work let's get rid of it got to the wall for that I did it because they were loss against did indeed anarchy and sedition syndicalism it takes us perhaps I think to the 1964 ruling of the Supreme Court on the New York Times versus Sullivan which is certainly called a landmark decision and you spoke earlier about the importance of libel at that time and in this particular ruling very specific regulations that's the wrong word but concepts are written into this ruling and I'd like to just read what justice Brennan has said because I think it deserves to be quoted as often as possible public discussion is a political duty and it must be quote uninhibited robust and wide open and they well include vehement caustic and sometimes unpleasantly sharp attacks on government and public officials and you were mentioning this in a sense a moment ago and I'm wondering Justice Scalia if this kind of an issue were brought before the court today at that time in 1964 I believe the court's ruling was a nine nothing was the unanimous vote what would happen today I don't recall whether it was unanimous I'm not sure it was it was it was nine nothing but I say that he correctly even so it was wrong wrong the issue is is not whether it's a good idea to let the institutional I'm sorry to let anybody what New York Times versus Sullivan holds is that if you are a public figure and it's been a matter of some doubt what it takes to become a public figure but it's certainly any politician is a public figure if you are a public figure you cannot sue somebody for libel unless you can prove that the effectively that the person knew it was a lie right so long as he heard from somebody you know it makes it very difficult for a public figure to win a libel suit I think George Washington I think Thomas Jefferson I think the framers would have been appalled at the notion that they could be libeled with impunity and when the Supreme Court came out with that decision it was revising the Constitution now it may be a very good idea to set up a system that way and New York state could have revised its libel laws by by popular vote to say if you libel a public figure it's okay unless it's malicious but New York State didn't do that it was it was nine lawyers who decided that that's what the Constitution ought to mean even though it had never meant that and that's essentially the difference between Ruth and me concerning a living Constitution she thinks that is all right and I don't think it's the situation didn't exist in 1787 or 1791 but the court confronted in Times against Sullivan the history of The Times against Sullivan it was a sheriff who said he was liable in an advertisement in the New York Times it was in the midst of the civil rights just era and where libel laws could be used as a way of squelching the people who were serving their freedom so I think that Times against Sullivan is it is a decision of major significance now I will say that the lawyer who argued that case of for the New York Times Herbert Wexler a great constitutional law scholar when it's story is told when he told Salzburg oh we won and we won unanimously Salzburg his response was a little hesitant he said it's great for the New York Times but what about all those other papers that don't have our high high standards but I think that the that Times against Sullivan is now well accepted and I quite disagree with my my colleague that I suspect that if the founding fathers were around to see what life was like in America in the 1960s they would have agreed with that so you would have voted for it oh I guess she would have I want mr. Cho I will live honey but I won't I won't say anything more about it because this is a case we're going to hear next week I think a state has passed a law that says thou shalt not make false statements in a political campaign against any candidate any ballot initiative no false statements in elections the question that the court will face is is that statute prohibiting false statements in political campaigns is that constitutional what are we going to expect on that well a decision by the end of June okay it was another decision and I don't remember where Justice Scalia was but it was the average Alvarez case that the man who lied about having the Medal of Honor oh yes whether it was the cold something Valor Stolen Valor Stolen Valor Act before we get into the that and the subject of digital democracy which I want to spend a few minutes on I'd like to take a moment now to remind our radio television and Internet viewers and listeners that this is the caliber port on Marvin cab and I'm discussing freedom of the press with Supreme Court justices Antonin Scalia and Ruth Bader Ginsburg I want to point out that there's a new report out by an organization called reporters without borders very highly regarded that the US has experienced eight would have called a profound erosion of press freedom in 2013 dropping fourteen points to number 46 in global rankings now reporters are a little nervous these days and they like to feel that they have friends and I want to know in your judgment whether reporters are right in considering this in court today as a friend of the concept of freedom of the press justice you want me to say no to that no I I want of course we everybody on the court believes in freedom of the press now there's some different difference as to what that means okay what West as to whether it means for example that that a member of the press no matter what the national emergency maybe need not disclose his or her source that's you know that's a question that that hasn't come up before us and I think it's very very interesting and not necessarily not a question with a clear answer so you know you can believe in freedom of the press and still have fun disagreeing okay I'd like to know how it was determined that that was the 46 was the rank of you as I'm just thinking of the tradition in England what which holds to this very day that the press can't report about trials write about ongoing trials and they can't libel public figures and it was you know and there well since 90 excuse me since 1964 and the Sullivan New York Times case as you were pointing out before it's extremely difficult now for anybody to libel a reporter on this issue what I would like to get to here is something that is current and and very important to an awful lot of people in this country and I suspect that the court is going to face a number of major decisions in the area of government surveillance the National Security Agency the NSA its newly disclosed activity than all of the problems of whistleblowing journalism and it's worth noting that the Washington Post just this week wanted to Pulitzer Prize for its reporting on Edward Snowden and the NSA link so I'd like to start by asking you do you think the posts deserve the products Justice Ginsburg that's a question that the journalists in this audience are much better equipped to answer then right then I'll and I don't read the post so I have no idea what they I have no idea what they got the prize for I do including the announcement was it was it at the bottom of the first page when it says what's coming up this week and this evening was announced this this is nothing about us it was very proud of that so tell me I didn't get terribly far on that do you believe that Snowden is a whistleblower or a traitor oh I don't you know that's not not part of what I worry about really that's a policy a policy question not not a legal question and I stay out of that stuff and it's also possible is it not that the question you raised could come before the court and that is possible yes and we are not at liberty to preview no I appreciate that let me let me ask the question from another angle if seven by the same question you're going to get the same answer maybe but I'm gonna try it anyway all right if somebody were to say to you that what I am doing you may disagree with I don't mean you personally you all may disagree with but I am doing this because I feel a moral obligation to do this I feel deep in my heart that my country is doing something wrong and I have an opportunity to change that and I want to change it so did the Germans who killed Jews I mean is that the criterion whether you honestly believe what you're doing is good you have an obligation to form your conscience according to what is right and you know that's the issue the issue is whether it's right not whether you believe in it I'm sure it was very sincere but the idea of it being right you mean right according to the law as established well in in in the context you put it right according to some moral judge right to to the ten commandments we should notice note that the the point that was brought up before about hateful speech it was a case of some many years ago involving the town of Skokie Illinois where many Holocaust survivors lived and the American Nazi Party decided they would pick that town for that demonstration the case never came to the US Supreme Court but other federal courts said the demonstration is going to be peaceful there will be police protection we don't anticipate any violence this group wants too much we hate what they say but we believe in their freedom to say it but that doesn't mean that it was good for them to say it or right for them to say it and it sometimes annoys me that when when somebody has made outrageous statements that are that are hateful somebody says sometimes the press will say well he was just exercising his First Amendment rights you know as though First Amendment right to like muscles the more you use them the better anything and it doesn't matter what purpose you're using them for I mean you can be using your First Amendment rights and it can be abominable that you are using your First Amendment rights I'll defend your right to use it your right to use it but I will not defend the appropriateness of the manner in which you're using it now well I'm sure it can be very wrong Justice Scalia and was praised by something criticized by others for his disses in the flag-burning case now I imagine that you thought the act itself was reprehensible repre I would have sent that guy to jail if I was king yeah but by your ruling he had the right to burn the flag that's what the First Amendment remained you you have the right to express your contempt for the government that doesn't mean it was a good thing for him to do bad in that manner by by burning a symbol that meant so much to so many other people but he had the right to do it justice scalia at a recent event in brooklyn you were quoted as saying that basically the supreme court should not be deciding matters of national security and you're quoted as saying the supreme court does not know diddly about the nature and extent of the threat Diddley did I say Diddley that's what you're going to decide it's truly stupid you went on that my court is going to be the last word on it first of all did you say that no I think I probably did I certainly believe it what do anything good justice concerns please I don't think we have a choice you know the court doesn't decide whether I picked this area and straighten it out today there are petitions for review and if there is a law that the government says was violated and the other side says no the government can't do this can't engage in that kind of surveillance that case comes to us we can't run away and say well we don't know much about that subject so we won't decide it you know what I was talking about this related to the Fourth Amendment not the Fifth Amendment the Fourth Amendment which you have Pro prohibits unreasonable searches and seizures all right the first time my court had a case involving wiretapping it held that the way the Fourth Amendment reads is the people shall be secure in their persons houses papers and effects possessions against unreasonable searches and seizures and the court said quite properly hey conversations are not persons houses papers and effects wiretapping may be a very bad thing stay had laws against it but it does not violate the Federal Constitution all right about 20 years later during the war in court we did a hundred and eighty degree turn and we said there are penumbra's and emanations and conversations are covered by the this vague right of privacy that's contained in the Constitution now that that is the living Constitution ok changing what it what the text says and what it originally meant the consequence of that I was pointing out in Brooklyn I liked Bourgogne the consequence of that is that now the institution of the government that is going to decide this highly significant NSA question about you know who can what what can what information can you get by wiretapping the institution that will decide that is without a doubt the institution least qualified to decide it will be my court we you know it's a question of balancing the emergency against the intrusion when the emergency is high high enough you can have a higher intrusion it's why we all get searched when we when we board an airplane that's a terrible intrusion upon work let's just let me finish we know nothing about the degree of the risk nothing at all the executive knows the Congress knows we don't know anything and we are going to be the one to decide that question so what do we do when the case comes to us before you before you answer that I would like to remind everyone that in the wiretapping case they argument that wiretapping was not was not an unreasonable search or seizure there was a very strong opinion the other way by Justice Brandeis so and if I were on that court I would have voted the way he did I'd like to know how Justice Scalia distinguishes that kind of intrusion by the government from the decision you made in the heat admissions case another the helicopter that was flying over ruse to see to test the level of heat because if it was of a certain heat then maybe marijuana plants were growing then the helicopter copter never touched the root and yet you said that was a violation of the Fourth Amendment that wasn't unreasonable because the people were not being secure in their houses from unreasonable sunny that's a clear example of one of the facilities that is protected by the Fourth Amendment I have someone in their house yeah if you have to break into their house to wiretap yes but but if you listen into two conversations you know when they're in the phone booth ooh intruding upon their generalized right of privacy we're not too worried about it we're gonna to worry about that anymore no you're right about that you're right let me ask you this anyway we've gotten away from the fifth amendment haven't we no no I wanted to get it with this first of them yeah but stick with the fourth amendment for just a sec and I don't know terribly much about it and I acknowledge that upfront but my question is could data that is considered terribly important either by the media or by the government stored in a computer or stored in a cloud up there somewhere be considered effects whether they were just you that's very perceptive idea what about that that's thank you so I thought about that thank you but if you thought about that doesn't it follow that the US government would not be able to justify its NSA surveillance program and that therefore conceivably could be in violation of the Constitution no because it's not absolute as we've said there are very few freedoms that are absolute I mean your person is protected by the Fourth Amendment but as I pointed out when you board a plane somebody can can pass his hands all over you all over your body that's a terrible intrusion but given the danger that it's guarding against it's not an unreasonable intrusion and it can be the same thing with acquiring this data that that that is regarded as effects depends on health and that's why I say it's it's foolish to have us make the decision because I don't know how serious the danger is in this in this NSA stuff I really when the supreme court have the ability to pick up the phone and call somebody at the White House and say I have a question absolutely absolutely absolutely not there is how about we are at the mercy of whatever people happen to bring to us if they don't bring it to us we don't know it and we can't make a decision based on something outside the record of the case the parties and their lawyers have to know everything have access to everything that we will factor into our decision there I don't know how many times I would have loved to call law professor so-and-so who is the biggest echo your husband in a tax case for example Marty Marty was the one of the best tax lawyers in the country but we can't do that because the other side's the parties aren't there and don't have access to the same information so we are hemmed in by the record of the case and the court cannot resort to information that the parties do not have justice ginsburg i want to ask you the same question I asked Justice Scalia about the data the storage and computers and linking that to the word effects and if that justifiably is linked to the word effects doesn't it follow logically that the case could be made that the government is in violation of the Constitution by this government surveillance program an argument could be made certainly but it's not an argument that either of us can answer well I think Justice Scalia suggested we can't answer at all I don't think that's all well you have to answer it we will but we don't get questions in the form you post them moment we get a concrete case and not the abstract question the effects are up there what can the government do okay I would answer that one Ruth I mean that night you know that is persons houses papers and effects it's it's not it's not conversations what I'm saying you couldn't answer it in the abstract Oh certainly certainly can we expect the Supreme Court to rule on the NSA issue it depends if there is a case that will begin not in the Supreme Court but in a federal judge okay district court and then go to a court of appeals we do have the luxury of not having to decide things until they've been decided by other good minds by judges in the federal trial courts and courts of appeals and and it's not our respond ability to shape up the executive and make sure their you know they're doing what they're supposed to or shaping up the Congress that's not our job our job is to prevent people from being harmed if nobody's being harmed we don't get into the matter and even if somebody is harmed unless he comes to us we don't have any self-starting powers where we're at the mercy of whoever wants to bring a case or whoever doesn't want to bring a case that was a Ruth and I visited India one time I got a long time ago and the Indian Supreme Court India had a bill has a bill of rights which says that the the apex court their supreme court will assure the preservation of the liberties set forth in the Bill of Rights and that court interpreted that to mean that if they're sitting around of a Sunday reading the the Bombay times and they see that the police commissioner and I know I look I don't say Perry and I don't say Veen and I will not say Mumbai it's bomb baby we have an English word for it anyone there they're they're sitting around reading the Bombay times and and and they see that the police commissioner in Punjab is holding people without charge which violates the Constitution that Court will on its own summon the police commissioner to give an accountant some art court can't do that we can't do that wait it's only when people bring problems to us you can't do that because that's the way it's always been done that's where there's a rule that says you can't do it we can't because the Constitution limits us to actual cases and controversies there are many courts in the world that do operate by answering abstract general questions constitutional courts have been set up so there's a Constitutional Council in France that will preview a law if a certain number of Deputies question the consistency of the bill with the Constitution the council will look at the bill no actual case before them just look at the words of the bill decide whether it's compatible with the Constitution and if the council holds it isn't compatible with the Constitution and the bill never gets enacted but that kind of judicial preview is wrong verges ont here with us right let's talk for a minute or so about televising hearings of the Supreme Court who other courts do permit television why not the Supreme Court Justice Scalia you know when I first came on the court I was I was in favor of it I have long since changed my view on that those who want to do it say that they want to educate the American people now if I really thought that it would educate the American people I would be in favor and indeed if the American people watched our proceedings from gavel-to-gavel they would be educated they would they would come to realize that although you know now and then we we do these sexy cases should there be a right to abortion should there be a right to suicide should there be a right to this or that most of the time we are not contemplating our navel we are not engaging in this broad philosophical ethical search most of the time we are doing real law we're doing the Internal Revenue Code the Bankruptcy Code ERISA really dull stuff and nobody would ever again come up to me and say Justice Scalia why do you have to be a lawyer to be on the cos Supreme Court because they think what we're doing is you know looking up the sky and saying should this writer that write exist well they could they can guess that as well as I can now the problem is for every person who watches us from gavel-to-gavel there will be 10,000 who will watch a 15 or 30 second take out on the nightly news and I guarantee you that will not be characteristic of what we do it will be Man Bites Dog so why should I participate in the mis-education of the American people what about your feeling yes there's another factor if you are televising a trial everything that's unfolding is before the the camera if you're dealing with an appellant argument well if you would come to our chambers at the moment because we're starting a sitting on Monday you will see carts with briefs and briefs and briefs the oral argument in court is fleeting it is only 30 minutes aside I don't know how many hours we have spent preparing reading what had gone on the case before it got to the Supreme Court reading the briefs that the parties filed and the many friends of court who want to be heard on questions of importance to them so the notion that an appellant argument is a contest between lawyers and the better one will win is really a false picture of what the appellate process is so you would be as Justice Scalia opposed to televising I I think it's probably inevitable because it's going to be so much pressure for it and because other courts do it but but I would be very much concerned with mis portraying what an appeal is the written part is ever so much more important than the tenant our total um court in the couple of minutes that we have left I want to just ask a question you've both been great buddies for a long time now but when did you meet and what were the circumstances if you could he doesn't know go ahead Ruth go on when did you be but we were buddies on the DC circuit and that is when you met at that time I met Nina for the first time when he was giving a speech to some unit of the ABA and what must have been the administrative law that law section probably yeah and it was on a case that had recently been decided by the DC Circuit it was before either of us got there and it was about we were both academics right yeah it was it was about the Vermont Yankee case we were in vain against it German and I was listening to him and disagreeing with a good part of what he said but what he said it in an absolutely captivating way I think we should leave it in that point I mean as you know as you know composer Derek Wang who was with us tonight has produced this upper called Scalia Ginsburg and in it to beautiful music you're both locked in a room I understand unable to get out unless you agree and I compromise consistent with the Constitution and at one point Scalia roars in despair Oh Ruth can you read you're aware of the text yet so proudly you have failed to derive its true meaning the Constitution says absolutely nothing about this - which Ginsburg replies how many times must I tell you dear Mr Justice Scalia you are searching in vain for a bright-line solution but the beautiful thing about our Constitution is that like our society it can evolve so we've got only about a minute or so left are you two ever going to agree on big issues and still maintain the friendship we agree on a whole lot of stuff Ruth is really bad only on the knee jerk stuff is she's a really good textualist you know and those things where where where the text is is what she's guided by she's terrific she's obviously very smart and know most cases I think we're together but I think I think words together we're together in a lot of criminal criminal defense cases upholding the rights of the criminal defendant Ruth and I are quite frequently in dissent from the court's decision so no we agree on a whole lot you you you have it you have it wrong I keep Chinese five for decisions where you're on one side that's because the press focuses on what the 20 25 percent of the Hetty case is the constitutional cases most of what we're doing is we're going to interpret dense statutes that Congress passed that are very difficult to parse and on those cases there isn't the usual lineup that the press expects to see in the most watched cases so we agree on many Procedure cases not always you got one wrong last year but well and also I have to say something else we both care about the way opinions are crafted I mean it's not easy to write an opinion and I think you care very much about how it's said and so the one was the way we say it is quite right differently and what one reason we became such good friends on the DC Circuit was that we were both former academics I guess Harry Edwards was another academic on the court but in in in academia at a law school when you wrote a law review article you would circulate it to your colleagues and they would make comments helpful comments not just this is wrong but you know there's an additional point you could make well Ruth and I did that at with one another's opinions we wouldn't do it to anybody else's but you know she'd suggest some additional stuff that I could put in and I would I would for her as well and that's that's I would like us to go on better time's up and I'm sorry about that I want to thank a wonderful attentive audience I want to thank the many who watched and listened all over the nation and the world but most important I want to thank our remarkable guests too sitting justices of the Supreme Court of the United States Antonin Scalia and Ruth Bader Ginsburg thank you both and as we now close 20 years of doing these caliber torts I want to say thank you to all of the people who obeyed this kind of of civilized conversation possible and they know who they are but that is all we can do for now a Marvin Calvados ed Murrow used to say many many years ago good night and good luck right now thank you so much um these are not going out over television these are going out this is yes this is still being seen on c-span and the first question in front of me is to Justice Scalia why are you the way that you are you could hit a home run of matthan the devil makes me do it Justice Ginsburg the next question from Josh Gibson who's a student at the Kennedy School the First Amendment is a bit of a grab bag of free expression rights that the founders consider them decide against including others are there others that they or you would wish that had been included well that was a concern about having a Bill of Rights said if you wrote down what what the rights were maybe there were some you you left out and we do have this statement in the ninth amendment that says the enumeration of certain rights shall not be construed to deny or disparage others but one thing that we didn't bring out before is the First Amendment is the First Amendment but the first thing that was on the mind of the framers was not freedom of speech or of the press it was about not having an established church the first thing is no law respecting the establishment of religion and then the freedom side of it or prohibiting the free exercise there was so the first thing that they didn't want to have was a Church of England kind of a negative I mean it's something you cannot do well but what's the positive side of that would be freedom of religion that you can know it's all negative I mean it's all saying what the government cannot do it is all limitations upon the government it that's what the whole Bill of Rights is the government can't do this government can't do that government can't do the other thing they're all negative and that except for the government everybody else can do what they want solutely yes solutely yes what to take they take to take it to take an example okay yeah we an anti-discrimination law title seven of the Civil Rights Act of 1964 until then discrimination in the private sector was okay because the Constitution restricts what government can do a private employer could say I don't want any women in this job and that would be perfectly okay as it was until 1964 hmm did you have something to do with that ha well I'd say President Johnson in the Congress said the passed the Civil Rights Act of 1964 I have a question for you about from Catherine Kosan of the Newseum to whom does the First Amendment apply do undocumented immigrants have the five freedoms oh I think so I think anybody who's present in the United States has protections under the United States Constitution Americans abroad have that protection other people abroad do not they don't have the protections of our Constitution well when we get to the 14th amendment it doesn't speak of citizens as some some constitutions grant rights to citizens but our Constitution says a person and the person is every every person who is here documented or undocumented Oh sir thank you I have a question from David Orson whom you know prominent lawyer who is here with us where do you look to decide whether freedom of the press is or is not identical with freedom of speech I have a feeling that's a loaded question I I have never thought that that it was anything except identical I can't imagine that you can limit limit some things that can be spoken but cannot limit things that can be printed I think it's the same same criteria as to whether the the limitation is unconstitutional I think David must have a case in mind a question here from Niki snob of US News and World Report was there any case that rattled your friendship Justice Ginsburg well Annie no I think we were most at loggerheads over the VMI case yeah remember that yes I do and you had a stirring dissent it was a great decision yeah you were you were the only professor well that's only because Clarence was recused because he had a son there didn't he and that's true yeah but remember that the chief voted for my judgment I know not your dissenting opinion but and we went we went I don't know how many rounds we went we did back and forth yeah and one time I had a footnote that referred to the University of Virginia at Charlottesville oh yes you had a footnote back saying well I have to forgive this ignorant person because she doesn't know that there is no University of Virginia at Charlotte's well there was only eight University of Virginia and she even talked about the campus of the University Virginia my goodness but you know what he did do he wasn't finished writing the dissent it was getting rather late we were into June already he gave me what it was the penultimate copy of his dissent he wasn't ready to circulate it yet but he came to my chambers and gave it to me and said I want to give you as much time can to answer this so I went off to my circle Judicial Conference to read the thing on the plane and it ruined my whole weekend but that he gave me the extra days to respond I really appreciated that I have never gotten angry at Ruth or any of my colleagues because of the way they voted in an opinion I mean if you cannot disagree with your colleagues on the law without taking it personally you ought to get another day job I mean it's it's just not the kind of a of a job that will allow you to behave that way so Ruth and I disagree on the law all the time it is never had anything to do with our with our friendship and we do also have a difference in style I'd say people might regard my opinions as rather dull boring yours often are really jazzy sometimes Jetley here is a question from Seth Dawson of the office of Congressman Denny Hecht justice Stevens recently suggested a constitutional amendment to modify the Second Amendment if you could amend the Constitution in one way what would it be and why just as clear um I I certainly would not want a constitutional convention I mean whoa who knows what would come out of that but if there were a targeted amendment that were adopted by the states I think the only provision I would amend is the amendment provision I figured out one at one time what percentage of the populace could prevent an amendment to the Constitution and if you take a bare majority in the smallest states by population I think something less than 2% of the people can prevent a constitutional amendment that's it ought to be hard but it shouldn't be that hard mm-hmm mrs. Ginsburg if I could choose an amendment to add to this Constitution it would be the Equal Rights Amendment and that's what do you what do you mean by that please what how would you do it means that women are people equal in stature before the law that's fundamental constitutional principle I think we have achieved that through legislation but legislation can be repealed it can be altered we have I mentioned title 7 of the Civil Rights Act and the first one was the Equal Pay Act but that principle belongs in our Constitution it is in every Constitution written since since the Second World War hmm so I would like my granddaughter's when they pick up the Constitution to see that that notion that women and men are persons of equal stature I'd like them to see that that is a basic principle of our society ready doubt in your mind that that would pass the judgement of the can people well it didn't came pretty close and then and I think that's an illustration of how powerfully hard it is to get an amendment yeah um it was did you comment on that day no I don't work up a question here but no ID on who wrote it to what extent do social media platforms such as Twitter where speech can be broadcast to millions instantly challenged traditional concepts of free speech interesting question what is your thought on that Justice Scalia well I don't know that it challenges traditional concepts of free speech it certainly challenges traditional manners of finding out who said what where certain people say things that are unlawful or that are punishable by law but I don't think it I don't think it changes what the First Amendment means it's also there's the great danger for people who use those devices is you can't take it back you know once you let it out it's there for everybody mm-hmm to think but you don't feel that it changes the concept of freedom of speech or of the press you have to give me a fabrics okay some new Newman asks this question as it becomes easier to share opinions and events should social media I Twitter Facebook etc be required to limit what is shared hmm is that a legal question no it's a policy question I don't do policy we do I would I would agree with my Freddie a Joshua Kurd of the Washington Center do you feel the separation of church and state has been misunderstood with Congress and the Supreme Court taking a proactive stand on the Establishment portion but not on the prohibition part I don't understand what he means by the last part well an evil active stand I was hoping that you would understand but I didn't I'm sorry I'm not there okay our last question when you were a youngster what did you want to be when you grew up haha Lord yeah I'm a maybe I'm an unusual person I don't ever recall wanting to be anything I mean a baseball player or a hockey player or a lawyer or certainly never a judge I I never set my cap on being on being a judge I didn't even want to be a lawyer when I was in college I am when I graduated from college I didn't know what I was going to do I had a had an uncle who was a lawyer uncle fence every time has an uncle Vince Vince Vince had an office in Trenton and I used to go out there and hang out there now and then it seemed like a good life so I went into the law but no I can't say I ever wanted to do anything except to do well what what I was assigned to do and if I have any any what quality that that accounts for am I making it this far it's a it's my ability to interest myself in whatever was shoved under my nose no matter how no matter how dull it was I took pleasure in doing it to the extent I could perfectly but I I never set my cap on on being up even a federal judge much less a Supreme Court justice Justice Ginsburg in my growing up years there were so many limits on what a girl could aspire to be she could not be a police officer she could not be a firefighter she could not be a coal miner she could not work at night there were all these restrictions there were very few women lawyers maybe 3% of the bar and there were even fewer judges so I never aspired to be a lawyer certainly not a judge because if I had to make a living I better be a teacher that was a secure job for women and the exhilarating thing for me when I think of my daughter and my granddaughters is the opportunities open to them that didn't exist I'll give you an my favorite example of this is my granddaughter who's now 23 when she was 8 was with me and I was being interviewed and she said well I wanted to be part of this show too so the reporter said all right Clara what would you like to be when you grow up and Clara's response was I would like to be President of the United States of the world and that to me the change in what girls can aspire to do and can achieve has been just exhilarating well unfortunately you come to the end of the line I just want to share with you a the essence of a conversation that was repeated over and over again with me and the producers of this program especially the executive producer Mike Freedman whom you have met and that is the thought that we live at a time in Washington when the idea that two people who have strongly different opinions on very important issues can actually be good friends and can actually respect one another and that kind of mutual respect is so terribly important today and I hope I truly hope that this program televised as it's been can set an example and serve as a model for people all over the country who might have different opinions but do recognize that in this country there's plenty of room for the different opinions and we ought to have more room for mutual friendship so thank you both so very much for doing this ladies and gentlemen we ask that you please remain in your seats

Channel: The National Press Club

Views: 435,955

Rating: 4.8755875 out of 5

Keywords: NPC, National Press Club, Ruth Bader Ginsburg (Author), Antonin Scalia (Author), Marvin Kalb, Supreme Court Of The United States (Court), Supreme Court, The Kalb Report

Id: z0utJAu_iG4

Length: 75min 40sec (4540 seconds)

Published: Thu Apr 17 2014