U.S. Supreme Court Justice Antonin Scalia

[Music] this week on Q&A our guest is Supreme Court Associate Justice Antonin Scalia his new book is titled reading law the interpretation of legal texts Justice Antonin Scalia your book reading law the interpretation of legal texts why now why now ah because I finished working on it now what the why this book well and how important is this book you've done a bunch in the past well I've done a bunch in the past but this is the first time I've really tried to pull together all of the all of the what you might say interpretive causes that I consider important textualism originalism no use of legislative history and have described you know the the opposing theories of interpretation and most important of all or maybe most important but certainly most difficult of all have gone through the the steps that a that a textualist has to take in order to produce a correct reading of the text namely the so called canons of interpretation which are you know largely ancient common-sense rules of how how language is used who do you expect to read this I hope judges will read it I hope lawyers will read it I hope law students will read it and I hope legislators will read it because it's just as important that legislators know how their language will be interpreted by the courts as it is for the courts to know how they ought to interpret the line so those those are the four you pointed out to me before we started that I was not a lawyer yeah well maybe the general public and I had the general public I mean I don't know I swear this is parts of it are understandable to the general public parts aren't yeah well it would give the general reader a window into into the world of of judges and of how judges go about deciding on the meaning of enacted taxes texts and maybe most important of all on what is the true fault line in in judges distinguishing judges the fault line is not conservative versus liberal it's it's rather theories of interpretation which differ greatly from from one judge to another unfortunately I'm gonna read a long paragraph that you wrote okay I will like it at the end of your preface yeah one file personal note oh yeah right your judicial author there's a co-author and you're the judicial author knows that there are some and fears there might be many opinions that he has joined or written over the past 30 years that contradict what is written here whether because of the demands of stary decisis or because wisdom has come late second part we're still your judicial author that's you does not swear that the opinions that he joins are rights in the future will comply with what is written here whether because of stare decisis because wisdom continues to come late or because a judge must remain open to persuasion by counsel and then you finish this by saying yet the prospect of gotchas for past and future inconsistencies holds no fear yeah I thought that was pretty clever didn't you well I thought there it is future for question I worry about people pointing out you know leaping up to say well you say the sand so and in your opinion you know 22 years ago you say I get review all of my opinions to be to be very sure that every one of them comports with with the truth set forth here and I didn't want to have to do that and for the future you know any judge has to be open to persuasion to to acknowledge his past ignorance if necessary so I you know I I won't swear that I'll follow this in the future but I probably will Koch's gotchas who would who delivers to you gotchas and in your life apart from my wife yes ah I would expect gotchas to come principally from from academia many in academia probably very men most of academia who does not agree with the theory of interpretation set forth in this book why why because they prefer theories that augment the the power of the judge and hence the power of the law professor the the theory of interpretation step set forth here is a is a very very humbling one it is it does not leave a whole lot up to the policy discretion of the judge in fact it leaves nothing up to his policy discretion that the name of the game is is to give the fairest reading to what the people's representatives have enacted that's that's what a judge is supposed to do now that is an uncongenial approached to someone who wants to do good who wants to use his office as it can be used to do things that he thinks are good for the society if one has that zeal one will not like the approach set forth in this book in the earlier part which you have labeled under forward you have a sentence here when I asked you about every lawyer every citizen concerned about how the judiciary can rise above politics and produce a government of laws and not of men should find this book invaluable you just got you know that she just got accused of being political at the end of the term was like here's the big political yes sir I didn't got to dive in out of the country so right I don't read that stuff in what happens to you though when you hear somebody say oh he's the most political judge ever you know sometimes I I speak to groups about judging judges you can't judge judges unless you know what they're working with simply because you like the outcome of an opinion you say oh that's a good judge or you dislike injure that's it unless you want your judges to ignore the text that they're dealing with and we're always dealing with the text it's either a regulation or a statute of the Constitution unless you want them to ignore the text it's really unfair to judges to say I like the result therefore that's a good judge I hate the result therefore that's a bad judge you have to read the opinion and see the sections of the statute they're dealing with trying to reconcile and whatnot and then you can say the guy did a terrible job of interpreting this statute that that's an intelligent criticism but not just because you know you don't like the way the opinion comes out and anyway my opinions don't always come out the same way I mean you know they're not always quote conservative to the contrary sometimes in some respects I ought to be the pinup of the of the criminal defense bar because a number of my opinions have have defended the the rights of criminal defendants even though I'm you know socially I'm a law-and-order conservative but that's my job is is not to say how it ought to be but to say what the Constitution demands we have a group of teachers here this summer and I asked them what they would ask you and they said they want to know what you would advise teachers what you advise teachers how they should teach the Constitution well these are teachers where what level they're high school okay me but how would you want the Constitution taught in high school well first of all I am appalled that Americans get out of high school get out of college even get out of law school without ever having read the Federalist Papers I mean thing number one if you want to have the proper respect and indeed all that you ought to have for the United States Constitution thing number one is to realize how brilliant were the men who put that piece of work together and that shines through in the Federalist Papers I I am always astounded I can ask a group of law students how many of you have read the Federalist Papers and you know maybe six percent of something like that you should not be able to get out of high school without being exposed to what the framers thought they were doing should you have to I mean is it really something you should read read in high school the whole thing the whole thing yes people read you know number 48 the famous numbers but only if you read the whole thing do you realize what what a breadth of knowledge these people had they were not doing it by the seat of the pants they they had experience in various systems of government in this country and abroad and from that experience they deduced or they applied what what James Madison called at the at the convention he says gentlemen we are engaged in the new science of government after ed nobody had ever tried that before and people ought to appreciate that that this this it had never happened before and it will probably never happen again that that a system of government will be devised by a seminar I mean you know 3-month long seminar composed of the the political leaders in the entire country and won't happen again and you can't appreciate that unless you see pure self in in the times and including reading the Federalist Papers in this book at the beginning you list a whole bunch of people that you think yeah we've counted I probably missed some too now but we counted 23 of your former clerks right I've got we had a former clerk of yours here several months ago I want to run this little thing and get your reaction to it all right he and I had a very intense argument about some statutory interpretation case and he took me out and he said you need to talk to my clerks now and so I did and the clerk's were all very conservative clerks and they had marked me as a liberal and so they were basically this was just I was the Christian and this was the Coliseum and the Lions were called in and and so I had to sit there and be beaten up by these conservatives and then Justice Scalia came and said I'm going to lunch and need to talk to you for a minute so he brought me and he said okay so I'm going to give you the job but you can't tell my clerks so I had to go out and I had to not fumble for the next two hours before my plane left and I continued the conversation and then I hear that six months later clerks came in to him said Justice you need to hire your fourth clerk and he said I did hire my fourth clerk and they were outraged the thing you would have hired on someone who was not of the party the true story um if he says so I don't I don't it did not make as much in a of an impression upon me as it did upon him I'll put it that way Wow how many clerks have you had since only had four times 26 on the Supreme Court and on the court of appeals what five times three so it's a lot of clerks but the real issue here though is how often have you hired a clerk that doesn't think like you do uh infrequently but not never the problem is I don't I don't care what the policy preferences of the of the clerk are in fact other things being equal I would prefer a clerk whose instincts whose policy instincts are the opposite of mine but I find it very hard to find a liberal clerk who is hard minded and not wishy-washy who applies rules of law rather than speculating about what the best result would be and so forth and so on that's that's not what I do and I don't want my clerks to do that when I have been able to find a what should I say a flint minded liberal as as in the law clerk you just saw they have been invaluable because you know they come at the come at the problem from it maybe from the opposite social perspective that I do and they're they're a check upon what a judge always has to worry most about and that is that instead of applying the law he's he's really just applying his own his own wishes that's that's bad bad judging when I earlier read that line about every lawyer every citizen concerned about how the judiciary can rise above politics those are actually the words of Frank Easterbrook and the reason I bring that up is that if you look at Frank Easterbrook brother is Greg Easterbrook who we see dealing with ecology why is he your forward writer and how long have you known him oh I've known Frank a long time we were colleagues on the faculty at the University of Chicago in the in the one in the 80s he went on to be a judge on the Seventh Circuit chief judge of the Seventh Circuit ultimately and he he wrote the foreword because if there is is one other name one other judicial name associated with the the two principal theories of this book textualism and originalism it is Frank Easterbrook he is and you know and if I had to pick somebody to replace me on the Supreme Court it would be Frankie and I tend to see see things the same because we're both applying the same principles of textualism and originalism political scientist he writes as political scientist editorial page writers and cynics often depict judges as doing nothing other than writing their preferences into law yeah you use that oh I said circle is certainly true political scientists editorial page writers what do you think of editorial page writers you read them to understand all is to forgive all they have to sell newspapers they tend to judge judges incorrectly as I told you earlier I doubt whether they read the opinion carefully and see what sections of the statute are involved they there they have a gut reaction this is a terrible result well sometimes it's a terrible result because that's that's the terrible statute that Congress wrote and the rule you know the rule for a judge ought to be garbage in garbage out if you're dealing with a inane statute you you ought you are duty-bound to produce an inane result so a lot of those editorials are just knee-jerk opposition to to the consequence not not a dispassionate intelligent assessment of the process of interpretation that the judge went through one of the prior justices of the Supreme Court what listen I have to add to that if an editorial writer or even even a an article writer did what I've just recommended went through and described to the reading public oh the case consisted of this section 323 B little I and it had to be reconciled with 523 won over you know if he went to me he would lose his readership in no time so I am not at all surprised that that the newspapers tend to evaluate a case simply on the basis of whether the result seems like a good result or not that's that's really all the reader is interested in the reader is not interested in the rest of that stuff well then let me ask you about something that along those lines you know we prepared for your this interview your people at the publishing house told us there are all kinds of rules that we things we couldn't ask you about you can ask me anything at all I just I won't answer a lot of stuff oh I know but one of the things week four years ago we did interview we talked about Bush v Gore right and I know you don't want to talk about that again but let me just show you of some video from an interview you did with Piers Morgan when he asked you I mean he asked you everything that we're not supposed to ask you and you answered everything that we're not supposed to really do that yes you did that I want to show you this clever well he asked me to get it now here's just let me to show you what has been in your view the most contentious what's the one that most people ask you about contentious well I guess the one that you know created the most most waves of disagreement was Bush versus Gore okay that comes up all the time and my usual responses get over it why is it you went on to explain further on on that day and we did it four years ago I think telling you couldn't ask about I didn't know that that was yeah guy but we're used to that we'd get that all the time well no I mean past cases that yeah okay I don't mind it ask me about Bush versus Gore I don't want to talk about Bush versus where you've already answered it here I don't either but why why was judges have your your it for life why does everybody worry about things they say in public and not having cameras in the room and all that so why are you so sensitive about it I'm sensitive about it because judges ought judges ought to express their views on the law in their opinions everything I had to say about the real legal issues in in Bush versus Gore was set forth in in the opinion that I joined beyond that I'm just either repeating myself or or adding things that really were not the basis for my for my decision and and I also don't like drawing the courts into the political Maelstrom by you know having their opinions repeatedly pawed over especially the controversial ones why not though I mean that's democracy well I don't mind the people pawing over them between themselves but I don't think it's the role of the judge to give an account of himself to the people you know it's the tradition of common law judges not to reply to suppress criticism you know we get clobbered by the press all the time I can't tell you how many wonderful letters I've written to The Washington Post just just for my own satisfaction and then ripped up and throw it thrown away you don't send them you don't send them that's that's the tradition of the common law judge you do not respond to criticism so why why is that it's it's because what the judge has to say is in the judge's opinion your biographer I know you didn't choose their jumba's Kubek and David Savage another sent around at the end of the term talked about you here's John B scoopy talking about you at the end of this last term at the end of his very first term the 80 in 86 October six-term in 87 for Morrison Beals and 9 minutes of him complaining about where the court had gone on the Independent Counsel statute other memorable Scalia defense Romer v Evans the gay rights case out of Colorado he he does have won just about every term and it's a they're always vintage and it was it was interesting though the idea that he would go outside the record and complain about President Obama's order on young people who had brought been brought here with their parents illegally and our undocumented and he did get a lot of a lot of really negative press on it in fact I think a couple people even suggested he should step down but frankly I think he will still be doing what he does she's right about that you will be doing what you do but what about it can you explain this going outside the record stuff that was a twin of innumerable cases in which we cite newspaper articles in Orville cases there's there's no rule that you cannot cite any public materials in in opinions and only cite the record I mean if it's a factual matter that is up for decision of course you can only use the matters set forth in the record to determine the facts but that's that's not the purpose for which I used it at all and we use the public records all the time the point I was making there had nothing to do with a factual determination I don't want it people should read the opinion to see whether my my use of of that so-called non-record material was was proper or not were you surprised at the reaction after you mentioned President Obama and your remarks at the at the holidays the last decision on the Arizona his decision when EJ Dionne said you ought to resign who and columnist for the watch I don't know I was I was surprised that anyone would have would have thought the purpose for which I used the the president statement and and did not criticize the president statement in fact I said it might be right but the only point I made from it was well the Attorney General had argued before us that the only reason the government wasn't enforcing the immigration laws more rigorously was simply enforcement priorities it didn't have enough money it had to had to decide who goes first and what not and and the point I made was well even if that was true in my view a sovereign state ought to be able to supplement the inadequate enforcement funds with its own funds if it wants to and then I added moreover it has since come to light that that the problem is not just an inadequacy of enforcement funds but rather simply the unwillingness perhaps for good reasons of the government to enforce the law and for that purpose I I cited the the president's statement which seemed to me perfectly fair I did not say the president's statement was wrong I just said that what the Attorney General had told us concerning enforcement priorities was simply as the public record shows not not the sole problem I'm going to go back to your book at page 356 and read you a sentence and have you explain it - we non-lawyers us I knew you were going to do that I do it all that that's fair it's fair I caught it got it the teachers will never forget all right textualist I should take this slow textualist should object to being called strict constructionist whether they know it or not that is an irretrievably pejorative as' is that correct thing we could and I think I think that people tell me that pejorative is the proper pronunciation I say pejorative whether they know it or not this is I just read that as it ought to be strict construction instruction ISM as opposed to fair reading textualism is not a doctrine to be taken seriously and then you consider cases like to lay hands on a priest which right right you like to explain that well there's an old statute that made it a crime to lay hands on a priest and does that mean you know if you shake hands or or Pat them on the shoulder of course not the word is used colloquially to mean violent violent attack upon a priest and a lot of other things I mean the the first amendment for example if you are a strict constructionist you would say that the First Amendment does not prohibit Congress from censoring handwritten letters because after all it and only protects freedom of speech and of the press and a handwritten letter is neither speech nor depressor but of course that's not the that's not the understood meaning of the First Amendment it protects freedom of expression and those two are just the most common modes of can you give us an alumn ins definition of textualist uh textualist is someone who believes that the meaning of a statute is to be derived exclusively exclusively from the text enacted by Congress and signed by the President or else re passed over his veto the text is the sole source that the judge ought to be using in making his judgment um the last part of this book is 13 falsities exposed yeah the first one is the false notion that the spirit of a statute should prevail over its letter yeah and are you exposing this falsity is this your idea of a falsity or is this what is taught in law schools oh there what I mean there it's it is said in some Supreme Court opinions that you know sometimes you know the letter of the of the law is is contrary to its spirit and its spirit must be must prevail that's nonsense the letter of the law is the letter of the law that's what we're governed by we're not governed by some judicial determination of spirit which could be anything but the statement comes up awful often it is an empowerment of judges judges can simply say oh yes the text says that but that's contrary to the spirit of law and we're going to go ahead and do whatever we like I mean that's just not not democratic self-government if people can't have their representatives write a statute which is to be applied as written the sixty second of your headings on how what do you call them each one of those every time you make a point that this is the six seven numbers we call them so it's easy okay Touche here's the sixty say it's got all kinds of things on this page I want to ask you about the false notion that words should be strictly construed that's the sixty second right and that's third or fourth right well that's what we just talked about strict construction you know what it construed strictly you want to construe it reasonably you know I guess so it's strictly I want to construe it sloppily you want to go right down the middle construe it reasonably what would the ordinary reader of English interpret this statement to mean unless it's obviously being used in a technical sense I mean there's some you know technical expressions in various areas of the law the other things on that page I want to ask you about is it what one of them you mentioned uh one of the justices often in the book Joseph's story and Joseph's stories you know was the youngest justice ever youngest-ever he also has another thing in common with he had seven children that's pretty good and you've had nine I should ask you at this point as I heard last time you had 28 grandchildren to name them all and you were offended by that and I continue to be offended I think that's a an unfair but now you have 34 33 34 is an unreasonable number and then did you bring a list with you that lets you give me enough time I'll come up with Oliver Joseph's story though years and years ago back in the early 1800s he was there 33 years why so much of him in the book what do you think of him oh he was one of the greats he wrote the first commentary on the Constitution of the United States while while he was a sitting sitting justice he was a professor at Harvard Law School a great intellectual one of the leading intellectuals maybe the leading intellectual on the on the early court and he also published a taught school taught it on published books the whole time absolutely yeah yeah you know judges have always been part of the intellectual life of the country you know unlike in Europe where judges are sort of you know bureaucrats in the ordinary courts but at least in the most in the more important courts judges in our common law system have always been part of the intellectual discourse even in the court of appeals levels people like Henry friendly and learn it and and so forth we had you here in mm not here but in 2006 we had our cameras in front of you and Justice Breyer I want to show you this too talking about judges you're going to see to the good guy when did the bad guy win and you're inclined to say if the good guy won wonderful judges left the by one terrible judges that's not true unless you believe that every statute ever written produces a sensible result but you know the the ideal rule for the honest judge is garbage in garbage out you are supposed to interpret the statutes reasonably even if you don't agree with the result because it's not up to you to decide what's garbage and where that in mind you you you should be you should be uh what should I say more careful to either praise or criticize judges just because you like the outcome or dislike the outcome of their cases you said some of that earlier but garbage in garbage out you've said colorful things over the years it's pretty colorful do you know that when you're on the bench and you do that I mean is that something that you do on purpose oh I don't do it much on the bench I do it in my opinion sometimes I think they make the opinions more readable more lively which is a good thing especially dissents because there's really no reason to read a dissent I mean the dissent is the losing side if you're a lawyer you want to know what what role to follow you read the majority opinion the dissents I know you write the dissents I write them mainly for the law students because the dissent will be published in our system the the law professors even when they disagree with the dissent have to present both sides of the case so that there can be lively discussion of it in class so they'll publish my dissent and I like to make the dissent clear and readable and even interesting and even funny sometimes how much of you impacted you had on the oral arguments oral arguments I mean they're not what they were you know they're not what they were when I first came on the court very few questions were asked I argued before the court once before I became a judge and I got only two questions I think was two maybe three from all of them from Byron white in the whole time I argued nowadays wow the whole process consists of responding to questions from the court I think the latter is is better did you start it I I was the first one who started asking a lot of questions I guess and that was probably my my law school background my law professor background and then when other former law professors came on the court they continued the same roof Bader Ginsburg of course another former law professor Stephen Breyer another former law professor here is an oral argument we have it on audio from 1999 you're asking the questions the other voice you hear is see if you recognize it is someone who is making a presentation before the court and unless it is itself a recipient of federal financial assistance it's not covered by title 9 now this is not even I don't quite see how the university gets to get stuck here as far as the university is concerned it pursuant to the rules has denied a waiver in circumstances where denial would be perfectly appropriate as far as what the university has done the university hasn't discriminated at all but if the university the only thing that makes the waiver the denial of the waiver bad is that this other organization has granted waivers in other universities in other contexts how do you pin this on the on the university because the university is the entity that is operating a covered program or activity recognized that boy um don't recognize it who he was before the court ah but something like 30 times before yet it Roberts is ste yeah how often is that you said you were one time before the court before you've cited court right and I noticed that do it was poor comment one of your he was a clerk right so he steps up and in the healthcare case that's right a lot of other cases you know he's a former Solicitor General and former solicitors general are part of the what you might call the the Supreme Court bar the the regularly appearing Supreme Court bar as you know after the healthcare case and Chief Justice Roberts position on it a lot of copy written about the personal antagonism between members of court I know you answered this the other night but if you would talk a little more about your perception first of all was there a leak that came out of the court on that story I wouldn't you wouldn't what I wouldn't talk about it you did though one said you and the Justice she just responded to a very precise question of whether you know they were slamming doors and whatnot and that's you know that's absolute nonsense but are there are their personal feelings behind the scenes on always let it talk about it are there let me do this oh the question you were talking about I mean the answer you talked about earlier about what you write in your opinions has there ever been in your past when you make some strong statements personal you know fallout from that no I you know I've criticized the opinions of some of my colleagues and we've remained friends just as they have criticized my opinions and we've remained friends look at is the kind of a job if you can't disagree even disagree vehemently on the law without taking it personally and without you know hating the person who's on the other side you want to find another job and so you know that's it done done why do you sometimes have I mean anybody that knows you knows you are a jolly fellow but jolly feel but why is it you take such an intense you know when you're dealing with this subject you look like you're mad with what subject this whole business of the law I mean you look like you're you're I shouldn't look man I should I look jolly what talk about a very serious heartfelt issue one in which what used to be the stuff we set forth in this book is orthodoxy it was the traditional approach to judging until about the middle of the 20th century we are trying to bring that back it's a it's a very significant issue of how judges go about giving effect to democratically enacted legislation and to the democratically ratified Constitution it's a terribly important matter you want me to smile and look jolly when I'm talking about that I don't know I I I think I should look impassioned when I talk about it because I do care passionately about it but makes you I'm not angry I'm just into action what makes you mad what makes me a mailing with the law and dealing with the court and dealing with lawyers that come before your issues the press well yeah the press gets well if you read it it gets under your skin I don't don't much read it but you get used to it you get used to the fact that you can't respond so they can say anything at all that's why all these leaked stuff you know I mean we don't respond so effectively they can say whatever they would say whatever you like we're not we're not going to respond to it near the end of your book you're right one however living constitutionalists read a prohibition of the death penalty into the Constitution and no fewer than four Supreme Court justices who served during the tenure of your judicial co-author which is you would have done so all flexibility is at an end at an end it would there have to be of no use to betting the merits of the death penalty just as it is of no use debating the merits of prohibiting abortion he stepped on two big issues there right yeah know what you're talking about there is is the other big theoretical issue raised by the book one is textualism we talk about that the second is originalism and what that says is that the text ought to be given the meaning it had when it was adopted when it was enacted or when it was ratified in the case of the Constitution thus the words cruel and unusual punishments in the Eighth Amendment should be given the meaning they were understood to have by the American people who ratified it and it was clear that when that eighth amendment was ratified the death penalty was not considered to be prohibited and deeded the death penalty existed in all the states and was the only penalty for a felony so for somebody today to say that somehow the American people have prohibited the states by ratifying the Constitution they have prohibited the states from applying the death penalty I don't know where this comes from the American people never voted for any such thing that's what originalism is what did this mean when the American people ratified it now there are some phenomena you know the death penalty was a phenomenon that existed at the time there are other phenomenon that didn't exist at the time and for those you you can't say what was the original meaning like when the electric chair comes in you have to decide whether that is cruel and unusual punishment okay but your your starting point your base point against which you compare these later phenomenon is what was extant and what was approved at the time the 8th amendment was ratified and so if the electric chair is less cruel than hanging which it certainly is it's not prohibited by the Eighth Amendment likewise death by injection which is even less cruel than the electric chair and certainly less cruel in hanging that's what originalism is all about here's another one of your 13 falsities exposed by the way who who wrote that we made them up what who has that headline 13 so these a suppose that was your namesake spelled differently Brian yeah right the co-author the co-author Frank Garner who's at SMU no he's not a law professor he he is probably the foremost lexicographer especially lexicographer of law he's the editor of Black's Law Dictionary has a number of books on legal usage and highly highly respected scholar has his own company called law pros lectures about the country on on writing briefs and on oral argument just say I have to read the last line here of his violet says he's also a distinguished research professor of law at Southern Methodist University yeah but he's an adjunct coming he's I don't think he's a full time faculty all right here's one of the falsities exposed yeah the false notion that lawyers and judges not being historians are unqualified to do the historical research that originalism requires right I mean that is false some people say you know well what do you scalia historian you're going to figure out what this man in in 1791 when the Bill of Rights was ratified yeah I can do that just as I can decide patent cases what do I know about patents I know nothing but I listen to to each side they bring that's what the adversarial system is all about each side has an interest in bringing forward the best evidence possible so just as I can decide a patent case by by evaluating in fact it's even easier for me to evaluate historical evidence than it is patent evidence for pete's sake judges do this all the time and it's it's the council who have to be expert or who who have to know where to point the judges for expert advice and I don't see why judges cannot cannot do history they have to do history all the time you right there is no historical support whatever for the proposition that any provision in the Constitution guaranteed a right to abortion or to sodomy or to assisted suicide these acts were criminal in all states for two centuries right so if you're an originalist it's it's it's a silly question to answer whether it's unconstitutional to prohibit them it obviously wasn't when whatever provision of the Constitution to rely on was adopted and it doesn't mean you have to prohibit them just as it doesn't mean you you have to have the death penalty these are these are political questions for the for the American people to decide that's what democracy is about you think you think abortion should not be prohibited fine persuade your fellow citizens pass a law you think the opposite persuade them the other way but don't tell me that the Constitution has has taken that issue out of democratic choice it simply hasn't and it's the same for those other issues I you know death penalty abortion sodomy whatever put it persuade your fellow citizens and go either way another historical figure that you quote a lot in your book is Jeremy Bentham wait who is he well in English philosopher who had a lot to say about law as well why should you follow him he's a very smart fella daddy yeah he has but so is our stop hahaha but he also was was was highly respected by the framers of our Constitution and has been influential on legal theory ever since don't I remember you disagreeing in a public forum that we covered about citing foreign law and then you mentioned a lot of foreign experts a lot of British of course we get a lot of our law and yes I see I don't consider English law foreign law English law to the extent it informs the meaning of the Constitution for example what is due process of law mean that phrase in the Constitution I mean in the abstract it could mean anything it means something different to a 12th century Frenchman than it does to a 16th century Hawaiian its meaning in our Constitution is the meaning that was given it by 18th century Englishman and that's why English law is very relevant to to our Constitution and to American law French law is not Italian law is not and you're in a time and even while I mean I'm an American but but I'm dying to say it father and my boy both of your parents attack well my mother was born no she was American but born of an Italian immigrant family here is another thing I want you to discuss that this is your these are your words by the way how did you both write this who wrote what like you know if my life depended on but telling you some passages I I recall or mine some I recall or his but most of them they have become so melded he worked on mine I worked on his the end product is is the product but how did you do it I mean physically he's not here in town so no he told me you know is let's let's divvy up these these canons of interpretation you work on this one this one this one I'll work on the other ones and we did that and then you know I sent him my my take on the ones I was assigned and and he sent me his on the ones he was assigned and we went back and forth and back and forth this thing took three and a half years to do well year this is probably an affair way to say it you're another notorious word nitpicker yeah but so was he that's what I wanted to ask oh god yes oh yeah he's worsening he's a snoot he's at least as bad as I am at least as bad probably worse probably worse you guys ever come to blows no no but he knows stuff about words I mean I don't know why you would want all that empty information in your head for example one time I I complain I said Brian you know people always refer to it as duct tape it's not duct tape it's duct tape with a T and he said you know that's wrong that it was originally devised for the military it was I think he said olive drab color and it was called duct tape only later did it come to be used for air conditioning yeah now who would want to have that kind of information only only a word nut and Brian is a word but he got you though he got me got me all right let me let me read this to the modern Congress sales close to the wind all the time federal statutes today often all but acknowledge their questionable constitutionality with provisions for accelerated judicial review for standing on the for standing on the part of the members of Congress and even for fallback dispositions should the primary disposition be held unconstitutional right I want to go back to that original thing the statement the modern Congress sells close to the wind all of that yeah that followed upon our statement that traditionally Congress is you assume the constitutionality of any statute that Congress enacts because it is assumed that Congress would not indeed if there is even constitutional doubt you you give the Congress the benefit of the doubt in recent years however it's more questionable whether Congress is really even thinking about the constitutionality and and that passage recites the fact that this is evident from the content of their statutes I mean who would have ever thought in the in the nineteenth century for example that Congress would pass a statute which says in the event the stuff we've just said is unconstitutional we have this other provision instead which is what Congress has done I mean that makes you wonder you know are they really sure this stuff is constitutional and they really thought about it and I think that comment was also made in response to the charge of quote judicial activism which is a word that doesn't mean anything really it just means that the person who uses it doesn't agree with the decision I mean what is judicial activism it is certainly not doing actively what judges ought to do is actually dislike them and I think not and if a statute ought to be held unconstitutional it's not judicial activism to call it unconstitutional number 44 artificial person Canon right now I wrote down beside that even though you did in citizens united that's another one that's created a storm well person isn't used in the First Amendment I mean Congress shall make no law abridging the freedom of speech but what what is your bet maybe you don't even want to touch this but what is it as a person they worry at all I know you don't well as a person you worried all that there's too much money in politics no you know I really don't I forget what the figures are but I think we spend less on our presidential campaigns each year when there's a presidential election then then the country spends on cosmetics well good what am i considering this about you know people are worried that the corporations now can buy I think this is a real Condit if you believe that you you we ought to go back to monarchy that the people are such sheep that they just swallow whatever whatever they see on television or read in the newspapers now the premise of democracy is that people are intelligent and can discern the truth the true from the false at least when when as the the campaign laws require you know who is speaking you can't speak anonymously you you have to you have to say you know identify the people that are we don't know a species and right now you know the organization that speaking not necessarily I mean you know they don't have to in you know don't need to go into the details but then some of this way this money is being raised you know we will never know you will may not know who contributes the organization you know the organization that's speaking so that's all you need to know you don't need to know they're hiding behind there well the press can find out you know who's hiding behind what but that's that's not harder you can tell from anyway look at the the premise is freedom of speech the more speech the better I cannot understand why well and as far as citizens united don't forget citizens united was not novel it reversed an opinion eight years earlier that had changed the law from what the law had been in in buckley versus vallejo that was assumed to be the law all right we were about out of time and i we are but i've never asked you this on camera but i'm going to do it now okay laws I need to get the latest thinking on you okay television in the court television it the court and the reason I bring it up is the Congress has full with resolutions I've never passed it in ordering the court to go on television why are you so against it right I was for it when I first joined the court and and switched and and remain on that side of it I am against it because I do not believe as the proponents of television in the court assert that the purpose of televising our hearings would be to educate the American people that's not what what what it would end up doing if I really thought it would educate the American people I would be all for it if the American people sat down and watched our proceedings gavel-to-gavel they would never again ask as I'm sometimes asked yeah Jessica Leah why do you have to be a lawyer to be on the Supreme Court the Constitution doesn't say no the Constitution doesn't say so but if you know what our real business is if you know that we're not usually contemplating our navel should there be a right to this or that can there be your right to abortion should there be a right to homos that's not usually what we're doing we're usually dealing with the Internal Revenue Code with ERISA which all with patent law with all sorts of dull stuff that only a lawyer could could understand and perhaps get interested in if the American people saw all of that they would be educated but they wouldn't see all of that but we get your outfit would carry it or we get to be sure but what most of the American people would see would be 30-second 15-second takeouts from our argument and those takeouts would not be characteristic of what we do they would be uncharacteristic out of context with what you say is that's fine but it's it's it's you people read that and they say well it's an article in the newspaper and the guy may be lying or he may be misinformed but somehow when you see it live an excerpt pulled out of an entire when you see it live it has a much greater impact no it would I am sure it will miss educate the American people not it when we get the audio we get the idea at the end of the week and yeah but the audio is not is not of interest to the 15-second take-out people and the 30-second takeout people the audio is what the First Amendment's Eisley because it doesn't have that kind of impact but the First Amendment doesn't go well takeouts are not good we can't have those 15-second sound bites the First Amendment has nothing to do with whether we have to televise our percent you an applicant you're saying the First Amendment requires us to tell about in settings no I just said did your big advocate in the First Amendment I am a date and it doesn't require us to televise our proceedings alright last question do you still I got to be logical right of course do you like this job and do you ever intend on retiring oh I'm sure I will retire someday and it you know doesn't job doesn't last for it's only a lifetime job is all is there that what will be the trigger for you and I think you'd stay this long no I didn't I didn't I thought I'd get out as soon as I could retire at full full pension you know I've been working for nothing for I guess over ten years I could have retired at a paid yeah I'm still pay but I would get paid just as much if I retired 19 years life yeah whatever no I haven't retired when I was when I was 65 I could have retired so I'm probably too stupid to have this chop at this point but I don't know what else I do when will i retie I will certainly retire absolutely retire at the time where I perceive that I am not as good as I used to be then I've lost a step I don't want the product of my judicial career to be demeaned by inadequate performance later on as soon as I think I've lost a step have you asked anybody to tell you when they think you lost the whole know what it was to step and I have no idea and I have many friends and enemies who will certainly tell me the name of the book is reading law : the interpretation of legal texts by Antonin Scalia and Bryan 8 Garner thank you very much thank you for a DVD copy of this program call one eight seven seven six six to seven seven to six for free transcripts or to give us your comments about this program visit us at QA or QA programs are also available as c-span podcasts [Music]

Channel: C-SPAN

Views: 159,700

Keywords: q&a, C-SPAN, cspan, U.S., Supreme, Court, Justice, Antonin Scalia

Id: sXynIZOtKkg

Length: 61min 32sec (3692 seconds)

Published: Mon Jul 30 2012