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DC at Night

Tuesday, October 9, 2012

Justice Scalia Speaks

When Scalia speaks, the legal world listens
In his quarter-century on the Supreme Court, Justice Antonin Scalia has consistently demonstrated a conservative ideology in his opinions, advocating textualism in statutory interpretation and originalism in constitutional interpretation.

"What legitimacy is there for the Supreme Court to revise the Constitution? We should not be making or inventing the law," Judge Scalia says. "We need to rule by the text. What did it mean at the time it was written?"

Recently, Justice Scalia, one of Washington's most interesting speakers, addressed a standing-room-only crowd at the American Enterprise Institute.

The 76-year-old Scalia, in remarks often punctuated with humor and simple, clear examples and anecdotes, indicated that he felt comfortable with his decisional underpinnings. "I will stipulate that originalism is not perfect," Scalia said. "But it is better than anything else. It's the only game in town. What did they (the laws) mean when they were adopted"

To solidify his point, Scalia told the joke about 2 hunters who encountered an angry grizzly bear which  began chasing them. One of the hunters turned to the other and asked, "Do you really think we can outrun that bear?"

"I don't have to outrun the bear, I just have to outrun you," the second hunter responded.

Justice Scalia said he was deeply troubled by those who believe the Constitution is a living document that should be interpreted according to the vagaries of any current time. "Of course, you have to take into account new phenomena. But a system of whatever you think the Constitution means, that's what it means, that's not a prescription for Democracy," Scalia contended.

But what if a law is wrong?  Should justices set out to place a new law in its place. "I am a textualist. I am an originalist. I am not a nut," Justice Scalia said with a laugh. "Water over the dam is water over the dam. Let's go on to the next mistake. We don't go looking for cases. We get involved when the Courts of Appeals are in disagreement. We are a government of laws, not legislators' intentions. We have to govern by the text. What did it mean at the time? Even if all the legislators were falling down drunk at the time when they passed it, the law is the law. You (as a judge) can't go around revising laws because they are stupid or the wrong law."

Judge Scalia said that while the process is arduous and the debate intellectually challenging, a Supreme Court justice's main task is "to look at the argument made on both sides and decide which is the better argument."

For almost 45 minutes, Scalia answered questions from the audience. A sampling of the questions and his responses include:

What do you think is the biggest misconception of the Supreme Court?
"People think we are spending most of our time up there contemplating our navels. We do all sorts of incredibly dull stuff, but we do work."

Should cameras and video equipment be allowed in the Supreme Court?
"I have always opposed cameras. They would convey a misconception. Everything we said would be outnumbered 10,000 to 12 by a 20 or 30-second takeout on the nightly news."

What would you change to make the Constitution better?
"I would probably alter the Amendment provisions (to make an amendment easier to get made into law). Less than 2 percent of the people can prevent a Constitutional amendment."

What should students read to make them better citizens?
"The Federalist. And the Constitution. That is a damned disgrace that  students should get out of high school or college without reading the Constitution."

Do the justices argue and fight over rulings? 
"Do not believe anything you read about the inner workings of the court. The justices won't reply and so you are left with unreliable sources. It's nonsense that Justice Roberts and I had a heated exchange (over the Obama Health Care ruling). We didn't have angry words. We can disagree without getting angry. We're all good friends. You probably know that Ruth (Ginsberg, a liberal judge) is my best friend on the court. And she doesn't always exactly rule the way I do."

Will you retire any time soon?
"I could have retired 11 years ago. Actually, I've been working for nothing for that time. That probably makes me too stupid for the job. But my wife wouldn't want me around the house all the time. I love this job. It is an important job and I enjoy doing it."

How do you stay hopeful?
"Who says I'm hopeful. I feel like I'm Frodo in The Lord of Rings. I soldier on."

Tales, Tidbits, and Tips
Obviously, given his judicial philosophy, Justice Scalia is a great admirer of the Founding Fathers. But, who of that great group, does he believe the greatest? The justice hesitates only slightly before answering: "George Washington - it wouldn't have happened without him. It just shows that smart isn't everything. He was surrounded by geniuses. But he was the indispensable man."

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