BRIAN LAMB: Justice Antonin Scalia, your book, ’Reading Law: The Interpretation of Legal Texts’, why now?
JUSTICE ANTONIN SCALIA: Why now?
SCALIA: Because I finished working on it now.
LAMB: But why this book? And, how important is this book? You’ve done a bunch in the past.
SCALIA: 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 interpretative 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 steps that a that a textualist has to take in order to produce a correct reading of the text; mainly the so-called cannons of interpretation, which are, you know, largely ancient common sense rules of how language is used.
LAMB: Who do you expect to read this?
SCALIA: 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 language. So, those are the four.
LAMB: You pointed out to me before we started that I was not a lawyer.
SCALIA: Yes, well, maybe the general public. You know, I add the general public I mean
LAMB: I don’t know. That’s what I this is parts of it are understandable to the general public; parts aren’t.
SCALIA: Well, it would give a general reader a window into into the world of judges and of how judges go about deciding on the meaning of enacted texts texts. And, maybe most important of all, on what is the true fault line in judges; distinguishing judges. The fault line is not conservative versus liberal. It’s rather, theories of interpretation which differ greatly from one judge to another, unfortunately.
LAMB: I’m going to read a long paragraph that you wrote.
SCALIA: OK. I will like it.
LAMB: At the end of your preface.
SCALIA: Yes. Yes.
LAMB: ”One final personal note,” you said.
SCALIA: Oh yes. Right.
LAMB: You’re judicial author there’s a co-author and you’re the judicial author, ”knows 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 stare decisis or because wisdom has come late.”
Second part, ”Were still your judicial author,” that’s you, ”does not swear that the opinions that he joins or writes 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 be open to persuasion by council.”
And then you finish this by saying, ”Yet, the prospect of gotcha’s for past and future inconsistencies holds no fear.”
SCALIA: Yes. I thought that was pretty clever. Didn’t you?
LAMB: Well, I thought that was it was food for questions.
SCALIA: I worry about people pointing out, you know, leading up to say, ”Well, you say thus and so and in your opinion 22 years ago
” I didn’t review all of my opinions to be very sure that every one of them comports with the truth set forth here and I didn’t want to have to do that.
And, for the future, any judge has to be open to persuasion, to acknowledge his past ignorance if necessary. So, I, you know, I won’t swear that I’ll follow this in the future but I probably will.
LAMB: Who who deliver to you gotcha’s in your life?
SCALIA: Apart from my wife?
SCALIA: I would expect gotcha’s to come principally from academia; many in academia. Probably very many most of academia does not agree with the theory of interpretation set forth in this book.
SCALIA: Why? Because they prefer theories that augment the the power of the judge and hence the power of the law professor. The theory of interpretation set forth here is a very a very humbling one. It does not leave a whole lot up to the policy discretion.
In fact, it leaves nothing up to his policy discretion. The name of the game is to give the fairest reading to what the people’s representatives have enacted. That’s what a judge is supposed to do.
Now, that is an uncongenial approach 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.
LAMB: In the earlier part, which you have labeled under ’Forward’ you have a sentence there I want to ask 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 this, you just go accused of being political at the end of the term.
SCALIA: Was I accused of being political?
LAMB: Yes sir. I even got the document right here.
SCALIA: I’ve been out of the country
LAMB: Yeah right.
SCALIA: So I don’t read that stuff anyway.
LAMB: What happens to you though when you hear somebody say, ”Oh, he’s the most political judge ever?”
SCALIA: You know, sometimes 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.
Unless you want your judges to ignore the text they’re dealing with and we’re always dealing with a 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 what not, and then you can say, ”The guy did a terrible job of interpreting this statute.” 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, ”conservative”. To the contrary, sometimes in some respects I ought to be the pin up of the criminal defense bar because a number of my opinions have defended the rights of criminal defendants even though I’m socially I’m a law and order conservative.
But that’s my job is not to say how it ought to be but to say what the constitution demands.
LAMB: 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 would advise teachers how they should teach the constitution.
SCALIA: Well, these are teachers what level?
LAMB: Oh, they’re high school.
SCALIA: Oh, high school? Oh, okay.
LAMB: Maybe, how would you want the constitution taught in high schools?
SCALIA: 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 if you want to have the proper respect, and indeed awe 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 am always astounded I can ask a group of law students, ”How many of you have read the Federalist Papers,” and you know, it’s maybe 6 percent or 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.
LAMB: Do you have to is it really something you should read in high school; the whole thing?
SCALIA: 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 a breath of knowledge these people had.
They were not doing it be 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 James Madison called at the convention.
He says, ”Gentlemen, we are engaged in the new science of government.” Nobody had ever tried that before and people ought to appreciate that. This it had never happened before and it will probably never happen again that a system of government will be devised by a seminar.
I mean, a three month long seminar composed of the political leaders of the entire country. That won’t happen again. And you can’t appreciate that unless you seep yourself in the times, including reading the Federalist Papers.
LAMB: In this book at the beginning you list a whole bunch of people you thank.
LAMB: We counted, I think
SCALIA: I probably missed some too.
LAMB: No, but we counted 23 of your former clerks.
LAMB: 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.
SCALIA: All right. Where is it? Oh, there it is.
LAWRENCE LESSIG: And 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 clerks 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 I had to sit there and be beaten up by these conservatives. And then Justice Scalia said, ”I’m going to lunch. I need to talk to you for a minute.” So he brought me in and he said, ”OK. 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 the clerks came in to him and said, ”Justice, you need to hire your fourth clerk.” And he said, ”I did hire my fourth clerk.” And they were outraged that he would have hired someone who was not of the party.
LAMB: True story?
SCALIA: If he says so. I don’t I don’t it did not make as much of an impression upon me as it did upon him. I’ll put it that way.
LAMB: Well, how many clerks have you had since
SCALIA: I’ve had 4 times 26 on the Supreme Court and on the Court of Appeals, what, 5 times 3, so it’s a lot of clerks.
LAMB: But, the real issue here is though, how often have you hired a clerk that doesn’t think like you do?
SCALIA: Infrequently, but not never. The problem is, I don’t care what the policy preferences 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 wishey washey 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 in the law clerk you just saw, they have been invaluable because, you know, they come at the problem from maybe at the opposite social perspective that I do.
And, 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 really just applying his own wishes. That’s bad bad judging.
LAMB: 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’s brother is Gregg Easterbrook, who we see dealing with ecology. Why is he your Forward writer and how long have you known him?
SCALIA: Oh, I’ve known Frank a long time. We were colleagues on the faculty at the University of Chicago, in the what in the ’80s. He went on to be a judge on the 7th Circuit, a Chief Judge of the 7th Circuit ultimately.
And, he he wrote the Forward, because if there is one other name, one other judicial name associated with the two principle theories of this book, textualism and originalism, it is Frank Easterbrook. He is and if I had to pick somebody to replace me on the Supreme Court it would be Frank.
He and I tend to see things the same because we’re both applying the same principles of textualism and originalism.
LAMB: Political Scientist he writes this, ”Political Scientist editorial page writers and cynics often depict judges as doing nothing other than writing their preferences in the law.”
LAMB: Do you believe that?
SCALIA: Oh, I think that’s certainly true.
LAMB: Political Scientists editorial page writers what do you think of editorial page writers? Do you read them?
SCALIA: 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 have a gut reaction, ”This is a terrible result.” Well, sometimes it’s a terrible result because that’s the terrible statute that Congress wrote. And the rule the rule for a judge ought to be ’garbage in, garbage out’. If you’re dealing with an inane statute you are duty bound to produce an inane result.
So, a lot of those editorials are just knee jerk opposition to the consequence not a dispassionate, intelligent assessment of the process of interpretation that the judge went through.
LAMB: One of the prior justice’s of the Supreme Court
SCALIA: Listen, I have to add too, that if an editorial writer, or even an article writer, did what I’ve just recommended, went through and described to the reading public, ”Oh, the case consisted of this section, 323Bi and it had to be reconciled with 522 blah, blah, blah.” If he went through that he would lose his readership in no time.
So, I am not at all surprised 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 really all the reader is interested in. The reader is not interested in the rest of that stuff.
LAMB: Then, let me ask you about something that along those lines. We prepared for this interview. Your people at the publishing house told us there were all kinds of rules that we things we couldn’t ask you about.
SCALIA: You can ask me about anything at all but I won’t answer a lot of stuff.
LAMB: Oh, I know. But, one of the things we four years ago when we did an interview we talked about Bush v. Gore and, I know you don’t want to talk about that again, but let me just show you 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 ask you.
SCALIA: Did I do that?
LAMB: Yes, you did that. I want to show you this clip.
SCALIA: No, ask me again.
LAMB: Let me just show you this.
PIERS MORGAN: All right, what has been, in your view, the most contentious, what’s the one that most people ask you about?
SCALIA: Contentious? Well, I guess the one that, you know, created the most the most waves of disagreement was Bush versus Gore, OK? That comes up all the time and my usual response is just ’Get over it.’
LAMB: Why is it you went on to explain further on that and we did it four years ago.
SCALIA: Did they tell you that you couldn’t ask about I didn’t know that that was your guide.
LAMB: Yes. Well, we’re used to that. We get that all the time.
SCALIA: No, I mean, past cases that yes, OK. I don’t mind. Ask me about Busy versus Gore.
LAMB: I don’t want to talk about Bush versus Gore. You already answered it here.
SCALIA: I don’t either.
LAMB: Why why judges have tenure. You’re in it for life. Why does everybody worry about things they say in public and not having cameras in the room and all that stuff? Why are you so sensitive about that?
SCALIA: 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 Bush versus Gore was set forth in the opinion that I joined.
Beyond that, I’m just either repeating myself or adding things that really were not the basis for my for my decision. 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.
LAMB: Why not though? I mean, that’s democracy isn’t it?
SCALIA: 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 the press’s criticism.
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 for my own satisfaction then ripped up and thrown away.
LAMB: You don’t send them?
SCALIA: You don’t send them. That’s the tradition of the Common Law judge. You do not respond to criticism. So, why? Why is that? It’s because, what the judge has to say is in the judge’s opinion.
LAMB: Your biographer I know you didn’t choose Joan Biskupic and David Savage (ph) another, sat around at the end of the term and talked about you. Here’s Joan Biskupic talking about you and the end of this last term.
JOAN BISKUPIC: At the end of his very first term, the 80 in ’86, after the ’86 term, in ’87 for Morris & Nielsen, 9 minutes of him complaining 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 does have one just about every term and they’re always vintage. And 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 been brought here with their parents illegally and are 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 that he should step down. But, frankly, I think he will still be doing what he does.
SCALIA: She’s right about that.
LAMB: You will be doing what you do. But, what about can you explain
SCALIA: What’s this going outside the record stuff?
LAMB: That was at
SCALIA: There were innumerable cases in which we cite newspaper articles; innumerable articles. There’s no rule that you cannot cite any public materials 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 matter set forth in the record to determine the facts.
But that’s not the purpose for which I used it at all. And, we use public records all the time. The point I was making there had nothing to do with a factual determination. I don’t want to people should read the opinion to see whether my use of that so-called non-record material was was proper or not.
LAMB: Were you surprised at the reaction after you mentioned President Obama in your remarks at the on the day the last decision on the Arizona decision when E.J. Dionne said you ought to resign.
LAMB: A columnist for the Washington Post.
SCALIA: Oh. I don’t know that. I was surprised that anyone would have thought that the purpose for which I used the President’s statement and did not criticize the President’s 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 decide who goes first and what not.
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 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 cited 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 note the sole problem.
LAMB: I’m going to go back to your book at page 356 and read you a sentence and have you explain to we non-lawyers.
LAMB: I knew you were going to do that.
SCALIA: I do it all the time.
LAMB: I caught it just the teachers will never forgive me. ”Textualists
I should take this slow.
”Textualists should object to being called Strict Constructionists. Whether they know it or not, that is an irretrievably pejorative,” is that correct English?
SCALIA: I think I think people tell me that pejorative is the proper pronunciation. I say pejorative.
LAMB: ”Whether they know it or not this is oh, I just read that. ”As it ought to be. Strict Constructional Constructionism, as opposed to fair reading textualism, is not a document to be taken seriously.” And then you consider cases like, to lay hands on a priest, which
SCALIA: Right. Right.
LAMB: Would you like to explain that?
SCALIA: Well, there’s an old statute that made it a crime to lay hands on a priest. Does that mean, if you shake hands or pat them on the shoulder? Of course not. The word is used colloquially to mean violent a violent attack upon a priest and a lot of other things.
I mean, the First Amendment for example, if you are a Strict Constructionist you would say that the First Amendment does not prohibit Congress from censoring hand-written letters, because after all, it only protects freedom of speech and of the press and a hand written letter is neither speech nor of the press.
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
LAMB: Can you give us a layman’s definition of textualists?
SCALIA: A 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.
LAMB: You the last part of this book is 13 falsities exposed. The first one is, ”The false notion that the spirit of a statute should prevail over its letter.”
LAMB: Are you exposing this falsity? Is this your idea of a falsity or is this what is taught in law schools?
SCALIA: Oh, I mean, there’s it is said in some Supreme Court opinions that, you know, sometimes the letter of the law 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 the law and we’re going to go ahead and do whatever we like.”
I mean, that’s just not democratic self-government if people can’t have their representatives write a statute, which is to be applied as written.
LAMB: The 62nd of your headings I don’t know how what do you call them? Each one of those every time you make a point that this is the 62nd.
SCALIA: I don’t know. Numbers, we call them.
LAMB: OK. Touchι. Here’s the 62nd 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 62nd and the third or fourth
SCALIA: Right. That’s what we just talked about, strict construction. You don’t want to construe strictly. You want to construe it reasonably. You don’t want to construe it strictly. You don’t want to construe it sloppily.
You want to go right down the middle and 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.
LAMB: The other things on that page I want to ask you about is one of them as you mentioned, one of the justice’s often in the book, Joseph Story. Joseph Story, as you know, was the youngest Justice ever.
SCALIA: Youngest ever.
LAMB: He also has another thing in common with you. He had seven children.
SCALIA: That’s pretty good.
LAMB: And you’ve had
LAMB: I should ask you at this point as I did last time you had 28 grandchildren, if you could name them all and you were offended by that.
SCALIA: I continue to be offended. I think that’s an unfair
LAMB: But now you have 34.
SCALIA: 33. 34 is an unreasonable number of grandchildren.
LAMB: And, did you bring the list with you?
SCALIA: I did not bring the list with me. You give me enough time I’ll come up with all of them, Brian.
LAMB: Joseph Story though years and years ago, back in the early 1800’s, he was there 33 years. Why so much of him in the book? What do you think of him?
SCALIA: Oh, he was one of the greats. He wrote the first commentary on the Constitution of the United States while he was a sitting Justice. He was a professor at Harvard Law School; a great intellectual and one of the leading intellectuals, maybe the leading intellectual on the early court.
LAMB: And he also published he taught school.
SCALIA: Oh yes. He taught at Harvard.
LAMB: And published books the whole time.
SCALIA: Absolutely. Judges have always been part of the intellectual life of the country unlike in Europe where judges are sort of bureaucrats in the ordinary courts. But, at least in the most in the more important courts, judges in our common law system have been part of the intellectual discourse.
Even in the Court of Appeals levels; people like Henry Friendly and Learned Hand and so forth.
LAMB: We had you here in 2000 not here, but in 2006 we had our cameras in front of you and Justice Breyer I want to show you this, talking about judges.
SCALIA: You’re going to say, ”Did the good guy win or did the bad guy win?” And, you’re inclined to see, ”If the good guy won, wonderful judges and if the bad guy won, terrible judges.” That’s not true unless you believe that every statute ever written produces a sensible result.
But, you know, 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.
Bear that in mind you should be you should be what should I say, more careful to either praise or criticize judges just because you like the outcome or dislike the outcome of those cases.
LAMB: You said some of that earlier, but, ’garbage in/garbage out’ you’ve said colorful things over the years.
SCALIA: That’s pretty colorful.
LAMB: Do you know that when you’re on the bench and you do that? I mean, is that something you do on purpose?
SCALIA: No, I don’t do it much on the bench. I do it in my opinions 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 and you want to know what role to follow you read the majority opinion. The dissents you write the dissents I write them mainly for the law students because the dissent will be published in our system.
The law professors, even when they disagree with a 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.
LAMB: How much have you impact have you had on the oral arguments?
SCALIA: On oral arguments?
LAMB: I mean, they’re not what they were years ago.
SCALIA: No. 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 it was two; maybe three 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 better.
LAMB: Did you start it?
SCALIA: I I was the first one who started asking a lot of questions I guess and that was probably my law school background, my law professor background. And then, when other law former law professors came on the court they continued the same.
Ruth Bader Ginsburg, of course, another former law professor, Stephen Breyer, another former law professor.
LAMB: Here is an oral argument. We have it on audio from 1999. You’re asking the questions. The other voice you hear see if you recognize it is someone who is making a presentation before the court.
JOHN ROBERTS: Unless it is itself a recipient of federal financial assistance it’s not covered by Title 9. Now, this is
SCALIA: I don’t quite see how the university gets 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.
ROBERTS: Well, if the university is
SCALIA: 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 university?
ROBERTS: Because the university is the entity that is operating the covered program or activity
LAMB: Recognize that voice?
SCALIA: Don’t recognize it, no.
LAMB: He was before the court, oh what, something like 30 times before
SCALIA: Was it Roberts?
LAMB: Chief Justice yes. How often does that you said you were one time before the court before you’ve sat in the court.
SCALIA: Right. Right.
LAMB: And I noticed that was Paul Clement one of your
SCALIA: He was a former law clerk, right.
LAMB: So, he steps up there in the healthcare case.
SCALIA: That’s right. A lot of other cases I mean, he’s a former Solicitor General and former Solicitor’s Generals are part of the, what you might call the Supreme Court bar, the regularly appearing Supreme Court Bar.
LAMB: As you know, after the healthcare case, and Chief Justice Robert’s position on it a lot of copy written about the personal antagonism between members of the 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?
SCALIA: I wouldn’t.
LAMB: You wouldn’t what?
SCALIA: I wouldn’t talk about it.
LAMB: You did though. You said you and the Justice Chief Justice had
SCALIA: I responded to a very precise question of whether , you know, there were slamming doors and what not. And that’s absolute nonsense.
LAMB: But, are there personal feelings behind the scenes on all this stuff?
SCALIA: I don’t want to talk about it.
LAMB: Are there let me do this; the question you were talking about I mean, the answer you were talking about earlier 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?
SCALIA: Well, you know, I’ve criticized the opinions of some of my colleagues and we have remained friends just as they have criticized my opinions and we’ve remained friends.
Look, this is the kind of job if you can’t disagree, even disagree vehemently on the law, without taking it personally and without, you know, hating the person that’s on the other side, you ought to find another job. So, you know, that’s it.
LAMB: Why do you sometimes have I mean, anybody that knows you knows you are a jolly fellow.
SCALIA: I’m a jolly fellow.
LAMB: But, why is it you take such an intense you know, when you’re dealing with this subject you look like you’re mad.
SCALIA: With what subject?
LAMB: This whole business of the law. I mean, you look like you’re
SCALIA: I shouldn’t look mad. Should I look jolly? When you talk about a very serious, heartfelt issue, one in which what used to be the 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 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 think I should look impassioned when I talk about because I do care passionately about it. I’m not angry. I’m just impassioned.
LAMB: What makes you mad?
SCALIA: What makes me mad?
LAMB: In dealing with the law and dealing with the court and dealing with the lawyers that come before you, issues, the press?
SCALIA: Well, yes. The press gets if you read it, it gets under your skin. I don’t much read it. 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 leak stuff you know. We don’t respond. So, effectively, they can say whatever they want. Say whatever you like. We’re not going to respond to it.
LAMB: Near the end of your book you write, ”When 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.
It would thereafter be of no use to betting the merits of the death penalty, just as it is of no use of betting the merits of prohibiting abortion.” You stepped on two big issues there, right?
SCALIA: Yes. Now, what you’re talking about there is the other big theoretical issue raised by the book. One is textualism, we’ve talked 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 punishment in the 8th 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 8th Amendment was ratified, the death penalty was not considered to be prohibited.
Indeed, 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 phenon 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 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, OK? But, 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 8th Amendment. Likewise, death by injection, which is even less cruel than the electric chair, and certainly less cruel than hanging. That’s what originalism’s all about.
LAMB: Here’s another one of your 13 falsities exposed. By the way, who who wrote that?
SCALIA: We made them up.
LAMB: Who wrote that headline; 13 falsities exposed?
SCALIA: That was your namesake, spelled differently, Bryan.
LAMB: The co-author of this book, Bryan Garner. He’s at SMU?
SCALIA: No. He’s not a law professor.
LAMB: He’s not?
SCALIA: He is probably the foremost lexicographer, especially lexicographer of law. He’s the editor of Black’s Law Dictionary. He has a number of books on legal usage and a highly respected scholar. He has his own company called Law Prose. He lectures about the country on on writing briefs and on oral arguments.
LAMB: Just so you I have to read the last line here of his bio. It says he’s also a distinguished research professor of law at Southern Methodist University.
SCALIA: Yes. But, he’s an adjunct. I don’t think he’s a full time faculty.
LAMB: Alright. Here’s one of the falsities exposed. ”The false notion that lawyers and judges not being historians are unqualified to do the historical research that originalism requires.”
SCALIA: Right. I mean, that is false. Some people say, you know, ”What are you Scalia, a historian? You’re going to figure out what this man in 1791, when the Bill of Rights was ratified ” Yes. I can do that, just as I can decide patent cases.
What do I know about patents? I know nothing. But I listen to each side. They bring that’s what the adversarial system is all about; each side has an interest in bringing forth the best evidence possible. So, just as I can decide a patent case by evaluating in fact, it’s even easier for me to evaluate historical evidence than it is for patent evidence for Pete’s sake.
Judges do this all the time. It’s the council who have to be expert, or who have to know where to point the judge’s for expert advice. And I don’t see why judges cannot do history. They have to do history all the time.
LAMB: You write, ”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.”
SCALIA: Right. So, if you’re an origionalist it’s a silly question to answer whether it’s unconstitutional to prohibit them. It obviously wasn’t when whatever provision of the Constitution you’re relying on was adopted.
And, it doesn’t mean you have to prohibit them, just as it doesn’t mean you have to have the death penalty. These are political questions for the American people to decide. That’s what democracy’s about. 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 taken that issue out of democratic choice. It simply hasn’t and it’s the same for those other issues. You know, death penalty, abortion, sodomy, whatever. Persuade your fellow citizens and go either way.
LAMB: Another historical figure that you quote a lot in your book is Jeremy Bentham.
LAMB: Who is he?
SCALIA: An English philosopher who had a lot to say about law as well.
LAMB: Why should you follow him?
SCALIA: He’s a very smart fella.
LAMB: He’s been dead a number of years.
SCALIA: He has. But, so has Aristotle.
He also was was highly respected by the framers of our Constitution and has been influential on legal theory ever since.
LAMB: Don’t I remember you disagreeing in a public forum that we covered about citing foreign law and you mentioned a lot of foreign experts, a lot of British of course where we get a lot of our law in here.
SCALIA: You 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. It’s meaning in our Constitution is the meaning it was given by 18th Century Englishmen and that’s why English law is very relevant to our Constitution and to American law. French law is not. Italian law is not.
LAMB: And, you’re an Italian.
SCALIA: Well, I’m an American but of Italian dissent; father and mother.
LAMB: Were both of your parents Italian?
SCALIA: Well, my mother was born she was American, but born of an Italian immigrant family.
LAMB: Here’s another thing I want you to discuss that these are your words. How did you both write this? Who wrote what?
SCALIA: You know, if my life depended on telling you some passages I recall are mine. Some I recall are his. But, most of them, they have become so melded. He worked on mine. I worked on his. The end product is the product here.
LAMB: How did you do it? I mean, he’s not here physically in town.
SCALIA: No. He told me, you know, ”Let’s divvy up these cannons of interpretation. You work on this one, this one and I’ll work on the other one.” And we did that. I sent him my take on the ones I was assigned and he sent me 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.
LAMB: But, you’re this probably isn’t a fair way to say it, but, you’re notorious word nitpicker.
SCALIA: Yes, but so is he.
LAMB: That’s what I wanted to ask.
SCALIA: Oh god yes.
LAMB: Worse than you?
SCALIA: He’s a snoot. He’s at least as bad as I am; at least as bad. Probably worse.
LAMB: You guys ever come to blows?
SCALIA: No. But, he knows stuff about words. I don’t know why you would want all that empty information in your head. For example, one time I I complained. I said, ”Bryan, you know, people always refer to it as duck tape. It’s not duck tape, it’s duct tape with a T.”
And he said, ”You know, that’s wrong. It was originally devised for the military. It was,” I think he said, ”an olive drab color and it was called duck tape.” Only later did it come to be used for air conditioning. Now, who would want to have that kind of information? Only a word nut and Bryan is a word nut.
LAMB: But he got you though.
SCALIA: He got me. Got me good.
LAMB: All right. Let me read this to you, ”The modern congress sails 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 part of the members of congress, and even for fallback disposition, should the primary disposition be held unconstitutional.”
LAMB: I want to go back to that original thing, statement, ”The modern congress sails close to the wind all the time.”
SCALIA: Yes. 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 give the Congress the benefit of the doubt.
In recent years however, it’s more questionable whether Congress really is even thinking about the constitutionality and that passage recites the fact that this evident from the content of their statutes. I mean, who would have ever thought, in the 19th century for example, that congress would pass a statute that says, ”In the event the stuff we’re just said is unconstitutional, we have this other provision instead,” which is what congress has done.
I mean, that makes you wonder, are they really sure this stuff is constitutional? Have they really thought about it? And I think that comment was also made in response to the charge of ”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 that judicial activism? I think not. And if a statute ought to be held unconstitutional it’s not judicial activism to call it unconstitutional.
LAMB: Number 44; Artificial Person Cannon. Now, I wrote down beside that, even though you didn’t, ’Citizens United’. That’s another one that’s created a storm.
SCALIA: Well, person isn’t used in the 1st Amendment. I mean, ”Congress shall make no law abridging the freedom of speech or press.”
LAMB: But, what is your maybe you don’t even want to touch this. But, what is your as a person, do you worry at all I know you don’t as a person do you worry at all that there’s too much money in politics?
SCALIA: 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 than the country spends on cosmetics. I mean, considering this
LAMB: But, what about the unusual amount of influence about people are worried that the corporations now can buy
SCALIA: I think this is a real cond if you believe that, we ought to go back to monarchy; that the people are such sheep that they just swallow whatever they see on television or read in the newspapers?
No, the premise of democracy is that people are intelligent and can discern the truth from the false, at least as when as the campaign laws require, you know who is speaking. You can’t speak anonymously. You have to you have to say identify the people that are giving the message.
LAMB: But, we don’t know who is speaking right now.
SCALIA: You know the organization that’s speaking.
LAMB: Not necessarily. I mean, you know they don’t have to I don’t need to go into the details, but in some of this the way the money’s being raised we will never know.
SCALIA: You may not know who contributes to the organization. The organization knows.
LAMB: So, that’s all you need to know. You don’t need to know that they’re hiding behind their this
SCALIA: Well, the press can find out, you know, who’s hiding behind what. That’s not hard. You can tell from anyway, 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 Buckley versus Valeo; that was assumed to be the law.
LAMB: All right. We’re about out of time.
SCALIA: We are about out of time.
LAMB: I never asked you this on camera, but I’m going to do it now because I need to get the latest thinking on your part; television in the court.
SCALIA: Television in the court.
LAMB: And the reason I bring it up is that congress has fooled with resolutions, I remember past ordering the court to go on television. Why are you so against it?
SCALIA: Brian, I was for it when I first joined the court and switched 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 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, ”Judge Scalia, 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, should be a right to abortion, should there be a right to homo that’s not usually what we’re doing.
We’re usually dealing with the Internal Revenue code, with ERISA, with patent law, with all sorts of dull stuff that only a lawyer 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.
LAMB: But, we get
SCALIA: Your outfit would carry it all.
LAMB: But, we get
SCALIA: You have to be sure what most of the American people would see would be 30 second 15 second take-outs from our argument and those take-outs would not be characteristic of what we do. They would be uncharacteristic.
LAMB: Yes. But, now what we see is an article in a newspaper that’s out of context with what you say is
SCALIA: That’s fine. But, it’s people read that and they say, ”It’s an article in a 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 where you see it ”live” it has a much greater impact. Now, it I am sure it will mis-educate the American people, not educate them.
LAMB: Well, we get the audio. We get the audio at the end of the week.
SCALIA: Yes. But, the audio is not is not of interest to the 15 second take-out people and the 30 second take-out people. The audio is
LAMB: But, what the 1st Amendment says is
SCALIA: Precisely because it doesn’t have that kind of impact.
LAMB: But, the 1st Amendment doesn’t go, ”Well, take-outs are not good. We can’t have those 15 second sound bites.”
SCALIA: The 1st Amendment has nothing to do with whether we have to televise our proceedings. You’re saying the 1st Amendment requires us to televise our proceedings?
LAMB: No. I didn’t say that. I just said that you’re a big advocate of the 1st Amendment.
SCALIA: I am indeed and it doesn’t require us to televise our proceedings.
LAMB: All right, last question. Do you still like this
SCALIA: You got to be logical Brian.
LAMB: Of course.
Do you like this job, and do you ever intend on retiring?
SCALIA: Oh, I’m sure I will retire some day. You know, the job doesn’t last for it’s only a lifetime job is all.
LAMB: Is there a what would be the trigger for you? And, did you think you’d stay this long?
SCALIA: No. I didn’t. I didn’t. I thought I’d get out as soon as I could retire at full pension. You know, I’ve been working for nothing, I guess for over 10 years. I could have retired at
LAMB: You’re still paid though.
SCALIA: Yes. I’m still paid, but I would get paid just as much if I retired. I’d get
LAMB: 15 years
SCALIA: Yes, whatever it is. I could have retired when I was when I was 65, I could have retired. So, I’m probably too stupid to have this job at this point. But, I don’t know what else I’d do. When will I retire? I will certainly retire absolutely retire, at the time where I perceive that I am not as good as I used to be and I’ve lost a step. I don’t want the product of my judicial career to be demeaned by an inadequate performance later on.
LAMB: Have you
SCALIA: As soon as I think I’ve lost a step I’ll get out.
LAMB: Have you asked anybody to tell you when they think you’ve lost a step?
SCALIA: I’ll know when I’ve lost a step. And I have I have many friends and enemies who will certainly tell me.
LAMB: The name of the book is ’Reading Law: The Interpretation of Legal Texts’ by Antonin Scalia and Bryan A. Garner. Thank you very much sir.
SCALIA: Thank you Brian. I enjoyed being here.