Monday, April 28, 2008

Supreme Court Justice Scalia

The CBS show 60 Minutes recently interviewed Supreme Court Justice Antonin Scalia. He spoke on a wide range of topics, including originalism, abortion as a Constitutional right, and the Supreme Court decision in Gore.

This was actually a very good interview, though the interviewer did not know enough about the law to get to the very bottom of Scalia’s philosophy on originalism. Nor did the author touch on the recent move by the far left of the Court to base their U.S. Constitutional decisions on foreign law, nor the far left decision in Kelo, essentially gutting the Fifth Amendment. That said, the interview gives a humanizing look at Justice Scalia as well as at least a taste of his judicial philosophy on issues that go to the heart of the nation America was and may become.

At 72, Justice Scalia is still a maverick, championing a philosophy known as "orginalism," which means interpreting the Constitution based on what it originally meant to the people who ratified it over 200 years ago.

Scalia has no patience with so-called activist judges, who create rights not in the Constitution - like a right to abortion - by interpreting the Constitution as a "living document" that adapts to changing values.

Asked what's wrong with the living Constitution, Scalia tells Stahl, "What's wrong with it is, it's wonderful imagery and it puts me on the defensive as defending presumably a dead Constitution."

"It is an enduring Constitution that I want to defend," he says.

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

"As opposed to what people today think it means," Stahl asks.

"As opposed to what people today would like," Scalia says.

"But you do admit that values change? We do adapt. We move," Stahl asks.

"That's fine. And so do laws change. Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution," Scalia argues.

. . . "I’m surprised at how many people really, really hate you. These are some things we've been told: 'He’s evil.' 'He's a Neanderthal.' 'He’s going to drag us back to 1789.' They're threatened by what you represent and what you believe in," Stahl remarks.

"These are people that don't understand what my interpretive philosophy is. I'm not saying no progress. I'm saying we should progress democratically," Scalia says.

Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."

But his critics argue that originalism is a cover for what they see as Scalia's real intention: to turn back some pivotal court decisions of the 1960s and 70s.

. . . He's been labeled a "counterrevolutionary."

"A counterrevolutionary!" Scalia reacts. "Sounds exciting."

The critics say his aim is to undo Roe v. Wade and affirmative action, and to allow more religion in public life.

"The public sense of you is that [you] make your decisions based on your social beliefs," Stahl says, with Scalia shaking his head. "That is the perception."

"I'm a law-and-order guy. I mean, I confess I'm a social conservative, but it does not affect my views on cases," Scalia says. "On the abortion thing for example, if indeed I were, you know, trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view, which the anti-abortion people would like adopted, which is to interpret the Constitution to mean that a state must prohibit abortion."

Scalia says he's against that.

"It's just not in the Constitution," Stahl asks.

"There's nothing there," he says. "They did not write about that."

His philosophy has occasionally led him to decisions he deplores, like his upholding the constitutionality of flag burning, as he told a group of students in Missouri.

"If it was up to me, I would have thrown this bearded, sandal-wearing flag burner into jail, but it was not up to me," Scalia told the students.

To Scalia, flag burning was protected by the founding fathers in the First Amendment, which is his only criterion, he says, under originalism.

"But do you respect that there is another way to look at this?" Stahl asks.

"You know the story of the Baptist preacher who was asked if he believed in total-immersion baptism? And he said, 'Believe in it? Why I've seen it done!' I have to say the same thing about your question. There must be other views because I've seen them," Scalia says.

"Yeah, but do you respect them? You don't, do you?" Stahl asks.

"I respect the people who have them, but I think those views are just flat out wrong," Scalia says.

He's talking about some of his fellow justices, like Ruth Bader Ginsburg, a liberal who is - and this never ceases to surprise people - one of Scalia's best friends, both on and off the court.

To Ginsburg, the Constitution evolves and should reflect changes in society; that going back to what was meant originally when they wrote, for instance, "We the People," makes little sense.

. . . Of all the cases that have come before him on the court, Bush v. Gore may have been the most controversial. It has been reported that he played a pivotal role in urging the other justices to end the Florida recount, thereby handing the 2000 election to George Bush. The subject came up at the Oxford Union.

"Supposing yourself as a Supreme Court justice were granted the power to appoint the next president of the United States. Who would you pick and why? And would he or she be better than your last choice?" a student asked Scalia.

"You wanna talk about Bush versus Gore. I perceive that," he replied. "I and my court owe no apology whatever for Bush versus Gore. We did the right thing. So there!"

"People say that that decision was not based on judicial philosophy but on politics," Stahl asks.

"I say nonsense," Scalia says.

Was it political?

"Gee, I really don’t wanna get into - I mean this is - get over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two," Scalia says.

Moreover, he says it was not the court that made this a judicial question.

"It was Al Gore who made it a judicial question. It was he who brought it into the Florida courts. We didn't go looking for trouble. It was he who said, 'I want this to be decided by the courts.' What are we supposed to say? 'Oh, not important enough,'" Scalia jokes.

"It ended up being a political decision" Stahl points out.

"Well you say that. I don't say that," Scalia replies.

"You don’t think it handed the election to George Bush?" Stahl asks.

"Well how does that make it a political decision?" Scalia asks.

"It decided the election," Stahl says.

"If that’s all you mean by it, yes," Scalia says.

"That’s all I mean by it," Stahl says.

"Oh, ok. I suppose it did. Although you should add to that that it would have come out the same way, no matter what," Scalia says.

The justice has been explaining his positions publicly more and more, and even delving into some thorny issues, like torture.

"I don't like torture," Scalia says. "Although defining it is going to be a nice trick. But who's in favor of it? Nobody. And we have a law against torture. But if the - everything that is hateful and odious is not covered by some provision of the Constitution," he says.

"If someone's in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression 'cruel and unusual punishment,' doesn't that apply?" Stahl asks.

"No, No," Scalia replies.

"Cruel and unusual punishment?" Stahl asks.

"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."

"Well, I think if you are in custody, and you have a policeman who's taken you into custody…," Stahl says.

"And you say he's punishing you?" Scalia asks.

"Sure," Stahl replies.

"What's he punishing you for? You punish somebody…," Scalia says.

"Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.

"It's the latter. And when he's hurting you in order to get information from you…you don’t say he's punishing you. What’s he punishing you for? He's trying to extract…," Scalia says.

"Because he thinks you are a terrorist and he's going to beat the you-know-what out of you…," Stahl replies.

"Anyway, that’s my view," Scalia says. "And it happens to be correct."

. . . "What is the connection between your Catholicism, your Jesuit education, and your judicial philosophy?" Stahl asks.

"It has nothing to do with how I decide cases," Scalia replies. "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."

. . . His new book, "Making Your Case, The Art Of Persuading Judges," is surprisingly breezy in that it’s a primer for lawyers on how to win cases. His co-author is Bryan Garner, an expert on legal writing.

"You say things in it like, ‘Be prepared. Look the judge in the eye.’ You almost make it sound like lawyers are imbeciles," Stahl says.

"You would be surprised," Scalia replies, laughing.

. . . "You’ve apparently had some down times in your tenure on the court so far. And I’m pointing to the term of 1995-96 when you wrote to former Justice Blackmun at the time, and here's what you said: 'I am more discouraged than I have been at the end of any of my previous nine terms.' You also wrote that you were beginning to repeat yourself, and you did not see much 'use in it anymore,'" Stahl remarks.

"Gee, I hadn’t remembered that I’d written it," Scalia says.

"It says, 'I am beginning to repeat myself,'" Stahl says.

"That's true. That is something that gives me some concern. I mean after a while, you know, I’m saying the same things in today’s dissent that I said in a dissent 20 years ago," Scalia explains.

"Around that same time you wrote, 'The court must be living in another world. Day by day, case by case it is busy designing a Constitution for a country I don't recognize,'" Stahl says.

"Yeah. That's how I felt," Scalia says.

"Past?" Stahl asks.

"It’s been less dire in more recent years," Scalia replies.

"In other words, you’ve had down times," Stahl asks.

"Yeah, I think so. I’m happier sometimes than at other times. And the end of a term, I don’t care what term it is, it’s usually a disappointment," Scalia says.

That's because - until recently - he was often on the losing side in cases he cared about most. Over the last several years Scalia has reached outside the court, speaking out publicly about his philosophy, in hopes of influencing the next generation. It’s a role he relishes.

"Little kids come to the court, they’re brought by their teachers. And they recite very proudly what they’ve been taught. I mean, this is how widespread the no-'The Constitution is a living document.' And I have to tell them 'It’s a dead document,'" Scalia told the students at the Oxford Union.

Read the entire article. The issues he raises are of great importance. If you are unfamiliar with Scalia’s judicial philosophy and how they apply, I would strongly recommend to you:

Justice Scalia's 2005 Speech on the Living Constitution

Transcript of the debate between Justices Scalia and Breyer on the issue of using foreign law to determine the meaning of the U.S. Constitution

The Living Constitution, Eminent Domain and Private Property Rights

The Constitution and the Red Herring of Abortion - Gonzalez v. Carhart

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