Supreme Court Justice Antonin Scalia, influential conservative and pugilistic dissenter, is challenging everything from a recent leak about Supreme Court deliberations, to conventional wisdom about the court and its history.
In a new book co-authored with Bryan Garner, Scalia spells out his judicial philosophy, and on Tuesday, the always voluble, charming and combative justice sat for a wide-ranging interview — about the book, his relationships on the court, and the recent leak alleging anger among the justices over the recent health care decision.
First, the leak. Citing unnamed sources with knowledge of the court’s internal deliberations, CBS reported that Chief Justice John Roberts had changed his mind while considering the health care case, and that his reversal infuriated the four other court conservatives, who dissented.
Scalia, however, disputed any notion that the decision sparked anger and acrimony inside the court.
“That’s just not the way justices of the Supreme Court behave, going into pouts. I mean that — it’s absurd,” he said. “If you can’t disagree even vehemently on the law without taking it personally and getting angry at the person, you ought to look for another job.” As if to prove the point, Scalia added that his “best friend on the court is Ruth Bader Ginsburg, and God knows she doesn’t vote my way much of the time.”
The justice refused to discuss the court’s internal deliberations, but added pointedly, “You shouldn’t believe this stuff that you read in the press [about internal deliberations]. It’s either made up or comes from an unreliable source.”
Asked if he had ever changed his mind, Scalia replied, “Many, many times.”
“I remember at least one case where I was assigned the opinion and ended up writing it the other way,” he said. “I had to tell my colleagues, ‘I’m sorry, it just wouldn’t write. … The law wasn’t there.”
On Campaign Finance, Abortion And Capital Punishment
One thing Scalia has not changed his mind about at all is campaign finance legislation. He long viewed the ban on corporate and labor union spending as unconstitutional — a view that finally, though narrowly, prevailed in 2010. But Scalia has also consistently favored disclosure laws.
“To evaluate speech intelligently,” he said, “it’s good to know where the speech is coming from.” Or, put another way, it’s important to know “who’s telling me this.”
In the interview, Scalia reiterated the major themes of his book. The Constitution provides for majority rule, with the exceptions set out in the Bill of Rights: freedom of speech, religion, etc. But he hotly disputes the notion that the meaning of the Constitution can change over time; it means what it meant at the founding of the republic. Thus, in his view, because abortion is not mentioned in the Constitution, there is no constitutional right to abortion nor is there any constitutional protection for the fetus. All such questions should be left to the legislature.
Conversely, because the death penalty existed at the time the Constitution was written, it cannot be that the Eighth Amendment ban on cruel and unusual punishment allows a constitutional ban on capital punishment. The question, he says, is whether current methods of execution are more cruel than hanging, which was the method of execution in 1789. He thinks the court thus has been wrong to bar the death penalty for the mentally disabled and the young.
For him, the only question is this: “Is the electric chair more cruel than hanging? Of course not. It was adopted precisely to be less cruel. Is lethal injection less cruel than hanging? Of course.”
He believes the court was similarly wrong in barring warrantless wiretapping.
“That’s simply contrary to the text of the Fourth Amendment, which never protected privacy in some broad sense,” he said. “It’s very specific [in barring unreasonable searches only of] persons, houses, papers and effects.”
On Respecting Precedent
That brought us to the question of stare decisis — the court’s general policy of respecting precedent.
Scalia said he would let “many, many” decisions stand that he disagrees with, including the wiretapping decision and the one person, one vote decision.
What about covering women under the 14th Amendment guarantee to equal protection of the law?
“If you think it’s a good idea, amend the Constitution, which is what they did to give women the vote, isn’t it?” he said.
And what about Brown v. Board of Education, the 1954 case that declared public school segregation unconstitutional? The court justified its decision by what Scalia in his book calls the “somewhat fraudulent” notion that education in modern America plays a far different role than it did nearly a century earlier.
“I think that’s pretty phony,” he said.
The more originalist view would have been to base the decision on the text of the post-Civil War amendments.
“The 13th, 14th and 15th Amendment make very clear that … official discrimination on the basis of race is unconstitutional, is unlawful,” he said.
That “originalist” view would seem to be contradicted, however, by the fact that those amendments were passed by the same Congress that segregated public schools in the District of Columbia.
Scalia answers that criticism by saying that if a practice violates the text, it is unconstitutional. In any event, he continues, let’s not call it “my originalism. … I’m the traditionalist here. I’m not making it up; the other guys are making it up.”
On Health Care And Arizona
We move on to the New Deal court, and its decisions, which, beginning in 1937, largely deferred to Congress in regulating the economy. Some of those cases Scalia thinks were wrongly decided, but he regularly cites them in his majority and dissenting opinions nonetheless.
“Read my lips: stare decisis … ,” he said. “I’m not in favor of ripping up all of the Commerce Clause legislation that we’ve had. I apply it. … I’m not willing to extend it any further, as my dissent in a recent case made clear. But the stuff that is already water over the dam, you know, let it go.”
That recent case, of course, was the Obama health care case.
I asked Scalia about what, in his book, he calls the “cardinal principle” of statutory construction: “As between two possible interpretations of a statute … our plain duty is to adopt that which will save the act.”
So why, if he had prevailed, would he have struck down the entire health care law, even though not all of it, in his view, was unconstitutional?
The “critical words” in that passage, he said, are, as between two “possible interpretations” of a statute, “you favor the one that upholds rather than destroys.” But “it has to be a possible interpretation. It doesn’t mean that you can rewrite the statute, and that was the basis for the dissenting view in the recent unnamed case that you are alluding to.”
This term, Scalia took some hits for the tone of his dissent in the Arizona immigration case, a dissent that no other justice joined.
“That’s why I’m life tenured. I’m not supposed to be swayed by what would make people like me,” he said. “That’s not the job.”
Scalia said the case that pleased him most to win was a 2004 decision in which, writing for the court majority, he reversed prior case law that had allowed some hearsay evidence to be introduced in a criminal trial, when the witness was not available, if there were “adequate indicia of reliability.” The case, Crawford v. Washington, involved testimony the prosecution sought to introduce from a police interrogation of the defendant’s wife. But the wife, citing spousal privilege, refused to testify at trial, and writing for the court, Scalia said the prosecution could not introduce the wife’s statements to police because they were not subject to cross-examination by the defense. To allow such a statement to be read to the jury at trial, he said, would deny the defendant his Sixth Amendment right to confront the witnesses against him. The case has spawned several more, for instance requiring lab technicians to testify about forensic test results.
The decision that upset him most, said Scalia, was Morrison v. Olson, the 1988 decision upholding the independent counsel law enacted after the Watergate scandal. The statute allowed a three-judge court to appoint special prosecutors to investigate charges against high-ranking administration officials if the charges could not be quickly disposed of by the attorney general. The court’s majority opinion was written by Chief Justice William Rehnquist, also a conservative, and Scalia issued a lone and lonely dissent. He predicted that with unlimited budgets and without political accountability, independent counsels could pursue politically motivated prosecutions. Congress eventually agreed and let the law expire.
‘No Fun Preaching To The Choir’
On a more personal level, Scalia has even faced backlash of a lighter sort from his wife, Maureen, with whom he has nine children and 33 grandchildren.
“I was the fifth vote that said it was unconstitutional to prohibit the burning of the American flag, and when I came down to breakfast, she was humming ‘It’s a Grand Old Flag,’ ” he recalls. “But, you know, she’s Irish and … a smarty. She was just pulling my leg, I think.”
Scalia may not relish a clash with his wife, but he loves to go into the lion’s den, appearing before somewhat hostile audiences — debating the head of the American Civil Liberties Union, for instance, at the organization’s annual meeting.
“That’s an opportunity to persuade people, to show them that you don’t have horns and a tail and explain to them you think this approach is right,” he said. “It’s no fun preaching to the choir.”