Skip to comments.Justice Scalia On The Record
Posted on 04/28/2008 3:02:23 PM PDT by The_Republican
Not many Supreme Court justices become famous, but Antonin Scalia is one of the few. Known as "Nino" to his friends and colleagues, he is one of the most brilliant and combative justices ever to sit on the court and one of the most prominent legal thinkers of his generation.
He first agreed to talk to 60 Minutes correspondent Lesley Stahl about a new book he's written on how lawyers should address the court. But over the course of several conversations, our story grew into a full-fledged profile - his first major television interview - including discussions about abortion and Bush v. Gore.
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.
He's on a mission as an evangelist for originalism, at home and around the world.
For example, he visited the Oxford Union in England.
"Sometimes people come up to me and inquire, 'Justice Scalia, when did you first become an originalist?' As though it's some weird affliction, you know, 'When did you start eating human flesh?'" Scalia told students, who replied with laughter.
They may be laughing, but in the U.S. Scalia is a polarizing figure who invites protestors and picketers. There haven't been many Supreme Court justices who become this much of a lightening rod.
"Im surprised at how many people really, really hate you. These are some things we've been told: 'Hes evil.' 'He's a Neanderthal.' 'Hes 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."
(CBS) 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.
"Who were 'We the People' in 1787? You would not be among 'We the People.' African Americans would not be among the people," Ginsburg tells Stahl.
"Justice Ginsburg and you disagree on lots of things. And yet youre such good friends," Stahl remarks.
"I attack ideas. I don't attack people. And some very good people have some very bad ideas," Scalia says. "And if you can't separate the two, you gotta get another day job. You don't want to be a judge. At least not a judge on a multi-member panel."
I love this guy
Watched it last night - he was GRRREEEAAAATTTT! Wish there were 5 more of HIM!!!!
The Constitution is a contract and the interpretation should NOT change over time unless purposely amended to make a specific change.
If a contract can change it's meaning based on the time it is read, I'd like to change the meaning of my mortgage.... Oh yes, the politicians want to do that too!
It's obvious that "Leslie and the Left" do NOT respect that there is "another way to look at this"
Hmmm... "Leslie and the Left". Wasn't that a Hippie 60's group?
Aside from Ms. Stahl’s reprehensible questioning, they never mentioned the name of his book (which I will make a point of buying as soon as I find out). Same old SeeBS.
Except through the constitutional amendment process.
The Constitution must be changed precisely because it does say nothing about abortion.
The phrase is “lightning rod” not lightening rod, Lesley.
While I'd take that in a heartbeat, I'd rather have 5 Clarence Thomases.
Scalia- an American Hero.
Need many more like him.
The greatest justice since Marshall.
I commented about Scalia's stance on flag-burning yesterday in another Scalia thread. Given today's related thread, I actually hope that Scalia did not say what is indicated above in reference to flag burning. If Scalia actually regards the 1st A. as his only criteria concerning flag-burning, then it's no wonder why the USSC has the renegade, Constitution-ignoring reputation that it does, even if Scalia is regarded as a conservative.
This post (<-click) shows that regardless that our 1st A. freedoms are now politically regarded as being free from any kind of government regulation, as evidenced by Scalia's stance on the 1st A. and flag-burning, the Founding States never intended for our Constitutional freedoms, not even our 1st A. freedoms, to be regarded that way.
All their children are grown up now. And Scalia, after 22 years on the court is starting another career as an author. His new book, "Making Your Case, The Art Of Persuading Judges," is surprisingly breezy in that its 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.
They wrote the book together, occasionally sitting side by side, arguing. Surprisingly, Garner says, it was the justice who often showed humility by yielding. "I thought you punched pretty hard. You threw me a hard punch. And then sometimes he'd just want to see: could I punch back on the counterpoint. But often he could be brought around. He could be persuaded," Garner explains. "That doesnt show that Im humble. It just shows that Im not stupid," Scalia says.
"I thought you were very deferential, and surprisingly so. It was disarming to me." Garner adds.