Antonin Scalia, Constitutional Law, Dahlia Lithwick, Media and Journalism, SCOTUS, Stephen Breyer, Supreme Court

The Nino-Breyer Smackdown (Part 3)

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Question: Now that the Supreme Court is hearing hardly any cases these days, how are the justices spending all their free time?
Answer: On constitutional law road shows, in which they debate the proper way to go about interpreting that foundational document. What fun!
On Tuesday, Justice Antonin Scalia and Justice Stephen G. Breyer held forth on the subject before a packed ballroom at the Capital Hilton. The event was co-sponsored by the American Constitution Society and the Federalist Society. It ran for about an hour and a half; Jan Crawford Greenburg, of ABC News, served as moderator.
Our prior coverage of the event appears here and here (photos). Our third installment appears after the jump.


We’ve previously linked to some good coverage of the discussion by ABC News and the Associated Press. You should read those pieces for more systematic discussion; our account will be more idiosyncratic (like Dahlia Lithwick’s delightful write-up). We’ll highlight some of the best quotes and recount some of the more entertaining moments.
Greenburg kicked off the proceedings by telling this story:

There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”

She then turned to Justice Breyer and asked: “Which one are you — Holmes, or Hand?”
SGB’s diplomatic response: “I’d be happy to be either one.” He then rambles on for a bit about how one achieves justice through application of the law (i.e., he sucks all the juicy conflict out of the “do justice” vs. “apply the law” opposition).
Justice Scalia was characteristically much more direct: “I’m Holmes.” (Laughter.)
Early on in the discussion, Justice Scalia encountered a great deal of difficulty with the microphone attached to his lapel. It was odd to watch one of the greatest legal minds in America — actually, make that the world — struggle mightily with such a tiny device.
AS: “Appellate courts set legal principles… I won’t decide your case to produce a ‘good’ result that would lead to a ‘bad’ result in 100 others…. A district court can — well, you know… [knowing laughter]… There are a lot of non-reviewable ways a district judge can [make a case come out the way that he wants].”
AS (in discussing how laws should be applied as written, even if the results are dumb-ass): “The motto of the honest judge: ‘Garbage is, garbage out.'”
SGB noted the importance of considering purpose and consequence in construing constitutional and statutory provisions. He argued that there are ways to check judicial subjectivity besides rigid adherence to the text — for example, providing honest statements of one’s reasoning in written opinions.
AS responded by arguing that purpose and consequence invite subjectivity. “The only objective criteria are the words that Congress adopted.”
AS: “Of course you should use [statutory or constitutional] ‘purpose’ properly and not improperly. But that inquiry invites subjectivity.”
AS: “I will give you this limited concession. Some readings can be rejected because they lead to a RIDICULOUS result.”
SGB: “Ah, we’re making progress!”
[Laughter]
Attention spans are short in the blogosphere. More to come in a subsequent post.
Justices Scalia and Breyer: Little in Common, Much to Debate [ABC News]
US Supreme Court justices debate their views of Constitution [Associated Press]
Justice Grover Versus Justice Oscar [Slate via Andrew Sullivan]
Justices Breyer and Scalia Converse on the Constitution (video) [American Constitution Society]
Case of the Dwindling Docket Mystifies the Supreme Court [New York Times]
Earlier: The Nino-Breyer Smackdown (Part 2): A Photo Essay
The Nino-Breyer Smackdown (Part 1)

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