Quote of the Day: The New Republic Isn't That Glossy....
Justice Scalia recently spoke before a packed house in New York -- and Above the Law was there to cover it. What did he have to say -- about Judge Richard Posner, among other things?
I’m not going to get into this whole thing written for a glossy magazine.
— Justice Antonin Scalia, responding to a question about his thoughts on Judge Richard Posner’s somewhat critical review, in the New Republic, of the justice’s new book, Reading Law (affiliate link).
(We attended Scalia’s talk, which took place this afternoon and was sponsored by the New York City Lawyers Chapter of the Federalist Society. Additional highlights from the eminently quotable justice’s remarks, after the jump.)
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Justice Scalia delivered luncheon remarks before a packed ballroom at the New York Athletic Club. The crowd consisted of a nice mix of older lawyers and young law students. (Not everyone can take a two-hour lunch on a Tuesday.)
Leonard Leo, executive vice president of the Federalist Society, introduced the justice. Leo praised Reading Law and Justice Scalia’s tireless work in traveling around the country to talk about the book and the important issues it raises.
The justice opened with an anecdote regarding a man who comes home to his wife in a state of inebriation. His wife angrily asks him, “What do you have to say for yourself?” He responds, “I have no prepared remarks, but I welcome questions from the floor.” Consistent with this, Justice Scalia spoke for just a few minutes before taking questions. (Side note: Justice Scalia has a great Irish accent.)
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Justice Scalia noted that the book took him and his co-author, legal writing guru Bryan Garner, more than three years to write. Scalia said that he’s glad to be done with it, leaving him more time to go hunting and fishing.
The book has two aims, according to Justice Scalia. First, it demonstrates how originalism is the proper and time-tested method for constitutional and statutory interpretation. Second, it explains how to be a proper textualist — i.e., how to give a text its fairest meaning — and includes a comprehensive review of the various canons of construction.
Before turning to questions, Justice Scalia expressed some pique with press reports describing a “politicized” Supreme Court (a theme he also sounded in an interview yesterday with Reuters editor-in-chief Stephen Adler). According to Scalia, neither he nor his colleagues on the Supreme Court care a whit about who the president is or what party he comes from. Rather, the justices “vote the way we do because we are who we are, and we were selected [for the Court] because of who we are.”
(In other words, if you have a problem with the composition of the Court, maybe you should look to the process by which the justices are selected — a process that some might see as political.)
Justice Scalia then took questions from the audience. Audience members wrote questions on index cards, which were sent up to Leonard Leo, who selected the ones to pose to the justice. Leo ably distilled multiple questions on the same topic into discrete queries that he raised with Scalia.
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Here is a quick and dirty summary of the discussion (paraphrased, except when in quotation marks, which reflect direct quotation):
What role does the Declaration of Independence have in interpreting the Constitution?
None. It is not a law. It is mostly a political tract.
Any reflections on the First Amendment in light of the controversy over the anti-Islam video?
Some people want us to be more like Europe in various respects, but let’s not overlook how much our laws about free speech diverge from Europe’s.
Of course, our current laws about free speech don’t reflect the original understanding of the First Amendment. In New York Times v. Sullivan, the Warren Court essentially read a legal rule into the Constitution.
Didn’t Blackstone, whom you rely upon in your book, mention the importance of “the spirit of the law” in his writings on interpretation?
Yes, but Blackstone’s main emphasis was adherence to the text. People cite “the spirit of the law” whenever they’re trying to get away from the text.
Any thoughts on Chevron deference?
Deference to executive action was part of the common law tradition that existed prior to the enactment of the Administrative Procedure Act. At the same time, administrative agencies can’t be given a blank check. “I don’t defer as readily as some of my colleagues.”
(Also, here’s a funny, somewhat snarky quip about the retired Justice John Paul Stevens, which got some laughs: “John Paul Stevens wrote Chevron. He didn’t understand Chevron. He never did!” (The point here seemed to be that an author’s subjective understanding of a text should not control interpretation of that text; the author might be laboring under misapprehensions.))
How often does oral argument change your mind?
Almost never. But I often go into argument without my mind made up. A lot of these cases are very close.
Just because it doesn’t change my mind a lot doesn’t mean it’s not useful. Oral argument has several advantages over written advocacy for lawyers. For example, in oral argument you don’t have to stick to logical order — you can prioritize and hammer home your best point.
And a brief can’t argue back. Sometimes when reading a brief I write in the margins, “Nonsense?” At oral argument, counsel can try and explain why a given point is not nonsense.
Should Supreme Court arguments be televised?
No. When I first arrived at the Court, I was in favor. I feel like something of a traitor for changing my mind, but now I’m very much opposed. Proponents claim it would educate; in reality, it would just serve to entertain.
“We spend very little of our time on that nonsense [constitutional rulings on hot-button issues like abortion or gay rights]. Most of our time is spent on the Internal Revenue Code, ERISA — incredibly boring stuff that no one can love, and only a lawyer can understand.”
If SCOTUS arguments were to be televised, we’ll just end up with 15-second soundbites that would give the American people a wrong impression about the work of the Court.
What are your thoughts on the Richard Posner book review?
“I’m not going to get into this whole thing written for a glossy magazine.”
Okay, I will say this. It was misleading of Judge Posner to claim that I used “legislative history” in District of Columbia v. Heller, the landmark Second Amendment case. There’s a difference between considering “legislative history” — a legal term of art referring to the history of the enactment of a given provision, such as committee reports and floor statements and the like — and looking to the history of the time to get an understanding of how terms in a provision were understood.
(For more on this, see the Thomson Reuters interview. Scalia reportedly said, “To say that I used legislative history is simply, to put it bluntly, a lie.”)
Do high-profile, hot button cases — e.g., Bush v. Gore — affect the public perception or institutional integrity of the Court?
“You’ll have to ask each individual justice how they’re affected by the Washington Post…. I hope I am not affected at all. That’s why we have life tenure, so we can be immune to such political pressure.”
Do these controversial cases sometimes harm the Court in the short term? I suppose. But that’s why we have prestige. “The reason we have prestige is not to put it on a mantelpiece to admire it, but so we can make tough decisions that some people might not like.” And in the long run, we gain more prestige by applying the law fairly and properly.
What are your views on the growing number and complexity of laws in the United States?
“My law clerks get a signing bonus of $280,000 — it’s like the NFL! — plus an annual salary that’s more than mine. [Actually, that would depend upon the specific clerk’s seniority; a third-year associate would typically earn $185,000 a year, while associate justices earn more than $200,000 a year.] It’s worth it to get someone who’s just a little bit smarter because the law is so complex. We can’t devote so many of our best minds to an enterprise that produces nothing.”
(The justice has made this point before, of course.)
In his last few minutes, Justice Scalia started to sound some gloomy notes, stating that he has lost more battles than he has won on the Court. But then, perhaps noticing all the law students and young lawyers in the crowd, he turned more optimistic. He compared himself and his fellow originalists and textualists to Frodo of Lord of the Rings, fighting the good fight against long odds.
“Buck up! Cheer up! The fight isn’t over!”
(If you’re a true Article III Groupie, flip ahead to the next page for some very grainy photos of Justice Scalia — they’re about at the quality level of the Kate Middleton topless pics — and links to additional reading.)
