Supreme Court Justice Scalia has a new book out, and so…he is doing interviews. In the video below, he talks with Chris Wallace on Fox News Sunday. The video is the full 26 minute video. My loose transcript (meaning I left out redundancy and the uhs and ahs, etc) is also below.
While Scalia’s comments about possible new gun laws, in the future, coming out of the Court is grabbing most of the attention, he had pertinent comments on Arizona’s immigration law and the prohibition of the Obama administration enforcement of it. He schools Wallace on an appeals court decision that is based on something the Obama administration lawyers did not argue for – just as in ObamaCare.
As to the gun discussion, he explains it clearly and it will not please Liberals – but then we know which side of center this Court is on, so it is very concerning. That Second Amendment discussion begins at 6:59 mins-in and is marked in red text below.
Scalia explains in the book that his approach to judging is “textualism” or “originalism.” (all emphasis is mine)
SCALIA: “Originalism” is a sort of sub-species of “textualism.” Textualism means you are governed by the text – that’s the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that, but the text of the statute.
“Originalism” says when you consult the text, you give it the meaning it had when it was adopted, not some modern, later meaning.
The best example [of originalism] being the death penalty. I’ve sat with three colleagues who thought it was unconstitutional, but it is absolutely clear that the American people never voted to proscribe the death penalty. They adopted the Cruel and Unusual Punishments clause at a time when every state had the Death Penalty, and continued to have it. Nobody thought the Eighth Amendment prohibited it.
WALLACE: …another approach I have to admit did not know existed prior to reading your book: “Purpose-ivism.”
SCALIA: I didn’t make it up. What it means is – it is probably the most popular form of interpretation in recent times – it means consulting the purpose of the statute and deciding the case on the basis of what will further that purpose.
Textualists consult the purpose as well, but only the purpose that is apparent in the very text. I have to give you an example here – let’s assume a statute which provides that the winning party in litigation will obtain attorney’s fees. The issue is whether that includes the fees paid to expert witnesses, which can mount to the thousands of dollars. The purpose-ivist would be inclined to approach that by saying what’s the purpose of this statute. The purpose is to make the plaintiff whole, so that the money he receives for winning the case is money he can keep and doesn’t have to spend half of it on expert witnesses.
The textualist would not say that, but would say what is the understood meaning of attorney’s fees? And in fact, it was never thought to include expert witness fees.
WALLACE: A couple of years ago we one of your colleagues…Justice Stephen Breyer on the show and he said it is impossible to apply the law as written:
Then a clip is played of that Breyer interview from December 2010:
BREYER: The Founders didn’t know that commerce included airplanes. They didn’t know about the Internet or even television, and so the difficult job in open cases where there is no clear answer, is to take those values in this document, which all Americans hold, which do not change an to apply them to a world that is ever-changing.
Flips back to Wallace and Scalia.
WALLACE: Was Justice Breyer wrong?
SCALIA: Yes. That a common and totally erroneous description of what originalism means. What originalism means is that you give the Constitution the meaning that it had with respect to those phenomena that were in existence at the time – say the death penalty.
WALLACE: But there are a lot of phenomena that aren’t…
SCALIA: For those that aren’t, you have to decide what the meaning ought to be, but the criterium for deciding what the meaning today ought to be is what was the understood meaning as applied to criteria at the time.
For example, in the death penalty: When the electric chair comes in, it’s a new phenomenen. What did the Framers think of the electric chair? Who knows?…But they did have the death penalty and they did impose death by hanging, so what the originalist would say is, is the electric chair more cruel and unusual than hanging was? And of course it isn’t because it was adopted to be less cruel. And the same thing with lethal injection.
WALLACE: In your book you layout 57 specific canons or principles for judging. Here’s No. 38
“A statute should be interpreted in a way that avoids placing its constitutionality in doubt.” [page 237 of Scalia's book]
WALLACE: In other words, try to find a way to avoid conflict with the legislature.
WALLACE: But you voted to strike down ObamaCare, which this legislature, the Congress, debated for a year and in your dissent you criticized Chief Justice Roberts for following Canon 38 by finding that the individual mandate is a tax. Didn’t Justice Roberts do exactly what you say a good judge should do – try to find a way to avoid striking down the law?
SCALIA: If you read the rest of the section, you would say to find a way to find a meaning that the language will bear to uphold the constitutionality.
You don’t interpret a penalty to be a pig. It can’t be a pig. What my dissent said in the Affordable Care Act is simply that there is no way to regard this penalty as a tax. It simply does not bear that meaning.
You cannot give, in order to save constitutionality, you cannot give the text a meaning it will not bear.
6:59min: WALLACE: Let’s turn to a story in the news now. With the massacre in Colorado, and that is gun control. You wrote in 2008 the opinion in District of Columbia v Heller, the majority opinion that said the Second Amendment means what it says, people have a right to bear arms. Question: How far does that constitutional right go. Can a legislature ban semi-automatic weapons, or can it ban magazines that carry a hundred rounds without violating an individual’s constitutional right to bear arm?
SCALIA: What the opinion in Heller said is that it will have to be decided in future cases what limitation on the right to keep and bear arms are permissable. Some undoubtedly are because there were some that were acknowledged at the time. For example, there was a tort called “afrighting,” which if you carried around a really horrible weapon, just to scare people, like a head axe or something, that was, I believe, a misdemeanor. So yes, there are some limitations that can be imposed. What they are will depend on what society understood were reasonable limitations at the time. There were certain location limitations…
WALLACE: What about technological limitations? Obviously, we are not now talking about a handgun or a musket. We are talking about a weapon that can fire 100 shots in a minute.
SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be handcarried – to keep and bear, so it doesn’t apply to cannons, but I suppose there are handheld rocket launchers that can bring down airplanes that will have to be decided.
WALLACE: How can you decide that if you are a textualist?
SCALIA: Very carefully. My starting point, and probably my ending point will be what limitations are within the understood limitations that the society had at the time. They had some limitations on the nature of arms that could be born. We’ll see what those limitations are as applied to modern weapons.
WALLACE: There is one Supreme Court ruling, reading a lot of your writings and speeches over the years, that seems to distress you more than any other, and that is Roe v Wade, the 1973 decision that says that women have a constitutional right to abortion. You say that it a lie and, in fact, while generally willing to accept longstanding precedents, you say you will continue to press to overturn Roe. Question: Why?
SCALIA: I’m not sure it is accurate to say this distresses me more than any other. It is in my mind, the clearest example of being a non-textualist and a non-originalist. Nobody ever thought that the American people voted to prohibit limitations on abortion. I mean, there is nothing in the Constitution that says that…
WALLACE: What about the right to privacy the Court found in 1965?
SCALIA: There is no right to privacy in the Constitution. No generalized right to privacy.
WALLACE: Well, on the Griswold case the Court said there was.
SCALIA: Indeed it did, and that was wrong. In an earlier case the Court had said the opposite. Look, the way the Fourth Amendment reads is, the people shall be secure in their persons, houses, papers and effects, against unreasonable search and seizure. The first time my Court had a case involving wiretapping, it said that’s no covered bu the Fourth Amendment. There can be state laws against it and most states had laws, but its not persons, houses, papers and effects. It’s not covered by the Fourth Amendment.
The court reversed that, I don’t know, 20 years later or so in a wave of non-originalism. Constitution means what it ought to mean. Well, it simply doesn’t cover that, which means that it’s left to — it’s left to democratic choice, as most things are, even important things like abortion.
WALLACE: When you say democratic, that’s small d meaning let the legislature decide.
SCALIA: Exactly. Even the important questions and not just insignificant stuff, but even important questions like abortion.
WALLACE: Have you ever changed your mind in a case from casting your original vote in conference to when it is finally announced by the court?
SCALIA: I have not only done that, I have changed my mind after I have been assigned to write the majority opinion. I’ve written the opinion the other way, it just wouldn’t write.
WALLACE: And, clearly, you think there’s nothing wrong with that?
SCALIA: There is nothing wrong with that.
WALLACE: Did Chief Justice Roberts change his mind in the ObamaCare case?
SCALIA: I don’t know. You’ll have to ask him.
WALLACE: …let me ask you [change your mind], did you at one point in that case in the majority to strike down ObamaCare?
SCALIA: I don’t talk about internal court proceedings.
WALLACE: Just this once?
SCALIA: No, never ever. Never ever.
SCALIA: And, listen, those who do, you shouldn’t believe what you read about internal court proceedings, because the reporter who reports that is either: A, lying, which can be done with impunity, because as you know, we don’t respond. It’s the tradition of common law judges to lay back and take it. You don’t respond in the press. Or B, that reporter had the information from someone who was breaking the oath of confidentiality, which means that’s an unreliable person.
So, either way, you should not put any stock in reports about what was going on in the secrecy of the court.
WALLACE: Finley Peter Dunne, the famous Chicago humorist once wrote, “The Supreme Court follows the election returns.” How political is the court?
SCALIA: I don’t think the court is political at all. People say that because at least in the recent couple of years – since John Paul Stevens and David Souter had left the court, the break out is often five to four, with five –
WALLACE: Republican appointed judges.
SCALIA: – and four Democrats on the other side. That doesn’t show they are voting politics. It shows that they had been selected because of their judicial philosophy. The Republicans have been looking for originalist and textualist and restrained judges for 50 years. And the Democrats have been looking for the opposite, for people who believe in Roe versus Wade.
Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with these philosophies?
WALLACE: Willingly or not, the court has certainly been dragged into the political arena. In his 2010 State of the Union speech, President Obama called out the justices seated right in front of him in the well of the House chamber, for the court’s decision on Citizens United.
Let’s take a look at that.
Text of the video clip inserted in the interview:
OBAMA: Last week, the Supreme Court reversed the century of law that I believe will open the floodgates for special interest, including foreign corporations, to spend without limit in our election.
End the inserted clip.
WALLACE: Chief Justice Roberts said that he found that spectacle troubling. Do you?
SCALIA: That’s a very mild adjective. I wasn’t there and it’s yet another reason why I will not be there in the future. I stopped going to what is essentially a political spectacle some years ago, as did John Paul Stevens and I think Bill Rehnquist didn’t go.
WALLACE: Do you think when a president directs comments at the Supreme Court when they have to sit there like potted plants — as one said in a hearing — and everybody else is standing or jeering, do you think that’s unseemly?
SCALIA: You can look at it and come to your own judgment. I don’t publicly criticize the president and he normally does not criticize me.
WALLACE: He did in that case.
SCALIA: I wasn’t there.
WALLACE: He still did. Then there was the president’s statement in April after the oral arguments in the ObamaCare case did not go well before the Supreme Court when he seemed to be jawboning the court. Take a look at this.
Text of another inserted video clip.
OBAMA: I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
End of inserted video clip.
WALLACE: Justice, what did you think of that?
SCALIA: It’s unusual. But as I say, I don’t criticize the president publicly and he normally doesn’t criticize me.
WALLACE: Did you feel any pressure as a result of that to vote a certain way?
SCALIA: Yes. What can he do to me? Or to any of us? We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.
WALLACE: Did you view that as a threat?
SCALIA: I didn’t view it as a threat. I’m not even sure I heard it.
WALLACE: Well, you heard it now.
SCALIA: You brought it to my attention.
WALLACE: And now, you – come on, you heard it.
As a matter of just fact, as a legal scholar, was the former constitutional law lecturer correct how unprecedented is it for a court or as the president put it there an unelected group of people to overturn an act of Congress.
SCALIA: Oh, I’m not going to engage in that debate with…
SCALIA: Well, we have overruled Mayberry versus Madison, a very old case. We did just that and done it in a large number of cases since then. It’s part of the function of the court.
Look, the most role we play, and the reason we have life tenure, is precisely because now and then, we have to tell the majority, the people, that they can’t do what they wanted to do. That what they want to do is unconstitutional and therefore go away.
Now, that’s not going to make us popular. And you can say, oh, it’s very undemocratic and in a small sense it is. In the larger sense, it isn’t however, because it’s the American people who gave us the power. It’s the American people who said, no, there are some things we’re not going to let future legislators do, even if they want to do it.
And we are simply applying the judgment of the American people over time.
WALLACE: Some people say that you crossed the line last month in your dissent in the Arizona immigration case. You brought upon the fact that the president, after the case had been argued, certainly after the law had been passed, the fact that the president, in an unrelated decision, had decided not to deport the children of illegal immigrants.
Let’s take a look at your dissent. You wrote this, “To say, as the court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind.”
To which conservative Judge Richard Posner wrote about your dissent, “It gives that part of the opinion the air of a campaign speech.”
SCALIA: He is a court of appeals judge, isn’t he?
SCALIA: He doesn’t sit in judgment of my opinions as far as I’m concerned.
WALLACE: You sit in judgment of his opinion?
SCALIA: That’s what happens.
WALLACE: Well, what about the argument though –
WALLACE: And people wonder why you push people’s buttons every once in a while.
SCALIA: It’s fun to push the buttons.
WALLACE: Is it?
SCALIA: When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative.
WALLACE: OK. But here’s the point that he’s making, the president’s decision months later, after the case has been argued, after the law has been passed, what to do about immigration and deporting…
SCALIA: Have you read the whole opinion?
WALLACE: No. Of course, you know I haven’t read the whole opinion.
SCALIA: Neither have the people who read that quote.
The context in which the solicitor general had argued to the court that the only reason Arizona was suffering the incursion of immigrants was that there was not enough funding for immigration enforcement and the executive had to make decisions about where to allocate the funding.
Now, I said in my opinion that even that is no justification for refusing to let Arizona supplement the enforcement. So long as it’s only enforcing federal law, not going beyond federal law.
I said even if that were the reason [lack of funding], but I added, I don’t know the solicitor general’s representation is any longer correct in the light of the statement by the president which didn’t talk about lack of funding, but just simply said we’re not going to enforce these provisions of the law.
I didn’t criticize. I didn’t say he had no authority to do it. I said he may well be right in doing it.
But it demonstrates the point that Arizona is being prevented from enforcing federal immigration law even when the executive rightly or wrongly simply chooses not to enforce it.
WALLACE: You have a reputation and some would say we’ve seen it today of being cantankerous on the bench and I would like to do, if I may, sir, a textual analysis.
SCALIA: You’re going to talk about my book?
WALLACE: I have talked about your book. This is a textual analysis.
SCALIA: All right.
WALLACE: All right. You wrote Sandra Day O’Connor’s decision in the 1989 abortion case, quote, “cannot be taken seriously.”
You called an opinion by Chief Justice Rehnquist in 1988 case “a short sighted exercise if folly.”
In 2007 dissent, here’s what you wrote about Justice Breyer’s opinion. “The sheer applesauce of the statutory interpretation should be obvious.”
Are you cantankerous?
SCALIA: No, I express myself vividly. Those criticisms are criticism of opinions, not of my colleague. I’m a good friend of Steve Breyer. I like him a lot, and of Sandra Day O’Connor. And whoever else whose opinions I criticize.
WALLACE: And if they call one of your opinion sheer applesauce?
SCALIA: That’s fine, so long as they can demonstrate that it’s true.
WALLACE: I actually think applesauce is something good.
SCALIA: No, I express myself vividly. Those criticisms are criticism of opinions, not of my colleague. I’m a good friend of Steve Breyer. I like him a lot — and of Sandra Day O’Connor. And whoever else whose opinions I criticize.
WALLACE: And if they call one of your opinion sheer applesauce?
SCALIA: That’s fine, so long as they can demonstrate that it’s true.
WALLACE: I actually think applesauce is something good.
WALLACE: You are 76 years old. Will you time your retirement so that a more conservative president can appoint a like-minded justice?
SCALIA: I don’t know. I haven’t decided when to retire.
WALLACE: But I mean, does it go through your mind, if I retire, I’d like to see – since you talk about Republicans appointing one kind of justice and Democrats another, that you would want somebody who would adhere to your view, as in your book “Reading Law”?
SCALIA: No, of course, I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years, sure. I shouldn’t have to tell you that. Unless you think I’m a fool.
WALLACE: I was in the White House briefing room back in 1986 when Ronald Reagan – you remember me there? No, you don’t.
SCALIA: I don’t remember.
WALLACE: …if you look at that picture, I was over to the left, as you take a look at that picture –
WALLACE: …when Reagan named you to the court. And over the years, at various points, you’ve admitted to being discouraged as starting to repeat yourself.
WALLACE: After 26 years on the job, how do you feel about it these days?
SCALIA: Oh, I’m no more discouraged than ever. You know, win some, lose some. I think we are fighting a good fight. And I think things are better as far as the Supreme Court’s jurisprudence is concerned. By my likes, they are better today than what they were 26 years ago. So, you know, it’s all right.
WALLACE: Any thoughts about stepping down?
SCALIA: …no immediate thoughts about it, no. My wife doesn’t want me hanging around the house, I know that.
WALLACE: I can understand that.
WALLACE: Justice Scalia, the name of the book is “Reading Law”, it is fascinating – you are fascinating. Thank you so much for coming in today to discuss judging. It’s been a real treat. You have an open invitation to come back any time you would like.
SCALIA: Thank you very much. Enjoyed being here.
End my loose transcript.
Justice Scalia with Chris Wallace on Gun Control, Privacy, Immigration (video)