In Conversation: Antonin Scalia

textualism (that statutes must be interpreted based on their words alone)

..It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president.

.. I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, “I better reexamine my position!” I probably believe that the worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.

.. Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

.. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn’t handle it anymore.

What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.

So no New York Times, either?
No New York Times, no Post.

And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.

Not NPR?
Sometimes NPR. But not usually.

Talk guys?
Talk guys, usually.

Do you have a favorite?
You know who my favorite is? My good friend Bill Bennett. He’s off the air by the time I’m driving in, but I listen to him sometimes when I’m shaving. He has a wonderful talk show. It’s very thoughtful. He has good callers. I think they keep off stupid people.

.. The Gipper may have been the one who started it. He’s the one who brought in people he would recognize in the audience, and things of that sort—made it a television spectacle. And once it becomes a television spectacle, it’s nothing serious.

.. I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.

.. I’m not inviting you to run down the pope. But what do you think of his recent comments, that the church ought to focus less on divisive issues and more on helping the poor?
I think he’s absolutely right. I think the church ought to be more evangelistic.

But he also wanted to steer its emphasis away from homosexuality and abortion.
Yeah. But he hasn’t backed off the view of the church on those issues. He’s just saying, “Don’t spend all our time talking about that stuff. Talk about Jesus Christ and evangelize.” I think there’s no indication whatever that he’s changing doctrinally.

.. In Lawrence v. Texas, you said Americans were within their rights in “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
I would write that again. But that’s not saying that I personally think it’s destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase of a Supreme Court.

.. Oh. So you don’t know where I’m going. Thank God.
I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?

.. Can we talk about your drafting process—
[Leans in, stage-whispers.] I even believe in the Devil.

You do?
Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.

Every Catholic believes this? There’s a wide variety of Catholics out there …
If you are faithful to Catholic dogma, that is certainly a large part of it.

Have you seen evidence of the Devil lately?
You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.

No.
It’s because he’s smart.

So what’s he doing now?
What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.

That has really painful implications for atheists. Are you sure that’s the Devil’s work?
I didn’t say atheists are the Devil’s work.

Well, you’re saying the Devil is persuading people to not believe in God. Couldn’t there be other reasons to not believe?
Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.

Right.
What happened to him?

He just got wilier.
He got wilier.

Isn’t it terribly frightening to believe in the Devil?
You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, soremoved from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.

I read newspapers that I think are good newspapers, or if they’re not good, at least they don’t make me angry, okay?

.. That sheds new light on your famous odd-couple friendship with Ruth Bader Ginsburg. Do you think it’s easier to be close to a colleague who is so ideologically different?
There may be something to that. If you have low expectations, you’re not disappointed. When it’s somebody who you think is basically on your side on these ideological controversies, and then that person goes over to the dark side, it does make you feel bad.

.. Who was or is your favorite sparring partner on the bench? The person who makes or made your ideas and opinions better?
Probably John Paul Stevens. There are some justices who adopt a magisterial approach to a dissent. Rehnquist used to do it. [He turns his nose up theatrically, flutters his hand in dismissal.] Just, Don’t even respond to the dissent. This is the opinion of the Court, and the hell with you. I am not like that. I think you should give the dissenter the respect to respond to the points that he makes. And so did John Stevens. So he and I used to go back and forth almost endlessly.

.. How do you choose your clerks?
Very carefully. What I’m looking for is really smart people who don’t necessarily have to share my judicial philosophy, but they cannot be hostile to it. And can let me be me when they draft opinions, can write opinions that will follow my judicial philosophy rather than their own. And I’ve said often in the past that other things being equal, which they usually are not, I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives. That kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion. That’s what clerks are for—to make sure I don’t make mistakes. The trouble is, I have found it hard to get liberals like that, who pay attention to text and are not playing in a policy sandbox all the time.