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.
Donald Trump’s Scalia-Conspiracy Pillow Fight
Scalia’s health problems were manifold—his family members didn’t want an autopsy or feel that one was necessary. (“I knew, and he knew, that he was at a place in life where he could be taken from this world at any time, and that’s what happened last week,” Scalia’s son Eugene told Laura Ingraham on Wednesday. “Our family just has no doubt he died of natural causes.”) But precision, at this political and cultural moment, would have been helpful. Texas, after all, is a state where a good number of people believe that a military-training exercise named Jade Helm is a cover for a plot by the Obama Administration to declare martial law, and where senior elected officials—senators, governors—are willing to humor them.
This is also why Trump is unlikely to pay a political price for his failure to quickly dismiss the conspiracy theories. He is in tune with the feeling among many in the electorate that the official story is almost never the whole story.
.. The Scalia conspiracy theories are crude and fantastic, but one reason they may persist is that the respectable Republicans—Presidential candidates and Senate leaders—echo their bottom line, which is that it would be illegitimate, a seizure of power, almost, for President Obama to name a successor to Scalia. He doesn’t have the right, even though the inauguration of the next President is almost a year away; he would be cheating, ignoring the people. The quiet implication is that Obama, himself, is not legitimate.
Lessons for the Supreme Court from the Jedi Council
The stakes, everyone agrees, couldn’t be higher. If a single vote falls one way or another, as Senator Ted Cruz points out, decisions such as Heller v. D.C., and with it the reading of the Second Amendment—does it give private individuals a right to own a gun, or reserve that right only to members of a militia?—could be reversed.
Yet, if a textual interpretation can be so altered by a single vote as to mean exactly the opposite of what it had officially been thought to mean, then surely it seems less like a disinterested interpretation than like a passionately held opinion trying to pass as a disinterested interpretation. If four English professors, readers of “The Pickwick Papers,” held that Mr. Pickwick was meant to be the embodiment of intrinsic evil, and four others that he was the embodiment of bourgeois benevolence, we would not say that the solution was to add a ninth English professor. We would say that they were making incompatible readings of the same text because of strong and irreconcilable differences in values and beliefs and expectations.
.. that the Court is a purely political institution, and then that some of its members (the ones we agree with) are disinterested scholars pursuing a higher philosophy of law. The late Justice Scalia’s pretense was that “originalism,” a doctrine of tracking pure intention alone, could absolve judges from ideology—but, of course, as has been pointed out countless times, the original intentions he found almost always conformed precisely to the prejudices and passion of a right-wing Catholic Republican of the twenty-first century.
.. We don’t believe that intellectuals are mere interpreters. We haven’t for a long time. In a post-scientific age, we generally accept that reliable conclusions are made from evidence and experience, not from torturing old texts. Yet we can’t, emotionally, entirely accept this. We need authority for fear of anarchy. So we rely on the Constitution, or pretend to
What Would Scalia Want in His Successor? A Dissent Offers Clues
Justice Scalia wrote, the court “consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.” Justice Scalia attended Harvard, as did five other members of the court. The other three went to Yale.
.. Since Justice John Paul Stevens retired in 2010, the court, for the first time, has no Protestant member. Justice Scalia was Catholic, as are five other justices. The other three are Jewish.
.. Justice Scalia also surveyed the lack of geographical diversity on his court. “Four of the nine are natives of New York City,” he wrote.
Indeed, every borough but Staten Island was represented. Justice Scalia was from Queens. Justice Ginsburg is from Brooklyn, Justice Kagan is from Manhattan and Justice Sonia Sotomayor is from the Bronx.