Friday, November 10, 2006

Live blogging: Nino Scalia

By Vivek Krishnamurthy

Associate Justice Antonin Scalia of the United States Supreme Court is appearing this morning before students at the Yale Law School, to deliver a presentation on his originalist philosophy of constitutional interpretation, and to answer student questions. The Reaction has exclusive live-blogging coverage of the event. Stay tuned!

9:06: The Dean of Yale Law School, Harold Koh, introduces the introducer of Justice Scalia, Prof. Christine Jolls

9:09: Professor Christine Jolls introduces the introucee, Justice Scalia!

9:11: The Justice begins to speak. Hell doesn't freeze over.

9:24: Scalia speaks out on the 14th amendment doctrine of substantive due process: "Even Larry Tribe has abandoned substantive due process because it's idiotic. The idea of substantive due process is babble. Privileges and immunities is flotsam."

9:25: Student question: what are the core principles for which Bush v. Gore stands?

Scalia replies: "Oh my."

He elaborates three core principles:

1) Florida's judicial determination of the election was inconsistent with the Florida election statutes. Because sucha determination violates the provision of the Federal Constitution stating that it is for state legislatures to determine elections, the Supreme Court stepped in and invalidated the handiwork of the Florida court.

2) The court ruled 7-2 that it is possible to structure an election in a way that violates the equal protection clause, when a state entity (its supreme court) (re)counts different ballots in different parts of the state in different ways.

3) It was time to put an end to the uncertainty, as the U.S. was becoming an international laughing stock.

9:29: Student question: if you could speak to the Framers of the Constitution, what questions would you have for them?

Scalia: "What is the secret of your longevity?"

Scalia says he cares less about this than other people about what the Framers think, because he doesn't care about original intent, but original meaning. The secret internal intent of the Framers does not matter; it is the public meaning they intended for that language that is key.

On the death penalty, for example, there's no need to probe the secret intent of the framers and ask if it is "cruel and unusual punishment," because death penalty statutes were on the books at that time.

Scalia would like to ask the geniuses of the time, such as Hamilton and Madison, "What was it about George Washington? He was a relative dummy: why did they admire him? Maybe because he was the only one among them who wasn't nuts. He was the only steady man among them."

"Do you know there's an Aaron Burr society? There's someone who loves everybody. Someowhere out there there's a Judas Escariot society."

9:33: Student question: What is the case for stare decisis? (the rule of precedent)

Scalia replies:

-- Justice Thomas does not believe in stare decisis in constitutional cases.

-- Scalia disagrees with Thomas, because stare decisis does more than simply protect reliance interests (i.e. reliance on past statements of what the law is, in structuring future actions).

-- Life is too short: you can't question everything in every case! "Do you want us to review Marbury every time? Go on to the next mistake."

-- Criterion for following stare decisis should not be whether you think the decision is mistaken or not. The criteria should be how wrong it was.

Scalia uses three criteria in determining whether to overturn precedents:

1) Was the decision wilfully wrong?

2) Has the wrong ruling been generally accepted? (For example, Scalia thinks the incorporation doctrine, which uses the 14th Amendment to apply the Bill of Rights against state governments, is mistaken. That said, it is now so widely accepted that Scalia wouldn't think about reversing it).

3) Does the existing precedent put me in the role of a legislator rather than a judge? On the abortion question, for example, Roe v. Wade establishes that laws placing "undue burdens" on women's reproductive choices are unconstitutional. Scalia has no idea on how a judge can figure out whether something is an "undue burden" or not. Such questions should be left to legislative determination.

Follow-up question from Prof. Akhil Amar: If a legislature passes a statute saying the legal standard is an "undue burden," is that capable of judicial determination?

Scalia: if Congress forces me into that sort of judicial determination, then fine.

9:38: Student question: Could you say something about textualism and the separation of powers? Given the indeterminacy of the text over foreign relations and defense?

Scalia: Believes that originalism doesn't always give a clear answer to constitutional questions. Sometimes it works, sometimes it doesn't. Scalia would give great weight to traditional practice, however: "if every state in the union has done something, I'll follow it!"

Scalia goes on to deliver various quips about originalism vs other doctrines of constitutional interpretation:

  • "Originalists can have fun too!"
  • "I don't pretend to have all of the answers, but I have most of them!"
  • "My point is not that originalism is perfect, but that it's better than everything else."
  • "If you are a non-originalist, it's you have zero answers. Every day is a new day for you."
  • "Stay tuned, if we look at the ceiling next year, we may come up with the answer."
  • "Unless you can come up with some theory as to how the Constitution evolves, you can't answer anything!"
Follow-up question from Prof. Akhil Amar: What about common law approaches to constitutional interpretation?

Scalia: Even as a common law judge, you need some exterior criterion by which to evaluate and decide questions.

The problem with the common law is that it is in tension with democracy. Common law judges were the king's agents, making the law in the absence of any substantive corpus of statutes. Such a role for unelected judges is in deep tension with democracy.

"The people's will is in the text."

Follow-up comment from Prof. Bruce Ackerman: "There's an internal problem in your theory. You say you are going to accept a lot of stuff that's already been done, but I'll never do it again. Why would someone like you orient yourself to tradition, when the way we got to where we are is through the model of the common law judge? For example, think of John Marshall creating judicial review in Marbury v. Madison."

Scalia: Judges in the past never proclaimed to find new doctrines in the Constitution, or to believe that the constitution itself should evolve in time. When they sought to create new doctrines, they were essentially liars. They lied as to what the real original meaning of the constitution was, and labelled their own novel readings as originalist.

9:50: Student question: Why do you have so few female law clerks? Do you feel a responsiblity toward gender parity?

Scalia: I feel no such responsibility. I feel a responsibility to select the best law clerks. "Other things being equal, if there's a male applicant and the female applicant, and there's no ohter distinguishing factors between them, I will take the female because she's a civilizing influence."

9:53: Question: What is the role of oral argument? Aren't cases now all decided on the papers?

Scalia: "Banish that thought from your mind! Don't think that oral argument is a dog and pony show... I have to tell you that... oral argument often makes the difference. Not usually, but often, Not that it changes your mind often... but because you're on the knife's edge in going into oral argument. You can show perspective a great deal more in oral argument than in the written brief."

9:57: Question: What do you think of the use of international opinions in U.S. courts? Should international courts not use U.S. opinions in their interpretation?

Scalia: Even if you're not an originalist and you think it's an evolving constitution, shouldn't the constitution represents the evolving standards of the American people? "The only reason to use a foreign opinion is to think when you put on a judicial robe, it's because you, along with all the other judges in the world, can tell the meaning of capital-H, capital-R Human Rights."

Just as Erie Railroad spoke of the brooding omnipresence of federal common law, we have judges engaged in the enterprise of creating a new "brooding omnipresence" of universal Human Rights.

American judges are engaged in the interpretation of American constitution.

You should look at other nations when you write a law, or write a constitution. If the non-originalists admit that they're writing a new constitution, then fine, cite foreign cases. But acknowledge that you're not interpreting the American constitution anymore.

10:00: Student quesion: What do you think about other countries citing American cases? Are they wrong?

Scalia: Maybe new courts with new constitutions have to take their constitutions as an invitation to philosophize when there's no tradition of rights. But given that the right of free speech in the U.S. constitution is the traditional right of Englishmen to free speech as it existed in 1791, there's no need to look to foreign law.

10:02: Question: what weight should be given to presidential signing statements?

Scalia: It's legislative history, and I don't look at it. But I find it curious that those who do look at legislative history don't look at the most important voice of all in enacting legislation: the president. Why give greater weight to a committee report than to the voice of the President?

The Constitution is not clear on what the President's commander in chief power means. Congress clearly can't tell the President to bomb one city or another. But how should we interpret those powers? We should interpret it in a way consitent with our history.

On the question of whether the President can deploy troops overseas, the answer is yes. Every president since Jeferson has sent troops overseas without Congressional authorization.

10:05: Student question: does the fact that the signing statement comes after enactment by the Congress mean that we should give it less weight?

Scalia: No. Unless the President believed the text of the statute to have the meaning which he states in the signing statement, the President would have vetoed the statute.

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