tv Charlie Rose BLOOMBERG February 16, 2016 10:00pm-11:01pm EST
♪ >> from our studios in new york city, this is "charlie rose." charlie: supreme court justice antonin scalia died in his sleep saturday on a ranch in texas. he was 79. scalia was a transformative figure who changed the terms of legal debate. justice elena kagan said he is the justice who had the most important impact over the years on how we think and talk about law. ronald reagan appointed him in 1986, making him the first italian-american to serve on the nation's highest court.
his three decades on the court inspired a conservative movement and inflamed liberal critics. he championed a judicial philosophy known as originalism, which seeks to interpret the constitution at the time it was written. he ridiculed the notion of a living constitution. he was known for his witty, sarcastic, and often humorous dissent. he once wrote, an issue of this sort will frequently come before the court clad in sheep's clothing, but this wolf comes as a wolf. he relished jousting during oral arguments. his landmark 2008 decision in district of columbia versus heller held that the second amendment gives individuals the right to own guns. he could be very provocative at times on social issues like same-sex marriage, abortion, and affirmative action.
he was a passionate defender of the death penalty. his rulings on the sixth amendment often favored criminal defendants. he enjoyed baseball, opera, and singing at christmas parties. he was friends with justice ruth bader ginsburg, his ideological opposite. justice ginsburg said, i disagreed with most of what he said, but i loved the way he said it. a devout catholic, scalia celebrated mass in latin. he grew up in queens. he was valedictorian of his high school and georgetown. at harvard law school, he was the editor of the law review and graduated magna cum laude. he served on the circuit court of appeals before he was unanimously appointed to the supreme court. news of his death complicates the court docket this term and adds fire to a heated election.
republican lawmakers and presidential candidates say the next president should choose his successor. president obama has vowed to nominate his replacement. joining me from washington, adam liptak, correspondent for the new york times. in new york, david boies, who has argued many high-profile cases before the supreme court. i am pleased to have both of them on the program this evening. we will later see some conversations i did with justice scalia. i begin with adam in washington. characterize justice scalia in what he meant and what he was. guest: he was a transformational figure in american law. he changed the culture of the supreme court, the way arguments are conducted. he changed the nature of legal writing. he was influential in getting people to think about the constitution differently. he pressed a theory called originalism and looked at
statutes differently, really focusing on the words and text of the statute. a whole range of cases, he was terribly influential, except maybe in one. he did not write a ton of majority opinions. he did most of his important theoretical work in dissent. charlie: he has made us rethink in a different way about the law and the constitution and the interpretation. guest: quite right. he was probably the leading intellectual on either side of the court in terms of thinking through cases. charlie: a formidable justice to appear before. >> a good justice. smart questions, tough questions, but always delivered with a sense of humor.
he enjoyed intellectual jousting. i think he liked to have somebody who disagreed with him, to argue with. he was engaged in the process. charlie: and in the combat of ideas. he believed strongly in ideas. how would you prepare a case before the supreme court, knowing he would be one of the interrogators? guest: you wanted to be prepared to answer his questions, like you do with all of the justices. at least for most of the court cases i had in front of him, the halliburton case defending securities class actions, the marriage equality cases, those were cases in which you knew your chances of winning him over were not great. and so what was most important is that you did not let him
either side track you and get you off message or get you to concede something that might give trouble to justices or not persuade somebody in the middle. so you had to protect yourself so you did not go down too far of an intellectual debate with justice scalia. charlie: when you think about him and what he did on the court, how would you define originalism? guest: originalism asked the question, what did the people who drafted and ratified the constitution mean by it? that means, in justice scalia's view, they were not thinking about abortion.
the constitution had nothing to say about same-sex marriage. he would probably say, it is not an evolving document, it is a dead document. it is a legal text, like any other. it is like a contract, a will, a statute. you figure out what the people who put it together understood it to mean. charlie: in an interesting way, he would talk about that in appearances with me. the idea of a living constitution would drive him crazy. guest: there were many ways to get justice scalia's goat, and that was one of them. >> he was no originalist. the framers of the constitution were not thinking about abortions, but they were not thinking about radio or television. charlie: what is the alternative
to his point of view on the constitution? guest: i think what you do is you look at the words they used. you would try to give those words meaning in the present context. when you talk about freedom of the press, they were talking about printing presses, the printed word. but we all accepted long ago that freedom of the press applies to electronic media as well, even though nobody conceived of electronic media elements in the 1700's. take cruel and unusual punishment. what was cruel and unusual in the 1700's is very different from what we think of today. you take the words, the concepts that they articulated, and you try to apply that in a modern context. justice scalia would recognize that with respect to freedom of the press. he would recognize that with respect to something like cruel and unusual punishment to some
extent. he sort of walked away from that with respect to concepts of equal protection and due process. again, take the 14th amendment. when they passed the 14th amendment, nobody thought it would be used to eliminate separate schools based on race. yet i think everyone recognizes that in the context of brown v. board of education, that was the right decision for modern society. charlie: would he recognize that as the right decision? guest: grudgingly. guest: when you asked him about brown, he was candid enough to say, that is the hardest case for my theory, basically saying brown has to be right. it is hard to justify originalist ground, but my theory does not have to give you
the right answer every time, just more often than the other guys. guest: when you take that point of view, what the best answer is, you are down a slippery slope. when you say i will be an originalist when i want to be, that is not being an originalist. guest: he called himself a fainthearted originalist. he seemed to recognize the theory had limits. guest: if you have a theory that, taken to its logical conclusion, means you are a nut, i think that is a theory that is wrong. guest: he meant you needed to have some restraints. judges cannot make up the constitution however they like, read into the equal protection clause whatever they think is copacetic to them.
one thing scalia used to say is it is important that judges feel bound by legal materials. guest: i think most people would agree with that. it is just a question of what kind of content you put into these words. the founders of this country, the people who drafted the constitution, as justice scalia many times has said, people who were extraordinarily genius in the science of government, they gave us a document that could last as long as it has because it contains concepts that could be adapted to new times. guest: and the framers used broad language that makes a lot of people think they meant for succeeding generations to fill them with content appropriate to contemporary circumstances. charlie: what was he like to cover as a reporter? guest: he was a delight. god, we are going to miss him. he played to oral arguments.
he easily wrote the most quotable phrases and opinions. charlie: when he came to the court, the reagan appointee, was there an expectation he would become what he became? guest: i happened to look at some of his confirmation hearings. he was so meek and agreeable when he shows up at the court. back then, the justices did not ask questions. he shows up, very argumentative, sure of himself, witty, and he transforms the atmosphere. he is asking so many questions that other people feel they have to ask questions too. charlie: i think i read this. i may not remember it as perfectly. one of the justices said to the other in the first time, are we going to have time for our questions?
guest: he was surprised, when the justices had private conferences to vote on cases, how little argumentation there was. it was fairly businesslike. people went around the table and voted and went back to their chambers to write. he wanted to sit there and argue. charlie: what were his disappointments in life? guest: almost every liberal decision. certainly the case that david was a champion of, same-sex marriage. just drove him crazy to think that nine justices, more strictly speaking, five justices, should decide the constitution contained such a right. charlie: there are some who speculated he might have wanted to be chief justice. guest: i think that is more than speculation. again, a case david was involved
charlie: what happens now? we have the likelihood that a republican senate is not going to confirm. what happens? guest: if that happens, we will end up with essentially two full years where the supreme court will not have a full complement. you will have eight justices. that will, to some extent, give the four liberals an advantage. if they can secure justice kennedy's vote, it is 5-3. if they cannot, whatever the lower court has decided will hold. the court always has the ability to put off a case for reargument.
but here, if you wait until the next president comes in, that will not happen until this coming january, it will take a while to vet and confirm, by that time you are april or may. the next term is over with. you may not get decisions on important cases for a long time. i also think there are very substantial political costs and
risks by the republicans of doing that. charlie: which are? david: depending on who the president nominates, you could easily offend a substantial portion of the electorate. in addition, there probably will be some constraint on the president to appoint someone who is not too far towards the liberal side in order to get that person confirmed. if a democrat wins in this election, that constraint may not exist. they may get someone who is even more liberal. charlie: the force of his arguments, are they in the ascendancy or not? david: i would say not. when justice thomas joined the court, it looked like there was a second originalist. that justice roberts and alito are more pragmatic. i am not sure we are going to have an authentic originalist nominated should a republican candidate win.
charlie: who was his intellectual antagonist? adam: justice breyer. he and breyer went back and forth so much in arguments that occasionally, the chief justice would say, jump in anytime you like. charlie: how many times would he ask questions when you are arguing before the court? how does that work? david: he would jump in repeatedly. other justices were being very active too. it is often the case that the questions are not so much directed at elucidating information so much as to making a point to their colleagues. adam: people keep statistics on this stuff. justice scalia asked more questions than anyone else and
got more laughs. the temperature of the courtroom is going to be a less fun place without him. charlie: i want to see some of the things he said to me in my conversations with him. if the language he used was a bit too much, he would tone it down in terms of criticism. adam: i would hate to see the original. david: i was going to say. that would be interesting to read. i think his rhetoric got more colorful as time went on. charlie: he became more of a personality? david: more of a personality. to some extent, perhaps, cared more about some of the issues. but i had a hard time thinking of how stronger the language
could have been in his dissent for marriage equality. charlie: here is what is interesting. you are as renowned a lawyer as anyone in the courtroom today. he was not a trial lawyer as far as i know. david: he was not, but a law professor. i do not think anything could have gotten him out of teaching other than being on the bench. he loved the intellectual back and forth that you had in the classroom. and debating with like-minded people. charlie: what is your favorite opinion, adam? adam: maybe morrison v. olsen. he said, sometimes a wolf comes in sheep's clothing, this wolfe comes as a wolf.
charlie: there is this friendship with justices across the spectrum, especially kagan and ginsburg. it is a bit like buckley and galbraith to me. adam: he was close friends with justice ginsburg. justice kagan seemed to make scalia a real project of hers, going on hunting trips, which is hard to imagine. i wonder if her enthusiasm for hunting will stay. charlie: last word, david? david: just following up on what adam was saying, i do not think you can talk about justice scalia without talking about his warts on a personal level. he loved debating with people.
he could believe your ideas were wrong, but he was never mean-spirited. his language would sometimes be over the top. but in private when you were talking and debating, he always maintained his sense of humor. he was a joy to be with. charlie: thank you both very much. we will be right back. stay with us. ♪ ♪ charlie: we continue with jeffrey toobin, who joins us from the time warner center. he is a staffer for the new yorker and the author of several books about the court. staying with me is david boies. tell me how you saw him. jeffrey: there have been 115
supreme court justices, but there are a very small handful whose influence really lasts and is beyond the court itself. you are talking about chief justice marshall, louis brandeis, earl warren. antonin scalia is in that category. he reoriented many people's thinking about what the constitution means. he changed the way statutes are interpreted in the supreme court. he is a big influence in american law, more than just a handful. charlie: are his ideas in the ascendancy? jeffrey: i think they are on the bubble. i think this court, which is 5-4, with five republican appointees and four democrats, sometimes he won, sometimes he lost.
he lost on big cases about gay rights. he never succeeded in getting roe v. wade overturned. he lost on abortion rights most of the time. yes, there is a lot of influence their on the second amendment. that was his greatest triumph, in the heller case in 2008, when he said there was a personal right to bear firearms. but it is an incomplete revolution. charlie: he is best known for his dissents and not his majority opinion. jeffrey: for all that we celebrate his personality, his personality cost him at the supreme court. we talk about his friendship with justice ginsburg. respectfully, that subject has been beaten into the ground. how about his relationship with justice o'connor, which was
poisonous for many years and alienated her, perhaps even leading her to vote against him as the swing vote in many cases? that may be more significant than riding on an elephant with ruth bader ginsburg. david: jeffrey is right. he was a forceful advocate but was not good at bringing people along. he was not good at changing people's minds on the court. i think part of that had to do with his personality. i think part of it had to do with he was more comfortable with people he was not going to change their mind. charlie: he acknowledged that in conversation with me, i am not very good at that. jeffrey: and justice brennan was famous for asking law clerks, what is the most important rule at the supreme court?
they would say due process. he would hold up his hand and go, five. the most important rule of the supreme court is five. with five votes, you can do anything you want around here. justice scalia was not all that good at collecting five votes. charlie: did he care that much about it? jeffrey: i spoke to him several times, and he liked winning better than he liked losing. he had that in common with his colleagues. he was just not interested in doing the lobbying of his colleagues that is sometimes, not always, effective. charlie: how will he be remembered? jeffrey: as one of the foremost constitutional theorists of any generation, but as someone who did not win in his lifetime. it may be that president cruz appoints justices who vindicate his revolution. but if barack obama or president
hillary clinton appoints three more, his place in history will be different. charlie: you are wired into the political establishment and judicial establishment. who do you think the front runner is for the job? jeffrey: i will give you three names. sri srinivasan, confirmed 97-0. jane kelly from iowa on the 8th circuit, confirmed unanimously, an ally of senator chuck grassley. and paul watford, an african-american judge on the 9th court, also widely respected. they are all front runners to be nominated. i do not think any of them will be confirmed by this senate.
charlie: i spoke with justice scalia at the supreme court in 2008 and 2012. here is a look back at those conversations. what do you hope will be your legacy from your time on the supreme court? how do you hope you will change this great institution? justice scalia: well, i do not think anyone personally is going to change it. but if i make a contribution, i hope it will be in recalling the court to the matter of constitutional interpretation, which used to be orthodoxy, what the constitution meant when it was adopted. that has fallen into disuse and replaced with a morphing constitution. charlie: why do you abhor the
idea of those words and that interpretation? justice scalia: i do not mind the words so much. but what they import is that it changes. how it changes, when it changes, if it changes is up to the courts. that is just not democracy. you know, the bill of rights, which is what this terminology is usually applied to, is basically an exception to democratic self-governing. charlie: if you make an argument that you look at your background, your life experiences, it was natural that you would come to this philosophical place about originalism? justice scalia: i really think
it is the non-originalists who have to explain it. what a weird notion, that the document changes its meaning from decade to decade and it will be up to the judges to decide what it means, especially when this document makes an exception to democratic self-governance. when this document says no, even when the people want to do certain things, they cannot do it, i think that is a very strange notion that what those things are will be decided from time to time by elected judges. seems to me the normal way anybody reads a text is, what does it mean? if it is an old text, what did it mean when it was adopted? charlie: it is extraordinary that so many great minds see this so differently, the idea of
originalism and the idea of a living constitution, including your great friend, justice ginsburg. guest: well, i think it starts off with different people seeing the role of the courts differently. if you view the court as one of the three political institutions of government and it is supposed to bend the government one way or the other, then i suppose that is a natural approach. but look, my approach was orthodoxy. it only begins with the warren court that people who believe in an evolving constitution sweep the field.
in fact, the first opinion to use what has been a major instrument for updating the constitution, namely so-called substantive due process, the first opinion that did that was dred scott. charlie: what happened to the dred scott decision? justice scalia: there you are. that is certainly not a happy ancestry. i think it shows you how it lends itself to abuse, re-creating the constitution. charlie: as you say, it used to be the majority opinion. do you believe the kind of originalism and looking to the
constitution to be interpreted in the language of its time will change? do you believe there will be a time where your ideas about this will become the majority again? justice scalia: sort of wasting my time unless i do not. look, 20 years ago, originalism was nowhere to be found in law schools. it was not even considered worth discussing by the law professors. they were so uniform in the other camp. and that is not the case anymore. there are originalists at a number of prominent law school faculties. not as many as the other field. that is understandable. it is enormously attractive to judges because it empowers them to do good things. they are not wicked people.
they have a view of what it ought to be, this idea of a living constitution. that is what the first amendment means. charlie: how can we expect that the founding fathers in writing the constitution to see all that would transpire? why should we expect them to create a document that was so broad and spoke to a generality that would be appropriate for all the changes to come? that. justice scalia: i do not disagree with that. you are mistaking what my philosophy is if you think it does not allow the addressing of new phenomenon that were unanticipated. i inquired into the question of
whether the fourth amendment, the restriction against unreasonable searches and seizures, applied to a new technology police departments have developed of infrared imaging. they can look into houses, in effect, and see -- in this particular case, it was a crude type of device that could tell if heat was being emitted. one roof was warmer than surrounding houses and they figured out this person was using heat lamps to raise marijuana. they got a search warrant based on that. i threw the case out. i wrote the opinion that this new technology does precisely the thing the fourth amendment was meant to protect against,
mainly intrusion into the home. that was certainly one of its core values. the death penalty is the best example. is the death penalty unconstitutional? that, to me, is an absolutely absurd question. the death penalty is the only penalty for a felony at the time of the bill of rights. it is not cruel and unusual punishment then, and so it is not now. it might be a bad idea, and some states have thought so. i did not take any position on the merits of it. it may be stupid. charlie: how often do you run into a situation in which my understanding of the constitution leads me to a decision i might not necessarily believe is right in terms of equity or fairness or philosophy? justice scalia: not infrequently. some of my decisions in the
criminal procedure field were not up to me. i would probably be tougher. charlie: but you believe in the defendants having certain rights, even though they might be a bad person? justice scalia: it is not up to me. when you make those decisions, well, you know, that is the great attraction of the other philosophy. the living constitution judge is a happy fella. charlie: how has the court changed since you came here? justice scalia: in the way it functions. virtually not at all. i have been here under two chief justices. i served under rehnquist and roberts and they pretty much run the show the same way.
roberts lets people go on a little longer at conference than rehnquist, who is something of a martinette, in a way. roberts will get over that. he will acquire that in time. charlie: you think? but each chief justice has his or her own stamp on it. the warren court, the berger court, now the roberts court. justice scalia: that is an interesting point. in a way, it is terribly unfair to blame rehnquist for the rehnquist court. he did not put the people on the court. charlie: nor did berger. justice scalia: that is my point. maybe you ought to name courts on the basis of the last
president who made nominations to the court. so this court would be the bush two court. before alito and roberts, the court would have been the clinton court and so forth. that would make a lot more sense. what changes the court, i sure you, is much less the character of the chief justice than the nature of the people appointed. why blame rehnquist for the rehnquist court or roberts for this court? charlie: what is the power of the chief justice? justice scalia: he has the same vote that i do.
there is really nothing he can do to make me change my vote if i want to be stubborn. it is like being the dean of a law school. there is nothing you can do with these unmanageable creatures. now, if he is very persuasive, as roberts is, you want to go along with the chief justice. we are an institution and you want to make the institution work. charlie: is that what you love in the end, the opportunity to go at it and find out where it is, to use a cliche, where the rubber meets the ground? justice scalia: it is probably a part of the whole job i like the most. it is the point at which you have read the briefs and have in your mind your problems with the case and see if counsel has an answer to the problems.
it really is the moment of truth, the last chance that counsel has to satisfy the court on the problems after reading the briefs that the court still retains. that is doubtless the best part of the job. frankly, all the job is enjoyable 60% of the time. charlie: what is the 40%? justice scalia: drudgery. charlie: how crucial is oral argument? justice scalia: the only surprise i had when i became a judge -- everything else is what i figured -- the only surprise was how important our work was. i thought it was a dog and pony show. it is not true because, if the 20 minutes are used intelligently, you have narrowed down your problems with the case.
charlie: do you ever look at an opinion and say, it resonated at the time, but in the aftermath of the morning -- justice scalia: of course. i let them cool. charlie: how often do you say, i went too far? justice scalia: quite often. charlie: i would love to see. justice scalia: there is good stuff on the cutting room floor. and there is good stuff on the cutting room floor sometimes because the attack was so forceful the majority pulled in its horns and did not go as far. charlie: do they ever come to you and say -- justice scalia: yes. and if a colleague has any objection -- charlie: out of respect for the institution, the colleague. if somebody had said, it is over the top, i probably would have
taken it. charlie: these are a people who accept the differences and look for the common good. justice scalia: i consider every one of them a friend. some of them closer than others. but it has nothing to do with which ones agree with my philosophy. i get mad now and then. how can they do this? charlie: you suggest that instability has left them? justice scalia: this is important. if you cannot have passion for an opinion, there is something wrong with you. charlie: your dad was a sicilian immigrant who came to this country, taught in brooklyn. justice scalia: our court-martial was a student of
his. charlie: he taught romance languages? justice scalia: french, spanish, and italian. always had a book in front of his face. charlie: spoke seven or eight languages? justice scalia: just those three. he knew a little german. charlie: any influence on you? justice scalia: you know, i would say i was most conscious of his influence on me, but the more i thought about it and look at some of the things my mother left behind, it may well have been my mother. charlie: "left behind" meaning? justice scalia: she was careful about my associations and the activities she got me into. den mother and all of this. she devoted a lot of attention to raising her son, probably
more than my father did overall. certainly more than my father did overall. charlie: did your father one you to be a lawyer? justice scalia: not particularly. charlie: a professor? justice scalia: he did not want me to be a professor at an undergraduate level because he taught these romance languages in a day when you had to have a foreign language to graduate. he was quite exasperated to teach to a class that did not really care. they did not have intellectual curiosity, most of them, any real desire to learn another language. he would teach to the few students that were really interested. i remember his saying to me he did not want me to be an undergraduate professor. i ended up being a professor at a graduate school.
university of virginia. charlie: did you think you are setting out on an academic career? or just an evolution of where you are now? justice scalia: i do not recall ever having the ambition to be a federal judge. charlie: what was the ambition? justice scalia: professor. when i left law school, i knew i wanted to teach eventually. when i started, i probably had that ambition. i stayed there much longer than i thought i would. charlie: when you look at the justices on this court, who do you admire the most? justice scalia: one of the predecessors in my seat, robert jackson, former prosecutor at nuremberg and former attorney general. charlie: what did you like about him? justice scalia: i liked that he was usually on the right side of
the case, which meant he was usually adhering to the text. secondly, that he was a magnificent stylist. one of the best writers on the court in the 20th century. charlie: does the court that you know read the paper? does it understand the political dynamic of the moment? justice scalia: i do not know. i think so. charlie: does it affect you? is it possible? justice scalia: i would not be as unpopular a person as i am. charlie: you think you are unpopular because of a protest here and there? justice scalia: -- here and there? justice scalia: you know, i am the bete noir.
charlie: why do you think that is? you are a pretty nice fella. you have friends across all aisles. you and ruth bader ginsburg are great friends. you are the guy they look and say, he wants to stand in the way, thrwart the forward march of history and justice? that is the way they see you? justice scalia: i think it is simply because of the consistency. charlie: do you take some pride in that? i bet you do. justice scalia: a man who has
made no enemies is probably not a good man. charlie: you said to people about bush versus gore, get over it. it decided a presidential election. justice scalia: someone was going to decide it. charlie: you blamed gore because he brought the case. justice scalia: he wanted judges to decide it. so judges decided it. charlie: you have no regrets about that? justice scalia: about that case? it was an easy case. charlie: you stopped the florida court. justice scalia: yes, but on a principal question of whether the florida courts violated the constitution. the vote was 7-2. the only issue that was 5-4 was whether we should put an end to the nonsense and immediately decide the case.
charlie: have you had you had the impact you would like to have, the answer had to be no. justice scalia: depends on what you mean. look, when i came on the court, the word was scalia will be a consensus because i am a charming fellow. charlie: is that what they said? justice scalia: not the charming part. but they expected me to be a consensus-builder. i cannot be a consensus-builder because i cannot trade. bill brennan, who was an evolutionist, he could deal. i want to change the constitution this far. i cannot go that far. what about this far? he can deal. i cannot deal. if i am doing the text, what can i say? charlie: a little here. justice scalia: halfway between
what the text really means and what you would like it to me? an? charlie: you cannot do it. justice scalia: look, i am not discouraged. charlie: go ahead. justice scalia: bill brennan was not in the majority most of the time, either. but he was, to my mind, the most influential justice of the 20th century. he changed the court enormously not by being in the center. charlie: the most influential judge of the 20th century? justice scalia: because he had a clear judicial philosophy that was always on the left of the court and pulling the court to the left. charlie: justice scalia, dead at 79, survived by nine children and 28 grandchildren. ♪