tv QA CSPAN February 13, 2016 10:00pm-11:04pm EST
keep in mind. the last time that was done in terms of individual bills being , was 1994. the last time a republican congress agreed on a budget resolution in an election year 2000. history sort of prevails. >> thank you so much for joining us. we will keep tabs on this. we will follow you on twitter. thank you so much. >> thank you. >> this presidents' day weekend, book tv has two days of nonfiction books and authors on c-span2 and here are some
programs to watch out for. sunday night, criminologist violentatzer tracks the crime in america through the 1960's. >> we had this demographic bulge after the war when the soldiers came home given the prosperity of the country. we had many people marrying and having children, having families. these children, the baby boomer generation, reached their most comedogenic years in the late 60's and the early 70's. who -- y, he argues that while technology sometimes solves troubling social and economic problems,
it's not the main driver progress. what book tv all weekend every weekend on c-span2. justice antonin scalia has died at the age of 79. coming up, a q and a interview with justice scalia. that's followed by a 2009 .nterview later, justice scalia shares his view on the first amendment in a discussion that also included justice ruth bader ginsburg. >> this week on q&a our guest is supreme court associate justice antonin skull.
is called reading the law. interpretation of legal texts. ♪ lamb: your book reading the law, why now? why now?calia: because i finished working on it. brian lamb: how important is this book? this is theia: first time i really tried to pull together all of the interpretive causes that i consider important, textualism, and regionalism. no use of legislative history. described the opposing theories of interpretation.
and most importantly i have gone through the steps that a textual list has to take. in order to produce a correct reading of the text. namely the so-called canons of interpretation. ancient andrgely common sense how language is used. brian lamb: who'd you expect to read this. scalia: i hope judges and lawyers and law students will read it. i hope legislators will read it. important that legislators know how their language will be interpreted by
the courts as it is for the courts to know how they ought to interpret the language. lamb: i'm not a lawyer. justice scalia: the addition to the general public. it would give the general reader world ofinto the judges. about deciding on the meaning of enacted texts. all, most important of what is the true fault line in judges. judges.ishing the fall line is not conservative versus liberal. it is rather theories of interpretation which differ.
lamb: i'm going to read long paragraph the road. one final personal note. thatjudicial author knows there is some and fears they may be many opinions that he has joined or written over the past 30 years that contradict what is written here. whether because of the demands of starry decisiveness or because wisdom has come late. worse still, your judicial author does not swear that the opinions he joins her rights in the future will comply with what is written here, whether because of starry decisiveness, because wisdom continues to come late, or because a judge must remain open to persuasion by counsel. forthe prospect of gotcha past and future inconsistencies
holds no fear. scalia: i thought that was pretty clever. brian: it is food for questions. scalia: you said thus and such in your opinion 22 years ago. i did not review all of my opinions to make sure that every one of them comports with the truth set forth here. i did not want to have to do that. for the future any judge has to be open to persuasion. to acknowledge his past ignorance if necessary. swear that i will follow this. but probably will. gotchas come wife,
from academia. many in academia. most of them. why do they disagree? they prefer theories that augment the power of the judge. and hence the power of the law professor. the theory of interpretation set forth here is a very humbling one. it does not leave a whole lot up thehe policy discretion of judges. in fact it leaves nothing up to the policy discretion of the judge. the name of the game is to give a fair reading of what the
people's representatives have enacted. that is what a judge is supposed to do. to someone who wants to do good. office to do things that he thinks are good for the society. zeal one willt not like the approach set forth in this book. part everyhe earlier lawyer every citizen concerned about how the judiciary can rise above politics should find this book invaluable. you just got accused of being political. was i accused of being political? i don't read that stuff.
sometimes i speak to groups about judging judges. judges unlesse you know what they are working with. like thecause you outcome of an opinion you think that's a good judge. unless you want your judges to .gnore the text it is either a regulation or a statute or the constitution. unless you want them to ignore the text is really unfair to judges to say i like the result therefore that's a good judge. you have to read the opinion. and see the sections of the statute they are dealing with. trying to reconcile it. and then you can say this guy did a terrible job. that's an intelligent criticism.
my opinions don't always come out the same way. it's not always conservative. respects i should be the pinup of the criminal defense bar. a number of my opinions have defended the rights of criminal defendants. a lawhough i am socially and order conservatives. to say what it ought to be able to say what the constitution demands. brian: we had a group of teachers here i asked them what they would ask you. they want to know what you would advise teachers to teach the constitution. i ama: first of all,
appalled that americans get out of high school and college and even getting out of law school without ever having read the federalist papers. if you want to have the proper we that and indeed a you should have the constitution is to realize how brilliant were the men who put that piece of work together. that shines through in the federalist papers. i'm always astounded that i can ask a group of law students how many of you have read the federalist papers. 86% have. you should not be able to get high school without being exposed to the federalist papers . brian: is it really something you should read high school?
scalia: yes, the whole thing. people read the famous numbers. only if you read the whole thing to realize what a breadth of knowledge these people had. they were not doing it by the seat-of-the-pants. they had experience in various systems of government in this country and abroad. from that experience they deduced what james madison the new science of government. no you never tried that before. people are to appreciate that. it had never happened before and will probably never happen again. that a of government will be devised by a seminar.
you can't appreciate that unless you seep yourself in the times including reading the federalist papers. list: at the beginning you a whole bunch of people that you , we counted 23 of your former clerks. we had a former clerk of use here. i want to run this little thing. >> we had a very intense argument about some statutory interpretation case. he took me out and said you need to talk to my clerks now. were all very conservative. they had marked me as a liberal. i was interested in this was the coliseum. the lines were called in. i had to sit there and be beaten
up by these conservatives. came and said i need to talk to you for a minute. i'm going to give you the job but you can tell my clerks. i had to go out and not fumble for the next two hours. i hear that six months later the clerks came in and said you need to hire your fourth clerk. and they were outraged that he would've hired somebody who was not of the party. scalia: if he says so. it did not make as much of an impression upon me is that upon him. i have had four times 26. that's a lot of clerks.
brian: how often have you hired a clerk doesn't think like you do? scalia: infrequently but not never. i don't care what the policy preferences of the clerk are. in fact, other things being equal i would prefer clerk who has instincts that are the opposite of mine. i find it very hard to find are hardlerks who minded and not wishy-washy. who applies rules of law rather than speculating about what the best result would be. what i do and i don't my clerks doing it. when i have been able the find a , a flint minded liberal
as in the law clerk you just saw they have been invaluable. they come at the problem from the opposite social perspective. they are a check upon what a judge joyce has to worry most instead of is applying the law he is really just applying his own wishes. that is bad judging. brian: when i read that line about every citizen being consumed, those of the words of frank easterbrook. his brother is gregg easterbrook . why is he your forward writer? scalia: we were colleagues on the faculty of the university of chicago in the 80's.
he went on to be judge on the seventh circuit court of appeals . forward because there is one other name associated with the two ,rincipal theories in this book textualism and original as him, it is frank easterbrook. if i had to pick somebody to replace me on the supreme court it would be frank. we tend to see things the same. we are both applying the same principles of textualism and original as him. lamb: poodle scientists and editorial writers and synnex often depict judges as doing nothing more than writing their preferences into the law.
scalia: that is certainly true. to understand always to forgive all. sell newspapers. theubt that they read opinion carefully. they have a gut reaction that this is a terrible result. sometimes it's a terrible results because that is the terrible statute congress road. a judge or to be garbage in, garbage out. dealing with an inane statute you are duty bound to produce an inane results. a lot of those editorials and just knee-jerk opposition to the consequence and not a dispassionate intelligent
process ofof the interpretation that the judge went through. lamb: one of prior justices justice scalia. if a writer did what i just described thed case consisted of this section and it had to be reconciled with this other section he would lose his readership in no time. surprisedt at all that the newspapers tend to evaluate a case simply on the basis of whether the results seems like a good result. that is all the readers interested in. lamb: we prepared for this
interview. your people at the publishing house told us they're all kinds of rules of things we couldn't ask you. justice scalia: you can ask anything you want. i just want answered and wanted. brian lamb: i know you don't want to talk about bush versus gore again. let me show you a clip from an interview with piers morgan. you answered everything were not supposed to ask you. piers morgan: what has been the most contentious case? justice scalia: the one that created the most waves of disagreement was bush versus gore.
up all the time. my usual response is get over it. lamb: u.n. on to explain further. justice scalia: past cases, you can ask me about that. brian lamb: judges have tenure for life. why does everybody worry about things they say in public and not having cameras in the room and all that stuff? i am sensitive judges what toe express their views on the law in their opinions.
everything that was said about the opinion in bush versus gore was set forth in the opinion that i joined. beyond that i'm just either repeating myself or adding things that really were not the basis for my decision. i don't like drawing the courts into the political maelstrom. by having their opinions repeatedly poured over especially the controversial .nes i don't think it is the role of the judge to give an account of himself to the people.
it is the tradition of common-law judges not to reply to press criticism. we get clobbered by the press all the time. i can't tell you how many wonderful letters have written to the washington post. satisfaction and then they are ripped up and thrown away. you don't send them. that is the tradition of the common-law judge. it is because what the judge has to say is in the opinion. lamb: jonas kubik talked about you. biskupic: at the end of there were nine minutes of the court complaining about how the court had gone wrong. independent counsel statute,
romer versus evans. he does have wonder just about every term. they are always vintage and it was interesting. the idea that he would go outside the record and complain obama's order about undocumented immigrants. he did get a lot of very negative press on that. the couple of people even suggested he should step down. i think he will still be doing what he does. justice scalia: she's right about that. there are innumerable cases in newspaperite articles. there is no rule that you can't cite any public materials and opinions. only cite the record? matter is settual
for decision of course you can only use the matters set forth in the record. that is not the purpose for which i use it at all. we use the public records all the time. it had nothing to do with the factual determination. opinionhould read the to see what my thinking was. brian lamb: were you surprised about the reaction after mentioning president obama? the arizona decision. each adr on said you were to resign. justice scalia: who? brent lamm: he is a columnist for the washington post. justice scalia: i was surprised. i would've thought the purpose for which i used the president
statement and did not criticize the president statement. i said it might be right. the only point i made from it was that the attorney general had argued before us that there was no reason the government enforcing immigration laws. sibley enforcement priorities. he didn't have enough money. to decide who goes first and whatnot. was that evende if that was true. in my view a sovereign state or thee able to supplement adequate enforcement with its own funds to the want to. and then i had to moreover it has since come to light that the problem is not just inadequacy of enforcement funds. unwillingness pressure good reasons of the
government to enforce the law. for that purpose i cited the president statement. which seem to be perfectly fair. i did not see the president statement was wrong. i just say with the attorney general had told us. concerning enforcement priorities. since he is the public record shows. problem.ole read hemb: i'm going to was sentenced to have you explain it to the nonlawyers. the teachers will never forgive me. ists should object to being called a strict
constructionists. whether they know it or not that is an irretrievably pejorative term. justice scalia: people tell me that pejorative is the proper term. lamb: strict constructionism as opposed to fair reading textualism is not a doctrine to be taken seriously. justice scalia: there's an old statute that made it a crime to lay hands on a priest. does that mean if you shake hands or pattern on the shoulder it's a crime? of course not. the word is used colloquially to mean violent attack upon a priest. amendment, if you are
a strict constructionists you would say that the first amendment does not prohibit congress from censoring handwritten letters because it only protects freedom of speech and of the press. is neitheren letter speech nor a product of the press. that is not the understood meaning of the first amendment. it protects freedom of expression. those to adjust the most common ones. brian lamb: can you give us a layman's definition of textual list? scalia: a textual ist is someone who believes that the meaning of the statute is to be derived exclusively from the text enacted by congress and signed by the president or else passed over his veto.
the text is the sole source that the judge or to be using in making his judgments. lamb: the last part of this book is 13 falsehoods exposed. the first one is the false notion that the spirit of the statute to prevail over its letter. are you exposing this is your idea or is this what is taught in law school? scalia: it is said in thatsupreme court opinions the letter of the law is contrary to its spirit and so forth. that is nonsense. the letter of the law is the letter of the law. that is what we are governed by. not some judicial determination of spirit.
which could be anything. the statement comes up all the time that it is an empowerment and the text says this. that is contrary to the spirit of the law and we're going to go ahead and do whatever we like. that is not democratic self-government. if people can't have their representatives write a statute has to be applied as written. lamb: every time you make second.his is the 62n the false notion that words should be strictly construed. justice scalia: you want to
construe it reasonably. you don't want to construe it sloppily. what were the ordinary reader of english interpreters this statement to me? obviously being used in a very technical sense. lamb: one of the justices often in the book is joseph's story. he was the youngest justice ever. he had seven children. you have had nine children. have 28 grandchildren.
now you have 34 grandchildren. justice scalia: 33. if you give me enough time and will come up with all the names. joseph story back in the 19th century. why so much of him in the book? justice scalia: is one of the greats. he wrote the first commentary on the constitution of the united states. while he was a justice. he was a professor at harvard law school. a great intellectual. intellectualsding on the early court. lamb: he also published and taught school. and publish books. justice scalia. judges always been part of
the intellectual life of this country. unlike in europe where judges are more like bureaucrats. system arecommon law part of the intellectual discourse. you have the court of appeals level, like henry friendly and learned hand. lamb: we had our cameras in front of you and justice breyer. scalia: you're going to see if the good guy one of the bad guy one. that is not true unless you believe that every statute ever written produces a sensible result. [laughter] the ideal role for the honest judge is garbage in, garbage out. you are supposed to interpret the statute's reasonably even if you don't agree with the result. it is not up to do you to decide what is garbage.
youou bear that in mind eitherbe more careful to praise or criticize judges just because you like the outcome of the case. lamb: you have sent colorful things over the years. justice scalia: i do it in my opinion sometimes. to make the opinions more readable. .hich is a good thing especially dissenting opinions. no reason toly read dissenting opinion because they are on the losing side. if you are a lawyer you want to know what role you have to follow. when you write the dissenting opinion, is mainly for the law students. this center will be published in our system even when they
disagree with it. they have to produce both sides of the case so they can be vibrant discussion of it in class. i like to make the dissent clear and readable and interesting. even funny sometimes. lamb: how much of an impact if you had on oral arguments? scalia: they are not what they used to be. on the courtcame very few questions were asked. onceued before the court and i got maybe two or three questions. all of them from byron white. , the whole process consists of responding to questions from the judges. better.the latter is
i was the first one who started asking a lot of questions i guess. was probably my law school background. i law professor background. when others law professors came on the court they continued it, ruth bader ginsburg was a former law professor. stephen breyer is another one. lamb: here is an argument from 1999. you are asking the questions. is other voice you hear someone who is making a presentation before the court. roberts: unless it is itself a recipient of financial assistance is not covered by title ix. justice scalia: i don't see how the university get stuck here. as far as the universe is concerned pursuant to the rules it has denied a waiver in
circumstances where denial would be perfect appropriate. as far as what the university has done the university has an discriminated all. john robert the only thing the next wave or bad is that this organization has granted other waivers in other contexts. some university? john roberts: the university is the entity that is operating activity. brian lamb: you recognize that voice? he was before the courts on the i-30 times. scalia: was it roberts? brian lamb: yes. brian lamb: you said you argued before the court once. was paul clement one of your clerks? he steps up in the health care case.
he is a former solicitor general and former solicitors general supreme courte bar. the regularly appearing supreme court bar. brian lamb: after the health care case and chief justice roberts position on it, a lot was written about that. personal antagonism between members of the court. talk a little more about your perception. was there a leak that came out of the court? scalia: i wouldn't talk about it. i responded to a very precise question whether there was slamming doors and whatnot and that was absolute nonsense. brian lamb: who are their personal feelings behind the scenes?
has there ever been in your past when you make some strong personal fallout from that? justice scalia: i have criticized the opinions of some of my colleagues. we have remained friends. just as they have criticized my opinions. you can have the image without hating the other person. that's it. done. lamb: why do you sometimes such an intense dealing
with the subject, you look like you are mad. justice scalia: should i look jolly? talk about a very serious heartfelt issue in which what used to be the law. is stuff in this book orthodox. it was the traditional approach to judging until about the middle of the 20th century. we are to bring that back. it is a very significant issue of how judges go about giving effect to democratically enacted legislation. and to the democratically ratified constitution. it is a terribly important matter. you want me to smile and look jolly when i talk about that? i think i should look impassioned.
i do care passionately about this. i am not angry. what makes me mad? if you read the press gets under your skin. i don't much read it. you get used to it. you use to fact he can't respond. that's what all these leaks that happens. we'll respond. don't respond. so they can say whatever they like. brian lamb: living constitutionalists read a prohibition of the death penalty four sprinkleran
justices use that all flex ability is at an end. it would be of no use debating the merits of the death penalty. just as there is no use debating the merits of providing abortion. you stepped on two big issues there. scalia: the other big theoretical issue raised by the book. one is textualism. the other is a regionalism. originalism. that means you given the meaning that it had when it was ratified. unusuals cruel and punishment in the eighth amendment should begin the meaning that they were understood to have by the american people who ratified that amendment. it was clear that when that any for men it was ratified the consideredty was not
to be prohibited. the death penalty existed in all the states and was the only penalty for a felony. to say that somehow the american people have prohibited the states by ratifying the constitution they have prohibited the states from applying the death penalty, i don't know where this comes from. people never voted for any such thing. that is what original is in its. ism is. there are other phenomena that didn't exist at the time. what thewe can't say original meaning was. when the electric chair comes in you have to decide if that is cruel and unusual punishment. against whichnt you compare this later phenomena at the timexteant
the eighth and memos ratified. if the electric chair is less cruel than hanging which it certainly is it is not prohibited by the eighth amendment. death by injection which is even less cruel than the electric chair. certainly less cruel than hanging. lamb: another falsehood exposed. who wrote that headline? justice scalia: bryan garner the co-author. he is not a law professor. probably the foremost of law.apher
he is the editor of black's law dictionary. the editor of books on legal usage. the highly respected scholar. has his own company called law prose. lectures around the country on writing briefs. lamb: he's listed here as a research professor. justice scalia: he is an adjunct professor. brian lamb: the false notion that judges and law professors not being historians are unqualified to do the historical .esearch justice scalia: some people say that. what are you talking about, scalia, you're going to figure out what was true when the bill of rights was ratified? yes i can do that just like i
can decide patent cases during what do i know about patents? i know nothing. i listened to each side. they bring their experts. that is what the adversarial system is all about. they bring forward the best evidence they can. , inn decide patent case fact it is even easier to decide historical evidence that a patent case. judges do this all the time. it is the lawyers who have to be expert or who have to know where to point the judges for expert advice. cannot doe why judges history. they have to do history. all the time. lamb: you write that there is no historical support for any provision supporting a right to abortion or to sodomy or to assisted suicide. these acts were criminal in all
states for two centuries. scalia: for is a sillyst question. it doesn't mean you have to bribe them. just as it doesn't mean you have to have the death penalty. these are political questions for the american people to decide. that is what democracy is. abortion should not be prohibited? fine, persuade your fellow citizens. pass a law. you think the opposite, persuade and the other way. don't tell me that the constitution has taken that issue out of democratic choice. it simply hasn't. it is the same for those other issues. abortion, sodomy, whatever.
persuade your fellow citizens to go either way. brian lamb: another historical figure you quote a lot is jeremy .entham who is he? justice scalia: and he was philosopher who had a lot to say that law. he was a very smart fellow. he's been dead a number of years. but so was aristotle. [laughter] also was highly respected the framers of our constitution. influential on legal theory ever since. brian lamb: don't ever you disagreeing about citing foreign ?aw
you mention a lot of british experts. scalia: i don't consider english law foreign law. the extent that it informs the meaning of the constitution, for example what does due process mean? it could mean anything. it could mean something different to a 12th century frenchman as opposed to a 16th century hawaiian. constitutionour was the meaning given by 18th century englishman. so english law is very relevant to our constitution. french law is not. italian law is not. i'm an american of italian descent. born of an italian immigrant family. lamb: have you both write
this? who wrote what? scalia: if my life depended on telling you, some i recall our mind, but most of become so melded that, he worked on mine and i worked on his. the end product is a collaboration. let's do the up these canons of interpretation. you work on these, i will work on those. take on the ones i was assigned. he sent me his. we went back and forth. three and a half years. lamb: you are a notorious words nitpicker.
justice scalia: he is at least as bad as i am. probably worse. we never came to blows. he knows stuff about words that even understand why you would know such empty information. brian, you always refer k tape. isc duct tape. and he said it was originally devised for the military and was an olive drab color and it was called duck tape. now who would want to have that kind of information? only a word not. he got me. lamb: you wrote that the modern congress sales close to
the wind all the time. today often all but acknowledge their questionable constitutionality with provisions for accelerated judicial review. for standing on the part members of congress. even for fallback dispositions should the primary dispositions be held unconstitutional. justice scalia: that followed upon our statements that , youtionally congress assume the constitutionality of any statute congress passed. because it is assumed that exceed itsuld not authority. if there is even doubt you give the congress the benefit of the doubt. it is moreears questionable whether congress is even thinking about the
constitutionality. that passage recites the fact that this is evident from the content of their statutes. who would've thought in the 19th century that congress would pass a statute that says in the event the stuff use is unconstitutional we have this other provision instead. which is what congress has done. it makes you wonder, are they sure the stuff is constitutional? have they really thought about it? alsonk that comment was made in response to the charge of judicial activism. which is a word that doesn't mean anything. it just means the person who uses it doesn't agree with the decision. what is judicial activism? it is not doing actively would judges ought to do. if a statute ought to be held
unconstitutional, it is not activism to call it unconstitutional. lamb: artificial person can. on. that is another one that has created a storm. scalia: person is not used in the first amendment. lamb: do you worry at all that there's too much money in politics? justice scalia: i really don't. i think we spend less on our presidential campaigns each year than the country spends on cosmetics.
brian lamb: what about the amount of influence? scalia: if you believe that you should go back to monarchy. the people are such sheep that are just swallow whatever they see on television? the premise of democracy is that people are intelligent and can discern the truth from the falls. se. at least when you know who was speaking. you can speak anonymously. and identify the people. we don't knowt who speaking right now. justice scalia: you know the organization. brian lamb: not necessarily. some of the way this money is being raised we may never know. you may not know
who contributes who contributes to the organization but you know who the organization is. brian lamb: so that's all you need to know? justice scalia: you can find out who was hiding behind what. that's not hard. the premise of freedom of speech is more speech the better. as for citizens united goes, that case was not novel. it reversed an opinion eight years earlier than to change the law. from what the law had been in buckley versus valeo. lamb: we're almost out of time. i need to get the latest thinking on this. television in the court. has passeds
resolutions. while you so against the? justice scalia: i was four and when i first joined the court. i switched and i remain on that side of it. believe as the proponents of television in the court assert, that the purpose televising our hearings would be to educate the american people. that is not what it would do. if i really thought it would educate the people i would be for it. down and people sat watched our proceedings gavel-to-gavel they would never what you have to be a lawyer to be on the supreme court? sayconstitution doesn't that. but if you know what our real business is and we are not
usually contemplating our naples on should there be a right to abortion,at, homosexuality, that is not usually what we are doing. we're usually doing with the internal revenue code, your reset, patent law, all stuff that only a lawyer could understand and perhaps get interested in. if the american people saw all of that they would be educated. they would not see all of that. your outfit would carry it all. but most of the american people second takeouts from our argument and they would not be characteristic of what we do. they would be uncharacteristically. see isamb: now what we an article in the newspaper that is out of context. justice scalia: that is fine. say it'sad that they an article in the newspaper. and the guided very like a misinformed. it's different when you see it live. excerpt told out of the
argument but you see it live. it will miss educate the american people. brian lamb: will we get the audio? audio is nota: the of interest to the 15 second take of people. brian lamb: the first amendment doesn't say takeouts are not good. scalia: the first amendment has nothing to do with whether we have to televise our proceedings. you're saying the first amendment requires that? i am indeed an advocate of the first amended. and it doesn't require us to televise our proceedings. got a logical brian. brian lamb: of course. you like this job and you ever intend to retire? just a shkreli: i'm sure i will retire someday.
it's only a lifetime job is all. brian lamb: what will be the trigger for you? justice scalia: i didn't think i would say this long. i thought i would retire soon as i could. at full pension. i have been working for nothing for over 10 years. . could've retired i would have been paid much if i were retired. i could retired when i was 65. i am probably too stupid to have this job at this point. i don't know what else i would do. when will i retire? i will certainly retire at the perceive that i am not as good as i used to be and i have lost a step. product of myhe
judicial career to be demeaned by justice scalia: i will know when i have lost it. and i have many friends and enemies who will certainly tell me. susan swain: the name of the book is the interpretation of legal text by antonin scalia and brian eckhart. thank you very much. ♪ announcer: >> for a dvd copy of this program, call 1-877-672-7726. to give us your comments about this program, visit q&a.org.