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We are at the Supreme Court of the United

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States in Washington.

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The nine justices that occupy its chambers

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carry a heavy responsibility.

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They have the final say on the law of the land.

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The principles and ideas that guide their decisions are the

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subject of heated debate.

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Justice Antonin Scalia is the longest-serving justice

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currently on the court.

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He is the leading voice for a conservative judicial philosophy

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known as textualism, some talk about it as originalism.

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It asserts that laws must be interpreted as they were

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understood by the men who wrote them.

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In 2006, Justice Elena Kagan, then the Dean of Harvard Law

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School, Scalia's alma mater said he is the justice who has

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had the most important impact over the years on how we think

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and talk about law.

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He recently co-authored a new book, it is called "Reading Law,

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The Interpretation of Legal Text".

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I am very honored to have Justice Scalia

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back on this program.

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So the first book was about arguing, how to make the case

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arguing the case.

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This is called "Reading Law, The Interpretation of Legal Text"

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written with Brian A.

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Garner --

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As -- as the earlier book was.

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-- exactly.

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So what's -- what did you hope to accomplish with this?

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Well, this is -- this book had really

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two -- two objects in mind, one was to set forth the principles

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of interpretation that I believe most strongly in.

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To wit, textualism, which you begin and end with the text and

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that you give the text the -- the meaning that it bore when

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it was adopted which is originalism.

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The book discusses those topics in much greater depth than

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anything I've ever done before and I wanted to get

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that off my chest.

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The second half of the book --

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Why did you want to get it off your chest?

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Well, I don't know.

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I -- these things bubble out, you know.

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Yes.

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It's at the core of your belief?

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Yes, I would say the core of my legal

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beliefs, anyway.

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Yes exactly.

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The second half, however, is quite

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different and that is it says, it describes how once you go

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about being a textualists.

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What -- what are the rules of interpreting texts?

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And there are rules that have been handed down

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through the years.

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But have -- in recent years, at least, not been systematically

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taught in law schools or indeed, even systematically set forth

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in any -- in any publication.

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I think this is the first book in about a century that -- that

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goes through this so-called canons of interpretation, which

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are the rules for interpreting text that have been handed down

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in the common law.

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Are there a specific number of canons?

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No and -- and some

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people would include

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some that we didn't and -- and might omit

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some that we included.

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But we included the ones that we thought were well-known and

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-- and valid.

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We omitted some that are well-known but in our view have

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no validity.

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The book does not purport to be descriptive, it

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purports to be normative.

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It says what a -- what a judge or a lawyer interpreting the

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text ought to do.

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As you see it?

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As well as we see it -- there is a

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difference on this.

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You recognize that?

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I do.

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I do.

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But --

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It is not the last --

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I also recognize that there is right

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and wrong.

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Your side of the argument, the Constitution and

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how we should understand it.

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Explain it to me.

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Well, the Constitution is a legal text

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and that's why it is discussed in this book on interpreting

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legal texts.

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Nothing in the document says that the Supreme Court will be

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the last word on what it means, at least in normal times.

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The reason we have become the last word is set forth in

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Marbury v. Madison.

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Marshall says, "Look this is a legal text".

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Judges always have to treat the situation where legal texts

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contradict one another.

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"Where the contradiction is between two statutes," says John

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Marshall, "the more recent statute prevails it has

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implicitly repealed the older one." But where -- where the

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conflict is between a statute and a super statute, the

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Constitution --

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A canon.

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The Constitution must prevail.

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So that's -- that's our approach to the Constitution,

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it's the same as our approach to statutes.

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You -- you start with the text.

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It's lawyers work.

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It's not politicians work.

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It's not sociologists' work.

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It's not economists work.

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It's -- it's the work of interpreting, giving the fairest

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reading to a text.

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Without which democracy doesn't work.

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I mean the only way you can have democracy in

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an extensive nation

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is through written laws and if you don't give those written

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laws the meaning that they were understood to have by the people

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who adopted them and more importantly by the people to

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whom they were promulgated, democracy doesn't work.

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The Constitution was written in what year?

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Well, i was written in

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1787, ratified in 1789.

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And we have to understand it in

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terms of that time?

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Well, w have to

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understand it -- at that

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time with regard to those phenomena that

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existed at that time.

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Now, there are new phenomena that have come into being since,

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but as for the ones that existed at the time, when you

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have vague provisions such as the Eighth Amendment, which

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actually was not in the original Constitution but that is 1791

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but that's pretty old too, right?

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Yes, yes.

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That's the cruel and unusual

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punishments clause.

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It was absolutely clear that that provision was not

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understood to abolish the death penalty.

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It couldn't be clearer.

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Every state had the death penalty.

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Death penalty was the only penalty for a felony.

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Nobody thought that -- that the bill of

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rights made that unconstitutional.

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But I have sat with four colleagues, none of them on the

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court any longer who thought the death penalty was

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unconstitutional because society's mores have changed

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and what used to be thought to be cruel and not to be cruel

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now is thought to be cruel and unusual.

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That is not applying the text that the people ratified, it's

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applying the judge's notion of what ought to be.

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And what ought to be is to be determined by the people, not by

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a very select segment of the people consisting --

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What else to be in terms -- you mean

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by that the legislature?

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The legislature and the people who

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-- who can modify the Constitution.

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I mean it has -- it has an amendment provision, precisely

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because they envisioned that some future society might want

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to change things.

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But, they -- you know, the key question, with regard to

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textualism and original meaning versus the opposite view, which

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is the Constitution evolves and the Supreme Court

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says how it evolves.

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The key question is simply this.

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Would the American people have ratified the document if it

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said the application of this document and what it means shall

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be whatever the Supreme Court says it means from age to age.

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Nobody -- nobody would have ratified that document.

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It's a dead document to you?

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I like to say an enduring document.

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But you don't say it's a living document?

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It is not living.

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It is not living.

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But how could they know and

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understand how complex

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the world would become?

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Well, they could not understand how,

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but they could certainly understand that it would -- it

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would change.

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And that's why, you know, in the Bank of the United States

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case, Marshall says, since this is a Constitution and has to

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provide for unimaginable events in the future we should -- we

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should give its words an expansive construction.

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Now, you wouldn't need an expansive construction if you

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could change your mind.

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If the court gave a narrow construction and then some

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future Supreme Court said well that was OK in 1812, but you

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know in 2012 no we have to construe it differently.

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Marshall did not believe that.

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He said you have to interpret it to give a lot of room for

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future development because that interpretation that you give it

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today it will bear forever.

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That's -- that's what everybody thought.

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You don't like the word strict construction?

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No, I think strict constructionists

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give a bad name to textualists.

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Texts should be interpreted -- it should be interpreted

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reasonably, not -- not strictly.

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Right.

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So it's the strict that bothers you.

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It's th strict that bothers me.

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And reasonable is what --

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Reasonable and the example I

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always give is the First Amendment, you know.

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It reads "Congress shall make no law abridging the freedom of

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speech or of the press." Now, speech and press does not

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include handwritten letters.

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Does that mean the First Amendment allows Congress to

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censor handwritten mail?

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Of course not, the reasonable interpretation of that provision

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is that it -- it guarantees freedom of communication.

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Whether it's a -- a written speech or oral speech or

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semaphore or a telegraph or whatever or --

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or -- or the Internet.

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This is what you say in a final personal note at

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the conclusion of the preface, your judicial author, that would

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be you, knows that there are some and fears that there may be

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many opinions that he had joined or written over the past

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30 years that contradict what is written here whether because of

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the demands, I'm sorry the sizes or because

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wisdom has come late.

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I love that idea.

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Wisdom has come late.

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"Worst still, your judicial author does not square that the

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opinions he joins or writes in the future will comply with

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what is written here written in this book.

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Whether because of story (INAUDIBLE) because wisdom

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continues to come late or because a judge must remain open

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to persuasion by counsel, yet the prospect of gotchas for

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past and future inconsistencies holds no fear."

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I thought that was pretty clever.

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Well I did too.

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I had to cover myself.

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Well it shows that you are as someone has said a

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scrappy fellow.

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Well, I guess I will accept that.

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Yes but I mean you want to say

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that that -- I have

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such -- everything that I say in here may be contradicted by

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something that I have said before in a

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judicial opinion somewhere?

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Yes.

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Or somewhere in the future?

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Or perhaps somewhere and sometime

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in the future.

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Yes.

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I am intrigued by the word wisdom that came later.

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How has wisdom come later to you?

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I was already pretty old, if age

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brings wisdom, when I came on to court.

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I was 50 years old.

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I had been thinking a lot about the Constitution, about

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interpreting statutes and I can't say that any of those

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fundamental views have changed, just as I don't think my

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colleagues' views have changed.

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And I don't try to persuade them about fundamental beliefs.

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What idea, what writer, what justice, what --

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exactly where you are?

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As far as my -- as far as my approach

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to what this book discusses is concerned I am not sure it's any

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particular individual.

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It's just -- it's just what one does with language.

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I had a lot of background in language.

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I had two years of French and German.

265
00:13:13.601 --> 00:13:16.100
You father taught Romance languages.

266
00:13:16.100 --> 00:13:18.601
He's taught Romance language and he

267
00:13:18.601 --> 00:13:20.968
used to correct my opinions grammatically.

268
00:13:20.968 --> 00:13:23.234
Really.

269
00:13:23.234 --> 00:13:25.467
He really did.

270
00:13:25.467 --> 00:13:27.734
I bet you loved that.

271
00:13:27.734 --> 00:13:29.934
The court of appeals opinions always

272
00:13:29.934 --> 00:13:32.100
used to end you know "For the foregoing reasons it is hereby

273
00:13:32.100 --> 00:13:34.234
ordered that the judgment below is affirmed".

274
00:13:34.234 --> 00:13:36.701
It used to drive him up the wall.

275
00:13:36.701 --> 00:13:39.234
You can't say "ordered that it is affirmed".

276
00:13:39.234 --> 00:13:41.934
You "order that it be affirmed".

277
00:13:41.934 --> 00:13:44.801
I was the only -- the only judge on the court of appeals

278
00:13:44.801 --> 00:13:48.300
who had that ending, so, yes --

279
00:13:48.300 --> 00:13:51.400
With pauses (ph) to my father --

280
00:13:51.400 --> 00:13:54.567
So have -- I have that background.

281
00:13:54.567 --> 00:13:58.400
I had eight years of Latin; I guess seven years of Greek, so I

282
00:13:58.400 --> 00:14:01.667
dealt with text a lot.

283
00:14:01.667 --> 00:14:04.367
But I'm interested in the mind of Justice Scalia

284
00:14:04.367 --> 00:14:06.901
and how it got there, because I talked to four of your interns,

285
00:14:06.901 --> 00:14:09.300
law clerks, we say, you say.

286
00:14:09.300 --> 00:14:11.467
Right.

287
00:14:11.467 --> 00:14:14.300
You know what they said about you?

288
00:14:14.300 --> 00:14:16.934
He said he wants us to challenge him.

289
00:14:16.934 --> 00:14:19.133
That's what he likes.

290
00:14:19.133 --> 00:14:21.300
He likes the idea of conflict of ideas.

291
00:14:21.300 --> 00:14:23.400
Well I do that.

292
00:14:23.400 --> 00:14:25.234
That's very true.

293
00:14:25.234 --> 00:14:27.133
Where did that come from?

294
00:14:27.133 --> 00:14:29.801
I don't know.

295
00:14:29.801 --> 00:14:32.801
I like to argue.

296
00:14:32.801 --> 00:14:35.300
It's one reason I like the law, I think.

297
00:14:35.300 --> 00:14:37.434
I like to figure out where the truth lies between two -- two

298
00:14:37.434 --> 00:14:39.200
different assertions.

299
00:14:39.200 --> 00:14:40.968
I don't know.

300
00:14:40.968 --> 00:14:42.734
It's just who I am.

301
00:14:42.734 --> 00:14:44.501
Well who -- when you look at the

302
00:14:44.501 --> 00:14:46.267
justices on this

303
00:14:46.267 --> 00:14:48.133
court who do you admire the most?

304
00:14:48.133 --> 00:14:51.501
I like --

305
00:14:51.501 --> 00:14:53.300
I tell you who I like a lot.

306
00:14:53.300 --> 00:14:54.901
OK.

307
00:14:54.901 --> 00:14:56.868
I like one of the predecessors in my

308
00:14:56.868 --> 00:14:58.834
seat, on the court, Robert Jackson.

309
00:14:58.834 --> 00:15:00.567
There you go.

310
00:15:00.567 --> 00:15:02.334
Who was FDR's --

311
00:15:02.334 --> 00:15:03.701
A prosecutor.

312
00:15:03.701 --> 00:15:05.100
Former prosecutor.

313
00:15:05.100 --> 00:15:06.467
At Nuremberg.

314
00:15:06.467 --> 00:15:08.100
That's right and also

315
00:15:08.100 --> 00:15:09.734
former attorney general.

316
00:15:09.734 --> 00:15:11.400
What did you like about him?

317
00:15:11.400 --> 00:15:13.033
I liked about him that he

318
00:15:13.033 --> 00:15:14.667
was usually on

319
00:15:14.667 --> 00:15:17.601
the right side of the case, which means he was usually

320
00:15:17.601 --> 00:15:20.067
adhering to the text and secondly that -- that he was a

321
00:15:20.067 --> 00:15:22.434
magnificent stylist, he was the best writer on this court in

322
00:15:22.434 --> 00:15:24.667
the 20th century, if not -- if not forever.

323
00:15:24.667 --> 00:15:27.133
He wrote beautifully.

324
00:15:27.133 --> 00:15:30.300
You love language, don't you?

325
00:15:30.300 --> 00:15:33.968
I do love language.

326
00:15:33.968 --> 00:15:36.934
And -- and for that background, you know, I am a SNOOT.

327
00:15:36.934 --> 00:15:39.434
It stands for "syntax nerds of our time".

328
00:15:39.434 --> 00:15:41.801
It refers to people who -- who get upset when they hear "infer"

329
00:15:41.801 --> 00:15:43.834
used to mean "imply".

330
00:15:43.834 --> 00:15:45.834
Yes.

331
00:15:45.834 --> 00:15:47.868
Or when they -- when they hear I

332
00:15:47.868 --> 00:15:50.133
commented recently on -- on --

333
00:15:50.133 --> 00:15:53.067
You hate bad grammar?

334
00:15:53.067 --> 00:15:56.000
Oh, gosh.

335
00:15:56.000 --> 00:15:58.934
I was on an airline recently and I commented on this and over

336
00:15:58.934 --> 00:16:00.901
the PA system and this is driven into people's ears hundreds of

337
00:16:00.901 --> 00:16:02.901
thousands of times --

338
00:16:02.901 --> 00:16:04.868
Yes.

339
00:16:04.868 --> 00:16:06.868
-- by someone who is hired to

340
00:16:06.868 --> 00:16:08.701
communicate, "The rules of the FAA require that your baggage is

341
00:16:08.701 --> 00:16:10.567
under the seat."

342
00:16:10.567 --> 00:16:12.400
Is under the seat.

343
00:16:12.400 --> 00:16:14.267
Is unde the seat, I mean it tears me

344
00:16:14.267 --> 00:16:16.100
up. That's what -- that's what --

345
00:16:16.100 --> 00:16:18.767
If you raise -- if you raise your hand and say

346
00:16:18.767 --> 00:16:21.033
Pardon me, if I may.

347
00:16:21.033 --> 00:16:23.434
That is what a snoot is and Brian is a

348
00:16:23.434 --> 00:16:26.200
snoot and I am a snoot.

349
00:16:26.200 --> 00:16:29.133
Yes.

350
00:16:29.133 --> 00:16:31.968
That's how we got together.

351
00:16:31.968 --> 00:16:34.834
Yes what is it about the two of you?

352
00:16:34.834 --> 00:16:38.501
I mean -- I mean why does this collaboration work?

353
00:16:38.501 --> 00:16:41.934
Oh, I don't know.

354
00:16:41.934 --> 00:16:44.767
Both -- because we both have this -- this respect for

355
00:16:44.767 --> 00:16:47.400
language; his strengths are not mine, and mine are not his.

356
00:16:47.400 --> 00:16:50.300
Portions of the book you can tell are Brian's.

357
00:16:50.300 --> 00:16:52.901
Right.

358
00:16:52.901 --> 00:16:56.133
Portion are mine.

359
00:16:56.133 --> 00:16:58.901
Most of it I think you can't tell who, because we really did

360
00:16:58.901 --> 00:17:01.267
collaborate on the whole thing.

361
00:17:01.267 --> 00:17:03.634
He reviewed mine and I reviewed his, but, no, it was a very

362
00:17:03.634 --> 00:17:06.033
happy collaboration.

363
00:17:06.033 --> 00:17:08.400
You probably have never bought

364
00:17:08.400 --> 00:17:10.767
into any idea that

365
00:17:10.767 --> 00:17:13.167
that a judge is influenced by what he had

366
00:17:13.167 --> 00:17:16.968
for breakfast? Behavioralism?

367
00:17:16.968 --> 00:17:20.133
No.

368
00:17:20.133 --> 00:17:22.868
I -- judges make mistakes.

369
00:17:22.868 --> 00:17:25.167
I am prepared to believe that some judge was affected by what

370
00:17:25.167 --> 00:17:27.367
he had for breakfast.

371
00:17:27.367 --> 00:17:30.367
But I am not prepared --

372
00:17:30.367 --> 00:17:31.834
-- in his life or whatever.

373
00:17:31.834 --> 00:17:33.334
Yes I a just not prepared

374
00:17:33.334 --> 00:17:34.834
to say that --

375
00:17:34.834 --> 00:17:36.634
that's OK.

376
00:17:36.634 --> 00:17:38.234
Yes exactly.

377
00:17:38.234 --> 00:17:39.934
You will accept that it could happen but it's not OK?

378
00:17:39.934 --> 00:17:41.734
It's no OK.

379
00:17:41.734 --> 00:17:43.834
OK.

380
00:17:43.834 --> 00:17:46.267
And that is one of the -- one of the

381
00:17:46.267 --> 00:17:49.133
evils of the evolving Constitution, you see, in the --

382
00:17:49.133 --> 00:17:51.767
in the bad old days.

383
00:17:51.767 --> 00:17:53.968
It wasn't that the judges didn't distort the Constitution.

384
00:17:53.968 --> 00:17:56.434
Oh, they distorted it a lo including the Supreme Court.

385
00:17:56.434 --> 00:17:59.367
Distorted the Constitution?

386
00:17:59.367 --> 00:18:01.834
Yes.

387
00:18:01.834 --> 00:18:04.067
Made it say things that it didn't say.

388
00:18:04.067 --> 00:18:06.267
But in the bad old days, they did it the good old-fashioned

389
00:18:06.267 --> 00:18:08.701
honest way.

390
00:18:08.701 --> 00:18:10.801
They lied about it.

391
00:18:10.801 --> 00:18:12.934
And today you don't have to lie anymore.

392
00:18:12.934 --> 00:18:15.334
If you believe in evolving Constitution, oh, yes it used to

393
00:18:15.334 --> 00:18:17.934
mean that.

394
00:18:17.934 --> 00:18:20.300
When it was written it did mean that but it is a new age and

395
00:18:20.300 --> 00:18:22.367
it's up to us to -- to get the Constitution up to date.

396
00:18:22.367 --> 00:18:24.400
If I said to you the Constitution is what the

397
00:18:24.400 --> 00:18:27.367
Supreme Court says it is --

398
00:18:27.367 --> 00:18:30.467
Right.

399
00:18:30.467 --> 00:18:33.334
What would you think of that?

400
00:18:33.334 --> 00:18:36.968
I would say that's the usual rule for

401
00:18:36.968 --> 00:18:40.400
political accommodation in our society.

402
00:18:40.400 --> 00:18:43.234
I wouldn't say it is the invariable rule.

403
00:18:43.234 --> 00:18:45.601
My -- my authority to interpret the Constitution is no different

404
00:18:45.601 --> 00:18:47.868
than the authority of the president or of

405
00:18:47.868 --> 00:18:49.767
the members of Congress.

406
00:18:49.767 --> 00:18:51.667
We ought --

407
00:18:51.667 --> 00:18:53.534
The three branches of government.

408
00:18:53.534 --> 00:18:55.434
We all take the same

409
00:18:55.434 --> 00:18:57.334
oath to uphold and

410
00:18:57.334 --> 00:18:59.667
defend the Constitution.

411
00:18:59.667 --> 00:19:01.934
Now in normal times, we are better because it

412
00:19:01.934 --> 00:19:03.934
is a lawyer's document.

413
00:19:03.934 --> 00:19:06.400
The job is interpreting the text.

414
00:19:06.400 --> 00:19:10.167
Lawyers are good at interpreting texts.

415
00:19:10.167 --> 00:19:13.934
That's what lawyers do.

416
00:19:13.934 --> 00:19:17.634
So in normal times the Supreme Court will be deferred to.

417
00:19:17.634 --> 00:19:20.934
But, I -- you know, I -- I don't think it is unthinkable

418
00:19:20.934 --> 00:19:24.968
that a president would say, well that's what the Supreme Court

419
00:19:24.968 --> 00:19:28.234
says but I don't think the Constitution means that, and I

420
00:19:28.234 --> 00:19:31.634
am not going to accept it, which indeed Lincoln did.

421
00:19:31.634 --> 00:19:34.701
Lincoln was a good lawyer, and he simply ignored some opinions

422
00:19:34.701 --> 00:19:37.501
of the Supreme Court.

423
00:19:37.501 --> 00:19:40.701
Because of the stress of wartime?

424
00:19:40.701 --> 00:19:43.367
That wa part of it, yes.

425
00:19:43.367 --> 00:19:46.834
Habeas corpus?

426
00:19:46.834 --> 00:19:50.667


427
00:19:50.667 --> 00:19:54.100
Habeas corpus. Yes.

428
00:19:54.100 --> 00:19:57.667
And well, Dred Scott, yes, he said -- he said he would be

429
00:19:57.667 --> 00:20:01.033
willing to -- he would obey the court in that case, Dred Scott

430
00:20:01.033 --> 00:20:04.801
had to be returned to his master.

431
00:20:04.801 --> 00:20:07.901
But he said I do not have to accept the interpretation of the

432
00:20:07.901 --> 00:20:10.801
Constitution with regard to future cases.

433
00:20:10.801 --> 00:20:13.734
And I -- I do not believe that the rule of Dred Scott is the

434
00:20:13.734 --> 00:20:16.667
law of the land.

435
00:20:16.667 --> 00:20:19.567
Do you feel like you are

436
00:20:19.567 --> 00:20:22.501
crying in the wilderness

437
00:20:22.501 --> 00:20:26.534
and losing the argument?

438
00:20:26.534 --> 00:20:29.801
I canno let myself think such.

439
00:20:29.801 --> 00:20:32.767
Sometimes you feel like Frodo in the "Lord of the Rings".

440
00:20:32.767 --> 00:20:37.767
Frodo soldiering on, soldiering on and knowing --

441
00:20:37.767 --> 00:20:39.801
That's how you see it.

442
00:20:39.801 --> 00:20:42.000
You can't -- you can't -- you don't want to accept that?

443
00:20:42.000 --> 00:20:43.934
No.

444
00:20:43.934 --> 00:20:45.868
And -- and -- and I don't think it is true, moreover.

445
00:20:45.868 --> 00:20:47.567
Justice Souter who used to sit with you, do you

446
00:20:47.567 --> 00:20:49.100
remember him?

447
00:20:49.100 --> 00:20:50.634
Oh, ver fondly.

448
00:20:50.634 --> 00:20:52.167
I miss him.

449
00:20:52.167 --> 00:20:53.701
Really?

450
00:20:53.701 --> 00:20:55.234
He sat next to me the

451
00:20:55.234 --> 00:20:56.767
whole time of his

452
00:20:56.767 --> 00:20:59.667
tenure here.

453
00:20:59.667 --> 00:21:02.467
You were so surprised with the people who

454
00:21:02.467 --> 00:21:05.200
appointed him as you know.

455
00:21:05.200 --> 00:21:07.868
This is unusual.

456
00:21:07.868 --> 00:21:10.801
There are so many justices who were --

457
00:21:10.801 --> 00:21:13.267
But you didn't surprise Ronald Reagan.

458
00:21:13.267 --> 00:21:15.601
Probabl not.

459
00:21:15.601 --> 00:21:18.367
You surprised anybody you confirmed by 100

460
00:21:18.367 --> 00:21:20.667
votes --

461
00:21:20.667 --> 00:21:23.934
No really technically 98.

462
00:21:23.934 --> 00:21:26.834


463
00:21:26.834 --> 00:21:29.534
Barry Goldwater and Jake -- were not present.

464
00:21:29.534 --> 00:21:31.734


465
00:21:31.734 --> 00:21:33.901
Probably.

466
00:21:33.901 --> 00:21:36.100
Yes of course they would.

467
00:21:36.100 --> 00:21:38.267
But you know that was -- that was,

468
00:21:38.267 --> 00:21:40.634
what, BB -- before Borg.

469
00:21:40.634 --> 00:21:42.968
Yes exactly.

470
00:21:42.968 --> 00:21:44.934
And things have changed.

471
00:21:44.934 --> 00:21:46.934
Do you think we'll get back to before Borg and

472
00:21:46.934 --> 00:21:48.934
do you bemoan that with great pain?

473
00:21:48.934 --> 00:21:50.901
We will get back to

474
00:21:50.901 --> 00:21:52.901
that -- if and when

475
00:21:52.901 --> 00:21:56.000
-- if and when the Supreme Court gets off the evolving

476
00:21:56.000 --> 00:21:59.234
Constitution notion.

477
00:21:59.234 --> 00:22:02.434
Look, the Supreme Court gets off the rolling

478
00:22:02.434 --> 00:22:05.100
Constitution notion -- I mean I hear you saying the problem with

479
00:22:05.100 --> 00:22:07.667
the Supreme Court is that the living document has -- has force

480
00:22:07.667 --> 00:22:10.300
and have legs and people believe in it, that's the problem with

481
00:22:10.300 --> 00:22:12.501
this court.

482
00:22:12.501 --> 00:22:14.667
It is a seductive -- it's a seductive

483
00:22:14.667 --> 00:22:16.801
philosophy that the Constitution means whatever I

484
00:22:16.801 --> 00:22:18.968
care passionately about.

485
00:22:18.968 --> 00:22:20.934
If I care passionately about it is in there.

486
00:22:20.934 --> 00:22:22.834
That's not what Justice Breyer would say.

487
00:22:22.834 --> 00:22:24.501
Well he wouldn't say that.

488
00:22:24.501 --> 00:22:26.267
Of course not.

489
00:22:26.267 --> 00:22:29.767
Do you think he believes that?

490
00:22:29.767 --> 00:22:31.934
That ish the

491
00:22:31.934 --> 00:22:33.834
attraction of that philosophy.

492
00:22:33.834 --> 00:22:36.334
Whatever you care passionately about is in the Constitution.

493
00:22:36.334 --> 00:22:39.133
The justices believe that and the people have

494
00:22:39.133 --> 00:22:42.133
come to believe it.

495
00:22:42.133 --> 00:22:45.133
It is a hard job to call them back to a much more modest

496
00:22:45.133 --> 00:22:47.934
approach which is it says what it says.

497
00:22:47.934 --> 00:22:50.601
And if you don't like it, adopt an amendment.

498
00:22:50.601 --> 00:22:53.767
And he -- for most changes yo don't need an amendment.

499
00:22:53.767 --> 00:22:57.300
The death penalty, for example, you don't have to amend the

500
00:22:57.300 --> 00:23:01.000
Constitution if the American people really have set their

501
00:23:01.000 --> 00:23:04.634
face against the death penalty, just abolish it state by state.

502
00:23:04.634 --> 00:23:07.667
Or suicide, you know we had a case involving whether it -- it

503
00:23:07.667 --> 00:23:10.234
violated the Constitution to prohibit suicide.

504
00:23:10.234 --> 00:23:12.367
And we said we are not yet prepared to hold that.

505
00:23:12.367 --> 00:23:14.267
That's what we said.

506
00:23:14.267 --> 00:23:17.968
Stay tuned --

507
00:23:17.968 --> 00:23:19.601
Right.

508
00:23:19.601 --> 00:23:21.434
-- in the fullness of time we will --

509
00:23:21.434 --> 00:23:23.100
may change our mind.

510
00:23:23.100 --> 00:23:24.834
You don't need us to say.

511
00:23:24.834 --> 00:23:26.367
If the American people want to allow suicide they can do what

512
00:23:26.367 --> 00:23:28.534
Oregon did.

513
00:23:28.534 --> 00:23:30.400
I think Washington has done it too.

514
00:23:30.400 --> 00:23:32.634
Simply allow it by statute.

515
00:23:32.634 --> 00:23:34.567
That's the -- that's the system that you like

516
00:23:34.567 --> 00:23:36.267
to see?

517
00:23:36.267 --> 00:23:38.033
The point is not that I

518
00:23:38.033 --> 00:23:39.601
like to see it.

519
00:23:39.601 --> 00:23:40.901
Yes.

520
00:23:40.901 --> 00:23:42.200
It's the system we thought we had.

521
00:23:42.200 --> 00:23:43.467
Yes.

522
00:23:43.467 --> 00:23:44.767
But to come back to

523
00:23:44.767 --> 00:23:46.067
your question about

524
00:23:46.067 --> 00:23:47.868
-- about whether the confirmation process

525
00:23:47.868 --> 00:23:50.133
is going to change.

526
00:23:50.133 --> 00:23:52.901
Yes.

527
00:23:52.901 --> 00:23:55.501
I think it took the American people 30

528
00:23:55.501 --> 00:23:58.234
years to figure out what was going on, all of this evolving

529
00:23:58.234 --> 00:24:01.601
Constitution stuff begins with the war in court, in force with

530
00:24:01.601 --> 00:24:05.267
the war in court.

531
00:24:05.267 --> 00:24:08.834
And once the American people figured out what was going on,

532
00:24:08.834 --> 00:24:12.100
the court was revising the Constitution term by term, well,

533
00:24:12.100 --> 00:24:15.534
my goodness, the old criteria for selecting justices and even

534
00:24:15.534 --> 00:24:19.467
lower court judges, they are not -- not very bad.

535
00:24:19.467 --> 00:24:23.100
Well, it's nice, if he is a good lawyer, nice if he can read a

536
00:24:23.100 --> 00:24:26.400
text but the most important question is will -- will this --

537
00:24:26.400 --> 00:24:29.901
will this person write the new Constitution that I like?

538
00:24:29.901 --> 00:24:32.934
That's what the Borg hearing was all about and that's what all

539
00:24:32.934 --> 00:24:35.801
the hearings since have been about, you know.

540
00:24:35.801 --> 00:24:38.234
Judge so and so, well you think there is a right to x, y?

541
00:24:38.234 --> 00:24:40.534
You don't?

542
00:24:40.534 --> 00:24:45.567
Well, I think it is there and my constituents do.

543
00:24:45.567 --> 00:24:47.767
So what would be an ideal system for this and

544
00:24:47.767 --> 00:24:50.534
what should be the questions about an appointee, a nominee to

545
00:24:50.534 --> 00:24:53.734
the Supreme Court?

546
00:24:53.734 --> 00:24:56.501
Currently?

547
00:24:56.501 --> 00:24:59.667
That's exactly the question, as much as I dislike the spectacle

548
00:24:59.667 --> 00:25:02.701
of -- of confirmation hearings now, I prefer

549
00:25:02.701 --> 00:25:06.033
them to the alternative.

550
00:25:06.033 --> 00:25:08.767
As long as the court is revising the Constitution, by God, the

551
00:25:08.767 --> 00:25:11.300
people ought to have some say and they ought to be able to

552
00:25:11.300 --> 00:25:13.767
ask the nominee, you know, what kind of a Constitution are you

553
00:25:13.767 --> 00:25:16.367
going to give us?

554
00:25:16.367 --> 00:25:19.267
That's the most important question.

555
00:25:19.267 --> 00:25:21.701
Why shouldn't they be able to ask that?

556
00:25:21.701 --> 00:25:24.033
So you know, I don't like it, I would like to go back to the old

557
00:25:24.033 --> 00:25:26.868
system, but not -- not if the Supreme Court is -- is rewriting

558
00:25:26.868 --> 00:25:29.267
the document.

559
00:25:29.267 --> 00:25:32.200
You talked about your affection for Justice

560
00:25:32.200 --> 00:25:35.300
Souter he said originalism has only a tenuous

561
00:25:35.300 --> 00:25:37.901
connection to reality.

562
00:25:37.901 --> 00:25:40.067
He has way with words David is a very

563
00:25:40.067 --> 00:25:42.200
good writer.

564
00:25:42.200 --> 00:25:46.367
Well I --

565
00:25:46.367 --> 00:25:48.167
A tenuous connection to reality.

566
00:25:48.167 --> 00:25:50.033
I don't know what he means by that.

567
00:25:50.033 --> 00:25:52.767
You know a lot more about what he

568
00:25:52.767 --> 00:25:55.868
means than I do.

569
00:25:55.868 --> 00:25:59.000
OK, so we are both at sea.

570
00:25:59.000 --> 00:26:01.968
If what he means is -- a tenuous connection to what --

571
00:26:01.968 --> 00:26:04.534
what rules ought to govern modern society, if that's what

572
00:26:04.534 --> 00:26:07.067
he means by reality, it may well be.

573
00:26:07.067 --> 00:26:09.467
He also said originalism would have led the

574
00:26:09.467 --> 00:26:11.801
court in 1954, in 1954.

575
00:26:11.801 --> 00:26:13.801
I know what you are coming with.

576
00:26:13.801 --> 00:26:15.934
Let me finish it --

577
00:26:15.934 --> 00:26:17.801
The bloody red shirt of Brown v.

578
00:26:17.801 --> 00:26:19.467
Board of Education.

579
00:26:19.467 --> 00:26:21.100
Exactly -- would have led the court in 1954 to

580
00:26:21.100 --> 00:26:23.767
affirm --

581
00:26:23.767 --> 00:26:26.000
Right.

582
00:26:26.000 --> 00:26:27.934
In 1896 Plessy v.

583
00:26:27.934 --> 00:26:29.868
Ferguson ruling of separate but equal instead of its decision

584
00:26:29.868 --> 00:26:32.634
in Brown v.

585
00:26:32.634 --> 00:26:35.501
Board of Education.

586
00:26:35.501 --> 00:26:38.767
Two answers.

587
00:26:38.767 --> 00:26:42.334
Number one, the first Justice Harlin dissented in Plessy v.

588
00:26:42.334 --> 00:26:45.901
Ferguson and I think I would have been with him in the

589
00:26:45.901 --> 00:26:49.501
dissent because as a textualist -- as a textualist and I have a

590
00:26:49.501 --> 00:26:52.968
provision saying a state cannot deny equal protection of the

591
00:26:52.968 --> 00:26:56.367
laws and here you have a -- well, a Mississippi law or

592
00:26:56.367 --> 00:26:59.434
Louisiana law, Louisiana law which -- which required all --

593
00:26:59.434 --> 00:27:02.234
all blacks to ride in a separate car?

594
00:27:02.234 --> 00:27:04.834
I think I would have agreed with him.

595
00:27:04.834 --> 00:27:07.033
That's the less important answer.

596
00:27:07.033 --> 00:27:09.167
The more important answer is?

597
00:27:09.167 --> 00:27:11.701
So what?

598
00:27:11.701 --> 00:27:14.734
So what?

599
00:27:14.734 --> 00:27:17.834
So what?

600
00:27:17.834 --> 00:27:20.501
I will stipulate, I will stipulate that you can do some

601
00:27:20.501 --> 00:27:22.767
things with an evolving Constitution that you can't do

602
00:27:22.767 --> 00:27:25.000
with fidelity to the original Constitution

603
00:27:25.000 --> 00:27:30.167
that the people ratified. OK?

604
00:27:30.167 --> 00:27:33.033
I will also stipulate that kings can do stuff that -- good

605
00:27:33.033 --> 00:27:35.634
stuff that a democratic society could never achieve.

606
00:27:35.634 --> 00:27:38.667
That -- that Hitler produced a marvelous automobile and

607
00:27:38.667 --> 00:27:41.234
Mussolini made the trains run on time.

608
00:27:41.234 --> 00:27:43.834
So what?

609
00:27:43.834 --> 00:27:46.267
That doesn't demonstrate what -- what's a proper interpretation

610
00:27:46.267 --> 00:27:48.634
of a Constitution.

611
00:27:48.634 --> 00:27:50.868
Or as Churchill said democracy --

612
00:27:50.868 --> 00:27:52.801
That's right.

613
00:27:52.801 --> 00:27:54.767
-- is better than everything else.

614
00:27:54.767 --> 00:27:56.734
It maybe the worst system but it's better

615
00:27:56.734 --> 00:27:58.701
than everything else.

616
00:27:58.701 --> 00:28:00.501
That's it.

617
00:28:00.501 --> 00:28:02.367
No, I mean -- look, I don't have to prove that textualism is

618
00:28:02.367 --> 00:28:04.467
perfect, I just have to prove that it's better

619
00:28:04.467 --> 00:28:06.767
than anything else.

620
00:28:06.767 --> 00:28:09.100
And I think it is better than the system in which --

621
00:28:09.100 --> 00:28:12.701
You have not changed one iota on this in

622
00:28:12.701 --> 00:28:15.701
terms as you have listened to people who have wanted to

623
00:28:15.701 --> 00:28:18.601
convince you otherwise?

624
00:28:18.601 --> 00:28:22.000
You know, that somehow at some point and in some cases it has

625
00:28:22.000 --> 00:28:25.000
to be a living document?

626
00:28:25.000 --> 00:28:28.534
No.

627
00:28:28.534 --> 00:28:32.200
The main thing is what is valid?

628
00:28:32.200 --> 00:28:35.801
What is valid?

629
00:28:35.801 --> 00:28:39.000
And the only power that I have is to apply the Constitution.

630
00:28:39.000 --> 00:28:41.167
I was not given the power to amend the Constitution.

631
00:28:41.167 --> 00:28:43.334
I just wasn't given that, an it is a real distortion of

632
00:28:43.334 --> 00:28:45.534
democracy to have a --

633
00:28:45.534 --> 00:28:47.701
By definition you are amending the

634
00:28:47.701 --> 00:28:49.868
Constitution if

635
00:28:49.868 --> 00:28:51.634
you interpret it?

636
00:28:51.634 --> 00:28:53.367
If you give it a meaning that it did

637
00:28:53.367 --> 00:28:55.133
not have when the people ratified it.

638
00:28:55.133 --> 00:28:56.901
You are doing what is the

639
00:28:56.901 --> 00:28:58.667
legislature's work which

640
00:28:58.667 --> 00:29:00.734
is amending the Constitution?

641
00:29:00.734 --> 00:29:02.801
Or the people's work.

642
00:29:02.801 --> 00:29:04.834
The people's, of course, the people's work.

643
00:29:04.834 --> 00:29:06.868
Now, that doesn't mean that a

644
00:29:06.868 --> 00:29:08.901
constitution cannot accommodate change.

645
00:29:08.901 --> 00:29:10.901
Of course, it can accommodate change.

646
00:29:10.901 --> 00:29:12.667
How can it accommodate change?

647
00:29:12.667 --> 00:29:14.501
The First Amendment applies the way

648
00:29:14.501 --> 00:29:16.334
it did to phenomena at the time.

649
00:29:16.334 --> 00:29:18.000
Right.

650
00:29:18.000 --> 00:29:19.667
For example, one of the --

651
00:29:19.667 --> 00:29:21.334
It applied to the Internet.

652
00:29:21.334 --> 00:29:22.968
One of the

653
00:29:22.968 --> 00:29:24.634
evolutionary provisions that

654
00:29:24.634 --> 00:29:31.167
I abhor is New York Times v. Sullivan.

655
00:29:31.167 --> 00:29:33.734
It may indeed be a very good system that you can libel

656
00:29:33.734 --> 00:29:36.734
public figures at will so long as somebody told you something,

657
00:29:36.734 --> 00:29:39.234
some reliable person told you the lie.

658
00:29:39.234 --> 00:29:41.834
Right.

659
00:29:41.834 --> 00:29:44.067
That yo then publicize

660
00:29:44.067 --> 00:29:46.000
to the whole world.

661
00:29:46.000 --> 00:29:47.934
That's what the New York Times v.

662
00:29:47.934 --> 00:29:49.868
Sullivan says --

663
00:29:49.868 --> 00:29:51.834
Right, right.

664
00:29:51.834 --> 00:29:53.801
That may well be a good system and the

665
00:29:53.801 --> 00:29:55.534
people of New York State could have adopted that -- by all.

666
00:29:55.534 --> 00:29:57.701
But for the Supreme Court to say that the Constitution

667
00:29:57.701 --> 00:30:00.133
requires that, that is not what the people understood when they

668
00:30:00.133 --> 00:30:02.267
ratified the First Amendment.

669
00:30:02.267 --> 00:30:04.834
Nobody thought that libel, even libel of public figures, was

670
00:30:04.834 --> 00:30:07.901
permitted, was sanctioned by the First Amendment.

671
00:30:07.901 --> 00:30:11.267
Where did that come from?

672
00:30:11.267 --> 00:30:14.300
Who told -- who told Earl Warren and the Supreme Court

673
00:30:14.300 --> 00:30:16.567
that what had been accepted libel law for a couple of

674
00:30:16.567 --> 00:30:18.868
hundred years was no longer --

675
00:30:18.868 --> 00:30:21.133
Why do you think the court ruled that way?

676
00:30:21.133 --> 00:30:23.434
Because I think they

677
00:30:23.434 --> 00:30:25.701
thought -- and they

678
00:30:25.701 --> 00:30:28.434
may well have been right that it would provide for a more

679
00:30:28.434 --> 00:30:30.968
robust political discussion and what not.

680
00:30:30.968 --> 00:30:33.367
Right.

681
00:30:33.367 --> 00:30:35.501
And people on the other side would find it in the

682
00:30:35.501 --> 00:30:38.067
Constitution because they believed it is right?

683
00:30:38.067 --> 00:30:40.534
The issue is who decides?

684
00:30:40.534 --> 00:30:43.267
Who decides what is right?

685
00:30:43.267 --> 00:30:45.834
And it is the people.

686
00:30:45.834 --> 00:30:48.434
The background rule is democracy.

687
00:30:48.434 --> 00:30:51.501
And the rule of democracy is "the majority rules".

688
00:30:51.501 --> 00:30:55.334
Now there are some exceptions to that.

689
00:30:55.334 --> 00:30:59.534
In a liberal democracy, most of them are in the bill of rights.

690
00:30:59.534 --> 00:31:02.968
The majority won't rule about religion, speech and so forth.

691
00:31:02.968 --> 00:31:06.033
But once you -- once you depart from that rule and have a very

692
00:31:06.033 --> 00:31:09.067
elite segment of society deciding what ought to be, that

693
00:31:09.067 --> 00:31:11.901
is just not --

694
00:31:11.901 --> 00:31:14.300
This has a tenuous connection to what we are

695
00:31:14.300 --> 00:31:16.701
talking about but suppose we find our self election after

696
00:31:16.701 --> 00:31:19.467
election someone winning the Electoral College and not the

697
00:31:19.467 --> 00:31:22.100
popular vote?

698
00:31:22.100 --> 00:31:24.801
Would that bother you?

699
00:31:24.801 --> 00:31:28.067
Yes.

700
00:31:28.067 --> 00:31:30.968
I suppose it would bother me and certainly consider a

701
00:31:30.968 --> 00:31:34.367
constitutional amendment if it happens all the time, yes.

702
00:31:34.367 --> 00:31:37.868
But I would not -- I would not feel authorized to announce that

703
00:31:37.868 --> 00:31:41.901
the Constitution has now changed.

704
00:31:41.901 --> 00:31:45.434
Does the court -- does the court that you know

705
00:31:45.434 --> 00:31:48.834
read the paper?

706
00:31:48.834 --> 00:31:51.934
Does it understand the political dynamic of the moment?

707
00:31:51.934 --> 00:31:54.734
I don't know.

708
00:31:54.734 --> 00:31:57.434
I would have to ask each -- I think so.

709
00:31:57.434 --> 00:32:00.267
Does it affect you?

710
00:32:00.267 --> 00:32:03.167
I hope not.

711
00:32:03.167 --> 00:32:05.868
But is it possible that you --

712
00:32:05.868 --> 00:32:08.167
No, I wouldn't be as unpopular a

713
00:32:08.167 --> 00:32:10.367
person as I am if I let it affect me.

714
00:32:10.367 --> 00:32:13.567
You think you are unpopular because of protests

715
00:32:13.567 --> 00:32:16.200
here and there?

716
00:32:16.200 --> 00:32:18.434
Well, yes.

717
00:32:18.434 --> 00:32:20.601
When you want to designate a bete noir -- on the Supreme

718
00:32:20.601 --> 00:32:22.734
Court --

719
00:32:22.734 --> 00:32:24.567
You are the --

720
00:32:24.567 --> 00:32:26.467
I am the bete noir.

721
00:32:26.467 --> 00:32:28.367
You are there for them, aren't you?

722
00:32:28.367 --> 00:32:30.167
Yes.

723
00:32:30.167 --> 00:32:32.000
Why do you think that is?

724
00:32:32.000 --> 00:32:33.601
I mean you have a great charming personality.

725
00:32:33.601 --> 00:32:35.934
I am.

726
00:32:35.934 --> 00:32:38.501
I think I'm a pretty nice fellow.

727
00:32:38.501 --> 00:32:40.901
Yes, you are.

728
00:32:40.901 --> 00:32:43.400
I mean you have friend across all aisles, you and Ruth Bader

729
00:32:43.400 --> 00:32:46.033
Ginsburg are great friends and other people say nice things

730
00:32:46.033 --> 00:32:48.467
about you.

731
00:32:48.467 --> 00:32:50.801
But you're the - - you are.

732
00:32:50.801 --> 00:32:53.067
You are the guy they look and say -- you stand in the way.

733
00:32:53.067 --> 00:32:55.267
That's right.

734
00:32:55.267 --> 00:32:57.400
They want the forward march of history.

735
00:32:57.400 --> 00:32:59.501
That's right.

736
00:32:59.501 --> 00:33:01.601
And justice and --

737
00:33:01.601 --> 00:33:03.501
I think it's simply because --

738
00:33:03.501 --> 00:33:05.968
That's the way they see you.

739
00:33:05.968 --> 00:33:08.100
I think it is simply because of the

740
00:33:08.100 --> 00:33:10.534
consistency of my --

741
00:33:10.534 --> 00:33:12.801
Do you take some pride in that, though?

742
00:33:12.801 --> 00:33:14.934
I bet you do.

743
00:33:14.934 --> 00:33:17.033
A man who has made no enemies is

744
00:33:17.033 --> 00:33:19.133
probably not a very good man.

745
00:33:19.133 --> 00:33:21.234
Or was it Franklin Roosevelt who

746
00:33:21.234 --> 00:33:23.367
said I am proud of

747
00:33:23.367 --> 00:33:26.133
every enemy I have or something like that in a

748
00:33:26.133 --> 00:33:28.534
speech that he made?

749
00:33:28.534 --> 00:33:30.634
My favorite line was Lyndon Johnson

750
00:33:30.634 --> 00:33:33.901
who said every time he appoints a new -- a judge, he makes one

751
00:33:33.901 --> 00:33:37.868
ingrate and three enemies.

752
00:33:37.868 --> 00:33:41.567
That's right.

753
00:33:41.567 --> 00:33:44.701
When you look at the court today, not forward looking I

754
00:33:44.701 --> 00:33:47.567
know that is out of bounds for anything we might talk about,

755
00:33:47.567 --> 00:33:50.200
what has been the toughest decision for you since you have

756
00:33:50.200 --> 00:33:52.968
been sitting here?

757
00:33:52.968 --> 00:33:56.734
Just explain to me for a second.

758
00:33:56.734 --> 00:34:00.901
Is there an easy way to explain why patent law is hard for you?

759
00:34:00.901 --> 00:34:04.767
Well, because you are dealing with

760
00:34:04.767 --> 00:34:08.400
concepts that are not well-defined in the law, that

761
00:34:08.400 --> 00:34:11.534
have a long tradition and you are applying it to all sorts of

762
00:34:11.534 --> 00:34:14.133
new inventions that, you know, the Internet and stuff like

763
00:34:14.133 --> 00:34:16.334
that, it is very complicated.

764
00:34:16.334 --> 00:34:18.501
I am not an engineer.

765
00:34:18.501 --> 00:34:25.868
No. Really?

766
00:34:25.868 --> 00:34:29.267
You never thought about it, did you?

767
00:34:29.267 --> 00:34:32.100
Now, if you want to say, what was the

768
00:34:32.100 --> 00:34:34.701
hardest case not in terms of figuring out the right answer --

769
00:34:34.701 --> 00:34:37.400
Or even the consequence.

770
00:34:37.400 --> 00:34:40.934
What was hard --

771
00:34:40.934 --> 00:34:46.167
Yes, the consequence.

772
00:34:46.167 --> 00:34:50.868
I remember it was pretty early on in my time on this court, we

773
00:34:50.868 --> 00:34:55.000
had a case in which a very wealthy rancher and his wife

774
00:34:55.000 --> 00:34:58.834
had adopted a child of a young man and woman on an Indian

775
00:34:58.834 --> 00:35:03.067
reservation who had the child out of wedlock.

776
00:35:03.067 --> 00:35:07.267
And they gave it -- they gave the child to the ranch and

777
00:35:07.267 --> 00:35:11.934
raised -- the kid was I think five years or so by now.

778
00:35:11.934 --> 00:35:16.667
And the tribal council demanded the child be taken out of that

779
00:35:16.667 --> 00:35:21.334
family where the rich rancher is giving him all the benefits

780
00:35:21.334 --> 00:35:25.968
because there was a federal statute which said that no child

781
00:35:25.968 --> 00:35:30.067
of reservation Indians could be adopted by someone off the

782
00:35:30.067 --> 00:35:33.634
reservation without the consent of the tribal council and we

783
00:35:33.634 --> 00:35:37.200
had to turn that child over to the tribal council.

784
00:35:37.200 --> 00:35:40.167
I found that very hard.

785
00:35:40.167 --> 00:35:42.734
But that is what the law said without a doubt.

786
00:35:42.734 --> 00:35:46.334
How about the ruling on Obama care as we know

787
00:35:46.334 --> 00:35:49.801
it today?

788
00:35:49.801 --> 00:35:52.701
Was that hard?

789
00:35:52.701 --> 00:35:55.601
It was hard in one respect.

790
00:35:55.601 --> 00:35:58.167
I think the hard question was the commerce clause question.

791
00:35:58.167 --> 00:36:00.634
Right.

792
00:36:00.634 --> 00:36:03.267
I don't think the tax question was a

793
00:36:03.267 --> 00:36:06.834
hard question.

794
00:36:06.834 --> 00:36:10.100
The commerce clause question I think was hard.

795
00:36:10.100 --> 00:36:13.701
I could have seen that coming out the other way.

796
00:36:13.701 --> 00:36:16.667
But to be in the majority on that, but lose on the tax

797
00:36:16.667 --> 00:36:19.501
question, I would never have guessed.

798
00:36:19.501 --> 00:36:21.968
I mean I was totally surprised by the tax

799
00:36:21.968 --> 00:36:24.400
aspect of it.

800
00:36:24.400 --> 00:36:26.868
Tell me about it.

801
00:36:26.868 --> 00:36:29.300
I presume you have -- it came out

802
00:36:29.300 --> 00:36:31.734
of left field for

803
00:36:31.734 --> 00:36:34.501
people, didn't it.

804
00:36:34.501 --> 00:36:37.167
Or right field -- which was it?

805
00:36:37.167 --> 00:36:39.400
And it was a tax for one purpose but

806
00:36:39.400 --> 00:36:41.634
not for another purpose.

807
00:36:41.634 --> 00:36:43.567
Anyway, water over the dam.

808
00:36:43.567 --> 00:36:45.634
I know you always say that.

809
00:36:45.634 --> 00:36:47.767
You sort of said to people

810
00:36:47.767 --> 00:36:49.968
about Bush v. Gore.

811
00:36:49.968 --> 00:36:51.868
Get over it, get over it, you know.

812
00:36:51.868 --> 00:36:53.567
Yet it decided a presidential election.

813
00:36:53.567 --> 00:36:55.100
The Supreme Court was going to

814
00:36:55.100 --> 00:36:56.734
decide it.

815
00:36:56.734 --> 00:36:59.834
The issue was --

816
00:36:59.834 --> 00:37:01.534
You blame Gore because he brought

817
00:37:01.534 --> 00:37:03.133
the case in Florida.

818
00:37:03.133 --> 00:37:04.868
He brought it.

819
00:37:04.868 --> 00:37:06.634
He wanted judges to decide it so judges decided it.

820
00:37:06.634 --> 00:37:08.234
What could he possibly have?

821
00:37:08.234 --> 00:37:09.767
You have no regret about that, do you?

822
00:37:09.767 --> 00:37:11.334
About that case?

823
00:37:11.334 --> 00:37:12.868
Yes.

824
00:37:12.868 --> 00:37:14.400
Oh, it was an easy

825
00:37:14.400 --> 00:37:15.968
case, it really was.

826
00:37:15.968 --> 00:37:17.968
Why was it so easy?

827
00:37:17.968 --> 00:37:20.300
Look -- on the principle --

828
00:37:20.300 --> 00:37:23.000
You stopped the Florida court.

829
00:37:23.000 --> 00:37:25.434
Did you stop the Florida court in mid-step?

830
00:37:25.434 --> 00:37:28.000
Yes, but on a principled question of

831
00:37:28.000 --> 00:37:30.601
whether the Florida courts violated the Constitution.

832
00:37:30.601 --> 00:37:32.901
The vote was seven to two.

833
00:37:32.901 --> 00:37:34.901
It wasn't even close.

834
00:37:34.901 --> 00:37:36.901
The only issue that was five to four was whether we should put

835
00:37:36.901 --> 00:37:38.968
an end to this nonsense --

836
00:37:38.968 --> 00:37:41.000
Yes.

837
00:37:41.000 --> 00:37:43.067
-- and immediately decide the case or

838
00:37:43.067 --> 00:37:44.834
give them another couple of weeks while the whole world was

839
00:37:44.834 --> 00:37:46.667
laughing at us and we couldn't --

840
00:37:46.667 --> 00:37:48.300
You mean because the country couldn't decide who

841
00:37:48.300 --> 00:37:50.000
was president.

842
00:37:50.000 --> 00:37:51.567
That's right and we

843
00:37:51.567 --> 00:37:53.200
couldn't have a transition.

844
00:37:53.200 --> 00:37:54.701
Yes, but see, that's what people think.

845
00:37:54.701 --> 00:37:56.334
That was a political decision.

846
00:37:56.334 --> 00:37:58.033
That's part of the reason they think it was a political

847
00:37:58.033 --> 00:38:00.067
decision in part.

848
00:38:00.067 --> 00:38:02.400
Not so much -- they think it was a political decision because

849
00:38:02.400 --> 00:38:04.834
the politics of the country made you say we have got to do this

850
00:38:04.834 --> 00:38:07.267
the way we did it in order to get this over with.

851
00:38:07.267 --> 00:38:09.834
The court decided that in the interest of the national -- in

852
00:38:09.834 --> 00:38:12.968
the national interests they have got to get this over with.

853
00:38:12.968 --> 00:38:16.267
The remedy for a case is always

854
00:38:16.267 --> 00:38:19.234
subject to the court's discretion.

855
00:38:19.234 --> 00:38:21.968
And always depends upon the realities on the ground.

856
00:38:21.968 --> 00:38:24.501
Not the law, but what the remedy will be.

857
00:38:24.501 --> 00:38:28.033
Whether you tell them to do it immediately or give them another

858
00:38:28.033 --> 00:38:31.434
two weeks -- that is not an issue of law.

859
00:38:31.434 --> 00:38:34.567
It is an issue of practicality.

860
00:38:34.567 --> 00:38:37.400
How often do you sit there, you and the eight?

861
00:38:37.400 --> 00:38:40.434
You say brethren or brethrens --

862
00:38:40.434 --> 00:38:43.534
Brother and sister.

863
00:38:43.534 --> 00:38:47.067
Is that what they call it.

864
00:38:47.067 --> 00:38:49.968
And you think that the council for the side that you are making

865
00:38:49.968 --> 00:38:53.200
an argument that you think is right is making a bad argument?

866
00:38:53.200 --> 00:38:56.334
What do you do when that is happening?

867
00:38:56.334 --> 00:38:59.167
Hitting a nerve, am I?

868
00:38:59.167 --> 00:39:01.534
Well, no, yes, when I think the --

869
00:39:01.534 --> 00:39:03.567
good points for that side -- for that matter the good points

870
00:39:03.567 --> 00:39:05.601
on the other side are not being --

871
00:39:05.601 --> 00:39:07.634
Oh, really?

872
00:39:07.634 --> 00:39:09.400
In the interest of what?

873
00:39:09.400 --> 00:39:10.968
In the interest of intellectual honesty?

874
00:39:10.968 --> 00:39:12.634
In the interest of having out on the

875
00:39:12.634 --> 00:39:14.400
table, the best arguments.

876
00:39:14.400 --> 00:39:16.200
I mean that's --

877
00:39:16.200 --> 00:39:18.167
That is what you like.

878
00:39:18.167 --> 00:39:20.834
That's why we listen to these guys

879
00:39:20.834 --> 00:39:23.901
because supposedly they know the case better than we do.

880
00:39:23.901 --> 00:39:26.901
They have been living with it, often for years.

881
00:39:26.901 --> 00:39:29.400
And we listen to them because they supposedly know more.

882
00:39:29.400 --> 00:39:31.667
And if somebody displays a fact that he knows less, you know, I

883
00:39:31.667 --> 00:39:34.267
try to intervene and say, well, you know,

884
00:39:34.267 --> 00:39:36.801
what about this argument?

885
00:39:36.801 --> 00:39:39.300
OK.

886
00:39:39.300 --> 00:39:41.968
But suppose, let me present, suppose in fact, you had already

887
00:39:41.968 --> 00:39:45.000
decided that you, you know, having read the briefs you

888
00:39:45.000 --> 00:39:48.267
pretty much knew where you were going to go unless something

889
00:39:48.267 --> 00:39:50.934
surprising happened to change you and you realize that the

890
00:39:50.934 --> 00:39:53.434
person who was trying to make the argument that you believed

891
00:39:53.434 --> 00:39:55.801
in was not doing a very good job of arguing.

892
00:39:55.801 --> 00:39:57.701
I mean what would you do?

893
00:39:57.701 --> 00:39:59.567
Would you try -- how would you do that?

894
00:39:59.567 --> 00:40:01.434
I'm back to your first book, not your second.

895
00:40:01.434 --> 00:40:03.300
Well no my first book

896
00:40:03.300 --> 00:40:05.167
was from the point

897
00:40:05.167 --> 00:40:07.167
of view of the person arguing --

898
00:40:07.167 --> 00:40:08.834
No, I understand that but it was the idea of

899
00:40:08.834 --> 00:40:10.467
argument, yes.

900
00:40:10.467 --> 00:40:12.100
Well, I think --

901
00:40:12.100 --> 00:40:13.734
In other words, do you want to see

902
00:40:13.734 --> 00:40:15.801
your side as you

903
00:40:15.801 --> 00:40:17.901
believe in, because you believe in it, and that counsel is going

904
00:40:17.901 --> 00:40:19.968
to lose?

905
00:40:19.968 --> 00:40:22.033
Well, I don't think I

906
00:40:22.033 --> 00:40:24.567
am unique in this.

907
00:40:24.567 --> 00:40:27.100
I think any judge in that situation will try to get

908
00:40:27.100 --> 00:40:29.634
counsel to make the strongest arguments.

909
00:40:29.634 --> 00:40:32.167
Do you believe the United States is

910
00:40:32.167 --> 00:40:34.701
well served by

911
00:40:34.701 --> 00:40:38.534
the Supreme Court it has?

912
00:40:38.534 --> 00:40:42.634
You know, there is an old line about

913
00:40:42.634 --> 00:40:46.400
the British stiff upper lip, you know the line.

914
00:40:46.400 --> 00:40:49.467
It is the only rule we don't need, you know.

915
00:40:49.467 --> 00:40:52.000
And I could say the same about the Supreme Court, it is the

916
00:40:52.000 --> 00:40:54.167
only Supreme Court we have, you know.

917
00:40:54.167 --> 00:40:56.067
Yes, I think --

918
00:40:56.067 --> 00:40:59.434
Yes? Yes?

919
00:40:59.434 --> 00:41:02.868
Yes. Yes.

920
00:41:02.868 --> 00:41:04.567
In other words, look at the --

921
00:41:04.567 --> 00:41:06.667
You know, given --

922
00:41:06.667 --> 00:41:09.033
Given what?

923
00:41:09.033 --> 00:41:11.667
Given the philosophies of the judges,

924
00:41:11.667 --> 00:41:14.601
I think they are honest men and women and I think they decide

925
00:41:14.601 --> 00:41:17.167
the case fairly and honestly according to their likes.

926
00:41:17.167 --> 00:41:20.033
They ought to have different likes, some of them.

927
00:41:20.033 --> 00:41:22.501
You would say that about the Obama -- healthcare

928
00:41:22.501 --> 00:41:24.834
reform act as well?

929
00:41:24.834 --> 00:41:27.400
Well I dissented in that case.

930
00:41:27.400 --> 00:41:29.601
Yes, you did.

931
00:41:29.601 --> 00:41:32.067
What would you say about the Warren Court?

932
00:41:32.067 --> 00:41:34.501
Was that a time that you believed that the judicial

933
00:41:34.501 --> 00:41:36.801
activism --

934
00:41:36.801 --> 00:41:38.901
That's where it all began, I think.

935
00:41:38.901 --> 00:41:41.200
Why did it begin then?

936
00:41:41.200 --> 00:41:43.701
I don't know why.

937
00:41:43.701 --> 00:41:46.000
It began --

938
00:41:46.000 --> 00:41:48.234
Warren was a very influential person.

939
00:41:48.234 --> 00:41:50.133
He was less a lawyer than he was an executive.

940
00:41:50.133 --> 00:41:52.067
And a politician.

941
00:41:52.067 --> 00:41:54.033
And a politician, yes.

942
00:41:54.033 --> 00:41:56.000
And he had --

943
00:41:56.000 --> 00:41:57.734
And he will probably be judged as one of the

944
00:41:57.734 --> 00:41:59.267
most influential chief justices.

945
00:41:59.267 --> 00:42:00.934
He

946
00:42:00.934 --> 00:42:02.434
probably will. Yes.

947
00:42:02.434 --> 00:42:03.801
He probably will.

948
00:42:03.801 --> 00:42:05.067
Boy that must -- does that hurt?

949
00:42:05.067 --> 00:42:06.434
Yes.

950
00:42:06.434 --> 00:42:07.734
Does that hurt?

951
00:42:07.734 --> 00:42:09.901
Does it?

952
00:42:09.901 --> 00:42:11.801
Yes.

953
00:42:11.801 --> 00:42:13.701
Well --

954
00:42:13.701 --> 00:42:15.667
But assess your own performance so far for me.

955
00:42:15.667 --> 00:42:17.367
I mean by that.

956
00:42:17.367 --> 00:42:19.300
You're asking me to grade it.

957
00:42:19.300 --> 00:42:22.767
Yes, I want you to grade --

958
00:42:22.767 --> 00:42:24.367
I don't want to give myself any more

959
00:42:24.367 --> 00:42:25.801
than he'd do --

960
00:42:25.801 --> 00:42:27.734
He said that to me.

961
00:42:27.734 --> 00:42:29.467
OK.

962
00:42:29.467 --> 00:42:31.267
He said that --

963
00:42:31.267 --> 00:42:32.868
You ask this question all the time?

964
00:42:32.868 --> 00:42:34.934
I do.

965
00:42:34.934 --> 00:42:36.901
I go around asking everybody to grade themselves.

966
00:42:36.901 --> 00:42:38.367
But I mean I am serious though.

967
00:42:38.367 --> 00:42:39.834
Have you had the impact that you believe you would like to have?

968
00:42:39.834 --> 00:42:41.300
And the answer has to be no.

969
00:42:41.300 --> 00:42:42.767
Well it depends on what

970
00:42:42.767 --> 00:42:45.734
you mean by the impact.

971
00:42:45.734 --> 00:42:47.067
Well, the impact is you would like everybody to

972
00:42:47.067 --> 00:42:48.767
see it your way.

973
00:42:48.767 --> 00:42:50.434
Yes.

974
00:42:50.434 --> 00:42:51.934
But that doesn't happen.

975
00:42:51.934 --> 00:42:53.567
Look, when I came on the court, the word was, you know, Scalia

976
00:42:53.567 --> 00:42:55.067
will be a consensus builder --

977
00:42:55.067 --> 00:42:56.400
Exactly.

978
00:42:56.400 --> 00:42:57.934
-- because I'm

979
00:42:57.934 --> 00:42:59.334
such a charming fellow.

980
00:42:59.334 --> 00:43:00.601
He will be a consensus --

981
00:43:00.601 --> 00:43:02.100
Is that what they said?

982
00:43:02.100 --> 00:43:03.701
No.

983
00:43:03.701 --> 00:43:05.133
No.

984
00:43:05.133 --> 00:43:06.467
The didn't say the charming part but

985
00:43:06.467 --> 00:43:07.734
they did expect me to be a consensus guy.

986
00:43:07.734 --> 00:43:08.934
Consensus guy?

987
00:43:08.934 --> 00:43:10.067
Yes.

988
00:43:10.067 --> 00:43:11.167
A consensus builder, you know.

989
00:43:11.167 --> 00:43:12.501
He'd gather the votes.

990
00:43:12.501 --> 00:43:14.200
I can't be a consensus builder.

991
00:43:14.200 --> 00:43:16.200
Because?

992
00:43:16.200 --> 00:43:17.968
Because I can't trade.

993
00:43:17.968 --> 00:43:19.534
You see, Bill Brennan, who wa an evolutionist, he could deal.

994
00:43:19.534 --> 00:43:20.968
He could go to his colleague, you know, I want to change the

995
00:43:20.968 --> 00:43:22.300
Constitution this far.

996
00:43:22.300 --> 00:43:23.534
Gee, Bill I can't go that far.

997
00:43:23.534 --> 00:43:25.300
Well, what about this far?

998
00:43:25.300 --> 00:43:27.801
He can deal.

999
00:43:27.801 --> 00:43:30.834
Now I can't deal.

1000
00:43:30.834 --> 00:43:33.367
If I am -- if I am doing the text, what can I say?

1001
00:43:33.367 --> 00:43:36.334
You know, I am halfway between what the text really means and

1002
00:43:36.334 --> 00:43:39.767
what you would like it to mean is that the deal I

1003
00:43:39.767 --> 00:43:42.601
am going to cut?

1004
00:43:42.601 --> 00:43:45.534
You can't do it.

1005
00:43:45.534 --> 00:43:48.767
But look, I am not -- I am not discouraged.

1006
00:43:48.767 --> 00:43:51.968
Go ahead.

1007
00:43:51.968 --> 00:43:55.334
Bill Brennan was not in the majority

1008
00:43:55.334 --> 00:43:58.100
most of the time either, but he was, to my mind, the most

1009
00:43:58.100 --> 00:44:00.667
influential justice of the 20th century.

1010
00:44:00.667 --> 00:44:02.834
He changed this court enormously, not by

1011
00:44:02.834 --> 00:44:04.968
being in the center.

1012
00:44:04.968 --> 00:44:06.801
The mos influential judge

1013
00:44:06.801 --> 00:44:08.467
of the 20th century.

1014
00:44:08.467 --> 00:44:10.167
That's what I would say.

1015
00:44:10.167 --> 00:44:12.100
The most influential --

1016
00:44:12.100 --> 00:44:14.400
Because?

1017
00:44:14.400 --> 00:44:16.434
-- because he had a clear judicial

1018
00:44:16.434 --> 00:44:18.901
philosophy, was always on the left of the court and always

1019
00:44:18.901 --> 00:44:21.367
pulling the court to the left, and many of his views were

1020
00:44:21.367 --> 00:44:23.734
ultimately adopted.

1021
00:44:23.734 --> 00:44:26.100
But did he act like a Lyndon Johnson might act

1022
00:44:26.100 --> 00:44:28.934
as politician in dealing with Congress?

1023
00:44:28.934 --> 00:44:31.567
You give me this, I will give you that.

1024
00:44:31.567 --> 00:44:33.801
All I want to do is get here because that's exactly what

1025
00:44:33.801 --> 00:44:35.734
Abraham Lincoln did in getting the 13th Amendment passed.

1026
00:44:35.734 --> 00:44:37.133
And I think that is what

1027
00:44:37.133 --> 00:44:38.534
Bill Brennan did.

1028
00:44:38.534 --> 00:44:39.934
Right.

1029
00:44:39.934 --> 00:44:41.200
Because he could do

1030
00:44:41.200 --> 00:44:42.434
it, because he could

1031
00:44:42.434 --> 00:44:43.701
do it.

1032
00:44:43.701 --> 00:44:44.934
But does that make him less or

1033
00:44:44.934 --> 00:44:46.200
more virtuous than

1034
00:44:46.200 --> 00:44:47.767
you are?

1035
00:44:47.767 --> 00:44:49.467
It make him more effective as far as

1036
00:44:49.467 --> 00:44:52.801
getting Supreme Court opinions, you could say.

1037
00:44:52.801 --> 00:44:54.234
I wasn't asking about effectiveness.

1038
00:44:54.234 --> 00:44:55.801
I was asking about sort of integrity and virtue.

1039
00:44:55.801 --> 00:44:57.234
Well --

1040
00:44:57.234 --> 00:44:58.534
Well --

1041
00:44:58.534 --> 00:44:59.801
-- you know he had his view of what a

1042
00:44:59.801 --> 00:45:01.234
judge ought to do.

1043
00:45:01.234 --> 00:45:02.801
It was different from mine.

1044
00:45:02.801 --> 00:45:04.467
I like Bill Brennan.

1045
00:45:04.467 --> 00:45:06.000
It's not a question of like.

1046
00:45:06.000 --> 00:45:07.367
It's a question of how you make judgments about --

1047
00:45:07.367 --> 00:45:09.033
I wouldn't like him if I thought

1048
00:45:09.033 --> 00:45:11.067
he was contemptible.

1049
00:45:11.067 --> 00:45:13.934
I mean he was OK.

1050
00:45:13.934 --> 00:45:17.234
But, look, I don't measure my accomplishment on the basis of,

1051
00:45:17.234 --> 00:45:20.367
you know, how many majority opinions I have managed to

1052
00:45:20.367 --> 00:45:23.067
cobble together, but on the basis, principally of whether

1053
00:45:23.067 --> 00:45:26.000
textualism and originalism stands in better repute today

1054
00:45:26.000 --> 00:45:28.501
than it did when I came on the court.

1055
00:45:28.501 --> 00:45:30.734
And it surely does.

1056
00:45:30.734 --> 00:45:33.300
I mean there is one other thoroughgoing textualist and

1057
00:45:33.300 --> 00:45:35.701
originalist on the court.

1058
00:45:35.701 --> 00:45:38.200
Judge Thomas?

1059
00:45:38.200 --> 00:45:40.567
Judge Thomas, Justice Thomas.

1060
00:45:40.567 --> 00:45:43.033
Justice Thomas -- I'm sorry.

1061
00:45:43.033 --> 00:45:45.133
There may be a couple of others.

1062
00:45:45.133 --> 00:45:47.534
Maybe a couple of others.

1063
00:45:47.534 --> 00:45:49.868
Close -- well, close but not

1064
00:45:49.868 --> 00:45:51.868
thoroughgoing I would say.

1065
00:45:51.868 --> 00:45:53.868
But originalism -- I am not going to name names --

1066
00:45:53.868 --> 00:45:55.601
originalism is a respected approach to

1067
00:45:55.601 --> 00:45:57.634
constitutional interpretation.

1068
00:45:57.634 --> 00:45:59.400
As I told you, Harvard Law School has professors who

1069
00:45:59.400 --> 00:46:01.934
believe in it.

1070
00:46:01.934 --> 00:46:04.167
It is no longer dismissed out of hand, which

1071
00:46:04.167 --> 00:46:06.567
used to be the case.

1072
00:46:06.567 --> 00:46:08.801
I mean -- we would never even have counsel argue what the

1073
00:46:08.801 --> 00:46:11.267
original meaning was.

1074
00:46:11.267 --> 00:46:13.868
They would just argue the last Supreme Court case.

1075
00:46:13.868 --> 00:46:16.100
And reason from that.

1076
00:46:16.100 --> 00:46:18.133
They wouldn't even -- when I first came on the court I had to

1077
00:46:18.133 --> 00:46:20.367
do all of the research about what the original

1078
00:46:20.367 --> 00:46:23.100
understanding was.

1079
00:46:23.100 --> 00:46:25.634
That is not true anymore.

1080
00:46:25.634 --> 00:46:29.501
There are at least two of us up here who care about what it is

1081
00:46:29.501 --> 00:46:32.634
the people ratified, so counsel will now address those issues.

1082
00:46:32.634 --> 00:46:35.834
Let me just understand this.

1083
00:46:35.834 --> 00:46:39.100
Textualism and originalism -- what is the

1084
00:46:39.100 --> 00:46:42.133
difference if anything?

1085
00:46:42.133 --> 00:46:45.100
Well, you can be a textual -- in fact,

1086
00:46:45.100 --> 00:46:48.868
everybody will profess to be (INAUDIBLE) -- we begin as

1087
00:46:48.868 --> 00:46:52.667
always with the text.

1088
00:46:52.667 --> 00:46:56.234
It should begin and end with the text.

1089
00:46:56.234 --> 00:46:59.434
But you can be a textualist and refer to the Eighth Amendment ,

1090
00:46:59.434 --> 00:47:03.067
the cruel and unusual punishment clause, but give that clause a

1091
00:47:03.067 --> 00:47:06.501
meaning it did not bear when the people ratified it.

1092
00:47:06.501 --> 00:47:09.567
The Constitution doesn't change.

1093
00:47:09.567 --> 00:47:12.133
It is for the ages and its meaning is a rock.

1094
00:47:12.133 --> 00:47:14.534
John Marshall has said this.

1095
00:47:14.534 --> 00:47:17.934
John Marshall --

1096
00:47:17.934 --> 00:47:19.601
Thurgood will say something different or not.

1097
00:47:19.601 --> 00:47:21.300
I don't know what

1098
00:47:21.300 --> 00:47:23.100
Thurgood would say, to

1099
00:47:23.100 --> 00:47:24.901
tell you the truth.

1100
00:47:24.901 --> 00:47:26.667
And I suppose he'd say something different.

1101
00:47:26.667 --> 00:47:28.467
"Reading Law" is the book, "The

1102
00:47:28.467 --> 00:47:30.267
Interpretation of

1103
00:47:30.267 --> 00:47:32.701
Legal Text" is the sub title.

1104
00:47:32.701 --> 00:47:34.801
Second half is the rules of how to

1105
00:47:34.801 --> 00:47:36.634
interpret a text, some of which -- many of which are so old they

1106
00:47:36.634 --> 00:47:38.701
are still in Latin.

1107
00:47:38.701 --> 00:47:40.501
OK.

1108
00:47:40.501 --> 00:47:42.701
What is a rule?

1109
00:47:42.701 --> 00:47:45.701
Ejusdem generis, the

1110
00:47:45.701 --> 00:47:49.567
canon of ejusdem generis.

1111
00:47:49.567 --> 00:47:53.167
And what that says is when you have a general word, at the end

1112
00:47:53.167 --> 00:47:56.434
of a series of words, it means things of the same type.

1113
00:47:56.434 --> 00:47:59.701
If you say, you know, dogs, cats, gerbils and other animals,

1114
00:47:59.701 --> 00:48:03.234
and "other animals" means other domestic animals.

1115
00:48:03.234 --> 00:48:07.400
It doesn't mean elephants and tigers and what not, OK.

1116
00:48:07.400 --> 00:48:11.200
And any lawyer that doesn't know that rule when he writes a

1117
00:48:11.200 --> 00:48:14.934
will, so that he writes, you know, "I leave my chairs,

1118
00:48:14.934 --> 00:48:18.267
tables, beds and all other property to my son." "And all

1119
00:48:18.267 --> 00:48:21.400
other property" is going to be interpreted to mean only

1120
00:48:21.400 --> 00:48:25.033
personal property like chairs, so that is one rule and there

1121
00:48:25.033 --> 00:48:29.901
are a lot of others.

1122
00:48:29.901 --> 00:48:34.234
They are not all common sense maxims like that; some of them

1123
00:48:34.234 --> 00:48:38.000
are maxims that are just from the tradition of the common law.

1124
00:48:38.000 --> 00:48:41.567
For example, the maxim that if there is ambiguity in a criminal

1125
00:48:41.567 --> 00:48:44.734
statute, the defendant wins.

1126
00:48:44.734 --> 00:48:47.367
It is called the rule --

1127
00:48:47.367 --> 00:48:49.767
Do you like that idea?

1128
00:48:49.767 --> 00:48:52.167
Oh, yes I do.

1129
00:48:52.167 --> 00:48:54.200
I do too.

1130
00:48:54.200 --> 00:48:56.000
Who is going to read this book?

1131
00:48:56.000 --> 00:48:57.834
Oh, I a sure practicing lawyers --

1132
00:48:57.834 --> 00:49:01.901
Yes. Exactly.

1133
00:49:01.901 --> 00:49:03.834
That's my question is who are you writing it for?

1134
00:49:03.834 --> 00:49:05.534
Practicing lawyers will read the

1135
00:49:05.534 --> 00:49:07.334
second half, because it is the only compendium of all of the

1136
00:49:07.334 --> 00:49:09.167
interpretive rules.

1137
00:49:09.167 --> 00:49:10.801
I think law professors.

1138
00:49:10.801 --> 00:49:12.534
Those interested in the law -- you don't have to be a lawyer

1139
00:49:12.534 --> 00:49:14.300
to be interested in what the Supreme Court is doing or thinks

1140
00:49:14.300 --> 00:49:15.901
it is doing.

1141
00:49:15.901 --> 00:49:17.601
I think it is a window into that world.

1142
00:49:17.601 --> 00:49:19.467
It describes what the alternative modes of

1143
00:49:19.467 --> 00:49:21.601
interpretation are.

1144
00:49:21.601 --> 00:49:24.000
And if one is interested in what -- you know, what real conflict

1145
00:49:24.000 --> 00:49:28.133
in the court is, it is not -- it is not politics, it is not

1146
00:49:28.133 --> 00:49:32.267
Democratic versus Republican, it is the different approaches

1147
00:49:32.267 --> 00:49:36.400
to interpretation that are described in this book.

1148
00:49:36.400 --> 00:49:40.534
Even though I said I would

1149
00:49:40.534 --> 00:49:43.434
never ask you a question

1150
00:49:43.434 --> 00:49:46.367
that I knew you hadn't thought about before and hadn't been

1151
00:49:46.367 --> 00:49:49.300
asked before and hadn't dismissed before --

1152
00:49:49.300 --> 00:49:52.234
Well -- you already

1153
00:49:52.234 --> 00:49:55.167
asked one about how

1154
00:49:55.167 --> 00:49:57.534
I would grade myself.

1155
00:49:57.534 --> 00:49:59.801
Yes.

1156
00:49:59.801 --> 00:50:02.200
That is true.

1157
00:50:02.200 --> 00:50:04.601
And you didn't answer yet.

1158
00:50:04.601 --> 00:50:07.000
I am no going to.

1159
00:50:07.000 --> 00:50:09.367
But it is -- and what this

1160
00:50:09.367 --> 00:50:11.767
conversation shows the

1161
00:50:11.767 --> 00:50:14.567
passion that you feel about this idea; this, you know being

1162
00:50:14.567 --> 00:50:16.934
not a strict constructionist but being a textualist.

1163
00:50:16.934 --> 00:50:19.200
I mean that is at the core of your being.

1164
00:50:19.200 --> 00:50:21.400
It really is.

1165
00:50:21.400 --> 00:50:23.567
It really is.

1166
00:50:23.567 --> 00:50:25.667
I mean that is your life's fight.

1167
00:50:25.667 --> 00:50:27.767
It is m life's fight, yes.

1168
00:50:27.767 --> 00:50:29.567
Your life's fight.

1169
00:50:29.567 --> 00:50:31.434
Yes, it is.

1170
00:50:31.434 --> 00:50:33.334
And I think it is worth the fight because I don't think you

1171
00:50:33.334 --> 00:50:35.234
can run a democracy without it.

1172
00:50:35.234 --> 00:50:37.200
That's the danger?

1173
00:50:37.200 --> 00:50:38.901
That's the danger.

1174
00:50:38.901 --> 00:50:40.667
Your first language I assume is English.

1175
00:50:40.667 --> 00:50:42.267
Your second language I assume is Italian?

1176
00:50:42.267 --> 00:50:43.934
No, no.

1177
00:50:43.934 --> 00:50:45.767
It is a shame of my life that I don't -- I don't know Italian

1178
00:50:45.767 --> 00:50:47.567
at all.

1179
00:50:47.567 --> 00:50:49.367
My father would never speak it at home.

1180
00:50:49.367 --> 00:50:51.167
Because of immigrant pride or something?

1181
00:50:51.167 --> 00:50:52.968
No, no he would have

1182
00:50:52.968 --> 00:50:54.801
spoken Sicilian --

1183
00:50:54.801 --> 00:50:57.334
Oh, that's right.

1184
00:50:57.334 --> 00:50:59.834
-- which is almost, you know there are

1185
00:50:59.834 --> 00:51:01.968
Sicilian grammar books; it is so different from high Italian.

1186
00:51:01.968 --> 00:51:04.067
And if you only know your local dialect it means you are

1187
00:51:04.067 --> 00:51:06.133
illiterate, because all of the newspapers in Palermo are

1188
00:51:06.133 --> 00:51:08.601
written in Tuscan.

1189
00:51:08.601 --> 00:51:11.133
This is the embarrassment of your life.

1190
00:51:11.133 --> 00:51:13.300
The embarrassment -- it would have

1191
00:51:13.300 --> 00:51:15.667
made my father very happy if I have ever learned it.

1192
00:51:15.667 --> 00:51:20.234
And I have a wonderful accent because I --

1193
00:51:20.234 --> 00:51:22.834
"Reading Law: the interpretation of legal text",

1194
00:51:22.834 --> 00:51:25.267
Antonin Scalia and Brian Garner.

1195
00:51:25.267 --> 00:51:27.634
We referred earlier to snoot.

1196
00:51:27.634 --> 00:51:29.634
Brian i without a doubt the foremost

1197
00:51:29.634 --> 00:51:32.000
philologist in America.

1198
00:51:32.000 --> 00:51:34.734
I mean he is the editor of Black's Law Dictionary --

1199
00:51:34.734 --> 00:51:37.334
Right.

1200
00:51:37.334 --> 00:51:39.901
-- has several volumes on American

1201
00:51:39.901 --> 00:51:42.467
English usage and on legal usage.

1202
00:51:42.467 --> 00:51:45.300
So he is the real thing.

1203
00:51:45.300 --> 00:51:48.367
So are you.

1204
00:51:48.367 --> 00:51:51.133
"Reading Law" is the book, "The interpretation of legal text".

1205
00:51:51.133 --> 00:51:54.367
We are here at the Supreme Court, Justice Antonin Scalia.

1206
00:51:54.367 --> 00:51:57.300
Thank you for, first thanks to him and secondly

1207
00:51:57.300 --> 00:52:00.234
thank you for watching.

1208
00:52:00.234 --> 
We'll see you next time.