JoshCasts

I am a pretty big Justice Scalia, or Nino has his friends call him, fan. So this JoshCast was a special treat for me. I spoke at great lengths with Joan Biskupic, legal affairs correspondent for USA Today, about her new book, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia.

We covered a lot of ground, so definitely listen to this JoshCast in its entirety. We chatted about Originalism, Raich, Heller, Justice Thomas, Nino’s “John Marshall” moment, and more. Also, check out the SCOTUS family guy clip on the Justice Souter’s initiation to the Supreme Court.

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Why has Justice Scalia has become such a social butterfly of late?

“He wants to peddle that darn book” [referring to Making Your Case: The Art of Persuading Judges co-authored with Brian Garner].

What kind of access did Justice Scalia provide?

Justice Scalia was much more accessible than Justice O’Connor. Biskupic previous authored a biography on Justice O’Connor, in which she worked primarily from documents and not interviews.  Originally Justice Scalia did not want to sit for interviews, but after Biskupic uncovered immigration records and other information about Scalia’s past, he became much more interested.

On Justice Scalia’s “Faint-Hearted Originalism”

“He’s an Originalist, not a nut.”

Also Justice Alito revealed in an Biskupic’s interviews that he is not as devout an originalist, and that “originalist  only gets you part of the way there.”

As a Professor, did Justice Scalia publish on Originalism?

Justice Scalia’s views on Originalism and the Constitution did not flower until he was appointed to the Supreme Court. Did not teach constitutional law in a substantive way at Chicago. He mainly taught administrative law.

On Justice Scalia’s Relations with Justice Thomas

They often reach the same outcomes from different points of view.

Justice Thomas relayed a humorous anecdote comparing how different they are.

Thomas said his favorite thing to do is to watch Nebraska Corn Huskers football game. Justice Scalia’s favorite thing to do is watch opera. Thomas doesn’t care about opera. Scalia has probably never watched a football game on TV.  Thomas said he does not really get into the cases, but he describes Scalia as getting so absorbed into cases, that when he turns on his computer to write opinions, it is like he is orchestrating a symphony.

Scalia- gets so into cases, turning on computers like making a symphony.

On Justice Thomas’s Reaction to D.C. v. Heller

Justice Thomas did not have the same sense of enthusiasm over Heller that Justice Scalia did. “We were not high-fiving each others in the hallway.”

This crushed my spirit. I’m reminded of this Family Guy video

Scalia on Heller, and Interpreting the 2nd Amendment for the First Time

It was  “like being John Marshall for a little tiny portion of the constitution.” [I hope he was saying what the Law is, and not what the Law ought to be]

On Heller’s Constrained Holding and Limiting Dicta

Chief Justice Roberts took a risk assigning the opinion to Scalia, who can lose a majority very easily, as it doesn’t take much to lose Justice Kennedy, who could write a concurring opinion. So, he limited the opinion and saved issues like incorporation for another day.

On Gonzalez v. Raich

It seems Justice Scalia thinks it is permissible for the federal government to regulate moral matters (drugs) but not non-moral matters (guns, violence against women).

Regulation of commerce to achieve moral aims in drug policy area goes back a long way. He didn’t acknowledge inconsistencies in Lopez/Morrison and Raich.  His defense is that the federal government can go into drug area, a more more moral areas, where it has traditionally played that role. Very Scalia moment when he refused to answer the question in front of the Federalist Society.

Would Justice Scalia be confirmed in nominated in 2010?

(Assuming a Republican President nominated him with a Democratic Senate) In 1986, he had the advantage of being the first Italian-American, and his hearing followed the contentious confirmation of Chief Justice Rehnquist. In many cases, the senators did not look at the record. although his record was hiding in plain sight. It would be very hard to confirm him.

In the future, is it possible for an ideological mover like Justice Scalia to be confirmed by a Senate of the Opposite Party?

It would be very difficult. The Bork and Thomas hearings were very contentious and have added to this tension. Even Alito and Roberts were narrowly divided.

What would be Justice Scalia’s ideal Christmas Present?

A bottle of red wine, new hunting gear, and a trip to Louisiana to go after turkey or duck.

I am very pleased to present this very special JoshCast. Professor Michael Krauss of the George Mason University School of Law and Rabbi Bruce Aft of Congregation Adat Reyim participated in a discussion on Judaism and the Law sponsored by the George Mason Jewish Law Students Association. Many thanks to Corey Carpenter for recording the event.

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P.S. Yours truly  is referenced by Professor Krauss at 1:26:10. Professor Krauss, I’m still working on an answer to your question.

Check out the most recent JoshCast, where I interview Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute, and the winner of the battle of the Ilyas contest!

Ilya talks about Pandora, McDonald, and his possible celebratory trip to Disney World after his grand victory!

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For those of you in the D.C. Libertarian community, you will know that there are two Ilyas.

Ilya Shapiro, a Senior Fellow of Constitutional Studies at the Cato Institute, and Ilya Somin, a Professor at George Mason School of Law. Both are Libertarians. Both are Russian. Both have the same last initial. They often get confused. But they are nothing alike.

To resolve this name-game between these two brains, I proposed a trivia battle. Both parties agreed. I provided each party with a copy of Judge Danny Boggs’s (Court of Appeals for the Sixth Circuit) Trivia Questionnaire . For those unfamiliar with Judge Boggs’s Trivia Questionnaire, check out this story from Underneath Their Robes.

I graded the quizzes, and in this JoshCast, I announce the results with both parties on the line. Take a listen. Hilarity ensues.

But, before you listen, a quick poll: Who do you think won?

Here is the JoshCast:

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I commend you listen to the JoshCast in its entirety, but if you must, fast forward to 8:30 to hear the winner, or click here for the answer.

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I am considering making these trivia battles a weekly program. If you are interested in strutting your stuff, and showing your skills, contact me