JoshCast: Joan Biskupic, Author of The Life and Constitution of Supreme Court Justice Antonin Scalia on Originalism, Brown, Raich, Heller, Thomas, and Nino’s “John Marshall” Moment

December 7th, 2009

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.