Scalia on Congress, the 9th Amendment, and the Downside of Unanimity

October 6th, 2013

Read it here!

Update: Here are some highlights.

On the 9th Amendment:

You know, in the early years, the Bill of Rights referred to the first eight amendments. They didn’t even count the ninth. The Court didn’t use it for 200 years. If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was.

Hopefully he can find it now. On the power of Congress:

It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ­democracy—that will be the source of tyranny.

On how living constitutionalism ever came about:

I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

On the downside of unanimous opinions:

I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, “I better reexamine my position!” I probably believe that the worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.

On gender discrimination:

What about sex discrimination? Do you think the Fourteenth Amendment covers it? 
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.

A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”

If there’s a reasonable basis for not ­letting women do something—like going into combat or whatnot …

Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.

Nino has unsubscribed from the Washington Post because it “went too far for me”

Oh, you and your wife …
I usually skim them. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn’t handle it anymore.

What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.

So no New York Times, either?
No New York Times, no Post.

And apparently Nino has a gay friend:

The one thing I did think, as he said those somewhat welcoming things to gay men and women, is, Huh, this really does show how much our world has changed. I was wondering what kind of personal exposure you might have had to this sea change.
I have friends that I know, or very much suspect, are homosexual. Everybody does.

Have any of them come out to you?
No. No. Not that I know of.

Has your personal attitude softened some?
Toward what?

I don’t think I’ve softened. I don’t know what you mean by softened.

And on Windsor:

There was something different about your DOMA opinion, I thought. It was really pungent, yes, but you seemed more focused on your colleagues’ jurisprudence. You didn’t talk about a gay lobby, or about the fact that people have the right to determine what they consider moral. In Lawrence v. Texas, you said Americans were within their rights in “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” 
I would write that again. But that’s not saying that I personally think it’s destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase of a Supreme Court

The what?
U-K-A-S-E. Yeah. I think that’s how you say it. It’s a mandate. A decree.

Whatever you think of the opinion, Justice ­Kennedy is now the Thurgood Marshall of gay rights. 

If you talk to your grandchildren, they have different opinions from you about this, right?
I don’t know about my grandchildren. I know about my children. I don’t think they and I differ very much. But I’m not a hater of homosexuals at all. I still think it’s Catholic teaching that it’s wrong. Okay? But I don’t hate the people that engage in it. In my legal opinions, all I’ve said is that I don’t think the Constitution requires the people to adopt one view or the other.

Nino has CDs (DVDs probably) of Seinfeld. But it is soup nazi. Not nazi soup.

Yes. Three. Did you watch The ­SopranosMad Men?
I watched The Sopranos, I saw a couple of episodes of Mad Men. I loved Seinfeld. In fact, I got some CDs of Seinfeld. ­Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? No soup for you!

On the “Supreme Court Bar”:

Are there any lawyers who you also consider really formidable?
That’s one of the biggest changes on the Court since I’ve been here. When I arrived, there really was not what you could call a Supreme Court bar—people who appear regularly. But now we have people who appear four, five times a term. What has happened is the big law firms have adopted Supreme Court practices. I’m not sure they make money on it, but they get prestige from it. So we get very good lawyers. Many of them ex–solicitor generals.

How does that change your job?

It makes my job easier. We are ­dependent upon these people who have lived with the case for months—in many cases years—to clarify the facts and to clarify the law. I come to the thing maybe a month beforehand. These lawyers—the reason to listen to them is that they presumably know more about the subject than you do.

On his Morrison v. Olson dissent:

That’s a great one. You gotta read the whole paragraph. Boom. [Punches the air.] But I often worry when I go back and read one of my early opinions like ­Morrison v. Olson. I say, “God, that’s a good opinion. I’m not sure I could write as good an opinion today.” You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.

And I think Stevens did say this to Souter:

Wasn’t it Stevens who said to Souter, “Tell me when I’m losing it and need to retire?”
No, it wasn’t Stevens. I think it was Holmes who asked Brandeis.

Oh, so I got it completely wrong.
[Smiles.] Completely wrong.

And will Nino just be another Justice Sutherland?

Oh, my goodness. I have no idea. You know, for all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who’s regarded as: “He was on the losing side of everything, an old fogey, the old view.” And I don’t care.

Do you think you’re headed in that direction?
I have no idea. There are those who think I am, I’m sure. I can see that happening, just as some of the justices in the early years of the New Deal are now painted as old fogies. It can happen.

What an even-handed interview. I liked it!