On Monday, Pepperdine School of Law hosted a "conversation" between Supreme Court Justice Antonin Scalia and Dean Ken Starr. The two have known each other for a long time, having served as judges together on the D.C. Circuit. Dean Starr praised Justice Scalia's new book, written with Bryan Garner, Making Your Case: The Art of Persuading Judges, as a valuable for lawyers and nonlawyers alike. The program was well attended and conducted in a jovial atmosphere, with many jokes and opportunities for Justice Scalia to exhibit his famous wit.
Justice Scalia discussed his official portrait, which currently is at Harvard (but eventually will hang at the Supreme Court), noting that it is important to have such portraits done sooner rather than later, because he's not getting any prettier with age.
Asked about what makes for a great justice, he noted that different reasons account for greatness in justices. John Marshall was great in terms of establishing the Court's operations; Justice Brennan was great for his influence on the development of the law; Justice Jackson—who was self-educated—was the best writer, and is Justice Scalia's "hero."
Asked why there are deep divisions in the Court, he explained that this is historically new. Originally, following English tradition, each justice wrote his own opinion in every case. This made it difficult to figure out the actual holding, so Justice Marshall came up with the idea of a majority opinion for the whole court. (This drove President Jefferson crazy, because he wanted to know which individual justice was responsible for an opinion, so he would know who to target for impeachment.) As a result, Justice Marshall would sometimes write or concur in opinions he didn't necessary agree with simply to achieve unanimity.
Today, the justices have profoundly different takes on what they're doing: The justices disagree on the fundamental "object of the game." There are two originalists on the Court (Justices Scalia and Thomas), who examine what the people agreed to when the text of the Constitution was written. This view was orthodoxy 50 years ago. But now, in contrast, other Justices believe in a "living Constitution" that changes and morphs. For instance, the Constitution clearly includes a death penalty, but other Justices subscribe to the notion of "evolving standards of decency," which Justice Scalia mocked with the phrase "every day, in every way, we get a little better and better." He said that frankly, he's afraid to ask what today's evolving standards of decency are. If evolving standards are the correct vision for running the country, then that should be done by the legislature, not the Court.
He noted that it's "always better to be in the majority, except when the majority is wrong." And also noted that in the Second Amendment case (Heller), the dissenters chose to fight the battle "on his turf," originalism. He further discussed how the exclusionary doctrine is not in the Constitution, and expressed the view that while such a rule could be imposed on federal courts, it is applied to state courts too by constitutionalizing it under the Fourth Amendment.
When asked which of his opinions he is most proud of, he responded, "Well, I haven't had that many triumphs." More seriously, he answered that if he had to pick an area, then the confrontation clause would be a good example. He wrote an opinion that reversed the "indicia of reliability" doctrine for confrontation clause issues, returning the law to the commonsense notion that the only indicia of reliability for confrontation is confrontation.
He noted that 95% of the laws governing Americans are state laws; that we live in a federal republic at sufferance; and that Congress, "sadly," seems able to do whatever it wants to do.
When asked which Justice, historically, he believes was the worst and should have been removed from office, he said "no one," and "I have no antagonism towards anyone." He then referred to a series of law review articles where some academics argue about which justices was the worst.
When asked about his cordial relationship with Justice Ginsberg and how America can get back to such cordial relations between those with opposing views, he said that the political parties have lamentably become too polarized. These days when you're knifed, they say "it's nothing personal," but of course it is. The wonderful thing about American politics (in contrast to systems abroad), is that "you can throw the rascals out."
When asked about what happens when the justices meet at conference, he explained that former Chief Justice Rehnquist explored this topic in one of his books. In particular, the conferences are a place for the justices to express their votes but rarely a forum for minds to be changed
He further regretted that being a federal judge is no longer as prestigious as it once was. Once upon a time the "knights of the bar" became judges, but now he fears we're drifting toward a more European judiciary, which is more blinkered and bureaucratic, which judges who have "had their snouts in the public trough their whole lives," (i.e., have only ever worked in government). There are many more federal judges now than when he started his career, because there is so much more federal business in the federal court, in part because his court keeps "inventing new rights, keeping the federal courts busy." He noted that of the six of his former clerks who became federal judges, three left the bench for financial reasons. As he put it, "We may have seen the best days of the federal courts."
He enjoyed oral argument, and stated that Clarence Thomas would benefit from talking more at argument. The purpose of argument is to probe weaknesses in the lawyers' briefs. Without questions the lawyers will simply "regurgitate their 'blessed' briefs," which he has already read—and he's not interested in reading the book, and then listening to the book on tape. Answering questions from the bench is the only way for lawyers to know they not wasting everyone's time. Sometimes at oral argument the justices "use counsel as a shuttlecock" to try to persuade each other. Other methods of persuasion at the court include individual meetings and the "law clerk grapevine." He does not engage in these because as an originalist, he has nothing to barter with; but consequentialist justices can "deal" and "trade" votes.
When asked does the ability to amend constitutions make a mess, he joked that "Amending a constitution shouldn't be too easy; nor too hard." European countries amend their constitutions all the time, "like changing undershirts." If he could change an existing constitutional provision, he would change the amendment process, because although it made sense with 13 state, now with 50 states it's too hard to amend the Constitution. Less than 2% of the population could prevent a change. But he fears a constitutional convention, essentially concluding that it's best not to mess with the Constitution.
Regarding presidents, he said that the real threat to America isn't from presidents (or the so-called imperial presidency) but rather from Congress. Bush I was a "real gentleman" (who wrote his wife a note saying that he'd done the right thing in the flag burning case). He is grateful to the Gipper, who appointed him, though he didn't know President Reagan well (and Reagan didn't know him well). He knew Ford because he served in the Office of Legal Counsel during his administration. He had no comment in response to President Obama's assertion that Justice Scalia was the justice he'd most like to replace.
The advice he wished someone would have given him before entering practice would have been: "Before settling down, check out the West Coast." He has not seen any of the Boston Legal episodes in which he "appears," but understands that in one episode he conducts a gay marriage. It's foolish to accede to treaties that use vague language and allow foreign tribunals or outside bodies to interpret that language. If you don't like the Supreme Court's analysis, at least those decisions are being made by your own countrymen, rather than foreigners.
When asked for parenting tips, he gives all credit for his successful children to his wife. He also noted, "I don't think you have to go to soccer games." He used to think he was confirmed 98-0 because of his qualifications, but later learned that the political influence of Italian Americans was a factor. His wife calls him Mr. Clueless.
After the Pepperdine event, Justice Scalia spoke at a Town Hall meeting.