Supreme Court Justices Antonin Scalia and Stephen Breyer have nearly perfected the stylized debate they have from time to time in front of audiences around the country -- such as their appearance last October at the University of Arizona. With a mix of bluster and bravado and occasional filibustering, the two present their conflicting views of statutory and constitutional interpretation and the role of judges, to the amusement and also, no doubt, the mystification of those listening.
Last night, Scalia and Breyer reprised their debate before a hometown crowd at the Supreme Court itself, in a discussion sponsored by the Supreme Court Historical Society. The only intermediary was moderator James Duff, director of the Administrative Office of the U.S. Courts. Not usually a man of many words, Duff said even fewer than normal in the face of the avalanche of verbiage from the justices. More than an hour into the discussion, Duff dryly noted he was only on his third question. Politely, he did not also note that the justices had pretty much ignored his questions anyway.
Breyer and Scalia challenged each other the most over statutory construction, with Scalia insisting that looking to the words of the law and nothing else is the best way to discern its meaning. That's because members of Congress actually vote for -- and can be held accountable for -- the actual text of the law, unlike committee reports and other documents drafted by "teenagers," to support their own views of the law, as Scalia put it with disdain. The legislators don't read those documents anyway, Scalia said. "Congress passes laws, not conference reports."
By that standard, Breyer replied, the words of the statute don't mean much either, because members of Congress don't read every word of the statute. A onetime Senate staffer, Breyer was far more willing to put his trust in a legislator and his or her staff to know a law's purpose as well as its words. Breyer seeks out evidence of a law's intent and context, he said, as the way to resolve disputes over its meaning. That approach, Breyer added, is more understandable to the public.
Scalia responded with exaggerated dismay. "I never heard that one before," he said. "Judging is best when it is most accessible to the public?" Scalia then launched into his oft-heard refrain about the public's lack of understanding of the work of courts, which he attributed to the news media's penchant for only reporting who won or lost, not the reasoning of a decision. "Was it the poor old widow, or the terrible insurance company?" Scalia said. "The stuff we have to decide is difficult, arcance ... not in the reach of everyone."
Breyer then suggested that Scalia had misinterpreted what he had said, though it was not entirely clear. If it was an argument Scalia had never heard before, Breyer said, "I wish you would think about it."
If one was listening to the debate for hints of the justices' views about current events, the pickings were slim. Scalia said, as he has before, that he will "never understand" how the text of the Contitution confers a right to an abortion.
And Scalia repeatedly spoke of the anti-democratic tendency of people nowadays to ask the courts, not legislators, to resolve issues. It's anti-democratic, he said, because "once something is declared unconstitutional, it is off the stage of democracy," whereas getting legislators to change laws or even amend the Constitution is the better way to go. "Once it is a right, we cannot vote about it."
Was Scalia criticizing the state attorneys general who headed to court Tuesday to challenge the constitutionality of the just-signed health care legislation? Not likely, but the state AG's didn't head to Congress, they headed to federal court -- a trajectory Scalia said last night was anti-democratic.
Footnote: The discussion between Scalia and Breyer was filmes for future broadcast on C-SPAN. In the meantime, Josh Blackman's always interesting Court-oriented blog offers a rough near-transcript of many of the exchanges between the justices.
Clarification: Scalia's criticism of resorting to courts as an anti-democratic way of countering or fixing legislation was framed in general terms only, and he made no mention of the health-care litigation now pending.