At Federalist Society, Scalia Says He Doesn't 'Live or Die' for Bill of Rights Cases

For Justice Antonin Scalia, cases before the U.S. Supreme Court involving the Bill of Rights are important, but they aren't the ones "I live or die for." That distinction, he said in a speech over the weekend, is reserved for cases that test the structure of the U.S. government, from separation of powers to federalism.

Even dictatorships can have a bill of rights written down, he said, but the structure of government is what ensures that laws are "not just words on paper."

Scalia spoke November 17 at The Federalist Society's annual convention in downtown Washington. He was there to promote his new book, Reading Law: The Interpretation of Legal Texts, but devoted much of the talk to answering questions on everything from his judicial philosophy to his taste in opera ("I shed a tear for Madame Butterfly every time I watch it," he said of Giacomo Puccini's opera.)

Reading Law, which Scalia co-wrote with Bryan Garner, explores the canons of interpretation that judges can rely on and delves into the principles of a judicial philosophy that Scalia adheres to, textualism. Asked whether Congress could legislate canons, Scalia said that while Congress "can say whatever it wants" in statutes, he didn't think legislators could pass laws dictating how judges interpreted the law. "Congress has its job and we have ours," he said. In a line that drew laughs from the packed ballroom, he added, "They can't tell us to set aside rules of logic!"

Scalia took several jabs at what he saw as the alternatives to textualism. For example, he said that under "purposivism," described in his new book as evaluating the purpose behind a law as opposed to sticking to the text, judges might interpret laws under concepts that are too broad, such as whether they "do good" or not. "If you play that game, you're free to rewrite the law," he said.

In defending originalism – a subset of textualism that focuses on the public meaning of a law or constitutional provision when it was adopted – Scalia said it wasn't necessary for judges to be trained historians. Judges constantly rely on experts, he said, citing patent cases as an example. Lawyers rarely addressed historical perspectives when he first took the bench, he said, but they've increasingly done so as more judges have adopted an originalist approach. In reaching the court's landmark Second Amendment decision in 2008 in District of Columbia v. Heller, for example, Scalia said the court got significant historical assistance in amicus briefs.

Originalism should apply even in cases dealing with modern technology, he said. In deciding what constitutes cruel and unusual punishment for the death penalty, for instance, he said he would consider whether modern procedures such as lethal injection are more cruel than the once-common practice of hanging. In his opinion, he said it was not.

Scalia weighed in on the state of legal education, saying that law schools should be better preparing students to read and interpret laws. "You pick up canons of interpretation haphazardly," he said. The days of judges being tasked with creating new common law are mostly over, he said; the function of modern judges and lawyers is to determine the fairest reading of legal texts.

Different canons may contradict each another, Scalia said, but he warned against considering any one canon as absolute. "Canons are clues to the meaning of the text," he said. The task for judges is to decide "which clues are the most persuasive."

Comments

[Isaac]

Thank God these comments will not be providing a source for interpretation by textualism. Rather, they provide proof that without proper grammer, the use of textualism could be catastrophic.

[ELois P. Clayton]

I'm 'persuaded' to believe that judge Scalia, is on point, as to HOW laws are to be interpreted.
Judge Scalia, is a judge whom(when the dust is settled), will look at what has been accomplished(time served), the interruptions that interferred in positive progress(false reports that delayed forward movement), the witnesses that agree that an individual has progressed (positively) and make LOGIC, of it ALL and render a FAIR verdict!
I have believed in his analysis ALL of the years I have learned of his position and studied his analysis and I will continue to believe in his works!
NOTE: MERRY X-MAS, to judge Scalia and his family and to all others, in the U.S.Supreme Courts, who has the GUTS/MORALS as judge Scalia does!

[jack molesworth]

JDG, Mr. Scheinman,

What actions did Justices Scalia or Thomas take to "shame" the court?

Mr. Benen's April 2009 article he seems to treat Justice Thomas' comments about other Bills literally. It is clear from his comments this was not his intent. It is clear that he was not addressing the actual Bill of Rights, but American's heightened sense of entitlement and *perception* of rights.

For instance there is no Federal/State statue which requires U.S. citizens to vote, but only an assumed right, which is afforded protections via amendment (14th (Sec 2), 15th, 19th, 26th) and by Act 1965 Voting Rights). So, what is the act of voting? Well, it could be seen as an assumed non-binding Obligation, obviously necessary in order to preserve the constitution. It's also a protected act (a.k.a Right). But Right is a little steep to me because by definition a Right is an entitlement. You are entitled, owed. If you are owed something, but are still forced to take actions to receive ownership, I think it's less a Right and more a protected opportunity or action.

This is comparable, in my opinion to an implied (but not explicit) Right of Civil Disobedience (in the case that a law is not good for society)

Also, there is nothing said about Justice Scalia in the article. What links them together in shame, as you say?

[Edward Armstrong]

I think Obama should pay attention to what Justice Scalia says about separation of powers and stop ruling by executive orders written by his less than brilliant legal advisors.

[Avon]

I think it's interesting that Scalia seems not to insist on his own canons of interpretation (of the Constitution, or of anything) as being the only correct canons.

Rather, he says "Canons are clues to the meaning of the text," and the task for judges is to decide "which clues are the most persuasive."

So he seems to say that any Justice who's persuaded is just as correct as Scalia himself, regardless of which canons she or he is persuaded of!

This seems tantalizingly close to a fatal flaw in Scalia's approach to judging. But another explanation is possible: maybe he's just blowing smoke when he writes in high dudgeon, and in fact he accepts other Justices' judgment as to what's a persuasive canon just as readily as he accepts other Justices' friendship, love of opera, and/or off-the-bench goodwill.

[Avon]

I think it's interesting that Scalia seems not to insist on his own canons of interpretation (of the Constitution, or of anything) as being the only correct canons.

Rather, he says "Canons are clues to the meaning of the text," and the task for judges is to decide "which clues are the most persuasive."

So he seems to say that any Justice who's persuaded is just as correct as Scalia himself, regardless of which canons he's persuaded of!

This seems tantalizingly close to a fatal flaw in Scalia's approach to judging. But another explanation is possible: maybe he's just blowing smoke when he writes in high dudgeon, and in fact he accepts other Justices' judgment as to what's a persuasive canon just as readily as he accepts other Justices' friendship, love of opera, and/or off-the-bench goodwill.

[stan scheinman]

First Alito, now Scalia demeaning and undermining the authority and universal acceptance of an institution intended to be the greatest bastion of the Rule of Law above partisan political prejudice.
Oh. Perhaps God will ride us of these evil men

[Daniel]

Scalia is in the mold of Thomas who thinks we have "too many rights."

http://www.washingtonmonthly.com/archives/individual/2009_04/017725.php

Scalia and Thomas are both "a Shame to the Court."

[Scott Neuman]

I can't wait till Scalia comes across LaVergne vs Bryson 12-1171 - The suit seeks to have the Supreme Court force Congress to Recognize that the final and last amendment thought to be unratified from the Bill of Rights is in fact ratified. The 1st amendment or Article the First as it's known was thought to have missed being ratified by one state. That state was believed to have said no to the "Apportionment Amendment". In 2011, Noted Attorney and Constitutional Scholar found Connecticuts YES vote misfiled in the Connecticut archives. Having a certified copy of the YES vote in this hands, he is attempting to let Scalia and the rest of the Justices know that 80% of the states at 15 states voted YES for this amendment. At 80%, we have an automatically ratifing amendment to the Constitution. If you need more information, http://www.boldtruth.com clearly shows the timeline for this amendment being ratified and why we should follow this amendment now!

[Melvin Reed]

One would think that operation of a just legal system rests on the shoulders of the Bill of Rights... Shouldn't one...let alone a Supreme Court Justice unless that Justice harbored an internal prejudice against one group or another? Just a thought. With regard to the 'structure of law' requiring the scrutiny he mentioned, that's what produce the Bill of Rights...right?

[JDG]

Scalia and Thomas are the joke of the Supreme Court and should not long ago serve their stated purpose. Scalia is a Shame to the Court!