It is not often that a Justice from the United States Supreme Court agrees to an interview on national television, or an interview of any kind for that matter. So when a Justice does come forward, it is a great opportunity to get a glimpse into some of the inner workings of the highest court in the land.
Article 3 of Section I of the United States Constitution states that “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” With this statement combined with multiple amendments, acts of Congress (specifically the Judiciary Act of September 24, 1789 (1 Stat. 73)), and countless landmark decisions, the Supreme Court has become what it is today. Operating under 28 U. S. C. §§ 1-4105, the Supreme Court has the duty to serve at the top of the judicial branch as a vital part of the “checks and balances” system, a concept created by Montesquieu and incorporated into the structure of American government by the Constitutional Framers.
One of their longest serving distinguished justices and a strong believer in the practices and intentions of the Framers of the Constitution within the Supreme Court is Senior Associate Justice Antonin Gregory Scalia. Born March 11, 1936, in Trenton, New Jersey and appointed by President Ronald Reagan in 1986 to fill a seat vacated when Justice William Rehnquist was elevated to Chief Justice, Scalia displays legal brilliance in his aggressive yet witty oral and written opinions, especially when he dissents. He is the talkative one on the court, asking more questions and making more comments than his peers. Dahlia Lithwick of Slate has described Scalia’s performances saying:
Scalia doesn’t come into oral argument all secretive and sphinx like, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement.
His written arguments are also famous for the sheer number of concurring opinions and dissents that he has had the privilege to author. Another Slate reporter, Conor Clarke comments on his writing style:
His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon.
Described by many as the premier legal thinker of his generation, his role on the court is that of the scholarly anchor of the conservative majority. Aside from his brilliant legal career and well-known conservative philosophies, Scalia prides himself in his devout Roman Catholic points of view. He is a family man with nine children, nearly thirty grandchildren, and a lifelong mate, Maureen McCarthy.
Thus, in the midst of this today’s hot political atmosphere with the influence of the Supreme Court ringing throughout the nation’s ears, Justice Scalia, somewhat of a political celebrity, put aside his reluctance to conduct interviews and sat down with Chris Wallace for “Fox News Sunday.” In the half-hour interview, aired July 29th, 2012, Scalia and Wallace discuss a broad range of topics.
Justice Antonin Scalia Interview with Mike Wallace, “FOX News Sunday”
Three major points that stand out to me are enumerated below:
I. Legal Philosophy
Referencing Justice Scalia’s new book, Reading the Law: The Interpretation of Legal Text, Wallace opens the discussion with Justice Scalia on the topic of judicial philosophy, specifically originalism and textualism. According to Scalia, one who subscribes to the practice of textualism believes that one should be accountable to the text alone; neither the perceived favorability of the outcome nor legislative and judicial history should bear any influence in one’s decision. As a sort of subset of the this philosophy lies the concept of originalism—the idea that the text should be interpreted under the context of when it was created, that “if it was the Constitution written in the 18th century, you try to find what those words meant in the 18th century” (Scalia Interview).
Moving to the opposite side of the spectrum, Wallace asks Scalia about another judicial approach called purposivism. Describing it as “probably the most popular form of interpretation in recent times,” Scalia explains purposivism as “consulting the purpose of the statute and deciding the case on the basis of what will further the purpose.”
At its root, this is the basis of the liberal “Living Constitution” theory, which maintains that the interpretation of the Constitution must change as the values and desires of society change. As President Woodrow Wilson believed, our nation is “a living thing . . . modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks and live.”
As observed through his response to the video clip of Justice Breyer subscribing to the idea of this “Living Constitution,” Scalia’s conservative judicial philosophy lies in stark opposition to these more progressive perspectives. As Scalia states, “What originalism means is that you give the Constitution the meaning that it had with respect to those phenomena that were in existence at the time, say, the death penalty.” For those phenomena that did not exist at the time, Scalia posits that while interpretive decisions must be made, the criterion for the interpretations must be based in the understood interpretations of the applicable statutes at the time. Essentially, while the electric chair did not exist in the times of the Constitution, death by hanging did, and it was not considered cruel and unusual. In deciding the case, originalists would question whether the electric chair is more cruel and unusual than hanging. For Scalia, there is no way that it is as it was adopted in the first place to be less cruel.
Most conservative originalists understand that the Constitution is imperfect and that society changes. Yet, the idea of an evolutionary Constitution is quite antithetical to the point of having a constitution: a document that places unchanging limits on the powers of the government to preserve the people’s social contract. For judicial conservativists, the only legitimate way to incorporate societal changes into the Constitution is through the amendment process as it ensures that changes are only made for those matters of the utmost importance. It safeguards the integrity of the Constitution while preventing simple reinterpretations at the momentary public whim.
II. Gun Control
In light of the recent “Dark Knight” shooting in Colorado, Wallace also brought up the issue of gun control, a topic that has made its way into the media an increasing number of times in the past several years. In the 2008 majority opinion of District of Columbia v. Heller (No. 07-290) 478 F. 3d 370, Scalia stated, “The Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Declaring the handgun ban in the nation’s capitol as unconstitutional, this landmark Heller decision was the first United States Supreme Court case to confirm that the Second Amendment protects the rights of individuals to keep and bear arms.
Scalia makes clear, however, that the right as stated in the Second Amendment in the United States Bill of Rights is not unlimited. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” (Scalia in Heller opinion). In the interview, he also emphasizes the fact that the Second Amendment obviously only applies to those weapons that can be hand-carried, that one can “bear.” Even so, with technological advances allowing smaller weapons to cause immense damage, the extent of what limitations should be considered “permissible” will be up for discretion in future cases. Scalia, as a textualist, states that “My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we’ll see what those limitations are as applied to modern weapons.”
These comments shocked many ardent supporters of American’s right to “lock and load” as they questioned where the Scalia was that wrote the landmark gun control case. They would argue that the Second Amendment emphatically states that “the right of the people to keep and bear arms shall not be infringed,” namely, that the people’s individual right to be armed ought to be respected and that the resulting armed population will be secure against tyranny, invasion, and crime. Thus, outrage immediately sprang up on the Twitter and Internet feeds as supporters saw the door opening for future gun-control legislation. Those in support of Scalia, however, would say that he was simply discussing the principles the court should apply in deciding the contours of the right to “keep and bear arms” in the various settings where a case could surface, just as they guided his majority opinion in Heller and Justice Samuel Alito’s opinion in McDonald v. Chicago in 2010.
III. How Political is the Court?
The third major point of interest in the Chris Wallace interview revolves around the Supreme Court and its interaction with politics. When questioned about the politics of the court, Scalia responds that he does not believe that the court is political at all. For him, the facts that conservative judges vote for conservative outcomes and liberal judges vote for liberal outcomes as well as the 5-4 split votes with Republican-appointed judges on one side and Democrat-appointed judges on the other is all based upon their judicial methodologies. If Republicans are looking for originalist conservative judges and Democrats are looking for the opposite, then “Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with this philosophies?” (Scalia Interview).
I too believe that the court is not overly “political” but for reasons beyond Scalia’s argument that the court typically splits based on judicial methodologies. If one looks at history, dissents are not always along party lines. Thus, ideology does not always drive the dissent rate, but the types of cases heard by the Supreme Court drive the outcomes. As cases have become more complex, polarized, and controversial, dividing the Court of Appeals, they tend to make their way to the highest court in the land. Easy cases at the lower court levels with 8-1, 7-2, or similar outcomes rarely are heard on appeal. Thus, by nature and based upon historical data, future courts will have comparable divisions based upon the cases they choose to hear.
Yet, realistically, it seems to be impossible for the court to be completely independent from party affairs. In his 2010 State of the Union address, President Obama publicly criticized the Supreme Court’s decision in Citizens United stating, “I don’t think American elections should be bankrolled by America’s most powerful interest, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.” Scalia describes the State of the Union as a “juvenile spectacle” that is inappropriate for justices to attend. In my opinion, the President’s swipe at the Supreme Court was a lack of respectability and represents what is bad in Washington politics. While Scalia was present in seven of the first nine addresses after being appointed to the court, he hasn’t been to one since. (NY Times) Just as Scalia isn’t attending, recent addresses have seen a decrease in attendance among other court members, indicating that some are uncomfortable being put in such a “partisan” position.
Even when presented with a quote from Obama pressuring the court during the Affordable Care Act proceedings, Scalia remains restrained stating, “I don’t criticize the President publicly and he normally doesn’t criticize me.” He does give a brief comment on the court and politics continuing, “What can he do to me? Or to any of us? We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.”
Furthermore, when Wallace questions Scalia about whether the unprecedented nature of the court—an unelected group—to overturn an act passed by congress (had the Affordable Care Act (ACA) been declared unconstitutional), Scalia engages on an explanation, and a very eloquent one in my opinion, of the role and function of the Supreme Court in American society:
Look, the most important role we play and the reason we have life tenure is precisely because now and then, we have to tell the majority, the people that they can’t do what they wanted to do. That what they want to do was unconstitutional and therefore go away. Now, that’s not going to make us popular. And you can say, oh, it’s very undemocratic and in a small sense it is. In the larger sense, it isn’t however, because it’s the American people who gave us the power. It’s the American people who said, no, there are some things we’re not going to let future legislators do, even if they want to do it. And we are simply applying the judgment of the American people over time.
Ever since Marbury v. Madison in 1803, the high court has overturned countless acts of Congress; it is the duty of the Supreme Court to do so. At the core of his statements, Scalia is describing how the Supreme Court is not and should not be accountable to the people, but to the Constitution alone. Their one and only role is to protect its integrity and in doing so protect the social contract of the people.
The interview concluded with a lively exchange concerning the question of his retirement from the bench. When Wallace asked about Scalia timing his retirement to give the appointment to a conservative President, Scalia reluctantly answered the question stating, “No, of course, I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years, sure. I mean, I shouldn’t have to tell you that.” For sure, Scalia is concerned about his legacy and the hole in the “originalist” philosophy that might result from his departure. However, Scalia made it clear, he doesn’t seem to be ready to say farewell to the law or his legal career just yet.
The concept of judicial review is an element of our judicial system that few would doubt or criticize in modern times. From the time we first start learning about American government, we are taught about the separations of powers and how each of the three branches of the government keeps the other two in check. We become familiar with stories on the news when Supreme Court opinions are published and an act of Congress either is nullified or confirmed. Why should there be any reason to doubt the role of the Supreme Court and the federal court system to rule whether acts of Congress abide by the Constitution or not?
While this may generally be accepted as one of the major jobs of the Supreme Court today, the Constitution does not explicitly give the Judicial Branch the power of judicial review. Through the establishment of court precedent, however, the ability to declare laws unconstitutional is considered an implied power under Article III and Article VI of the Constitution of the United States.
Selected clauses from Article III state:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . . . The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . . In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Supremacy Clause of Article VI states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. . . . [A]ll executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
These excerpts of the Constitution have created enough convincing evidence for the landmark case Marbury v. Madison to establish the concept of judicial review that is such an integral part of judicial conduct.
There has been some concern about the powers of judicial review since Marbury v. Madison established a legal hierarchy in the United States with the Constitution reigning as the supreme law. Two Presidents of the time, Thomas Jefferson and Abraham Lincoln, were prominent in criticizing the principle of judicial review. They believed that by making the judicial branch the guardians of the US Constitution, the court would be given a supreme position over the other two branches of government (legislative and execute). In addition, they argued that the Justices were individuals not subject to the rigorous democratic process of election and re-election, and thus, life tenure through only the appointment and confirmation process put too much power in the hands of judges to determine the future of legislation without being fully vetted by the American people. In 1820, Tomas Jefferson expressed his deep reservation concerning the doctrine of judicial review in a letter to William Jarvis where he stated:
“You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
Several years later, Lincoln cited as evidence that this power brought forth a low point in American democracy with Dred Scott v. Sandford Case in 1857. This case was decided 7-2 against Scott, an African American slave who unsuccessfully sued for his freedom on the assertion that Scott could not bring suit in the federal court under diversity of citizenship rules. The court also overturned the Missouri Compromise arguing that the Compromise deprived plantation owners of their human (legal) property and therefore violated the Fifth Amendment’s clause that states, “. . . nor shall private property be taken for public use, without just compensation.”
However, since the days of Lincoln and Jefferson, judicial review is now widely accepted in both the political and legal arenas. Though interpreted differently in different jurisdictions, the idea has been exported and integrated into the constitutional fabric of numerous countries such as Brazil and Germany. Today, in the United States, it is the cornerstone of constitutional law; however, for the Founding Fathers as they figured out and solidified the governmental system, it was the first major test of the US Constitution. With Marbury came a whole new sense of direction and a new vision of how to shape both a growing America and an America in the 21st Century.