Sept. 14, 2008

Justice Scalia On The Record

60 Minutes' Lesley Stahl Interviews The Supreme Court Justice About His Public And Private Life

  • Video Justice Scalia On Life Part 2

    The U.S. Supreme Court?s Antonin Scalia discusses his public and private life in a remarkably candid interview with Lesley Stahl.

    • Supreme Court Justice Antonin Scalia

      Supreme Court Justice Antonin Scalia  (CBS)

    • Supreme Court Justice Antonin Scalia, speaking with 60 Minutes correspondent Lesley Stahl.

      Supreme Court Justice Antonin Scalia, speaking with 60 Minutes correspondent Lesley Stahl.  (CBS)

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"Making Your Case: The Art of Persuading Judges"
by Antonin Scalia and Bryan A. Garner

(CBS)  This segment was originally broadcast on April 27, 2008. It was updated on Sept. 12, 2008.

Not many Supreme Court justices become famous, but Antonin Scalia is one of the few. Known as "Nino" to his friends and colleagues, he is one of the most brilliant and combative justices ever to sit on the court and one of the most prominent legal thinkers of his generation.

He first agreed to talk to 60 Minutes correspondent Lesley Stahl last spring about a new book he's written on how lawyers should address the court. But over the course of several conversations, our story grew into a full-fledged profile - his first major television interview - including discussions about abortion and Bush v. Gore.

At 72, Justice Scalia is still a maverick, championing a philosophy known as "orginalism," which means interpreting the Constitution based on what it originally meant to the people who ratified it over 200 years ago.

Scalia has no patience with so-called activist judges, who create rights not in the Constitution - like a right to abortion - by interpreting the Constitution as a "living document" that adapts to changing values.



Asked what's wrong with the living Constitution, Scalia tells Stahl, "What's wrong with it is, it's wonderful imagery and it puts me on the defensive as defending presumably a dead Constitution."

"It is an enduring Constitution that I want to defend," he says.

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

"As opposed to what people today think it means," Stahl asks.

"As opposed to what people today would like," Scalia says.

"But you do admit that values change? We do adapt. We move," Stahl asks.

"That's fine. And so do laws change. Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution," Scalia argues.

He's been on a mission as an evangelist for originalism, at home and around the world.

For example, he visited the Oxford Union in England.

"Sometimes people come up to me and inquire, 'Justice Scalia, when did you first become an originalist?' As though it's some weird affliction, you know, 'When did you start eating human flesh?'" Scalia told students, who replied with laughter.

They may be laughing, but in the U.S. Scalia is a polarizing figure who invites protestors and picketers. There haven't been many Supreme Court justices who become this much of a lightening rod.

"I’m surprised at how many people really, really hate you. These are some things we've been told: 'He’s evil.' 'He's a Neanderthal.' 'He’s going to drag us back to 1789.' They're threatened by what you represent and what you believe in," Stahl remarks.

"These are people that don't understand what my interpretive philosophy is. I'm not saying no progress. I'm saying we should progress democratically," Scalia says.

Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."

Continued



Produced by Ruth Streeter
© MMVIII, CBS Interactive Inc. All Rights Reserved.
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by Sparticle1 May 27, 2009 6:13 PM EDT
Oh, and the 5th amendment prohibition against double jeopardy "twice put in jeopardy of life and limb" doesn't apply if you can be cloned, or does apply but only if you don't have at least two more clones.
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by Sparticle1 May 27, 2009 6:09 PM EDT
"it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution"

So....if "freedom of speech, or of the press" meant "movable type printing presses" and "human-powered voice amplification" to the ratifiers, then freedom of speech does not apply to electronic broadcast, newspapers produced through electronic printing press methods, emails, websites, amplified megaphones --- in fact there is no speech under original intent for anything involving electricity or any other technology not present in 1789?
Therefore, the 2d Amendment applies only to knives, axes, flintlocks and cannon, the 4th amendment does not apply to motorized vehicles or airplanes, so where does Scalia get off "making law"? Answer: he is a fraud on this point, and only uses that obvious baloney to reach results he "feels" are right.
Reply to this comment
by traderlaurel September 18, 2008 3:20 PM EDT
"Get over it."
It''s not acceptable to fold your arms, and refuse to elaborate on the argument at his level with his power in his position. He knows his faulty argumentation will be revealed through this pre-Socratic questioning and his arrogant posturing is part a defensive stance is an attempt to close-off and reduce the argumentation of the opposition. I''d like to know where the "factoid" was found that no matter, what, the election would have turned out the same. ???

Having said that, this show isn''t going to explore any deep understanding of the arguments. On either side.

I believe in some of the things he believes in and I don''t believe in some of the things he believes in, but I''m not a Supreme Court Justice with many years of law scholarship. We deserve more than these types of answers though, and I''ll check out his book--hopefully, they''ll be more there to digest than this cartoon.

"That''s my view and it happens to be correct."
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by mathy6-2009 September 18, 2008 11:43 AM EDT
Justice Scalia has no idea how torture can be seen as punishment. He may be very intelligent, but he has failed to make the following basic connection. What is a torture victim being punished for, he asks? Why didn''t Leslie Stahl say "for not talking"..."for not confessing"..."for not naming names". Clearly torture is punishment for withholding information.
It''s not that big of a mental leap. Torture is inflicted in order to get information. Presumably once the information is given, punishment (a.k.a. torture) will cease. That it does not, adds to the fact that it is indeed cruel and unusual.
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by oyinbo55 September 18, 2008 2:01 AM EDT
The Scalia hypothesis is that his "originalist" philosophy explained his various opinions, such as support of torture, etc. On the face of it, it seems to be quite a contradiction to say that the most radical freedom fighters of their generation, after doing battle with the tyrant George III of England , would support blatant tyranny in the form of torture today. When asked if torture violated the Constitution''s ban on cruel and unusual punishment, he simply smiled and said that questioning a prisoner is not punishment. Huh? By that Supreme Court reasoning, the government could poison its prisoners, because feeding prisoners is not punishment. It is in the context of the struggle against tyranny that we can understand the meaning of "cruel and unusual punishment." The colonists were well aware that citizens of England enjoyed civil liberties under the Magna Charta. When the American colonists called a punishment "unusual", they meant exactly that - it deviated from the usual practice in England. To say that the prohibition against cruel and unusual punishment applies to torture is just the very beginning of what that phrase would have meant. The warrantless search of their homes and seizure of their property by His Majesty''s soldiers was unusual, and violated the revered principle of presumption of innocence. These were the unusual punishments that the Founding Fathers set out to lift from the shoulders of the free American people.
Reply to this comment
by oyinbo55 September 18, 2008 1:57 AM EDT
The Scalia hypothesis is that his "originalist" philosophy explained his various opinions, such as support of torture, etc. On the face of it, it seems to be quite a contradiction to say that the most radical freedom fighters of their generation, after doing battle with the tyrant George III of England , would support blatant tyranny in the form of torture today. When asked if torture violated the Constitution''s ban on cruel and unusual punishment, he simply smiled and said that questioning a prisoner is not punishment. Huh? By that Supreme Court reasoning, the government could poison its prisoners, because feeding prisoners is not punishment. It is in the context of the struggle against tyranny that we can understand the meaning of "cruel and unusual punishment." The colonists were well aware that citizens of England enjoyed civil liberties under the Magna Charta. When the American colonists called a punishment "unusual", they meant exactly that - it deviated from the usual practice in England. To say that the prohibition against cruel and unusual punishment applies to torture is just the very beginning of what that phrase would have meant. The warrantless search of their homes and seizure of their property by His Majesty''s soldiers was unusual, and violated the revered principle of presumption of innocence. These were the unusual punishments that the Founding Fathers set out to lift from the shoulders of the free American people.
Reply to this comment
by oyinbo55 September 18, 2008 1:56 AM EDT
The Scalia hypothesis is that his "originalist" philosophy explained his various opinions, such as support of torture, etc. On the face of it, it seems to be quite a contradiction to say that the most radical freedom fighters of their generation, after doing battle with the tyrant George III of England , would support blatant tyranny in the form of torture today. When asked if torture violated the Constitution''s ban on cruel and unusual punishment, he simply smiled and said that questioning a prisoner is not punishment. Huh? By that Supreme Court reasoning, the government could poison its prisoners, because feeding prisoners is not punishment. It is in the context of the struggle against tyranny that we can understand the meaning of "cruel and unusual punishment." The colonists were well aware that citizens of England enjoyed civil liberties under the Magna Charta. When the American colonists called a punishment "unusual", they meant exactly that - it deviated from the usual practice in England. To say that the prohibition against cruel and unusual punishment applies to torture is just the very beginning of what that phrase would have meant. The warrantless search of their homes and seizure of their property by His Majesty''s soldiers was unusual, and violated the revered principle of presumption of innocence. These were the unusual punishments that the Founding Fathers set out to lift from the shoulders of the free American people.
Reply to this comment
by cutthebull September 17, 2008 5:39 PM EDT
The Supreme Court decision in 2000 was completely political and is black mark on the history of this country. Why: Because every county in this country uses it''s own method of voting, so to use this as an argument to stop the count is ridiculous. Like Bill Clinton said, if Gore had been ahead in the count, the Court would have ruled 9-0 to continue the recount. I think he would know.
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by iambwf September 16, 2008 5:41 PM EDT
It is disappointing to see some lingering over the 2000 election. I have to wonder if they actually understand the law. Under what legal basis was a selective recount warranted? It showed Stahl''s ignorance that she wanted to make a legal decision political based on the outcome of the case.

Scalia is pompous. So what? How does that discredit the logic of his position?
Reply to this comment
by missingamerica September 15, 2008 6:24 PM EDT
You should read Scalia''s dissent on the Guantanamo rouling and tell me how the statement "It will almost certainly cause more Americans to be killed." fits into the notion that the Constitution has a fixed interpretation.

Scalia is a pompous @ss

Posted by Nancy_Naive at 10:44 AM : Sep 15, 2008

That is easy...the right no longer requires that what they want meet any Constitional criteria.

All of the right is like that, now - the Constitution is a tool for their use; when it becomes an impediment to what they want, it instantaneously becomes "just a go44@mned piece of paper".
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