In Conversation: Antonin Scalia
On the eve of a new Supreme Court session, the firebrand justice discusses gay rights and media echo chambers, Seinfeld and the Devil, and how much he cares about his intellectual legacy (“I don’t”).
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(Photo: Platon)
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On September 26—a day that just happened to be the 27th anniversary of his swearing-in as associate justice—Antonin Scalia entered the Supreme Court’s enormous East Conference Room so casually that one might easily have missed him. He is smaller than his king-size persona suggests, and his manner more puckish than formal. Washingtonians may know Scalia as charming and disarming, but most outsiders tend to regard him as either a demigod on stilts or a menace to democracy, depending on which side of the aisle they sit. A singularity on the Court and an icon on the right, Scalia is perhaps more responsible than any American alive for the mainstreaming of conservative ideas about jurisprudence—in particular the principles of originalism (interpreting the Constitution as the framers intended it rather than as an evolving document) and textualism (that statutes must be interpreted based on their words alone). And he has got to be the only justice to ever use the phrase “argle-bargle” in a dissent.
You came to Washington as a lawyer during the Nixon administration, just before Watergate. What on Earth was that like?
It was a sad time. It was very depressing. Every day, the Washington Postwould come out with something new—it trickled out bit by bit. Originally, you thought, It couldn’t be, but it obviously was. As a young man, you’re dazzled by the power of the White House and all that. But power tends to corrupt.
Then you served in the Ford administration. That must have been an awfully lonely time to be a young conservative.
It was a terrible time, not for the Republican Party, but for the presidency. It was such a wounded and enfeebled presidency, and Congress was just eating us alive. I mean, we had a president who had never been elected to anything except … what? A district in Michigan? Everything was in chaos.
It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a democracy—that will be the source of tyranny.
But weren’t you just saying that you learned from Watergate that presidents aren’t incorruptible?
What, and Congress is? I mean, they’re all human beings. Power tends to corrupt. But the power in Washington resides in Congress, if it wants to use it. It can do anything—it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.
Had you already arrived at originalism as a philosophy?
I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?
But as law students, they were taught that the Constitution evolved, right? You got that same message consistently in class, yet you had other ideas.
I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, “I better reexamine my position!” I probably believe that the worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.
Really? So if you had the chance to have eight other justices just like you, would you not want them to be your colleagues?
No. Just six.
That was a serious question!
What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views.
You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.
So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—
Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
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(Photo: Platon)
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So are there things in the Constitution you find stupid? I remember Judge Bork saying that there were few people who understood what the Ninth Amendment meant, as if it was partially covered by an inkblot.
You know, in the early years, the Bill of Rights referred to the first eight amendments. They didn’t even count the ninth. The Court didn’t use it for 200 years. If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was.
Do you think there are flaws in the Constitution?
The one provision that I would amend is the amendment provision. And that was not originally a flaw. But the country has changed so much. With the divergence in size between California and Rhode Island—I figured it out once, I think if you picked the smallest number necessary for a majority in the least populous states, something like less than 2 percent of the population can prevent a constitutional amendment. But other than that, some things have not worked out the way the framers anticipated. But that’s been the fault of the courts, not the fault of the draftsmen.
What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.
A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”
If there’s a reasonable basis for not letting women do something—like going into combat or whatnot ...
Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.
But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.
What’s your media diet? Where do you get your news?
Well, we get newspapers in the morning.
“We” meaning the justices?
No! Maureen and I.
Oh, you and your wife …
I usually skim them. We just get The Wall Street Journal and the WashingtonTimes. We used to get the Washington Post, but it just … went too far for me. I couldn’t handle it anymore.
What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.
So no New York Times, either?
No New York Times, no Post.
And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.
Not NPR?
Sometimes NPR. But not usually.
Talk guys?
Talk guys, usually.
Do you have a favorite?
You know who my favorite is? My good friend Bill Bennett. He’s off the air by the time I’m driving in, but I listen to him sometimes when I’m shaving. He has a wonderful talk show. It’s very thoughtful. He has good callers. I think they keep off stupid people.
That’s what producers get paid for.
That’s what’s wrong with those talk shows.
Let’s talk about the state of our politics for a moment. I know you haven’t been to a State of the Union address for a while, and I wanted to know why.
It’s childish.
When was the last time you went to one?
Oh, my goodness, I expect fifteen years. But I’m not the only one who didn’t go. John Paul Stevens never went, Bill Rehnquist never went during his later years. Because it is a childish spectacle. And we are trucked in just to give some dignity to the occasion. I mean, there are all these punch lines, and one side jumps up—Hooray! And they all cheer, and then another punch line, and the others stand up, Hooray! It is juvenile! And we have to sit there like bumps on a log. We can clap if somebody says, “The United States is the greatest country in the world.” Yay! But anything else, we have to look to the chief justice. Gee, is the chief gonna clap? It didn’t used to be that bad.
When?
The Gipper may have been the one who started it. He’s the one who brought in people he would recognize in the audience, and things of that sort—made it a television spectacle. And once it becomes a television spectacle, it’s nothing serious.
Of course, the press has the whole thing, and they’re up in the gallery—you can hear them turning pages as the president is speaking. Why doesn’t he just print it out and send it over?
It’s like the Haggadah.
In the years when I went, we used to take bets on how long the speech would be. Rehnquist loved to have betting pools—on football games, baseball games.
Did you ever win?
I never won.
It was recently reported that the justices don’t communicate with one another by e-mail. Do you go online at all?
Yeah. Sure, I use the Internet.
You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?
I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.
I’ve gotten used to it.
Well, I am glad that I am not raising kids today. And I’m rather pessimistic that my grandchildren will enjoy the great society that I’ve enjoyed in my lifetime. I really think it’s coarsened. It’s coarsened in so many ways.
Like what?
One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladiesusing it. People that I know don’t talk like that! But if you portray it a lot, the society’s going to become that way. It’s very sad.
And you can’t have a movie or a television show without a nude sex scene, very often having no relation to the plot. I don’t mind it when it is essential to the plot, as it sometimes is. But, my goodness! The society that watches that becomes a coarse society.
What do you make of the new pope?
He’s the Vicar of Christ. He’s the chief. I don’t run down the pope.
I’m not inviting you to run down the pope. But what do you think of his recent comments, that the church ought to focus less on divisive issues and more on helping the poor?
I think he’s absolutely right. I think the church ought to be more evangelistic.
But he also wanted to steer its emphasis away from homosexuality and abortion.
Yeah. But he hasn’t backed off the view of the church on those issues. He’s just saying, “Don’t spend all our time talking about that stuff. Talk about Jesus Christ and evangelize.” I think there’s no indication whatever that he’s changing doctrinally.
I spent my junior year in Switzerland. On the way back home, I spent some time in England, and I remember going to Hyde Park Corner. And there was a Roman Catholic priest in his collar, standing on a soapbox, preaching the Catholic faith and being heckled by a group. And I thought, My goodness. I thought that was admirable. I have often bemoaned the fact that the Catholic church has sort of lost that evangelistic spirit. And if this pope brings it back, all the better.
The one thing I did think, as he said those somewhat welcoming things to gay men and women, is, Huh, this really does show how much our world has changed. I was wondering what kind of personal exposure you might have had to this sea change.
I have friends that I know, or very much suspect, are homosexual. Everybody does.
Have any of them come out to you?
No. No. Not that I know of.
Has your personal attitude softened some?
Toward what?
Homosexuality.
I don’t think I’ve softened. I don’t know what you mean by softened.
If you talk to your grandchildren, they have different opinions from you about this, right?
I don’t know about my grandchildren. I know about my children. I don’t think they and I differ very much. But I’m not a hater of homosexuals at all.
I still think it’s Catholic teaching that it’s wrong. Okay? But I don’t hate the people that engage in it. In my legal opinions, all I’ve said is that I don’t think the Constitution requires the people to adopt one view or the other.
There was something different about your DOMA opinion, I thought. It was really pungent, yes, but you seemed more focused on your colleagues’ jurisprudence. You didn’t talk about a gay lobby, or about the fact that people have the right to determine what they consider moral. In Lawrence v. Texas, you said Americans were within their rights in “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
I would write that again. But that’s not saying that I personally think it’s destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase of a Supreme Court.
The what?
U-K-A-S-E. Yeah. I think that’s how you say it. It’s a mandate. A decree.
Whatever you think of the opinion, Justice Kennedy is now the Thurgood Marshall of gay rights.
[Nods.]
I don’t know how, by your lights, that’s going to be regarded in 50 years.
I don’t know either. And, frankly, I don’t care. Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement. But I have never been custodian of my legacy. When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.
You believe in heaven and hell?
Oh, of course I do. Don’t you believe in heaven and hell?
No.
Oh, my.
Does that mean I’m not going?
[Laughing.] Unfortunately not!
Wait, to heaven or hell?
It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.
But you don’t have to be a Catholic to get into heaven? Or believe in it?
Of course not!
Oh. So you don’t know where I’m going. Thank God.
I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?
Can we talk about your drafting process—
[Leans in, stage-whispers.] I even believe in the Devil.
You do?
Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.
Every Catholic believes this? There’s a wide variety of Catholics out there …
If you are faithful to Catholic dogma, that is certainly a large part of it.
Have you seen evidence of the Devil lately?
You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.
No.
It’s because he’s smart.
So what’s he doing now?
What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.
That has really painful implications for atheists. Are you sure that’s the Devil’s work?
I didn’t say atheists are the Devil’s work.
Well, you’re saying the Devil is persuading people to not believe in God. Couldn’t there be other reasons to not believe?
Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.
Right.
What happened to him?
He just got wilier.
He got wilier.
Isn’t it terribly frightening to believe in the Devil?
You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, soremoved from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.
I hope you weren’t sensing contempt from me. It wasn’t your belief that surprised me so much as how boldly you expressed it.
I was offended by that. I really was.
I’m sorry to have offended you!
Have you read The Screwtape Letters?
Yes, I have.
So, there you are. That’s a great book. It really is, just as a study of human nature.
Can I ask about your engagement with regular pop culture?
I’m pretty bad on regular pop culture.
I know you watched the show 24. Do you also watch Homeland?
I don’t watch Homeland. I don’t even know what Homeland is. I watched one episode of—what is it? Duck Dynasty?
What?
I don’t watch it regularly, but I’m a hunter. I use duck calls …
Did you just stumble on it by accident?
No! So many people said “Oh, it’s a great show” that I thought I’d better look at it. Have you looked at it?
No. But there are three books on the New York Times’ best-seller list about Duck Dynasty.
Is that right?
Yes. Three. Did you watch The Sopranos? Mad Men?
I watched The Sopranos, I saw a couple of episodes of Mad Men. I lovedSeinfeld. In fact, I got some CDs of Seinfeld. Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? No soup for you!
Speaking of Duck Dynasty, how does a nice boy from Queens become a hunter?
You know, it may be genetic. My grandfather—my namesake, his name is Antonino—he was an avid hunter. He used to disappear for a week—his family would be very upset—because he’d be off in the hills of Sicily, hunting. My last memories of him were—we had a bungalow, which he had built out on Long Island, back in the days when Long Island was really the country. I went in the woods hunting rabbits with him—there’s a photo of me holding a rabbit and his twelve-gauge shotgun. Then he got too old to go in the woods, but my uncle Frank had a large vegetable garden, and my grandfather would sit on the back porch of this bungalow, holding his twelve-gauge shotgun, and would wait for the rabbits to come to him in the vegetable garden. Boom! He would shoot them there.
There isn’t much sport in that.
Well, they’re hard to hit.
If you’re waiting for them to come to your garden?
Listen, when you’re 85 …
Fair enough.
And I inherited his gun. It was an L.C. Smith, which was a very expensive shotgun from the time. It’s corroded about six inches down from the end of the barrel, because that’s where he held it while he was waiting for the rabbits, and the salts from your hand corrode the barrel.
My grandfather is partly the answer. But I also got into it because my eldest son married a girl from Louisiana, whose father was an avid hunter. He got me into deer hunting up in Mississippi. There, I fell in with some Cajuns—including Louis Prejean, the brother of Sister Prejean. He’s as conservative as she is liberal.
I was going to ask.
I got in with them, and I got into goose hunting, duck hunting, redfish fishing—it has been a great addition to my later years. It gets me outside the Beltway with people of the sort I had never known before. They could live in the woods. Give ’em a gun, they could survive in the woods on their own. It’s nice to get in with a different crowd. None of them are lawyers. Or very few.
Here’s another thing I find unexpected about you: that you play poker. Do not take this the wrong way, but you strike me as the kind of person who would be a horrible poker player.
Shame on you! I’m a damn good poker player.
But aren’t you the kind of guy who always puts all of his cards on the table? I feel like you would be the worst bluffer ever.
You can talk to the people in my poker set.
Do you have a tell?
What?
A tell.
What’s a tell?
What’s a tell? Are you joking?
No.
A tic or behavior that betrays you’re bluffing.
Oh! That’s called a tell? No. I never … do you play poker?
Badly. But I feel like Washington has been playing a pretty high-stakes game lately. You’ve seen more Congresses than I have, and you’ve seen this nation go through more turbulent events than I have. But now seems an especially acerbic moment.
It’s a nasty time. It’s a nasty time. When I was first in Washington, and even in my early years on this Court, I used to go to a lot of dinner parties at which there were people from both sides. Democrats, Republicans. Katharine Graham used to have dinner parties that really were quite representative of Washington. It doesn’t happen anymore.
True, though earlier you expressed your preference for conservative media, which itself can be isolating in its own way.
Oh, c’mon, c’mon, c’mon! [Laughs.] Social intercourse is quite different from those intellectual outlets I respect and those that I don’t respect. I read newspapers that I think are good newspapers, or if they’re not good, at least they don’t make me angry, okay? That has nothing to do with social intercourse. That has to do with “selection of intellectual fodder,” if you will.
When was the last party you went to that had a nice healthy dose of both liberals and conservatives?
Geez, I can’t even remember. It’s been a long time.
Is that true on the Court as well? Are things tenser in this building? Were there ever more harmonious groupings of justices than others?
No. Everybody I’ve served with on the Court I’ve regarded as a friend. Some were closer than others, but I didn’t consider myself an enemy of any of them. Now, that hasn’t always been the case. Frankfurter and Douglas, the Harvard Law professor and the Yale Law professor, hated each other. They wouldn’t talk to each other. Imagine being on a committee of nine people where two of them won’t talk to each other! But it’s never been the case since I’ve been on the Court.
You were asked this summer about the most wrenching case you’ve decided, and you answered, “Is Obamacare too recent?”
[Laughs.]
Is that true?
No. Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.
That sheds new light on your famous odd-couple friendship with Ruth Bader Ginsburg. Do you think it’s easier to be close to a colleague who is so ideologically different?
There may be something to that. If you have low expectations, you’re not disappointed. When it’s somebody who you think is basically on your side on these ideological controversies, and then that person goes over to the dark side, it does make you feel bad.
Who was or is your favorite sparring partner on the bench? The person who makes or made your ideas and opinions better?
Probably John Paul Stevens. There are some justices who adopt a magisterial approach to a dissent. Rehnquist used to do it. [He turns his nose up theatrically, flutters his hand in dismissal.] Just, Don’t even respond to the dissent. This is the opinion of the Court, and the hell with you. I am not like that. I think you should give the dissenter the respect to respond to the points that he makes. And so did John Stevens. So he and I used to go back and forth almost endlessly.
Are there any lawyers who you also consider really formidable?
That’s one of the biggest changes on the Court since I’ve been here. When I arrived, there really was not what you could call a Supreme Court bar—people who appear regularly. But now we have people who appear four, five times a term. What has happened is the big law firms have adopted Supreme Court practices. I’m not sure they make money on it, but they get prestige from it. So we get very good lawyers. Many of them ex–solicitor generals.
How does that change your job?
It makes my job easier. We are dependent upon these people who have lived with the case for months—in many cases years—to clarify the facts and to clarify the law. I come to the thing maybe a month beforehand. These lawyers—the reason to listen to them is that they presumably know more about the subject than you do.
Another change is that many of the states have adopted a new office of solicitor general, so that the people who come to argue from the states are people who know how to conduct appellate argument. In the old days, it would be the attorney general—usually an elected attorney general. And if he gets a case into the Supreme Court [pumps his fist], he’s going to argue it himself! Get the press and whatnot. Some of them were just disasters. They were throwing away important points of law, not just for their state, but for the other 49.
Let’s talk about your opinions for a second. Do you draft them yourself? What’s your process?
I almost never do the first draft.
How do your clerks know your voice so well?
Oh, I edit it considerably between the first and the last.
How do you choose your clerks?
Very carefully. What I’m looking for is really smart people who don’t necessarily have to share my judicial philosophy, but they cannot be hostile to it. And can let me be me when they draft opinions, can write opinions that will follow my judicial philosophy rather than their own. And I’ve said often in the past that other things being equal, which they usually are not, I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives. That kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion. That’s what clerks are for—to make sure I don’t make mistakes. The trouble is, I have found it hard to get liberals like that, who pay attention to text and are not playing in a policy sandbox all the time.
How picky are you about which law schools they come from?
Well, some law schools are better than others. You think they’re all the same?
Now, other things being equal, which they usually are not, I would like to select somebody from a lesser law school. And I have done that, but really only when I have former clerks on the faculty, whose recommendations I can be utterly confident of. Harvard, Yale, Stanford, Chicago, they’re sort of spoiled. It’s nice to get a kid who went to a lesser law school. He’s still got something to prove. But you can’t make a mistake. I mean, one dud will ruin your year.
While your opinions are delectable to read, I’m wondering: Do you ever regret their tone? Specifically, that your tone might have cost you a majority?
No. It never cost me a majority. And you ought to be reluctant to think that any justice of the Supreme Court would make a case come out the other way just to spite Scalia. Nobody would do that. You’re dealing with significant national issues. You’re dealing with real litigants—no. My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?
Law students.
Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.
Is your favorite one-liner still the sausage one? “This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.’ ”
It’s the best opening line of an opinion.
It was a really good opinion.
Isn’t that good? I was on the Court of Appeals, that wasn’t even up here. But my favorite one-liner is from Morrison v. Olson: “But this wolf comes as a wolf.” You know the one I’m talking about?
Yes.
That’s a great one. You gotta read the whole paragraph. Boom. [Punches the air.] But I often worry when I go back and read one of my early opinions like Morrison v. Olson. I say, “God, that’s a good opinion. I’m not sure I could write as good an opinion today.” You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.
Wasn’t it Stevens who said to Souter, “Tell me when I’m losing it and need to retire?”
No, it wasn’t Stevens. I think it was Holmes who asked Brandeis.
Oh, so I got it completely wrong.
[Smiles.] Completely wrong.
But how will you know when it’s time to go? It doesn’t seem like you have anything to worry about at the moment, but it’s interesting to hear you even flick at that.
Oh, I’ll know when I’m not hitting on all eight cylinders.
Are you sure? All these people in public life—athletes in particular—never have a clue.
No, I’ll know.
What will the telltale sign be?
One will be that I won’t enjoy it as much as I do. I think that’s the beginning of the end. I was worried lately about the fact that the job seems easier. That I really don’t have to put in the excessively long hours that I used to. I still work hard. But it does seem easier than it used to. And that worried me. You know:Maybe I’m getting lazy. You know, I’m not doing it as thoroughly, or whatever. But after due reflection, I’ve decided the reason it’s getting easier is because so many of the cases that come before us present the issue of whether we should extend one of the opinions from the previous 27 years that I’ve been here, which I dissented from in the first place!
Yet today, you’re a conservative icon, and federalist societies abound on university campuses, and originalism and textualism are no longer marginal. Do you feel like you’re winning or losing the battle for constitutional interpretation?
I don’t know how much progress I’ve made on originalism. That’s to be seen. I do think originalism is more respectable than it was. But there’s still only two justices up here who are thoroughgoing originalists. I do think things are better than they were. For example, I truly thought I’d never see an originalist on the faculty of Harvard Law School. You know, everybody copies Harvard—that’s the big ship. There are now three originalists on the faculty, and I think I heard that they’ve just hired, or are considering hiring, a fourth. I mean, that’s amazing to me. Elena Kagan did that, and the reason she did it is that you want to have on your faculty representatives of all responsible points of view. What it means is that at least originalism is now regarded as a respectable approach to constitutional interpretation. And it really wasn’t twenty years ago, it was not even worth talking about in serious academic circles.
An area where I think I have made more progress is textualism. I think the current Court pays much more attention to the words of a statute than the Court did in the eighties. And uses much less legislative history. If you read some of our opinions from the eighties, my God, two thirds of the opinions were discussing committee reports and floor statements and all that garbage. We don’t do much of that anymore. And I think I have assisted in that transition.
Fifty years from now, which decisions in your tenure do you think will be heroic?
Heroic?
Heroic.
Oh, my goodness. I have no idea. You know, for all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who’s regarded as: “He was on the losing side of everything, an old fogey, the old view.” And I don’t care.
Do you think you’re headed in that direction?
I have no idea. There are those who think I am, I’m sure. I can see that happening, just as some of the justices in the early years of the New Deal are now painted as old fogies. It can happen.
Wow, it’s amazing your mind even went there. I ask about a triumph, and you give me another answer entirely, about the possibility of failure. I was expecting you to end on a high note. Do you want to try another stab at a heroic decision?
Heroic is probably the wrong word. I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.
From the case involving Vice-President Cheney, with whom you’d gone hunting?
I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.
As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.
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