If judicial confirmation hearings in the Senate were one-tenth as illuminating as last night's debate between Supreme Court Justices Antonin Scalia and Stephen Breyer at the Capitol Hilton, there would be a booming market for Supreme Court action figurines. Co-sponsored by the American Constitution Society and the Federalist Society (the Birkenstocks and bow ties of the legal universe), the debate has Breyer and Scalia whacking their way through the possibility of "justice," the limitations of constitutional history, and, throughout the evening—the possibility of persuasion.
The justices agree more than they differ, and they agree about nothing so much as the extent to which they agree. They agree in the majority of the cases they decide, and they agree that "judicial activist" is a stupid label. They agree that religion cases are hard and that judicial minimalism is overrated. Still, when you're sitting close enough to see that Supreme Court justices actually wear socks, their differences are stark. From the moment he takes the stage, Justice Breyer looks outward. He shifts in his seat constantly to catch the eye of the moderator, ABC's Jan Crawford Greenburg, and then to make eye contact with individual audience members. When Scalia speaks, Breyer nods and bobs. Justice Scalia turns inward, folding up his arms and gazing raptly into the middle distance. As Breyer speaks, Scalia first smirks, then giggles, then sort of erupts with a rebuttal, usually aimed right at the tips of his shoes. Where Breyer is ever striving to connect to the world, Scalia is happiest in his head. Throughout the debate, Breyer continues to measure, aloud, whether he and Scalia are "making progress." Scalia laughs that Breyer's hopes for the evening are too high.
Scalia is charming and—as ever—riotously funny. For each time Breyer says his own constitutional approach is "complicated" or "hard," Scalia retorts that his is "easy as pie" and a "piece of cake." And if this debate mirrors a marketplace of ideas, Breyer will make the sale through the earnest personal connection of a Wal-Mart greeter, while Scalia opts for the aloof certainty of the Tiffany's salesman: "Sure, you can buy some other, cheaper constitutional theory, but really. Ew."
Each of the justices explains how he approaches a case: Breyer has six interpretive tools—text, history, tradition, precedent, the purpose of a statute, and the consequences. In his view, it's a mistake to ignore the last two. Scalia replies that to look at either the purpose or the consequence of a statute is to invite subjectivity and beg the question.
Scalia bristles when Crawford Greenburg quotes back a line about the "living Constitution" being "idiotic." "You are misquoting me," he says. "I was describing the argument in favor of the living Constitution—that it's a living organism that must grow or become brittle and snap." And he can't resist adding, "That is idiotic." He observes that there is a difference between applying the Constitution to a changing world—to television and the Internet, say—and to "morphing" old ideas to mean precisely their opposite. How could a Constitution that clearly allowed for the death penalty now explicitly prohibit it? "That's the living Constitution I am talking about, and it's the one I wish would die."
Breyer points out that the constitutional language of "cruel and unusual" is not clear, before chuckling, "I was making a lot more progress before." Breyer describes the job of justices as patrolling the boundaries—making certain the legislature doesn't "go too far" at the margins. The words of the Constitution "don't explain themselves," he says. Scalia retorts that the Bill of Rights itself sets out the limitations on legislatures and that a majority set out these limitations when it ratified the Constitution. Those are the real boundaries, not the boundaries invented by each new generation of jurists.
Breyer says that if the only thing that matters is historical truths from the time of the Constitution, "we should have nine historians on the court." Scalia says, "It's not my burden to prove originalism is perfect. It's just my burden to prove it's better than anything else." He adds that a court of nine historians sounds better than a court of nine ethicists.
The justices enter into a side skirmish over the high court's religion jurisprudence—a skirmish that launches Scalia into a delicious impression of the Frenchman who described to him the difference between France and America: "Justice Scalia," he minces, "France is a country with 300 cheeses and two religions. The United States is a country with two cheeses and 300 religions."
Breyer cracks up: "But why does the Frenchman have an Italian accent?"
Both justices agree the words activist judge are basically useless. "An insult," says Breyer. A "conclusory label," says Scalia. Asked if he ever calls Breyer an activist, Scalia quips: "I would never call him that to his face."
Breyer selects Brown v. Board of Education as a case that was criticized as activist but is today recognized as a correct application of the Equal Protection clause. It's an odd choice in light of the desegregation cases argued at the court just this week. Brown's indisputable "correctness" has, after all, possibly laid the groundwork for its own demise.
Both justices agree that Chief Justice John Roberts' affection for narrower, unanimous cases is probably mistaken: says Scalia, "If you wanted to decide almost nothing at all and decide the case on such a narrow ground that it will be of very little use to the bar in the future, you can always get nine votes." He notes that it helps the bar not at all to have cases decided on narrow technicalities. Breyer agrees that you don't want nine votes just to have nine votes. Scalia also disputes Roberts' distaste for "boldness" in opinion writing: "The law doesn't have to be dull," he grins, explaining that he writes his dissents for the case books. "Originalism used to be an orthodoxy," he sighs. "Now, there are only two certified originalists on the court, myself and Justice Thomas." He waves his arm hopelessly at the 900 assembled lawyers. "I don't hope to persuade you. It's too late for you guys." But he says he's still hoping to win over the law students.
Here is where Breyer reveals just how much these men truly differ. Because, says he, he writes his dissents to persuade. His cell phone erupts here. He describes how after finishing each dissent, he proclaims to his wife that "this time it will really persuade them." He laughs, explaining that over time, that always changes to a hope that he'll persuade them and then to regret that it didn't. Scalia offers the view that nobody at Supreme Court case conferences is persuaded by the other justices. Breyer thinks his colleagues' minds can be changed with good arguments.
Breyer celebrates the benefits of the many diverse and contrasting views at the high court. Scalia mourns the fact that they don't all share Scalia's views. The discussion is broad and deep, collegial and frank. And as we always knew from oral argument, there are miles and miles separating Scalia's elegantly simple interpretive worldview from Breyer's murkier, more hopeful one. Stephen Breyer's jurisprudential Grover—sweet and optimistic and eager-to-please—is working the room, confident he'll sell us on his constitutional theory, one lawyer at a time. And Antonin Scalia's constitutional Oscar the Grouch—frustrated and misunderstood, yet somehow more lovable for it—doesn't even try to close the deal. He doesn't need us to vindicate him. He's confident history will do that.
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