Justices Antonin Scalia and Stephen Breyer have been doing their “Living Constitutionalism” Concert Tour for so long they can finish each other’s jokes. On Wednesday they brought their show to the Senate Judiciary Committee. Breyer, responding to a question about the living constitution, turned to Scalia and said, “When I produce really, really, very good arguments, I think, he responds with a joke.”
Silence from Scalia.
Breyer: “The bear. You know, the bear.”
Scalia looked confused. “What bear?”
Breyer started to tell the bear joke. “What he says was like the two hunters …”
Scalia stops him. “Oh, oh, oh, OK, I'll tell it.” He tells it.
The bear joke is a Scalia classic. (Patrick Leahy, chairman of the committee, confirms that he’s been telling it for years.) “The story is about the two hunters who are out in the woods in their tent and there's growling in the brush near them,” Scalia told the committee. “And they open the tent flap and there is a huge grizzly bear and they start running. … And—and the guy who's a little heavier and he's running behind, he says, ‘It's no use. We're never going to outrun that bear.’ And the guy who's running in front says, ‘I don't have to outrun the bear. I just have to outrun you!’ ”
As the Senate chamber dissolved in laughter, Scalia sharpened his point, just in case no one got it. “It’s the same with originalism,” he said, referring to his preferred theory of constitutional interpretation. He doesn’t have to prove that it’s the best theory. Gesturing toward Breyer, Scalia said, “I just have to show it’s better than his.”
Nobody expected any less. But the two justices killed before the Judiciary Committee, raising the question anew: Why don’t they do this every week? Why are they hiding this great light under a marble bushel? A new Gallup poll shows that the Supreme Court’s approval rating is at a nearly historic low—only 46 percent of respondents approve of the high court, while 40 percent disapprove. That’s a 15-point drop from the recent high of 61 percent in 2009. Politico notes that the lowest approval recorded by Gallup was in 2005, at 42 percent.
On the one hand, the justices of the court shouldn’t care what the polls say. On the other, they really do. And Wednesday’s outing—proving that even ideologically opposed justices can riff about the Constitution, agree about more than they disagree, and call each other “Nino” and “Steve”—can only reassure the American public that there is nothing fearsome, elitist, or threatening about the courts.
That in itself would be useful. But Wednesday’s testimony did something more: Despite charges that no news was made, Sen. Dianne Feinstein did manage to elicit an interesting admission from Scalia. Maybe the justices modulate what they say when they are under the klieg lights at C-Span. Which may be yet another reason for allowing the lights of C-Span into the court.
Feinstein asked Scalia about a statement he made earlier this year, when he said: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that’s what it meant. Nobody ever voted for that.”
Feinstein’s question for Scalia: “So why doesn’t the 14th Amendment, then, cover women?”
Scalia’s response: “The 14th Amendment ... senator, does not apply to private discrimination. I was speaking of Title VII and laws that prohibit private discrimination. The 14th Amendment says nothing about private discrimination, only discrimination by government.”
Feinstein was referring to a January 2011 interview Scalia gave to the California Lawyer, in which, responding to a question about whether the 14th Amendment’s equal-protection clause was intended to be applied to sex discrimination, Scalia gave precisely the answer Feinstein quoted. Title VII wasn’t mentioned in the question, nor in his reply, at all. The quote caused quite a stir last winter, although it was hardly the first time Scalia had made this argument. All of which is simply to say that if what Scalia was doing in his answer was admitting that he agrees the 14th Amendment does in fact protect women from government discrimination—well, that kind of is news. (The fact that Title VII protects women is definitely not news.) And Feinstein—the only woman present on the panel yesterday—should get credit for it.
Both justices had few kind words to offer the media. Scalia, as he often does, condemned “criticism in the press and the reaction of the public [that] has nothing to do with the law. If they like the result, it's a wonderful opinion and these are wonderful judges. And if they dislike the result, it's a terrible opinion. They don't look to see what the text of the statute is that was before us, and whether this result is indeed a reasonable interpretation of that. None of that will appear in the press reports. They’ll just tell you who the plaintiff was, what the issue was, and who won. And if you like the result, it’s a great opinion. If you don’t like it, it’s terrible.”
Yet later in the same hearing, when asked by Sen. Richard Blumenthal about the possibility of televising the court’s hearings, the justices both said they remain opposed. Said Breyer: “You can make people look good or you can make them look bad, depending on what 30 seconds you take. And it’s already a cult of personality, and let’s not make it worse.” Scalia was more blunt: “Now, if I really thought the American people would get educated, I’d be all for it. And if they sat through a day's of our proceedings gavel-to-gavel, boy, would it teach them a lot. … But for every 10 people who sat through our proceedings gavel to gavel, there would be 10,000 who would see nothing but a 30-second takeout from one of the proceedings, which I guarantee you would not be representative of what we do.”
Now this is funny. Earlier in the hearing the problem was the press and how it doesn’t care about or report on anything but results. But behold! There’s a solution for that. If you televise the court gavel-to-gavel, there would be no mediation by a lying press corps, and people could come to their own conclusions about what the court does and how they do it. How can anybody be opposed to that?
It’s kind of like the old story of the bear. Remember that one? Nobody says having television cameras in the court would be ideal. All we have to show is that it’s preferable to not having them. Yesterday’s dazzling hearing proved yet again that television in the court is so much better than no television. And nobody got eaten by bears.
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.