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.