1. Obamacare. Since Scalia is on the show to promote his new book, Wallace duly begins with a quote from the book: "A statute should be interpreted in a way that avoids placing its constitutionality in doubt." Now, doesn't that undercut Scalia's criticism of Chief Justice Roberts's decision in the Obamacare case? Roberts found that what was called a "penalty" (for failure to acquire health insurance) was actually a tax, and reading the statute that way avoided the constitutional problem. Scalia responded that his principle of interpretation only allows the judge "to find a meaning that the language will bear":
You don't interpret a penalty to be a pig. It can't be a pig. And what my dissent said in the... Affordable Care Act was simply that there is no way to regard this penalty as a tax. It simply doesn't bear that meaning. You cannot give -- in order to save the constitutionality, you cannot give the text a meaning it will not bear.How does one know what the language will bear and will not bear? Yes, it's not a pig, but why isn't it a tax? There wasn't any pursuit of that line of inquiry, but later in the interview, Wallace came back to the case, that time to ask about the new reports that said Roberts changed his mind in the middle of working on the Obamacare opinion. Wallace introduced the topic by asking if Scalia himself had ever changed his mind after voting in conference. Scalia said:
I have not only done that, I have changed my mind after have been assigned to write the majority opinion. I've written the opinion the other way, it just wouldn't write.... There is... nothing wrong with that.Wallace then asked "Did Chief Justice Roberts change his mind in the ObamaCare case?" Scalia says he doesn't know — "You'll have to ask him." And Wallace tries again, asking whether at some point Scalia had a majority. Again, Scalia refuses: "I don't talk about internal court proceedings." Wallace resorts to the cutesy: "Just this once?" And Scalia responds in a similarly childish form: "No, never ever. Never ever." But when Wallace accepts the pushback and just says "OK," Scalia opens up:
And, listen, those who do, you shouldn't believe what you read about internal court proceedings, because the reporter who reports that is either: A, lying, which can be done with impunity, because as you know, we don't respond. It's the tradition of common law judges to lay back and take it. You don't respond in the press. Or B, that reporter had the information from some who was [sic] breaking the oath of confidentiality, which means that's an unreliable person. So, either way, you should not -- you should not put any stock in reports about what was going on in the secrecy of the court.Take that Jan Crawford!
2. Second Amendment. Wallace asked about the scope of the right protected by the Second Amendment (which the Supreme Court did not detail in Heller). Scalia says:
What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor.... My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we'll see what those limitations are as applied to modern weapons.It's clear, he says, as a matter of textualism, that the Second Amendment doesn't "apply to arms that cannot be hand-carried." But that doesn't mean it does apply to everything that can be hand-carried, for example, "handheld rocket launchers that can bring down airplanes." These are matters yet to be decided.
3. "How political is the court?" Scalia — unsurprisingly — says the Court isn't political at all, even though these days, the conservative/liberal split aligns with Republican appointees and Democratic appointees:
That... shows that they had been selected because of their judicial philosophy. The Republicans have been looking for, you know, originalist and textualist and restrained judges for 50 years. And the Democrats have been looking for the opposite, for people who believe in Roe versus Wade. Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with th[ese] philosophies?4. Obama and the Court. Wallace invited Scalia to comment on Obama's criticizing the Supreme Court, first with video of 2010 State of the Union speech with Obama calling out the Justices who were sitting right in front of him. Scalia said that's why he doesn't attend. Second, Wallace showed video of Obama "jawboning" the Court while the Obamacare case was pending. Scalia called it "unusual" — "But as I say, I don't criticize the president publicly and he normally doesn't criticize me."
WALLACE: Did you feel any pressure as a result of that to vote a certain way?The "yes" didn't mean "yes" other than yes, I get what you're asking. It was absolutely clear in the video that he didn't feel at all threatened.
SCALIA: Yes. What can he do to me? Or to any of us? We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.
WALLACE: Did you view that as a threat?Ha ha. That was a little theater, acting out his attitude that the President is over there in his branch, doing whatever it is he does, and I'm here in mine, fully insulated.
SCALIA: I didn't view it as a threat. I'm not even sure I heard it.
WALLACE: Well, you heard it now.
SCALIA: You brought it to my attention.
5. Dissing Judge Posner. Wallace quoted Posner's saying that part of Scalia's dissenting opinion in the Arizona immigration case had "the air of a campaign speech." Scalia went comically snobby:
SCALIA: He is a court of the appeals judge, isn't he?Wallace commented that Scalia knew how to "push people's buttons," and Scalia said "It's fun to push the buttons." Wallace pursued him — "Is it?... Why" — and Scalia basically says Posner started it: "When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative."
SCALIA: He doesn't sit in judgment of my opinions as far as I'm concerned.
WALLACE: You sit in judgment of his opinion?
SCALIA: That's what happens.
6. He's 76, but is he a fool?
WALLACE: You are 76 years old. Will you time your retirement so that a more conservative president can appoint a like-minded justice?See how cagey Wallace was? Scalia didn't want to answer the question about timing his retirement to give the appointment to a conservative President, but then Wallace asked the question a different way, referring to the earlier discussion about why it seems — wrongly! — that the Court is political, and that caused Scalia to give the answer, which is of course he's going to time it. It amused me that he tacked on the ending "Unless you think I'm a fool," because Wallace actually did fool him into answering the question he didn't want to answer and because Wallace extracted that answer — which makes Scalia look political — by referring to the earlier discussion of why the Court looks political — but isn't!
SCALIA: I don't know. I haven't decided when to retire.
WALLACE: But I mean, does it go through your mind, if I retire, I'd like to see, since you talk about Republicans appointing one kind of justice and Democrats another, that you would want somebody who would adhere to your view...?
SCALIA: No, of course, I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years, 26 years, sure. I mean, I shouldn't have to tell you that. Unless you think I'm a fool.