July 29, 2012

6 highlights from Chris Wallace's great interview with Justice Scalia.

From the transcript of this morning's Fox News Sunday (and video).

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?

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.
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.
WALLACE: Did you view that as a threat?

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.
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.

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?


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.
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."

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?

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.
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!


Michael K said...

Scalia is pretty likeable in that interview. I was actually doing something else and stopped to watch it. He looks pretty good for a guy a year older than I am.

Wisco said...

Well golly, a suitcase nuke or a dirty bomb are handheld arms. Does the Second Amendment cover those? Who Knows? "These matters yet to be decided."

Hopefully, by someone with more damned common sense than Antonin Scalia.

Lem said...

Scalia responds in a similarly childish form: "No, never ever. Never ever."

Lem said...

He's 76, but is he a fool?

You don't interpret a fool to be a pig. It can't be a pig.

ndspinelli said...

Scalia is a classic engaging Italian. If you live in an area w/ many Italians you will meet many like him. Probably none as intelligent or eloquent..but just sa engaging. It's the dago charm.

I've seen Scalia interviewed along w/ Breyer and it's obvious Breyer looks @ Scalia like an uncle he loves.

Sorun said...

Terry, bombs of almost any kind are illegal. In fact, simple firecrackers are illegal in many states. Those laws are not being challenged on Second Amendment grounds.

You don't need a Justice to answer Terry's question, just a lick of common sense.

Left Bank of the Charles said...

Justice Black was a textualist, Justice Scalia is a textual determinist. That's not to say all of his decisions are wrong.

The question I would like to seem him asked is whether, if Congress had used the word "tax" instead of "penalty" in Internal Revenue Code section 5000A, would that be an unconstitutional penalty?.

ndspinelli said...

I think Terry Canaan is a friend of Garage. Welcome and hold on tight, it may get a bit rough.

SomeoneHasToSayIt said...
This comment has been removed by the author.
SomeoneHasToSayIt said...

What I found most interesting was hearing Scalia speculate "He may be right", referring to whether the President has the power to choose not to enforce certain laws and statutes.

I assume he HAD to say it that way, and I am hoping that he put that out there as a hint to Conservatives that he would welcome a chance to rule on that very question.

Personally I think it is the most unconstitutional thing Obama has done, and further, I believe that were he not Black, and were he not likely now to be removed in 100 days anyway, some in Congress might be moved to label it an impeachable offense and a clear violation of his oath of office, and start proceedings.

John said...

Scalia was poking fun at the mental gymnastics Roberts went thru to find for Obamacare. Maybe Scalia should/will do something equally as ridiculous when next gun rights comes up.

MaggotAtBroad&Wall said...

Check the Memeorandum thread to see how lefties at Think Progress and their comrades are dishonestly distorting what he said about rocket launchers.

Guildofcannonballs said...

As Scalia, aptly Buckley, stated, in addition to other things, when the Dead sang "Anybodys choice, I can hear your voice. Wo, oh, what I want to know, how does the song go?" clearly abortion should be legislated.

The people are able to handle important, as well as trivial, things.

Uncle John's Band.

Hagar said...

You don't have to go to shoulder-fired missiles. All automatic firing weapons (obviously including "assault rifles) have been restricted to military and police use since 1935, and there is no serious debate about that.

Hagar said...

Instapundit has a link to an article that says anyone can now buy the equipment to "print" metal objects such as full automatic M-16 receivers, and soon such printers will be able to "print" the parts for the whole weapon, and that will be the end of "gun control."

Not so fast. No one disputes that the weapons exist; it is possession that is outlawed, and that will remain so.

The confusion in the mind of this writer (and almost everyone else) is that the Democrat push for gun "control" actually has been for gun removal, which is, of course, quite a different thing.
Like with so much else, you have to watch how liberal Democrats (mis)use the language.

Hagar said...

There are lots of things that I can readily make that are illegal for me to have in my possession. F. ex. pipe bombs; I can go down to Home Depot and buy everything I need right now.

Guildofcannonballs said...

Trust me.


With the words.

That you hear evermore.


Per Tallica Meta, as it were.

Charlie Martin said...

Did Scalia say anything more substantive about guns than "no, I won't tell you how I'd rule on a topic that may come up before me"?

Guildofcannonballs said...

Let us be clear and talk of more numerous things than not:

"The definition of a body in terms of metaphysics is a puzzling endeavor. It is likely to connote the notion of some sort of inert physical matter subject to the whims of volition and in kind to physical law."

The definition of "body" is bullshit, and the Dead Grateful self-refutes.

And money talks, no matter how cheap.

Carnifex said...

Wow! Imagine that. A Supreme Court Justice agreeing with me that Roberts severely overstepped his authority, by re-writing the meanings of words in the Englisg language. I will now accept apologies from the idiot Roberts defenders.

Roberts didn't threaten to cut the baby in half, he Did cut the baby in half. Then the mother, the father, all the siblings, and for good measure, the neighbors too.

Major Fail. No...catastrophic fail by a "smart" guy. Or is he an "Elite" now?

Carnifex said...


Zero has gotten way with more shit than any president by dint of his skin color. A niggerdly congress is too chickenshit to reign him in for fear of being called racist. That, and the outright sycophancy that the media whores itself out too is truly sickening.

Fuck Obama. The thread yesterday about hating/ liking him...I loathe the smarmy worm. I wouldn't piss on him if he was on fire.

Carnifex said...

Yes, the word "niggerdly" was used for shock value. Did it work? Good!

Guildofcannonballs said...

I agree the United States Supreme Court is not a political institution.

True, dumb SCOTUS picks by dumb Republican presidents, like Ronald Reagan would surely conclude his appointment of S. O'Connor was, happen.

Liberals, honest more than little, seem to always get what they want.

Guildofcannonballs said...

Unless one considers a Supreme Court Justice a fool, rather unlikely although I consider Ginsberg a dumb bigot consumed by (legitimate) feelings of inadicuacy, although she can spell that term without spell check and I cannot with, asking about when they will retire, more than a couple times, is stupid.



Okay then move on Wallace.

bluemoonpaul said...

Gosh, if you're going to try and shock, at least spell it properly. It's "niggardly."
I agree with your main points, but not with how they're expressed. You do yourself and us no favors.

jimbino said...

Someone needs to inform Justice Scalia that "write" used as an intransitive verb can't have the thing written as the subject.

sane_voter said...

"It's 'niggardly.'"

He said, sniggering.

Chuck said...

A much longer, and even more engaging and free-ranging interview with Justice Scalia, conducted by the wonderful Brian Lamb on his C-SPAN program, Q&A, can be found as a podcast at the C-SPAN website.

Check it out.

Charlie Martin said...

Camifex, two points:

(1) why exactly is Scalia's opinion more determinative than Roberts', except of course that Scalia seems to agree with you?

(2) the only people who are shocked by the word "niggardly" in any context are semiliterate fools.

Carnifex said...

Because despite the grammer police most people are fools,
and you don't get to make up the meaning of words even if you ARE the Supreme Supreme court justice. Or should I just keep spelling it niggerdly?

Carnifex said...


Thanx for the correct spelling...;-)

Ralph L said...

Will you time your retirement so that a more conservative president can appoint a like-minded justice?
Scalia might be hoping for a more conservative president than Romney, so it may not be just a sharp Rep/Dem divide in his mind. Of course he knows any Dem but Zell Miller will appoint someone he disagrees with.

Ralph L said...

It's grammar.

What's the matter C, got loose vowels?

Carnifex said...


I just got it! You "people" don't realize that Justice Roberts made every law, every contract, everything moot. Any judge in the country can now say "Well that might be whats written in this here contract, but that's not what is meant, what it really meant to say was what I want it to say"

Because Roberts opened up a Pandoras Box where it doesn't matter what you, I, the congress, the president, or the OED says a word means, it's what that jurist at that time says it means, and if you don't like it, tough titty. Where ya gonna go to now?

Lemmee know how that works out for you.

Ralph L said...

And this is different from where we've been the last 50 odd years?

mariner said...

"It's clear, he says, as a matter of textualism, that the Second Amendment doesn't "apply to arms that cannot be hand-carried."

What's clear is that Scalia is full of shit.

The Second Amendment was inspired, at least in part, by the Royal Governor's attempt to confiscate arms in Massachussetts.

The arms were cannon and shot, which were definitely not "hand-carried".