tv Key Capitol Hill Hearings CSPAN May 14, 2016 2:00am-4:01am EDT
if not here, where? otherwise, we're next. >> sunday night at 8:00 eastern and pacific on c-span q&a. next a discussion on the legacy and influence of the late supreme court justice antonin scalia. a group of his former law clerks and current litigateors and law professors examine his career which ended with his death in february at the age of 79. held by the university of california berkeley, this is an hour and a half. welcome to the berkeley federalist society final public gathering for this academic year. justin antonin scalia, an exceptional legacy. i'm so han dasgupta, the
outgoing president of the chapter and we're grateful for the gracious support you've given us throughout the year. you've meant so much to us. we are endebted to our distinguished panelist who have come together to celebrate the distinguished legacy of justin antonin scalia. today's stewardship spence, mr. kevin walker and mr. david derek. today's event is an existence to the brilliant and storied legacy of justice scalia. he served on the supreme court nor nearly three decades, one of the langest tenures on the institution. marking one of the milestones on the court, chief justice roberts said since scalia came on the supreme court, the place has not been the same. indeed, kagen remarks that justice scalia will go down in history as one of the most transformational supreme court justices of the nation. his views on interpreting texts
have changed the way we think and talk about law. all interpretation and sub species originalism and constitutional construction, his principle and courageous opinions an dissent in area after area of american law and his personal decency provide a paradigm that all may aspire. we address that he served on the court with such valor and distinction. i met the justice when he came to the oxford union. we were all of 22 years of age but even then we appreciated the mind and the soul and the heart we had amidst us. the justice often acknowledged that he wrote his opinions particularly his dissents for contemporary law students and young lawyers. he's inspired several generations to think and reason critically and maintain jebber osity of spirit. our four distinguished jurist today, a former solicitor
general of texas, they knew the justice personally. three who clerked for him and one who clerked for his great friend clarence thomas who justice scalia called brother clarence in amity and admiration. we have miss skriftin myles. she is a litigation partner in a san francisco office. his practice focuses on complex business litigation. he was selected as one of the national law journals outstanding women lawyers. for many years she's been named among california top women lawyers by the daily journal and p profiled by law 360 as a female bar broker. she served as a law clerk during october term 1989 and for judge ginsburg on the d.c. circuit. douglas ginsburg. she graduated magna couple laudy from harvard in 1988 and graduated from harvard as well. and we also have jonathan f.
mitchell, who served as the solicitor general of texas until january of 2013. he is from the hoover institution at stanford and visiting professor of law at that university law school. he received his law degree with high honors from the university of chicago. during his time as solicitor general mr. mitchell argued before the supreme court of the united states, the federal cords of appeal and the supreme court of texas and numerous trial courts. after graduating from law school mr. mitchell was a law clerk to judge ladig of the fourth circuit and for justice scalia during fourth term of 2002. he served in the olc of the justice department from 2003 to 2004. profess juror ramsey clerked for scalia during october term 1990. he practiced international business law with lathe ham and
watkins and joined the san diego school of law faculty and he teaches and writing in the areas of constitutional law foreign relations law and international business law. he was awarded the law school university professorship for the 2012 and 2013 academy year and he earned his j.d. from stanford. >> and we are lucky to have john [ inaudible ] at chapman university fowler school of law and he also served as the school's dean from 2007 to 2010. he is the founding director of the center for constitutional juris prudence there. prior to joining the fowler school of law faculty in '99, he served as a law clerk to justice thomas during october term 1996 and with judge lattic at the fourth circuit. he earned his j.d. from the university of chicago law school where he graduated with high honors. finally, the federalist society for law and public policy studies is a group of conservatives and libertarians
interested in the current state of the legal order. it is founded on the principles that the state exists to preserve freedom that the separation of governmental powers is central to our constitution and that he is em fasityic the providence and duty of the judiciary to say what the law is not what it should be. first we'll hear from the panelists and then i'll pose questions and finally we'll entertain your questions. so let's begin. >> hi, my name is kristin myles. when justice scalia joined the court, i was still in law school. during those years, harvard was the home of critical legal studies and other deconstructionist theories. and constitutional law seems like a blur of fuzzy thinking and policy consideration and multifactor balancing tests. contract law likewise focused very little on the process of interpreting contract lang or applying the rules of construction in more on considerations of fairness, equality of bargaining power and similar issues. statutory interpretation was not a subject at all.
it was simply not taught in law schools, including at harvard. but already by the time i graduated in 1988, justice scalia had begun to have an influence on legal thinking even in law schools. professors -- even professors who disagreed with him which in our case made up most of the harvard faculty, assigned his opinions, if nothing else, because they were compelling statements against which the professors could then prevent their -- present their views. a quarter of a century later, justice scalia's legacy in law school is undeniable just as is his legacy on the court. as justice aigen explained at the second annual antonin scalia lecture at harvard in november of last year, justin scalia has brautd -- justice scalia has brought about a different way things were taught in law schools. before him, law school was done through the common law method, whether statutory or constitutional was not part of
the curriculum. now she notes more legal thinkers consider the word and meaning of text as the starting point and sometimes even the ending point of the a analysis. i make that last point because in chambers justice scalia used to rail against opinions that used the common expression -- we begin as always with the text of the statute. he used to say what do you mean you begin with the text. why not begin and end with the text. when i started my clerkship, justice scalia had just begun the prose of trying to persuade the other justices to rethink the way they approached legal analysis. and in particular, to -- in particular, he frequently dissented or concurred separa separately on statutory interpretation cases where the court had adopted an approach that used policy, fairness or worst of all legislative history. sometimes justice scalia in those days would write a single paragraph opinion, refusing to
join either a paragraph or a foot note in the majority opinion because it cited some house report or statement by a senator on the -- on the senate floor. in his view, the only legitimate authority as law was the law that was passed by both houses of congress and signed by the president. not a passage snuck in through a legislative report or announced on the floor in a way that could be used to manipulate the language of the statute. these extensive materials he thought are used to make words appear to come from congress's mouth, which were spoken or written by others, individual members of congress, congressional aides or enterprising lobbyist. he insisted that the text be followed despite counter veiling economic or social considerations. one case, our term, was called mace, having to do with the filed right doctrine and he said despite justice stevens' decent and the clear trend from both
congress's amendments to the relevant statutes and the regulatory developments, there was a tor -- toward deregulation, nevertheless, the core doctrine remained in the statue and he said it is that skeleton we are reading, we must read it for what it says. he was relentless that the words of the constitution controlled, not just the whims and preferences of a majority of justices. we'll get to some of the particular cases later in this talk. but this meant two things. it meant on the one hand, if the right was enumerated in the constitution, such as the confrontation clause, the fourth amendment, protection against unreasonable search and seizure, he would enforce the right despite -- despite either opinions by other justices or other social developments that made the right inconvenient to enforce.
likewise in the case of unenumerated rights, such as -- again, the other enumerated right, the first amendment which i think we'll talk about in greater detail later, but if a right implicated the first amendment, scalia would line up with the liberal justices to enforce it. with respect to unenumerated rights, he felt if the right was not articulated in the text of the constitution it couldn't be imported into the constitution through some creative use of the due process clause, for example, which provides that certain rights shall -- a person shall not be deprived of certain rights without due process. this allows justices to read right into the constitution of which a person could not be deprived at all. the justice scalia could not counter that approach which was counter textual. so in some justice scalia had a profound effect on the way both law professors, law students, on
the one hand and the other justices on the other, look at and think about law. as justice kagen said in the same comment that was just quoted, in addition to saying that he was one of the most transformational justices of our nation, she said that his views on interpreting texts have changed the way all of us think and talk about the law. so with that, i think hopefully we'll get a chance to talk later about the legacy, what does this mean for the future? i think -- i see justice kagen as someone who may be able to carry that texturalist torch forward into the future. she seems committed to that. it is very interesting to me to see how this plays out in the court over the next couple of decades and the extent to which justice scalia's legacy and the law schools among students many of whom being present here will carry that same fealty to the
text forward as they go into the legal profession. >> thank you, ms. myles. professor mitchell. >> as kristin notes, there is little doubt that the justice's presence on the supreme court has transformed the approach to statutory interpretation. if you are to pick up any supreme court statutory opinion from the 1960s or '70s, you will see extensive reliance on legislative history. today in supreme court opinions you see legislative history discussed mostly in dissenting opinions, if at all. text and structure have become paramount in the way the supreme court interprets statutes. at the same time, justice scalia's tenure on the court has been less transformative in the field of constitutional law. it is clear that a majority of the supreme court still subscribes to the living constitution mindset that produced discussions such as row against wade and the same same marriage is the same, if you read the opinion offered by kennedy it assaults precedent
over constitutional texts and departs from the original understanding of the 14th amendment and rejects effort to restrain judicial discretion through formalistic rules. so why was justice scalia's time on the court and his forceful textualalism and formalism effective in the area of statutory construction but seemingly less transformative in constitutional law. that is one of the key questions surrounding the legacy and there are many possible answers one could give. i want to suggest a couple in my remarks today. first, i think one of the reasons for this disparity in the influence of justice scalia on the way that the supreme court approaches law is the fact that so much of the constitution, by the time he got to the court, had already been interpreted in supreme court rulings that did not imply texturalist meth addologies and combined with that fact of norms
makes it difficult for any member of the court, especially someone who is he is spousing meaning textualism to reconstruct established doctrines that the supreme court has already made. a related reason is that new constitutional provisions are seldom enacted and that deprives justice scalia and others on the court to apply their textualism and original meaning to new constitutional provisions that are not weighed down by the baggage of earlier court rulings. if you look at the opinion in heller, which interpreted the second amendment, the majority and even justice stevens in dissent argued primarily based on the text of the constitution and the historical evidence surrounding the original meaning. the second amendment had very few interpretations of that. so when you see that reach the court during his time, text and original meaning took center stage even for nonoriginal jurists like justice stevens. but for the others, where there
is almost so much water under the bridge it is much more of a challenge for justice scalia and others to change the way the court does business. i think there is a second reason why original meaning textualism hasn't had as much of an impact in constitutional law even after 30 years of justice scalia on the court. and that is because supreme court justices are ultimately political appointments, to be sure the president and the senate care about the people demands they take that into account. but at the end of the day, the president and the senators are looking for jurists who issue rule gz that they approve and those who influence the judicial process do not care whether their political goals are context with the meaning of the constitution. so as a result. we have jurists being appointed through this process that do not regard text or original meaning as the touchstone of proper constitutional interpretation. so this may be an inefitiable
consequence of having a constitution that provides for the political appointment of supreme court justice. but i don't think it is inevitable and i don't think we should regard it as inevitable. the political seduction of constitutional law ultimately depends on illegal culture that accepts the idea of the living constitution as an acceptable approach to judging. if legal academy and the organized bar and the norms of our profession insists on fidelity to constitutional text, and if they denounce to the judicial creation of atextual constitutional rights as illegitimate or lawless then the president and the senate would be unable to find qualified jurists to impose their opinions from the bench. it would be akin to finding supreme court apointies who would issue [ inaudible ] and it can't be done because judges are not supposed to do that. it is an act of usurpation, that exceeds the proper and legitimate role of the
judiciary. instead the legal academy and the organized bar not only accept but applaud rulings that create dokts rin with little or no connection to the text of the fundamental charter of government and this em boulders -- emboldens political groups with other agendas, either conservative agend you or liberal and progressive agenda. so justice scalia may not have van quished that during his time on the supreme court but the challenge he put down remains unanswered to this day by any member of the current supreme court. and here is the challenge that he threw out. if the meaning of the constitution changes and evolves over time, then why does the supreme court get to imposed iz preferred enterpretation of the constitution on the rest of us. if we have a living constitution, why shouldn't the political branches disregard the supreme court past pronouncements and adopt new
enterpritations of the constitution that they think are superior. the supreme court tells us that the constitution's meaning changes and evolves, yet insists that its own precedents that interpret the supposedly involving document are fixed and immune until of course the supreme court gets around to overruling them. those stances are in considerable tension with each other. if the underlying law is a morphing and changing thing, then there is no basis for the judiciary to demand obedience to pronouncements that purport to interpret a document that is constantly in flux. those judicial constructions are up for grabs as much as the constitution itself is. so if the post scalia supreme court continues pop grating the idea of a living constitution, there is no reason why anyone should defer to the judiciary pronouncement of what that evolving document means or if there is a reason why we should
treat the pronouncements as wholly writ. the justices on the current court have not yet provided one. >> thank you professor mitchell. professor ramsey. >> thank you very much. and real quick on what you just said, not only have the justices not provided them and neither have academics provided one. but thank you very much to -- to the law school and to the berkeley federal society for having me back here. and i agree with all of the things that my panelists have said. but i'm going to take a little bit of a different tack. i'm going to tell a little bit of an anecdote that i think tells something about scalia the person and then maybe something a little bit about his legacy right at the end. so here is my anecdote. so scalia was much of a hero of mine when i was in law school, ever since i read his dissent in morrison versus olson, the separation of powers case that we may talk about later. perhaps the single most
influential thing when i read when i was in law school, i would add. it was such a great honor to go up to washington to be his law clerk. and i was a bit overwhelmed by it but i came in the first week, and it was in the summer. we didn't have much to do in the summer so it was fairly light but we did have one opinion left over from the previous term that hadn't been finished up so when i got there, the justice said, look, we have to get this done. i want to you do a couple of things on it and get it on my desk and we'll get it out of here. so i did. i came in on that saturday of that week, saturday morning. i did the things that he asked me to do. he wasn't in the office so i just went into his office and put it on his desk. and then i decided i was done. so i left and i went out for a bike ride. and we didn't have cell phones in those days so i was out of touch for a couple of hours. and when i got back many my house, we did have answering machines and when i got back to
my apartment, there was what seemed like a 20-minute message on my answering machine. it was probably 20 seconds but it seems like 20 minutes. it was like, where are you? i'm working in the office on this opinion. i need your help and i can't believe you're not here and so forth. and i said, this is bad. so i rush into the court, i live right around the corner and still in my biking outfit which was also a mistake in retrospect, but in any event, went in there and reported to the justice, he was furious, further lecture followed about how he expected his clerk to be available and told me were were getting to get that opinion done and when he said, meant sometime in the next couple of weeks but apparently he meant that day. and so i apologized as best i can but he did not take apologies real so he lectured me further and sent me off. so i went back to my office and put my head down on the desk and just figured i had completely blown it and i couldn't believe that this was the way my -- my
clerkship was starting off and he would never forgive me and i was sitting there, in this mood. and then about 20 minutes later, justice came in. and he had the draft opinion in his hand and chuckling. he came over to me and poked me in the arm and said, hey, i added another zinger. and isn't this a great one and he showed it to me. and of course, i told it was the funniest thing i ever heard. and then, he said, yeah, this is pretty good. this is a great opinion. so he slapped me on the back and said, yeah, here, do a couple more things and finish this up and get it out and great job, i'm really happy with this. and then he went back to his office. and at the time, i was a little bit relieved. and at the time, i thought not too much more than wow, i might survive and this guy is a little mercurial but we'll see how it goes. but he never mentioned that incident again to me.
but i never forgot it. and at the time, again, i guess i wasn't as impressed by it, aside from the fact that i still had a job. but later in retrospect, as i've grown up, i was only 24 years old at the time, but as i've grown up and had my own kids, and thought more about this in it retrospect, i saw that it was more than just that he was -- he was a little ameria -- a little. and he thought of us like his own kids. and i would treat my own kids when you they make a mistake. you want to let them know, this is not acceptable behavior. but at the same time you can't hit them so far it depresses them and takes the energy out of them. so you give them a hard time and then you treat them like -- like you always would, like they were your kids. and he really did, he treated us like we were part of his family,
part of his extended family. and i came to value that so much through the rest of the time that i had was there at the clerkship and then throughout the rest of his life that -- when hi the pleasure to interact with him. so i think when you ask about his legacy, part of his legacy, a large part is all of us, all of us that have been touched by him and have been made so much the better for that. in just two minutes then i'll say just one thing about the law part of his legacy and it follows up on something that kristin said earlier. when i was in law school, originalist thinking and conservative legal thinking generally was really focused on the idea of judicial restraint. it was a reaction to the warren court, to the excesses of judges making up their own ideas about what the law should be. and the idea of it was that court should step back and not interfere with the political
branches. and that was reflected by the dominant academic voices like bork and ronald burger who talked about the deference of the courts to the political branches. well, i think part of scalia's legacy is that we don't think so much that way any more. and morrison versus olson symbolized that because that is the case of the independent council where all of the judges were fine at deferring to congress and the president and creating this statute. except for scalia and he dissented alone, 8-1, early on in his tenure in the court and he said, no, that is not what the constitution said. because the constitution vests the executive power in the president. and paraphrasing, but not by much, it doesn't say some of the executive power. and it means all of the executive power. and that includes the power to control independent council
which the statute denied. and what he -- what morrison stood for for him was the idea not just that the court should not interfere with the political branches when the constitution doesn't warrant but that it should interfere when the constitution does warrant because we live in a regime of limited government. limited by the constitution and that limit is enforced by the court. and so his role for the court was not the restrained role that previous originalists had emphasized. but it was an active role when the constitution warranted. and i think that now is much more taken for granted. but it was not taken for granted before -- before he came on the court and before he made statements like his dissent in morrison versus olson. i think that is perhaps not the thing he is most remembered for but it is a very important part of his legacy. thanks.
>> thank you, professor ramsey. professor eastman. >> so i was not a clerk for justice scalia. but for justice thomas. and during the course of the panel discussion, we'll get to some of the minor disagreements in judicial philosophy between the two because i think it is one of the most interesting things that occurred on the court in the last generation. but before i get there, i want to talk about the legacy. i'm a co-author of a constitutional text book and they could be dry. justice scalia's opinion find greater preference than any other justice on the court. maybe say for john marshall in the history of the court. and i think there are two reasons for that. the impeccable logic of his reasons forces you to control the ladies and gentlemenic we are trying to teach in law school. so they are very good cools
and -- tools and it matters whether it is a majority or dissent, the logic of his opinions advance that peta logical tool. and they are so much fun. justice scalia, i think in the ordinary citizenry is best known for the quips. a church and state would not be such a difficult subject if rlg were as the court thinks it is to be. some purely personal advocation that could bein dull nled entirely in secret like pornography in the privacy of one's home. and you get these things. and the people that came under his quipping knife most directly, justice ruth bader ginsburg for example, praised him not so much for the language but for forcing them to make their own opinions stronger. i think the most -- the most memorable one of that is -- it was a love note to justice ginsburg, if i were to join an
opinion like that, i would hide my head in a bag. the supreme court of the united states has dissented from the discipline legal reasoning of story and the [ inaudible ] and the after orisms of the fortune cookie. and that embellish his opinions an make them so fun to read but it is the logic of the impeccable reasoning of them that make them such a long-standing pedagoguical rule and had a transformative effect that everybody talked about. i have my own anecdote with him and he loved the intellectual sparring of his role in the court but also his role as teacher. i remember some years ago we invited him to get a commencement speech at my law school, chapman and the invitation got lost in the mail and this is when the anthrax scare was going on and when i visited him in justice thomas and i said we never got a decline and he said i want to
come out, but just not graduation. what can i talk about. and i said you could talk about me whatever you want. and he said you are wrong about lockner versus new york and i'll talk about that. and i said next year is grethe anniversary and we'll have a re-enactive. and he said what part of due process of law do you get substance out. and i think it is the word "law", and where do you get that? and one day your successors on the court will not like citing foreign sources of authority but that was cicero. that is a good one. and he said what state does he come from? i said i think the state of sicily. but in substance there was a fundamental point to be made about the nature of the constitution and this brings me back to -- by the way, one side on there, when [ inaudible ] was handed down last year, i oftentimes in the major cases, when i see that my former boss
justice thomas has written his own opinion, i'll start with reading his opinion because i want to see what he said. and he said something in that opinion about the word "liberty" and the 14th amendment means protection against government interfering with you walking in the streets or other things. or from working up or manufacturing materials of their own growth. like lockner raising bread and justice scalia joined him and i said here is an opening, he's finally come around to joining the lockner view but then i find out both he and justice thomas themselves joined robert dissent which includes an entire section attacking lockner so it wouldn't get any worse. but the fundamental minor disagreement in philosophy between thomas and scalia which warrants our attention for a long time is on the role of the principles of the declaration of in dependence and understanding the constitution. whether it is in filling in the meaning of hard to understand words like republican and
guarantee or privilege and immunities or the back drop principles as justice thomas said that are inherent in the constitution. and this fight has been around since carter versus bull and two justices disagreed on the same terms. since the lincoln and douglas debris when they disagreed on just those terms. and justice scalia kind of stakes out his position most forcefully in a case dealing with parental rights and grand patients rights in troxel. and he said i may think their unalienable rights and they deserve to be protected but i don't have as a judge to enforce what i believe to be rights that are unalienable if they are not in the constitution. justice thomas responded in a short opinion in adderan which dealt with action against the federal government. when there is not a clause that deals with the federal government, the clauses on equal
protection and what have you, textually, only apply to states. and he said this violates the principle of equality that is inherent in our constitution. and for that proposition, he just cites simply, declaration of in dependence, paragraph two. and so the sparring back and forth on that issue between the two of them that somehow involves the issue of lockner as well and this comes to the forefront, i think most visible, in the disagreement on the grounds to getting into the outcome in the second amendment case in corporation of the second amendment to the state in mcdonald versus city of chicago. scalia had written heller. he found there is a personal right to keep and bear arms that operates against the federal government via the second amendment and does it apply to the states. and justice scalia probably from the conservative side of the bench, the most vocal opponent of substantive due process ever on the court. the most vocal critical opponent
of lockner is given the opportunity to apply the second amendment to states via the privileges immunity clause where the legislative history of that constitutional provision was quite clear that was one of the core things they intended or to -- or to accept the existing precedent of the court, the substantive due process that he criticized and left justice thomas alone on that. and so i think there is a lot of fruit for further inquiry that we could gain by looking at those areas of -- they often agreed on the outcome but got there by different routes that are very telling and worth our in inquiry. thank you so much. >> thank you professor and thank you all for your brilliant and moving statements an an eck dotes and own mag nimity. i'll start off on some questions before we open up to the audience. a famous commentator not a
scalia ally said after d.c. versus heller was decided, we're all originalists now. and professor miller opined and said it is a right to bear arms under the second amendment but it is remarkable because both of the scalia majority and the stevens dissent resorted to the public meaning of the second amendment. will originalism endure and will that be his legacy. and if you could give as short of an answer as that could generate. >> and even [ inaudible ] and that is not new. there is an opinion that thurgood marshall wrote in the 1970s zis senting upholding a jury of less than 12 jurors and he said the right of jury trial in the sixth amendment required
12 persons because that was the original meaning. it is noting in to see his dissebts in heller, justice stevens did it on other occasions in op rentee. so everybody thinks the original meaning accounts for something. i'm not aware of anyone either in the judiciary or the legal academy who thinks the original meaning of a text is absolutely entitled to no weight at all. so at the same time, i don't think there is anyone who is an originalist in the opposite direction, original meaning that is everything and nothing else could be considered such as stereo deseiss is and other types of consideration. it is hard to answer your question. everyone thinks original meaning is something that is considered in interpreting a text, even nonoriginalist but even the most dogmatic originally like judge bourke have acknowledged sometimes you have to reach those results because you with well established precedence on the books. no one thinks the supreme court
should declare money unconstitutional. paper money is just something upheld for decades and the alliance interests are too great. >> thank you. professors. >> let me add. i think there is more to this. i suspect had it not been for justice scalia on the court and the transformation of the importance of originalism, we would have seen an entirely different opinion in heller. it would have balanced the public's interest and the threat of guns and we would have had all of this -- these brand -- these briefs from both sides about what the risks were, was it more beneficial to have gun control or less beneficial. and that would have been the end of the matter. maybe there would have been some glancing nod at the text of the original meaning. but it would not have been wholesale front to back end of both of the opinions grappling with that fundamental question. which, because of scalia, has now become much more dispositive
than it ever -- well not ever than it had been for 50 years. >> go ahead. >> i do think also that optimistic that justice scalia had an influence in causing the court to move toward originalism. i think that it is probably -- one can be cynical and say that justices will do it when it suits their purpose. but i guess i'm optimistic to looking forward to see what happens going forward. just to use an example, though, crawford was a case which upheld an originalist meaning of the confrontation clause. what does it mean to be confronted by the witnesses against you under the sixth amendment. does that mean that it is okay to introduce out of court statements as long as they comply with well-established hearsay exceptions or are otherwise deemed reliable by the court. in there you had an array of
justices joining an opinion that went back and truly in an originalist fashion and went back and analyzed the history of the confrontation clause. this is an issue kicking around my term. we had a couple of cases where the court went the other way on child witnesses who were meant to be protected by not having them have to sit in the courtroom and see the person that they were accusing of the crime. they could testify by video or behind a screen. and the court upheld those procedures over justice scalia's originalist dissent. so it good to see crawford come around where you had at least a significant majority of -- including the liberal justices adopting a view. and one of the negative articles written about justice scalia following his death was one written by jeff tubin in the new yorker. some of you may seen that. it was a negative article. he was a classmate and friend of
mine and i was disappointed because i thought it was not really intellectually honest with regard to what he described as justice scalia's quote, unquote, originalism, which he described as originalist in the sense that we have to decide what the framers subjectively thought when they wrote the relevant provisions of the constitution. which other panelists could speak to this, but i don't think that is what justice scalia's originalism is. it has to do the words written and the text of the provision and looking at crawford is a good example of what those words would have meant to jurists and members of the lawyers in the day and time they were written. it is different from saying what did alexander hamilton think he was doing in writing these words. so -- of course, jeff tubin says, well how -- he therefore dismissed the exercise because how could these people have thought about things that were
new, like imaging technology that gets used to invade the interior of a house and figure out what going on in there. that is the kylo case, which i think we'll talk about where the justice led a majority of the court in the originalist report which was that the fourth amendment protects people in their homes. and that means homes, the privacy of the home. even if new technology that the framers never would have known even existed could be used to figure out from the sidewalk what might be going on inside of the home. so any way, that is just a couple of -- and in light of those opinions, where you see not only justice scalia but multiple members of the court going along with this methodology, i'm optimistic that there is going to be a legacy there even on the constitutional side. >> just real quick, a little bit of an academic perspective, i agree there has always been the
idea you could use originalist arguments if they get you where you want to be, but i think what is -- what is different post-scalia is that it is at least credible and recognized as a plausible position to hold that the -- that originalism and textualism should be decisive in the sense that it should lead you to results even when you don't want to get to those particular results on policy grounds. and in that kind of view of originalism, at least when i was in law school, that kind of -- you espouse that kind of originalism when i was in law school and people look at you like you had three heads, or worse. and now, i wouldn't say -- i think it is a great overstatement to say we are all originalists now, if you mean it in the sense that we think originalism should be decisive, at least in the absent press and some other things that originalist would recognize as
counter veiling. i don't think we're all originalists. but some of us are. and we can be. even within law schools. even within the law school professorsh professorship. and the reason that -- when i said -- when i told my parents i was going to be a legal academic, they thought that was a bad idea. they said you're just not going to be able to survive there because you don't have the values that they have and they won't accept you. but that hasn't been true. originalists have a seat at the table, is one -- as one of my colleagues said. it is not the case that originalists dominate but it is also not the case that we are driven underground. and i think that to a very large extent that is a legacy of justice scalia because justice scalia made it impossible to say that originalism was -- was a marginal or unimportant thing to
consider. and so that is the way i see it playing into his legacy, playing into the academic conversation, which i think plays over to some extent in the broader legal culture as a whole. >> thank you, professor ramsey and alls. i'm pleased that miss myles mentioned the maryland versus craig, and i think that is what you were referring to. and justice scalia scared very much about words. and his personal humility and modest allowed him to decide case after case for flag desecraters and johnson and u.s. versus ikeman. he said in a different public gathering if is with king, i would have punished them, but i am not king. and for criminal defendants denied their sixth amendment right to confrontation in crawford, blakely, ohio versus clark, where he regarded reliability common law test as that flabby test. for the criminal defendants who had been unlawfully searched,
for administrative agencies even though he was one of the earliest editors of regulation magazine and for a lady who tried to poison her husband's para more, united states versus bond one and two. and so how do the votes and opinions impact the justice's legacy. >> well i could speak to the flag-burning case since they were decided -- at least the second one was decided my term. texas versus johnson was the state case that came up the term before i was clerking -- the '88 term. and the following year congress passed a statute essentially trying to fix the problem that the court had created in texas versus johnson. at the time johnson was decided, 48 out of 50 states prohibited the burning of the united states flag as a means of protest. that was essentially what all of the statute said.
and the court in opinion by justice brennan, justice scalia didn't write opinions in either texas versus johnson or ikeman, the one that came up my term. but he joined justice brennan's opinion which was quite expansive, along with marshall, blackman and kennedy. but justice scalia -- what brennan had done was -- an understanding of the first amendment that went back through court precedent. i wouldn't call it an original opinion by justice brennan but nonetheless it applied the historical meaning of the first amendment as the court had ex pounded it beginning with justice holmes various dissents in the first amendment cases and leading up to the court's adoption of holmes' view if words or expressions are made in protest, that is at the core of what is protected by the first management.
so actually, the logic of texas versus johnson wasn't that complicated. it was really the setting that was hard for the justices and the members of public that can't we even protect the united states flag. but the fact is the statute was written to -- to prohibit the contact only when it was -- as a former -- form of protest and not other wise since burning a flag is the way you are supposed to dispose of a flag. and so it was really frankly an easy case for justice scalia under the existing first amendment precedents. he did say famously, if it were up to me, i would put into jail every sandal wearing scruffy bearded weirdo who burns the flag but he added, i am not king. and he said to us in chamber, this is how he understood the case. that it is perfectly fine for the state to prohibit me from putting my hand out the window while driving a car. but what the state can't do is prohibit me from putting my fist
out the window when i drive a car. that is how he understood. he said it would have been perfectly fine if the state or congress for that matter prohibited flag burning altogether but that is not what they did. either in the texas case or subsequently in the case that -- involving the united states. in all of the dissents and the cases were all about patriotism and chief justice renquist included several long poems in his -- patriotic poems and songs and that is the gist of the dissent. there should be an exception for the flag. but justice scalia, no matter his feelings about scruffy bearded weirdos he was not unwilling to create an exception to the first amendment. >> i thank you for that question. because there is something of an emerging narrative about justice scalia that, while he talked big about originalism, what he did is decided cases according to the way he wanted them to come out and the originalism was a
screen. and you'll find that in some public -- some commentary and also in some more serious acade academic writing. i think it is important to push listed off indicate. and i'd like to add one case to your list, and one of my very favorite of his dissents, which is in handi versus rumsfeld where the interested party was an accused terrorist and the court held that he could be detained without trial subject to minimal procedural protections and justice scalia dissented and said he had to be tried for treason or he couldn't be held. part of his dissent, it's a great dissent, he referred to the court's quote mr. fix-if mentality and, quote, the court's taken admission to make everything come out right, all
initial caps, everything come out right. and so he rejected that idea even though it led him to the conclusion that this terrorist should be -- excuse me. accused territoryi accused terrorist should be set free or tried for treason but not detained in the way that the court and the executive branch wanted to. and i'm sure it's not because he has sympathy for terrorists as some of his other cases suggests. i think it's very important to see what he was doing here. i it guess the one part of the question i'd push back a little bit on is i'm not sure how far i'd go endorsing his personal humility and modesty. and i don't think that was really the determinative thing but i think what really made the difference to him was the idea of the rule of law. that's what mattered to im. that's what he saw him as a servant of. and the idea and therefore that links up exactly with what he criticized the court for in hamdi. it is not the court's mission to
make everything come out right. it's the court's mission to apply the law. >> i want to pick up on that theme a little bit because one of the academic criticisms of originalism as an enterprise is that it's completely unknowable. how can we put ourselves back in 1787, 1791 and figure out what they intended, what they meant. that's kind of the scarecrow version of originalism or what the original public meaning was. we're 200 years later. how can we possibly know that? it's so indeterminate. that mean it's a facade for achieving the agenda i want. these are dispositive prove that at least for scalia originalism is not a tool that took him where he wanted. it often took him to where his predispositions took him to go. the notion that we've got a number of criminals getting lighter sentences or having their convictions overturpd awl together is probably not what
you would expect from a law and order conservative jurist on the court like sa le scalia. we can't use police investigative techniques, that it would have been completely unknown to the founders if they intrude on your house even in virtual ways rather than -- i think that is dispositive proof that he was not a use originalism as a tool to advance my agenda but use originalism as the end of our inquiry to see what the rule of law requires of us as judges whose job is to interpret not to remake the law. >> it's also really hard to see how originalism can support the result in the flag burning case. the text says speech, not expression. the original meaning was far more nair error than what justice brennan said in that opinion. >> but the fact that -- you know, the fact that he may not
have been perfect on his understanding of originalism in any different case doesn't mean -- if he was going to use it as a tool, he would have come out the other direction on that. >> it does reflect that, it's odd to see the flag burning case touted as the originalism. it's not clear it can support the result in that case. >> thank you for the discourse. we were very impressed by the fact that the personal humility and decency as mr. eastman implied help him put the rule of law ahead of his own private agenda. so we appreciated that. justice scalia's morrison dissent, i think professor ramsay referred to it early had the brilliant quip, this wolf comes as a wolf. it has often been regarded as among his finest hours on the court. why did he care so much for structural matters that
undergird our constitution? >> well, i guess i'm a separation of power scholar so maybe i should answer that question. >> please take it away. >> well, i think that part of it is the rule of law in that the framers wrote the constitution with particular attention to separation of powers and federalism, which they regarded as the fundamental protections of mrliberty. the original constitution didn't have a bill of rights, had minimal protection for rights in its text. but as the federalists argued during the ratification debates, the reason was they saw the separation of -- provisions as sufficient protection for liberty, that they didn't need a bill of rights. now, of course, that ultimately that argument was ultimately rejected by the adoption of the bill of rights. but that didn't take away from the proposition that separation of powers and federalism are
themselves protections for individuals. and so that was funtdmental to the framers as they wrote the constitution and justice scalia seeing himself as the enforcer of the constitution thought that it is essential for him to adopt that view and to take it very seriously because that was what the constitution said, notwithstanding the fact that the court had been very loose in its interpretation of separation of powers and federalism in the 50-plus years before scalia came to the court. i think that's what morrison symb symbolized. though i've got to say as a parenthetical that i think morrison is not an example of scalia struggling with the rule of law against where he'd like to come out. i think he completely bought into the framers' proposition. so i think that made morrison an easy case for him. >> i would add also i think it's not surprising that he was passionate about separation of
powers given his views of the limitations on the judiciary. just everything about his jurisprudence consistently says that the role of the judge should be a very limited one. and put another way, the judge doesn't exercise legislative power, for example, or executive power for that matter. and when it does so, it's acted illegitimately and it's also diminishing the rights of the people to enact their own laws. so it's in that way diminishing the freedom of the people that is preserved by the separation of powers. he also, you know, parenthetically also worked in the executive branch, worked at loc and had strong views i think from that experience of the importance of a singular executive and of executive power. so he came to the court with very fully formed views on the executive power as well as legislative and judicial. >> i want to pick up on that because one of the things that most of the cementary about
justice scalia's passing has not focused on was he himself changing his views in anything. and the idea that flows out of the separation of powers in morrison also contributed early on to justice scalia's full embrace of chevron deference to executive agencies. and i think that grows up out of his disregard for the activism of the warren court in the 1960s and the early 1970s when he comes of age. the court kind of answering every question. he said, if we defer to the executive agencies we're at least deferring to a political branch that, however imperfectly, owes its direction to an elected official, the president. and in recent years, though, he came to the realization that that itself was a pretty dramatic violation of separation of powers because we were allowing unelected executive agencies to effectively write
massive amount of law when the lawmakering powers vested in congress and the accountability for that law making power and the cost that's go along with it are supposed to be vested in congress. so he started in recent years, even backing away from some of the deference doctrines that he had himself authored once he came to the realize ailation th they themselves might be violated this core separation principle. i think that was a very significant aspect of justice scalia's intellectual journey on the court, that he would be willing to reverse course even on something that he had authored if he saw that it kind of bucked up against the understanding of the constitution ultimately. >> i'd have to disagree with one aspect of what professor eastman said. i don't think justice scalia was ever a big fan of chevron, at least when i was clerking. i think he grudgingly accepted it. he didn't author it for sure. and i think he and justice stevens often had disagreements
because i think justice stevens did see it as an open-ended deference to the executive branch and embraced the idea that this meant that the executive was going to be writing law. i think justice scalia always bristled at that. i think he felt bound by the precedent and maybe it was the only solution. certainly it wasn't a solution for the judges to make up law. but i know he and justice stevens had a very distinct difference of opinion on what chevron had step one and step two. step one says oh, it's the statute imbig use and step two says okay if it's ak big euless, then the executive interpretation can kind of figure in the blanks as long as that's something we can infer congress meant to allow the executive to do. and justice scalia always said between he and justice stevens the difference was he would almost never find a statute ambiguous because he would say, you look at the statute, you interpret the words, you apply traditional doctrines of statutory interpretation, and i
justice scalia doing those things, i think believed the court can come up with the correct interpretation. only rarely would i be deferring. but whereas justice stevens was quick to find ambiguity and therefore quick to defer. >> i don't disagree with that. the one doctrine -- the additional deference doctrine that he did author, what we call our deference, is the one he was backing away from toward the end of his term on the court. >> professor mitchell? >> justice scalia went from calling himself a faint hearted originalist from eventually calling himself a stout hearted originalist. if words in an instrument had meaning then he contended those means had to be honored, judges substituted in new meanings or diluting the meanings already extent made the judge into an extra judicial creature. other than the fact that this might generate normatively
disagreeable results from different political circles or -- why does the justice's philosophy provoke such a reaction in some quarters? >> well, let me take up the fainthearted originalism point first. the constitution gives congress the power to create an army and a navy. it doesn't say air force. and nobody would say therefore there's not the authority to create an air force. and if that mean that's you're a fainthearted originalist, so be it. i think that part of it was a response to the kind of more silly charges of what originalism means. the more difficult one for him was an eighth amendment case where something that would have been perfectly acceptable as a punishment in 1791 when we adopt the eighth amendment, capital punishment for horse thieving, for example, would be completely unacceptable and i think he would have no problem saying it violates the eighth amendment to do so today. and that's why he claimed it made him a fainthearted
originalist. but i think those are marginal cases and, you know, don't go to the heart of what the true originalism enterprise is. i think that's why he first responded the way he did and then came back and said, no, no, i'm a stout-hearted originalist. >> there's also a difference to use originalism to strike down legislation and using it more as a shield to uphold it. when he's talking about faint hearted originalism, there's two ways to describe that. one could be the example you were giving about the eighth amendment where the court would strike down a policy, another way to think of it is given way to -- there are a lot of nonoriginalist precedents that justice scalia adheres to even though he seem to be manifestly contrary to the menning. one is the size and scope of the commerce power. another is one person one vote. he hasn't argued for overruling that. incorporation of the bill of rights. he went along with the majority opinion of mcdonald far from
clear incorporation was -- there are many examples like that where he has gone along with precedent in the name of -- that the parts in the original meaning without arguing that every single nonoriginalist precedence should be overruled. in that sense i think he's still a faint hearted original aist and not a stout hearted one. >> i can say one thing about that. he had a reason for doing that, and that is i think he wanted to be able to have an influence on the way the legal scholars, judges and the american public thought about the constitution. and incorporation is a great example because the text of the constitution couldn't be clearer that the first amendment does not apply to the states. congress shall pass no law. not the states shall pass no law. and the idea that that somehow was incorporated through the 14th amendment to the states following the civil war is not
very historically -- there's no -- it's not support really as an historical matter. but he was not willing to go back that far and turn back the clock partly because it would make -- it would refrnnder him incapable of debating what the first amendment should mean since most cases come up come up from states and in every such case he would have to say, not applicable. of course there would still be federal cases but i would wager the number of first amendment case that's come up from the states is greater than the number that come from the federal government. >> well, i just have to quickly note that i don't think it's true that the incorporation doesn't have any historical basis. i think incorporation through the substantive due process
clause doesn't have any historical basis. or textual basis. >> he went along with it. >> he went along with that, but kristen was making a broader point i had to push back on a little bist. but i wanted to take up the question you asked us directly by i also wanted to push back on that. so you asked us, other than the fact that this might generate normatively disagreeable results why does the justice's philosophy generate such controversy? my argument is it's exactly because it generates normatively disagreeable results that people don't like it. not that it always generates normatively disagreeable results and more than that it would take away from the justices and it would take away from elite lawyers and it would take away from us as us as academics and -- to argue policy, which is
what we love to do. and we harbor in our mind the idea that we could persuade a justice or five justices to adopt the policy that we think would be best. isn't that a feeling of power? you might not be able to, but there's the chance you could. and that's why i think it's so -- the nonoriginals and living constitutionals and whatever you want to call them is so appealing because it's a feeling of power. and that's exactly why people hate originalists. >> thank you so much. now, almost a herculean task for each of you. you know justice scalia liked to say, i don't attack people. i attack ideas. and some very good people have some very bad ideas. so if you could each share a thought about his personal decency and his relationship with his colleagues or with his clerks, his larger family, that
would be wonderful. >> i can start. justice scalia did have an amazing ability to appreciate in other people their best qualities. he loved the other justices on the court. i had the good fortune of clerking the last year that justice brennan was on the court, and justice marshall was also still on the court then. you know, people often talk about how justice scalia's relationship with justice ginsberg, and that is a famous relationship and quite a remarkable one that was formed when the two of them were judges together on the d.c. circuit. they got to be friends and they spent every new year's together and they loved opera and loved to go together, and he was thrilled when she was appointed to the court. because now one of his best friends would be his colleague. they also famously were able to
disagree on substantive matters pretty well without getting personally annoyed with each other. they actually loved that sparring. but also, you know, justice brennan and justice scalia got along famously. i just remember seeing them come out of conference and just walk down the hall with their arms around each other, both of them rather on the short side, both about the same height. they'd be roaring with laugh te over something occurring in the kfrnls. judge stevens likewise. i saw justice stevens at justice scalia's funeral just recently and we talked a bit about how justice scalia and justice stevens were both passionate about administrative law. he said to me, you know, there wasn't very much that nino wasn't passionate about. and the two of them, though, loved sparring over administrative law issues because no one else on the court cared. but the two of them also sat next to each other on the bench because they were two apart the
entire time they were there together. so they always sat next to each other the way the court configures the seats on the bench. it's by seniority. so oftentimes we would see them disappear because the chairs would swing back. so the two of their heads would disappear from view and then you'd hear this raucous laughter coming from behind the bench where they were sharing anecdotesor or whatever jokes about whatever was going on in court. but i'd also say that justice scalia had an amazing admiration as well for justice marshall. he'd always come back and say that justice marshall was the only justice on the court that really had criminal justice experience, that had seen the unfairness that occurred within the criminal justice system. i don't know the extent to which that at all influenced justice scalia's, some of the outcomes in the criminal justice area. as mentioned before, he used
textualism and originalism to enforce a lot of criminal justice rights that had been diluted. i don't know if justice marshall influenced him on that, but he definitely influenced him on how -- on justice marshall's own experiences. and finally i'll just say justice thomas and he -- well, maybe john can speak to this more. justice thomas did a reading at justice scalia's funeral and also gave a beautiful tribute at the memorial service the following week saying the two of them came from different places. he said, i came from an uneducated family. he came from a family of educators. but we met, and we walked together for 25 years. and he just had the whole room in tears with his recollection and the feeling of loss that you had about the loss that he was experiencing and felt he would experience going forward without
his brother on the bench. so those are just some examples. >> thank you, ms. myles. >> he was liked and respected by his colleagues. it was very evident. but it was also remarkable when you think about how the supreme court got along in previous decades and iterations, chief justice rehnquist told me when he clerked in the 1950s there were horrible animosities on the court. you had justices who didn't speak to each other. bob woodward's book talks about the problems. it was remarkable during his entire tenure on the court not just with justice scalia and his colleagues but relationships across the members of the court were pretty good despite the vigorous disagreements over legal issues. >> i don't have much to add to that. i agree with it all. you've got my anecdote already. i think it shows the side of him that was so important to see.
but i guess the only thing i would add is that i think, again, this is another narrative that's being pushed about the justice by some of his detractors, that, you know, he was mean, that he was tough, he was a bully, that he went after people in a mean way and so forth. and, you know, like a lot of narratives, there are grains of truth in that in the sense that he was tough on arguments, not on people but on arguments that he didn't accept and he wrote some tough things in his opinions. but his ability to get along with people that he didn't agree with i think is what is very remarkable and something that we should remember in these days where it seems like it's increasingly hard to get along with people that we don't agree with. so he should be a model to us in his friendship with justice ginsberg and justice kagan in particular, should be a model
for us going forward. >> he was human, though, and his ability to do that wasn't perfect. it sometimes took a while. after planned parenthood versus casey and the lack of logical reasoning in that opinion, holding a grudge is too long a word, but three years later when i was on the court we wrote our court skit at the ent of the year that still reflected some of the tension that still lingered over that case. but he liked you to push back when he was sparring with you. i'll close with this anecdote. it's a tradition at the court that the justices would take the clerks from other chambers out for lunch at some point or what have you, and he would always take the clerks to av's pizza. and when he took the thomas clerks out my year, we went there. he would famously order pizza with anchovies and demand that everybody eat it. i refused it. i don't like anchovies. so i wouldn't it. he said, eastman, real men would eat an choeys on the pizza. i said, no, a real man would say
no if he doesn't like it, even to a supreme court justice. he said, touche, mr. eastman. that's how i liked to live and i think that's why people felt so highly of him in his congeniality. >> thank you all. we now have time for one or two questions if interested members of our audience would volunteer. >> i wanted to know what the justice's opinion was about the u.s.'s leadership in international justice and specifically rule of law institutions like the international criminal court and whether he believed that this somehow infringed on our own constitutional kind of framework. thank you. >> i think he saw the american constitution and the way that our founders did and the way many of our leading -- leaders
over the years did, which was a beacon on the hill that other people should follow because it was so well designed and right. but the notion that we would interpret provisions of our constitution by what some other court and the european human -- whatever, was bizarre to him and really undermined any notion of sovereignty. he was probably one of the most vocal opponents of this notion of looking to other courts' decisions to infuse meaning back into our constitution. it was contrary i think to everything he understood what the rule of law and the originalism project that he was engaged in meant. >> i agree with that. but i think at the same time it's important to see the justice as having a real internationalist bent. he traveled very widely. he talked to people around the world about legal issues. and he was very interested in international matters. but i think he wanted at the
same time to be sure coming out of his rule of lawor orientati that embraces of internationalism by the united states were consistent with the constitution. so i think you have cases which might perceive as being anti-internationalist such as -- versus texas and -- versus oregon that i don't think they were anti-internationalist in that sense. i think they were -- they were protective of the u.s. constitution and u.s. sovereignty to engage with international institutions. they were not hostile to international institutions. so i think he was something of a middle ground on that. he didn't fully embrace it because he understood that there were constitutional restrictions on what we could do. but he was also sensitive to international concerns in other areas, for example, he was a leader on the court in thinking that other courts -- sorry,
other countries' interpretations of treaties should inform us as to what the treaty meant. now, as john says, he didn't carry that over to the constitution because the other courts that were interpreting their constitutional provisions were not interpreting our constitutional provisions so it didn't make sense to rely there. but in areas where there was a shared interpretive enterprise which particularly comes out of situations where there's a common treaty, then he was actually one of the leaders on the court saying that we ought to take into account, at least for persuasive, what other countries are doing. so i think he was an internationalist in his own sense. >> thank you. that was an excellent question. and we have time for one last question, if we have -- i saw that hand go up first.
yes, sir? >> -- how justice scalia can square his pro -- that america had a pro-religious -- with his decision in smith versus oregon? >> i can speak to that because that decision also came down my term, smith versus employment division. and what smith did most controversially was held that there isn't a -- where you have a generally applicable criminal law that is in that case law prohibiting the ingesting of pay quoty or listing pay quoty as a controlled substance without an exception for religious use. there's not a need for the court create a religious exception to the application of that generally applicable criminal law.
so that was essentially the holding of smith. it was perceived as being contrary to at least some precedents i learned about in law school, sherbet versus verner where it seemed as though there was an exception where an administrative agency doling out, say, unemployment benefits would have to take into account whether the person was fired or otherwise wasn't performing their duties because of a religious obligation of some kind. so we all grew up thinking that that was an exception. the court held otherwise in smith. so that led -- that was a very controversial decision. i remember the petition for rehearing that came in, and i think you're quite right that you can say, well, gee, how is that protecting religion? you can say, well, payote, who really smokes that anyway? it's a small minority of gic wo
states, per se, prohibit drinking alcohol. i think one of our states does that, kansas is that a dry state? with no exception, say, to pick a topic near to justice scalia's heart, catholic mass where you would be celebrating the eucharist with bread and wine. so the state could say, no, that's not okay in our state it's prohibited. and under smith that would be fine. so i think his answer to that is that the protection against that lies in the political process. it lies in the legislative process, that if there's -- in fact, he says this in smith. subsequently as you may know the congress passed a law called the religious freedom restoration act that attempted to revive the sherbet versus vernon doctrine. the court then struck it down in the subsequent case.
in that case, justice scalia really took on the historical case against sherbet versus verner and similar cases. but ultimately saying that the protection is with the people, that people are the ones that are going to make religious exceptions to otherwise generally applicable criminal laws. so i don't see it as being contrary to -- i don't see it as being contrary to any personal belief of justice scalia. he was fully aware when smith came down that its logic would apply to a lot of very core -- could be used to prohibit core religious activities of both christian religions, jewish religion, you name it. it could be the subject of a generally applicable criminal law. but i don't think that -- i don't think it violated -- i don't think it was contrary to a view that he had otherwise expressed that there needed to be such exceptions. obviously if there's a law
that's directed to religious activity such as, you know, no wine shall be used in religious ceremonies, that would be prohibited. and he would say that violates the free exercise clause. >> i've got a pretty distinctly different view on this question. my litigation hat it through the clairmont institute which is probably the leading proponent in the country of the view that the natural rights foundation in the declaration of independence has to inform our under understanding of the constitution. this is one of the cases where that disagreement between us and justice scalia i think comes out most forcefully. and i think it actually when you kind of peel the onion layers away from it actually disagrees with other principle that's justice scalia elsewhere argued. so he was a strong opponent of the notion that political process was sufficient to protect the federalism
provisions of the constitution, political process, federalism we call it. he opposed that. yet here in smith he adopts political process accommodation. if you want an accommodation for your religious exercise, your remedy is through the political process. that kind of turns the notion of the bill of rights and unalienable rights upside down, which are there precisely to protect individuals, particul particularly minority individual groups against the political process. if the only people who can get a political accommodation are those who can gain majority support, it's no longer the unalienable right to the -- and that closing paragraph an employment division versus smith kind of seeds that as the cost of democracy, i think gets it just wrong. so it will be very interesting to see now that justice scalia is not there whether there will be an attempt to revisit that
question and the way that probably it wasn't going to happen as long as he was there. >> my view on this is i think somewhat different than my fellow panelists. first of all, i think that the -- although i was skeptical of the smith case when it koim came down, on further reflection, i think the historical case for it or rather the historical case for the opposing side is somewhat weak. i think that it's -- you can make some big picture arguments as john just did. but if you look at the actual historical practice, it's hard to identify a founding era practice which granted these kind of exemptions. it's not impossible. there is some evidence for it. but it's not overwhelming. and if you have a view which i think justice scalia did, notwithstanding his view of the importance of enforcing the constitution, that the court
should not intervene against the political branches unless it was confident that it had the history and text behind it, i think here there's a strong ambiguity and i think that's the opinion really rests on that, that the case for the other side is not proven. but i do also think that this is another example i would list it at least on your list of cases where he comes out differently from where you'd think he probably would tend to come out. because as kristen said, i think surely of course he knew the implications of this, and i think that gave him some pause. of course, i wasn't there at the time, but i heard discussions of this case with him later and i think he did have some pause, but i think he nonetheless thought that's where the constitution led us and therefore that's where we would be be -- that's where he had to go. and i'll just on this point relate an anecdote from
professor paul cassell at the university of utah where jonathan and i were doing a panel out at utah on a similar topic, and professor cassell said that he was present when someone asked him about the oregon/smith case and asked him about, what would happen if congress passed a law prohibiting all consumption of alcohol and didn't have an exception in the statute for catholic mass? and scalia said, according to paul cassell, they would burn in hell! but it would still be constitution a constitutional. >> it's one of the hardest questions in constitutional law. partly because the text doesn't give a clear answer at all on whether the freedom of religious practice -- congress shall make no law respecting an
establishment of religion or bridging the free exercise thereof. there's no exception for compelling interest sherbet balancing test. i can see why scalia was comfortable with the approach he took in smith because is it a text that's phrased in absolute terms, and limiting the protection conferred by that text to loss of target religion is a way of being respectful to the fact that the text is phrased as an absolute command rather than a balancing tester for the court. so that may have been partly why he was attracted to the approach in smith but that said it raises some very difficult questions as my co-panelists have pointed out. what about wine at communion, what about antidiscrimination laws, so on and so forth. >> thank you all. thank you, zach. great question. this fittingly concludes not just our event but the chapter until fall 2016. thank you all for your generosity and support to us throughout this year and please join me in thanking our panelists.
c-span's "washington journal" live every day with news and policy issues that impact you. coming up saturday morning, amy goodman, co-author of the book "democracy now," ten years covering the movements changing america and host and executive producer of democracy now.org will discuss independent media and its role in campaign 2016. then tom fitten, president of judicial watch, the group has filed multiple lawsuits in the
clinton e-mail case. he'll talk about the latest developments in the investigation. be sure to watch c-span's "washington journal" beginning live at 7:00 a.m. eastern saturday morning. join the discussion. book tv has 48 hours of nonfiction books and authors every weekend and here's some programs to watch for this weekend. on saturday at 10:00 p.m. eastern on a afterwards," don watkins author of "equal is unfair". >> the reason i say inequality isn't a problem is what we're concerned with is not how much money do you have but how did you get it. did you get it through something that was fair or did you get it through a process that was unfair? and when you try to equalize people who earn their money honestly, that's something that we're challenging and saying, that's not a fair way to treat people. >> in the book, mr. watkins says the american dream is threatened not by income inequality but by limiting success. he's interviewed by manhattan institute's diana ross. on sunday afternoon at 4:30,
pete hegseth, iraq and afghan veteran talks about theodore roosevelt -- talks about his revisions for americans today. >> this isn't about me or roosevelt or litigated where he is on the political spectrum. it is a call to action. to me, it is meant to inspire, motivate and remind americans of every generation what makes america special. and that it is worth fighting for. and some of us carried a rifle, and many in this generation still do. but you don't have to carry a rifle to be in the ra arena. it's our job to instill in every generation the principles that perpetuate what is what you all know is an experiment, an experiment in human freedom. >> then at 10:00 p.m. eastern, erin mchugh and her book "political suicide". >> what should be be a series of thoughtful activity is instead filled with budgetary tightropes, routines, ethical disappearing acts and most
certainly clowns. instead it becomes three rings of horror. we're so fatigued by the time the mud is slung the stexcel ta have come out of the closet and the election is over, we're often exhausted by the new legislate rz before they've had a chance to start their jobs. >> they recounts political missteps in american history. go to book tv.orgor for the complete schedule. on american history tv on c-span3 -- >> there has never been a full public accounting of fbi domestic intelligence operations. therefore, this committee has under taken such an investigation. >> -- on "real america "oishgs the 1975 church committee hearings convened to investigate the intelligence activities of the cia, irs and nsa. saturday night at 10:00 p.m. eastern, the commission questions staffers detailing fbi abuses including attempted
intimidation of martin luther king jr. >> king, there's only one thing left for you to do. you know what it is. you have just 34 days in which to do it. this exact number has been selected for a specific reason. it is definite practical significance. it was 34 days before the award. you are done. >> then associate fbi director james adams admits to some of the excesses while defending a number of other fbi practices. then at 8:00 on lectures in history -- >> the rest of this may in a bad life see a death or two, they see hundreds. so they're the first to sort of see patterns or shifts in how people are going out of the world. so they are the ones who sound the alarm. >> university of georgia professor steven berry on the role of a coroner and how they shed light on the emerging patterns of death within a society and spot potential threats to public health. sunday evening at 6:30, secretary of state john kerry
who served in the vietnam war and later became a vocal opponent of the war shares his views on vietnam at the lyndon b. johnson presidential library in austin, texas. >> our veterans did not receive either the welcome home nor the benefits nor the treatment that they not only deserved but needed, and the fundamental contract between soldier and government simply was not honored. >> then at 8:00, on the presidency -- >> one other person sitting at home watching tv watched reagan deliver the speech. was dwight eisenhower. he immediately called his former attorney general and said, what a fine speech ronald reagan had just delivered. he then called a former special assistant and said what an excellent speech ronald reagan had delivered. dwight eisenhower wrote back a multi-step political plan for ronald reagan to follow. reagan would end up following eisenhower's advice to the
letter. >> author gene cope ellison examines dwight d eisenhower's behind-the-scenes mentoring of ronald reagan and the pivotal role he played in reagan's cal . for the complete american history tv weekend schedule, go to c-span.org. earlier this week, the house oversight committee held a hearing on management practices and leadership challenges at the transportation security administration. we heard testimony from tsa administrator peter neffenger who has said his main focus is on counterterrorism and security issues. this is 2 hours 50 minutes. >> we will come to order. without objection, the chair has authorized to declare a recess at any time. an important hearing today, the public comes in regular contact with the transportation security administration. we have a fairly new
administrator who i've had a chance to visit with, but it is important as the oversight committee that we continue to take a look at what's happening or not happening at the tsa. so today we're going to have our second hearing examining the management practices and misconduct that we have heard about and seen and investigated at the transportation security administration. this time of year, the traveling public picks up. kids and families and people are traveling sometimes at record levels. people get frustrated. they go to airports. there are long lines. there's frustration. but at the same time we have to find a balance to make sure that those airplanes are properly secure because the enemy terrorists and whatnot, they only need to get by once. they deal with millions of passengers on a weekly basis at the tsa. we have a lot of good men and women who serve on the front
lines who are trtrying to do th job they can when dealing with the public. sometimes it's hot and sweaty and they're late. there are a lot of issues to deal with. last summer, the indepartment of homeland security inspectorer general performed covert testing of tsa screening and found, quote, failures in the technology, failures in tsa procedures and human error, end quote. there were very alarming rates of success for penetration beyond the lines and being able to bring something nefarious on to an airplane. although some of the inspector general's recommendations are still outstanding in the wake of that testing, the tsa claims they're making progress and training its employees to be more thorough in resolving the security concerns. yet the progress may be undermined if tsa employees continue to quit at the current rate. the agency loses around 103
screeners each week through attriti attrition. as the administrator has told me, a lot of these are part-time employees but nevertheless it's very expensive to get somebody trained up and bring up to only have them leave later on in the process. in the year 2014, the agency hired 373 people but had 4,644 departures. you can see where if you think of it as a bathtub if you're pouring waur ining water into i drain is going out faster than you can keep people in the tub, there gets to be a trouble. very concerned about the morale at the tsa. the government does do i think a good thing. it goes out and range ranks and surveys and comes up with a scientific way to assess the agencies. of the 320 agencies, the tsa ranked 313th. this is an alarming trend throughout homeland security not just the tsa. there are a number of these agencies, including the secret
service and others, that are near the very, very bottom of agencies that are ranked. it's something that has to be asession asse assessed, and there are probably within reasons for this and we have a duty and obligation to our federal employees. you worry that people in a security type of situation with low morale, you don't necessarily get the best security and the best product out of that. two weebs ago, one of our witnesses testified that he believed, quote, while the new administrator at the tsa has made security a much needed priority once again, we remain an agency in crisis, end quote. he attributed poor leadership and oversight of senior leadership appointments in the last several years as major contributing factors. testimony before this committee alleged a double standard within the tsa. we've heard senior leaders in the agency are treated with far more leniency than tsa's rank and file employees. now, we have one situation. i don't know this man.
i don't believe i've ever met him. if i did, i don't remember it. but he is a very senior person, the assistant administrator of the office of security operations. there's a gentleman named kelly hogan. he receives a base compensation of $181,500, a very healthy salary. since his promotion to that position in 2013, security operations at tsa have been abysmal. again, the inspector general i think we'll hear testify today the penetration tests that were done previously were nothing close to successful. they were successful in getting objects and items through security, but they were from a security standpoint absolutely rock-bottom in terms of their performance. yet during this time in september 2014 the inspector
general found that despite spending $551 million on new equipment and training the tsa had not improved its checked baggage screening at all since the nig report found vulnerabilities in 2009. last summer, covert testing by the inspector general revealed an alarming high failure rate that was widely reported by the media. yet whistle-blowers reported that instead of being held accountable for those failures, mr. hogan received an amazing amount of bonuses, beginning in 2015. i want to show you a slide here. not to pick on this person, but this is what's so frustrating the rank and file sees. he ae's earning a base of $181, and in 13 months he gets $90,000 in bonuses. that's just his bonuses. nine times he's getting bonuses over a 13-month period. that's in addition to his health care and all the other things
retirement that he'll get. people don't understand that. let me go to this next slide. so here you have john ha lynnski who i don't believe works at the administration anymore. he makes a recommendation to the person at the bottom, a guy named joseph salvatore who makes a recommendation that kelly hogan get a bonus and then helenski who makes the recommendation, helenski gives him the bonus. it happened four times. go back if you could to that first slide. so you've got rank and file people working hard, trying to do the right thing. we're having massive security failures based on what the inspector general is doing, and this person at the senior part of the food chain gets $90,000 in bonuses. i don't understand that. this didn't even necessarily happen during this
administrator's watch. but we want to know what's being done to clean this up. then go to the next -- you can take that slide down. thank you. so how did he get this done? in the normal scenarioor, the president has to approve any bonuses over $25,000. opm has to approve bonuses over $10,000. and yet title 5 and opm regulations don't apply to the tsa and that's why i think we're going to have to go back and review this. when the ig investigated that after a whistle-blower tip it found in july of 2015 tsa had no clear policies prohibiting an arrangement such as we had just seen and only, quote, loose internal oversight of the awards process, end quote. i hope we are going to hear that this has been cleaned up and going to be more fair and equitable and truly rewarding
those people that are having success. the frustration is it's not as if we've had success. those bonuses were given to somebody who oversees a part of the operation that was in total failure. this is contributing i think to the massive problems of morale and other challenges that we have. administrator neffenger has many challenges to overcome in restoring the confidence of the rank and file and even the perception that some current leaders have have been part of the problem can continue to harm morale within the ranks of the tsa. more significantly, it can deter tsa employees from speaking up about security challenges which ultimately impagts the core responsibility of the agency to keep america's transportation safe. last november the inspector general testified, quote, creating a culture of change within tsa and giving the tsa work force the ability to identify and address risk without fear of retribution will be the new administrator's most critical and challenging task
and something i'm sure we're going to talk about today. we have somebody on our panel who has spent considerable time dealing with the tsa and transportation, the chairman of the transportation committee here in the congress, and i'd like to yield some time to mr. micah of florida. >> thank you, mr. chairman and ranking member for conducting this part two. there are some very serious concerns about performance of tsa. the first hearing that you held just a few weeks ago, we had for the first time since we created tsa people who came in from responsible positions and were willing to testify to the almost sheer chaos that exists both in the management and also the operations. of course, i expressed my concern about the meltdown that we've had to date,nd and i had
prepared yesterday and staff had gotten me like one figure during the break. we had 6800 american airlines passengers miss their flights due to checkpoint delays, and that sort of -- you know, we hear that, members of congress and others. last night i had the night from hell. i had three people who i invited to washington who came to washington, spent most of the day with me, all of them missed their flight standing in a tsa line. i'll tell you what, i am so livid. wednesday night is a particularly bad night. traffic was bad. they were late getting there. the tsa people wouldn't have the courtesy to accommodate people who could have caught their flight even though they were somewhat late, the plane was there. i was on the phone for hours. one of the individuals whose family is leaving on vacation
today had to get back to orlando to accompany his family, i actually had a staffer drive him to -- bought him a ticket home last night. i can put a face on it. you can't get ahold of a damn person in tsa even as a member of congress, nor would they take your calls. i'll tell you what, it's just unbelievable. the operation. you've got your $100,000 people standing around accommodating members of congress to get them on a plane, and you can't get a passenger on a plane who has to get home to leave with his family. i want a list of all of those people standing around that chauffeur members of congress and vips up to the front of the line and you can't get three people, one lady with some physical disabilities -- i'll tell you what.
i am so disgusted with this mess. it makes you, mr. charror chairman, lose your focus. but let me go back to, you can delay these people and then here's my gao report. 17 known terrorists have flown on 24 different occasions passing through your tsa. what's the very most troubling of the testimony that i heard, and you can fail and you will fail and your attempts on the training and recruiting and all will be a failure. i can tell you that. i told you that on my cell phone when you came in. because you cannot recruit. you cannot train. you cannot retain. and you cannot administrate. it's just a huge failing government program, and it will fail. but the most troubling thing was the testimony from mark lifk ston former assistant
administrator for tsa's office of intelligence and analysis who testified, it's my testimony today that we have a non-intel professionals running our office of intelligence and analysis. that's the core of the government responsibility. connecting the dots. and he's telling us -- and i questioned him about what was going on. and he's saying that that important government function, the most important government function to find the bad guys, not stop the innocent 99% of the travelers that we have chaos in that operation. i yield back, mr. chairman. >> thank the gentleman. we'll recognize the ranking member mr. cummings. >> thank you very much, mr. chairman. there have been a few times that in my 20 years on this committee i have felt so strongly about an
individual. administrator neffenger is a person who i have a phenomenal amount of respect for. when i was the when i was the chairman of the subcommittee on the coast guard and maritime matters, it was mr. neffenger, admiral neffenger, who cleaned up a mess called deepwater horizon. where the coast guard was buying ships that didn't float, radar systems that were supposed to have surveillance of 360 degrees with 180 degrees, radios that when they got wet they didn't work. he cleaned up the mess.
and saved this country and the coast guard probably hundreds of millions of dollars and sir, no matter what happens in this hearing, i if ythank you. i really do. last month our committee heard testimony from three transportation security administration employees. they raised troubling allegations about personnel practices that stretched back several years in some cases. the employees who came forward deserved to have their allegations thoroughly and fairly investigated. and i emphasize that. it's one thing to allege, but we need all the facts so that we can be about the business of not only hearing testimony but bringing about the reform that is necessary. i'm sure you would agree with that, mr. roth.
unfortunately, the committee has not yet had the opportunity to fully examine or substantiate their claims. and let me pause here for a moment. mr. roth, in your testimony i want you to do me a big favor and i want you to do a big favor for this committee. i want you to distinguish between what happened post -- pre-neffenger, admiral neffenger, and post. the chairman spent, and rightfully so, a good amount of time talking about the $90,000 bonus. there's probably nobody in this congress who has railed against bonuses going all the way back to aig than i have. and so i want to make sure that we are putting responsibility where responsibility belongs. i hope you'll do that. nevertheless, during our previous journey i was struck by how highly those whistleblowers spoke about our witness today,
vice admiral peter neffenger, the administrator of tsa. despite their understandable frustration about what they endured, these whistleblowers repeatedly told the committee that administrator neffenger was taking positive steps at tsa. they made clear that he is setting a course for the agency that puts the top priority exactly where it should be, on security. for example, mark livingston, a program manager, in the office of chief risk officer testified that administrator neffenger is "a man of integrity." he also said, and i quote, "tsa is not going to compromise our mission to expedite passengers though at the expense of our mission." end of quote. he went on to say what we're going to do is we're going to
get better, we're going to keep pushing precheck, we're going to keep pushing a better process, we're going to get more people and we're going to get better at this. mr. neffenger has made it his priority, end of quote. similarly, jay brainard, a federal security director in the office of security operations in kansas testified, and i quote, that he's a whistleblower. certainly since mr. neffenger has been in there has been a shift in security in trying to get that pendulum to go back so we strike a balance, end of quote. mr. brainard also said, and i quote, "it's important for us to make sure that we reassure our offices so regardless of the fact that somebody's going to have to wait a few extra minutes
we still have their back." and we have an administrator who fully supports that. and that is part of the culture he has established with tsa. that's a very difficult job. it's certainly not the most popular job, and we certainly appreciate it, end of quote. i have to say that during my many years on the overside committee i have rarely seen employees simultaneously come forward to report what they believe to be abuses while at the same time commending an individual who is in charge of the agency for his efforts to address them so vigorously. i can never remember that in these 20 years. and i've been at just about every minute of the hearings. admiral and administrator neffenger testified last november that tsa faces, and i
quote, a critical turning point, and i agree. he cannot turn around this agency on a dime. i don't think anybody up here could. but in the ten months he's been on the job, and i emphasize ten months, he's taken bold action to address the challenges he inherited. for example, in february he -- all directed reassignments currently in process. if you remember a committee where a lot of the complaints were about people who felt that they were being punished and being retaliated against by being moved from place to place. the wife would be sent to the northeast and the husband would be sent to the southwest. and all kinds of mischief. and so i'm glad you addressed that, and i hope you'll talk about that a bit today because that was a large part of our
hearing. in march the issue of a memo that requires new reviews and approvals whenever a directed reassignment is requested. he strengthened tsa's controls over special achievement awards. brought transparency to the executive resources council and appointed a chief operating officer to oversee the assistant administrators in charges of agencies operating divisions. critically, he has worked diligently to address the security shortcomings identified by inspector general roth, who is also with us today. and i certainly have a tremendous amount of respect for you, mr. roth. he retrained all screening personnel, including managers, and created a new academy to train newly hired screeners. inspector general roth -- inspector general roth testified last november, and i quote, he has deactivated certain risk assessment rules that granted
expedited screening through precheck lanes." however, despite all of these positive changes, the number of screeners has dropped by nearly 6,000 over the past four years. and i agree with the chairman. that's something that we all should be concerned about. we all need to find, get to the bottom line of why that is happening. we want to retain our folks. and i do not -- and i'm hoping it's not a situation that the chairman and i found with the secret service where people had gotten to a point where they did the same job over and over and over again. i at least concluded that they had moved into a culture of complacency and sadly mediocrity. of course the tsa has to do its job. congress has to do ours as well. congress wants to ensure that this agency has the resources it needs to accomplish the security mission, and i want you to let us know whether you do have the
resources. including right-sizing the number of screeners. i look forward to hearing from administrator neffenger about what more he needs to continue the improvements he has put in motion. 'll and i anxiously look forward to hearing from mr. roth about the work he is undertaking to assess these changes. i do believe we're well on our way to making the tsa a better organization. and if it is a morale question, i'd like for you to address that forthrightly, mr. neffenger, admiral neffenger, and let us know what you plan to do about that. with that i want to thank you and i yield back. >> thank the gentleman. we'll hold the record open for five legislative days for any members who'd like to submit a written statement. we'll now recognize our witnesses at today's one panel. pleased to welcome peter neffenger, administrator. transportation security administration. and mr. john roth, inspector general of the department of homeland security.
we welcome you both. pursuant to committee rules, all witnesses are to be sworn before they testify. you've each testified here previously, but if you would please rise and raise your right hand. do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? thank you. let the record reflect that the witnesses each answered in the affirmative. as you know, we like to limit oral testimony to five minutes but of course your entire written statement will be entered into the record. mr. neffenger, administrator neffenger, you're now recognized for five minutes. >> thank you. good morning, chairman chaffetz, ranking member cummings, and distinguished members of the committee. thank you for the opportunity to appear before you today. i sincerely appreciate the committee's oversight of the management practices at tsa. this issue has been of great concern to me as well. i commit to you and the american people that under my leadership tsa has established high standards of performance and