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tv   Key Capitol Hill Hearings  CSPAN  May 6, 2016 11:30pm-12:01am EDT

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some of the justices and for a lot of members of the public that can't can't even protect the united states flag? the fact is, the statute was written to prohibit the conduct only when it was as a form it was really, frankly, an easy case for justice scalia under existing first amendment precedent. he did say that if it were up to me, i would put in jail every sandal wearing, scruffy bearded who burns the flag. but, he said, i am not king. perfectly fine for the state to the prohibit me from putting my hand out the window while driving a car but what the state can't do is putting mys ifm out the window when i drive a car. he said it would have been fine if the state or congress prohibited flag burning altogether but that's not what did, either in the texas
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case or subsequently in the case involving the united states. all the dissents, interestingly, in the case, were and chiefpatriotism justice rehnquist included patrioticng poems, poems and songs and that was really the gist of the dissent, exception tobe an the first amendment for the but justiceg scalia, no matter his feelings weirdoes,ffy bearded he was not willing to create an exception to the first amendment. for'd like to thank you that question because i think there's something of an emerging narrative about justice scalia that, while he talked big about originalism, he decided cases according to the way he wanted them to come out and originalism was a screen. you'll find that in some public some more and also in serious academic writing and i think it's important to push back against that narrative just don't think it's
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right, as the cases that were indicate and i'd like to add one case to your list, of hismy favorite dissents which is hamdi versus rumsfeld where the interested party was an accused terrorist and the court held that he could be -- that he could be detained without trial subject to minimal procedural protections and justice scalia dissented and he had to be tried for treason or he couldn't be held. great dissent. he referred in that case to the mr. fix-itte, mentality and that, quote, the mission to make right,ing come out initial caps, everything come out right. so he rejected that idea even though it led him to the conclusion that this terrorist be -- excuse me --
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accused terrorist, should be set for treason but thedetained in the way court and executive branch wanted to and i'm sure it wasn't sympathy ford terrorists. so i think it's an important to what he was doing here. the one part of the question i'd i'm back a little bit on is not how far i would go endorsing personal humility and modesty. i don't think that was the determinant thing but what really made the difference to him was the idea of the rule of law. that's what mattered to him. saw himself as a servant of and the idea and links up exactly with what he criticized the court in happenedy. court's mission to make everything come out right but the court's mission to apply law. >> i want to pick up on that because onele bit
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of the criticisms of originalism as an enterprise is that it's unknowable, how can we put 91 andes back in 17 figure out what they intended, scarecrow version of originalism or what the original 200ic meaning was as we're years later. and since it's so indeterminate, facade forit's a achieving the agenda i want and cases are pretty dispositive proof that for originalism wasn't a tool he wanted where because it often took him to places he didn't want to go. the notion that there were criminals with lighter sentences or convictions overturned altogether is not what you would expect from a conservative the court like scalia yet that's what blakely and that we lead him to,
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can't use police investigative that would have been completely unknown to the founders if they intrude on your in virtual ways rather than physical ways, the kylo case. so i think that's dispositive usef that he was not originalism as a tool to advance my agenda but use originalism as to see of our inquiry what the rule of law requires of us as judges whose job is to to remake the law. >> it's also really hard to see originalism can support the results of the flag burning case. nottext says speech, expression. the original meaning was far narrow than justice brennan's opinion. may not havehat he been perfect on his understanding of originalism on any different case doesn't to use if he was going it for a tool, he would have other direction
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on that. >> it does rebut that point but to see the flag burning case -- producing the results in that case and the court's opinion was not originalist in the way it the issues.ugh thank you for the discourse. we were impressed, the personal humility helped him put the rule of law ahead of his own private agenda. we appreciated that. morrisoncalia's dissent had the brilliant quote, comes as a wolf and it has often been regarded as among hours on the court. why did he care so much for matters that undergird our constitution? >> i guess i'm a separation i shouldolar so maybe answer that question. that part of it is the
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framerslaw in that the wrote the constitution with attention to separation of powers and they regardedch as the fundamental protections of liberty. original constitution didn't have a bill of rights, had formal protection individual rights in its text but as federalists argued during the raddification debates, the reason they saw the separation of powers of federalism as sufficient protection for liberty that they didn't need a bill of rights. ultimately that argument was rejected by the adoption of the bill of rights but that didn't take away from the proposition that separation of powers and are themselves protections for individuals and so that was fundamental to the wrote the they constitution and justice scalia, enforcermself as the
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of the rule of law, enforcer of constitution, thought it was essential for him to adopt that it seriously because that's what the constitution says notwithstanding the fact that very loose inbeen its interpretation of separation theower and federalism in 50 plus years before scalia came to the court and i think that's morrison symbolized although i have to say that i think morrison is not an example of scalia struggling with the rule of law against where he'd like to come out. think he completely bought into the framer's proposition that separation of power was of liberty so i think that made morrison an easy case for him. add, also,i would it's not surprising that he was passionate about separation of powers given his views on the limitations of the judiciary. everything about his jures prunds consistently says the be aof the judge should
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very limited one. put it another way, the judge legislativecise power or executive power and when it does so, it's acting illegitimately and also diminishing the rights of the people tone act 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 parent athletically branch,n the executive and had strong views from that importance ofthe a singular executive and of executive power so he came to court with very fully formed power, ashe executive well as legislative and judicial. things that most of the commentary about justice scalia's passing has not focused is was he himself changing and thes in anything idea that flows out of the separation of powers in morrison also contributed early on to
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oftice scalia's full embrace chevron deference to executive agencies and i think that kind of his disregard for the activism of the warren earlyin the 1960's and 1970's when he comes of age. the court kind of answering said if weion and he defer to the executive agencies we're at least deferring to a branch that however imperfectly owes its direction then elected federal, president. and in recent years, though, he realization that that itself was a pretty dramatic violation of separation because we were allowing unelected executive write massive amount of law when law making powers vested in congress and accountability for the law making power and costs that go along with it are supposed to be he startedongress so
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in recent years even backing away from some of the deference he himselfhat authored once he came to the themselves that they might be violating the core separation of powers principle reflect he had time to and see its operation more fully and i think that was a very of justice aspect scalia's intellectual journey on he would beat willing to reverse course on something he authored if he saw against the understanding of the constitution, ultimately. ms. myles: i'd have to disagree aspect of what professor eastman said. i don't think justice scalia was of i think he grudgingly accept it. sure,n't author it, for and i think he and justice stevens often had disagreements because i think justice stevens see it as an open-ended deference to the executive branch and embraced the idea meant that the executive was going to be writing law. i think justice scalia always
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bristled at that. i think he felt bound by the precedent and maybe it was the solution. certainly it wasn't going to be a solution for the judges to make up law but i know that he justice stevens had a distinct difference of opinion has step one and step two. statute says, is the ambiguous and step two says, if the executive, interpretation can fill in the blanks as long as that's congress we can infer meant to law the executive to do and justice scalia always said him and justice stevens, the difference that was find thealmost never statue ambiguous because he would say you look at the interpret the words, apply traditional doctrines of and i,ry interpretation justice scalia doing those things, believe the court can come up with the correct interpretation, only rarely whereasbe deferring
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justice stevens was quick to find ambiguity and quick to defer. i don't disagree with that. the additional deference doctrine 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. mr. dasgupta: justice scalia went from faint hearted, calling hearteda faint originalist to calling himself a stout hearted originalist. if words and an instrument have meaning, he contended those be honored.uld to substituting new meanings, meaningsbstituting new or diluting the meanings already anant made the judge into extra judicial creature. other than the fact that this normativelyte disagreeable results at times from various political circles, does the justice's philosophy provoke such reaction quarters?
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>> let me ta up the faint hearted originalism point first. the constitution gives congress the power to create an army and navy. say air force and nobody would say therefore there's not the authority to thate an air force and if means you're a faint heart the originalist, so be it. i think that part of it was the the kind of more silly charges of what originalism mean. himmore difficult one for was an eighth amendment case where something that would have perfectly acceptable as a we adoptt in 1791 when the eighth amendment, capital thieving, for horse for example, would be completely unacceptable and i think he saying it no problem violates the eighth amendment to do so today and that's why he made him a faint hearted originalist but i think are marginal cases and don't go to the heart of what enterpriseiginalism
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is and i think that's why he first responded the way he did said i'm ack and stout hearted originalist. >> a difference between using originalism to strike down legislation and more as a shield to uphold it. about faintlking hearted originalism. there are two ways to describe it. the example in the eighth amendment where the court would strike down a policy that legislature as enacted. the other way is to think of it to stare decisis. there were a lot of precedents that justice scalia seemed to adhere to. one was the size and scope of the commerce power, the other is one person, one vote. argued for overruling that. incorporation of the bill of far from clear that incorporation was the original amendment soe 14th there are examples like that where he has gone along with of stare in the name
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decisis without arguing that single precedent should be overruled so in that sense i think he is a faint hearted and not stout hearted. ms. myles: i can say one thing about that. thatd a reason for doing and that was he didn't want to be -- i think he wanted to be on the have an influence way the legal scholars, judges public, american public thought about the constitution a greatrporation is example because the text of the constitution couldn't be clearer amendment does not apply to the states. congress shall pass no law. pass no lawes shall and the idea that somehow was 14thporated through the amendment to the states following the civil war is not historically -- it's not supported, really, as an historical matter. to go was not willing back that far and turn back the itck, partly because
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would -- it would make -- it him incapable of contributing to the debate about what the first amendment should since most cases that come up, come up from states, and in every such case, he would have to say, not applicable. of course there would still be but i would wager that the number of first amendment cases that come up in than thes is greater number that comes in the federal government. >> with me on my i.r.s. litigation but i'm nothing else. >> i just have to quickly note it's true't think that the incorporation doesn't have any historical basis. incorporation, through substantive due process clause, doesn't have historical basis or textual basis. he went along with that but christen was making a broader back onat i had to push
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a little bit. i wanted to take up the question about andus directly also push book that. you asked us, other than the this might generate normatively disagreeable results, why does the justice's philosophy generate disagreement? -- it's exactly because it generates disagreeable results that people it.t like and more than that, it would and away from the justices it would take away from elite lawyers and it would take away as academics and law arguets, the ability to policy, which is what, after all, we love to do, and we in our mind the idea that orcould persuade a justice five justices to adopt the think would be
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best and isn't that -- isn't that a feeling of power? you might not be able to but there's a chance you could. why i think it's nonoriginallism, living constitutionism, whatever you call it, is so appealing because -- it's a feeling of whyr and that's exactly people hate originalism. mr. dasgupta: thank you so much. a herculean task for each of you. justice scalia liked to say, i don't attack people, i attack ideas and some very good people so if youbad ideas could each share a thought about his personal decency and with his colleagues or with his clerks, his larger wonderful.t would be can start.i justice scalia did have an ability to appreciate in
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best people their qualities. and he loved the other justices court. and, you know, i had the good clerking the last year justice brokennon was on the court and justice marshall the courttill on then. what people often talk about how scalia's relationship with justice ginsburg and that is a famous relationship and that wasemarkable one formed when the two of them were judges together on the d.c. circuit. got to be friends and spent every new year's together and opera and loved to go together and he was thrilled when she was appointed to the of hisecause now one best friends would be his colleague. they also famously were able to substantive matters pretty well without getting annoyed with each other. they actually loved that sparring. justice, you know,
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brennan and justice scalia got along famously. just remember seeing them come out of conference and just walk down the hall with their arms both of themther, rather on the short side. both about the same height and they'd be roaring with laughter over something that occurred in conference and justice stevens, like wise, i saw justice stevens funeralce scalia's recently and we talked a bit about how justice scalia and were bothevens passionate about administrative law and he said to me, you know, wasn't very much that he wasn't passionate about and the sparring overved administrative law issues because no one else on the court cared. them, also sat next to each other on the bench two apart theere entire time they were there together so they always sat next each other the way the court configures the seats on the bench. it's by seniority.
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and so oftentimes we would see them disappear because the back so the swing two of their heads would disappear from view and then you would hear this raucous laughter from behind the bench where they were sharing anecdotes or jokes about what on in court but i would also say that justice an amazing admiration for justice marshall. he would always come back and marshallpsychiatrist was the only justice on the court that really had criminal justice experience, that had the unfairness that occurred within the criminal justice system. whicht know the extent to that at all influenced justice outcomes some of the in the criminal justice area. as mentioned before, he used originalism to enforce a lot of criminal justice rights that had been diluted. know if justice marshall influenced him on that but he him onely influenced
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justice marshall's own i'lliences and finally just say justice thomas and john can speak to this more -- but justice thomas did a reading at justice funeral and also gave a beautiful tribute at the followingervice the week, saying the two of them came from different places. said, i came from an family, he came from a family of educators, but we walked together for 25 years and he just had the whole room in tears with his the feeling ofd loss that you had about the loss was experiencing and felt he would experience going brother onhout his the bench. so those are just some examples. you,asgupta: thank ms. myles. >> he was liked and respected by his colleagues.
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it was very evident but also remarkable when you think about alonge supreme court got in previous decades and iterations. rehnquist told me when he clerked in the 1950's, were horrible animosities on the court, justices that didn't speak to each other. you read "the brethren," he talks about how the court was in people0's and problems had can collegiality so it was tenure on during his the court relations not just with justice scalia and colleagues but relations with members across the court were pretty good despite disagreements over legal issues. >> i don't have much to add to that. agree with it all and you've got my anecdote side ofand it shows the him that was important to see but i would add that this is that's pushedive about the justice by some of his that he was mean,
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that he was tough, he was a went after people in a mean way and so forth and of know like a lot narratives, there are grains of truth in that in the sense that tough on arguments, not on people, but on arguments that he wrote accept and some tough things in his opinions but his ability to get that he didn'tle agree with, i think is what is very remarkable and something remember in these days where it seems like it's increasingly hard to get along we don't agreet with so he should be a model to with his friendship justice ginsberg and justice be a in particular should model going forward. >> he was human and his ability to do that wasn't perfect. sometimes took a while. after planned parenthood versus
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lack of logical reasoning in that opinion, alding a grudge is too long word but three years later when i was on the court, we wrote the court skit at the end of the somethat still reflected of the tenth that still lingered over that case. you to push back when he was sparring with you and i'll close with this anecdote. tradition at the court that the justices would take the clerks from other chambers out whatunch at some point or have you and he would always take the clerks to a.v.'s pizza he took the thomas clerks out my year, we went would famously order pizza with anchovies and eat it and everybody i wouldn't eat it and he said, would eateal men anchovies on the pizza and i will say noal man if he doesn't like it even to a supreme court justice and he touche. and i think that's how he liked to live and why people thought highly of him and his
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collegiality. mr. dasgupta: thank you, all. now we have time for perhaps one someo questions if interested members of our audience would volunteer. audience: i wanted to know what the justice's opinion was about leadership in international justice and lawifically rule of institutional like the international criminal court and whether he believed that this somehow infringed on our own framework.nal >> i think he saw the american way thation and the our founders did and the way our leading -- leaders over the years did which was a beacon on the hill that other follow because it was so well designed and right but the notion that we would
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interpret provisions of our constitution by what some other the european human -- whatever -- it was bizarre to him and it really undermined any notion of sovereignty so he was probably one of the most vocal ofonents of this notion looking to other courts' decisions to infuse meaning back into our constitution. was contrary, i think, to everything he understood, what originalismlaw and project that he was engaged in meant. >> i agree with that. but i think at the same time it's important to see the a real as having internationalist bent. he traveled widely. he talked to people around the world about legal issues and he in very interested international matters but i think he wanted at the same time be sure coming out of his rule of law orientation oft embraces internationalism by the united states were consistent with the
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so i think you mightases which you perceive as being anti-internationalist, such as zien versus texas and shansheargo versus oregon. i don't think they were anti-internationalist in that sense. i think they were protective of u.s. constitution and u.s. to engage with international institutions, they hostile to international institutions so i think he was something of a middle ground on that. fully embrace it because he understood there were constitutional restrictions on -- could do but he was also sensitive to international concerns in other areas. he was a leader on the court in thinking that other courts -- sorry -- other country's interpretations of treaties inform us as to what the treaty meant. says, he didn't
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carry that over to the constitution because the other were interpreting their constitutional provisions our not interpreting constitutional provisions so it doesn't make sense to in areas where there was a shared interpretive enterprise, where there is a common treaty, he was one of the leaders on the court saying we ought to take into account what other countries are doing. own -- since. >> we have time for one last question. i saw that hand go up first. how does


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