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tv   Richard Hasen The Justice of Contradictions  CSPAN  March 24, 2018 4:32pm-5:41pm EDT

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content here at the museum of the bible in washington d.c.. and he's been our guest for the last hour and a half. >> c-span where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies. and today, we continue to bring you unfiltered coverage of congress the white house, the supreme court, and public policy events in washington, d.c. and arngdz around the country c-span is brought to you by your cable or satellite provider. wk i'm professor at the a
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georgetown, university law center pleased and honored to be welcoming you all to the american constitution society panel on a new book that i'm told is just outs on amazon today and will be officially released next week. by professor richard called the justice of contradictions antonin scalia and politics of disruption and it's a wonderful book extraordinarily readable for both way with and law, read ers alike that give law of the land with a principle contributions to jurisprudence to the supreme court and to perhaps to the politics of disruption that will be something that i hope we will talk about a bit. and -- and i think very fair and balanced book presenting justice scalia octave as to what was he he was trying to accomplish on the court. and critiquing them with some
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sympathy and with some -- some degree of skepticism as well and i think it's a book for or a very wide with audience and will be probable debated but more of a recess adjusting the legacy and what had the court is doing going forward for some time to come. it's a -- it's just a terrific read. and we have a -- a informal panel professor here with us from the university of california at irvine school of law. on his book tour for the book. and he's joined by our own professor who is suzanne lowe block who -- got to know him over the spab of 30 years justice scall why was extraordinary friend of the george town law center and students lucky u muff to be in the block class° that long period. i believe every year or virtually every year for three
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decades, he generously gave of his time to come and teach to and speak with her class. before operation of the court and great for second year students and first year students tone gauge request justice scalia. i can't think of any jtsz that has done more in terms of teaching and engaging with students here at the law center perhaps elsewhere as well. one principle theme of rick's book is -- the justice scalia very much saw himself as a teacher of young people and of law students. and of speaking, and saw one of his principle audiences being law students those who are just getting involved in law and constitutional theory and doctrine. and speaking to them as much as to the lit gangt and fellow justices and judges in the lower court.
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so a long experience at the experience at georgetown and adam, the supreme court, the chief correspondent or for the supreme court at the "new york times" who has been -- i forget how many years now. >> ten years well congratulations we're here on the tenth anniversary of adam's work covering the court. he, obviously, covered justice scalia and many of the cases discussed by professor this book and adam -- adam's writing on the court every week during the term and -- oftentimes even outside the term are are independencable for those of us who follow the court. he has an extraordinary ability to capture what's going on in the court in what take miss of us about six months to it a year to do adam can do in half an hour and get it out there in "new york times" so lay readers and followers of the court alike can make some sense of what's going on in real time and extraordinary asset to times and to the nation. and we're just kind of just going to leave it with adam
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to -- to run the panel and we'll go -- probably about 45, 50 minutes if not a bit longer. take it away. >> thank you marty. that nice introduction remindinged me of -- justice scalia when he would get a nice introduction a white man i think you'll hear about that and after an introduction like that he might say i wish my parents were here. my father would have liked it and my mother would have believed it. [laughter] so we're here to -- celebrate and interrogate this -- really great new book. rick was known to journal and continues to be a leading expetered but more and more writing ab supreme court and very well and i think i speak on behalf of the entire supreme court that we wish you would stick in your lane. but -- [laughter] here we are. so -- as marty was saying informal conversation and try to dive a
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little bit but we have two fantastic experts with different perspectives i think on the justice. and i just want to get them talking but let me start in a broad level of generality, and ask what you mean by the politics of this disruption. you're in west guy you're a disruption what do you mean by that? >> first before i get to that i want to say thank you to -- to georgetown law center to acs. to marty and to tanl and copanellist for coming out today to talk about the book. soy appreciate that. the opening book was that he was a polarizing figure and polarized times and i -- it i analogize him to it shall newt gingrich and what newt gingrich did to house of representative and what donald trump and what donald trump has done to presidency he disrupt the way in which the institution worked. he tried to mold it out to be much more in his own, his own
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image in terms what he thought courts should do. he had views of how courts should decide the most important constitution mall and statutory case and thought he pounds holy grail and he changed the way justices and lawyers and law students write and talk about the law. i think that's probably his biggest legacy and it's a completely different court. it's also justices are completely different we probably getting into this. justices have now become public intellectuals they're out there. seeing -- justice ginsberg making her 25th anniversary tour. i think you adam analyzed it to bob dylan always being on the road really the u way we think about supreme court justices and way that justices write their opinions -- it justice famously said at the 2015 scalia lecture at harvard law school we're all now. i don't believe that but she said it and changed at least the way people talk about things so i think they did it disrupt
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the -- jfts supreme court. >> talk a little bit about his personality. his affect. how he came across and how perhaps that was different from the image we might have of supreme court justices. >> well, i first met him when he was new to d.c. or new to the court of appeal. and i was just beginning teaching we were at a kirches so we both sort of didn't know anybody. and -- he was very generous he gave me his teaching notes because i was -- a new by and i decided when he got ton to supreme court that i invite him to my class. why not? and -- he said yes and he came and next year i thought well i'll invite him to lunch in the class. and he said, okay. and he came. [laughter] and every year i kept thinking he's going to say, you know,
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i -- i can't keep coming to your class because there was a lot of teacher this is the country and if they ask -- you know, can't do that. but i decide ited that, that was not my role and keep inviting him and i understand when he would finally say i'm sorry sue that's it at least not this year or o something. [laughter] but -- i kept asking and for 30 years i would take him to lunch. places varied he had different favorites over time and then he would always come to my class and i would enlarge it so whoever i was teaching, it was always conu la or supreme court seminar and i would bring in all of the students that i happened to have that particular year. so -- it would be somewhat worth his time. and he would come until and say i'm here to correct all a of the wrong things that professor bloc taught you. [laughter]
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and i would just smile and -- [laughter] take it. but he loved he loved teaching. he loved students. he loved people. he loved exchanging ideas. and he was just a very warm -- it is true when you read his desense particularly that when, i've always marveled had this feeling when you put a pen in his hand, or i guess a computer now. to some part of his brain kicked into gear that was really nasty. [laughter] but i never saw that in person. and i it shall we'll get into this, i think. that even though his desense could be quite intense and biting he was not like that. and that's one of the differences i have with the book.
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his colleagues actually almost all of them really admired him and liked him. some of his more biting desense i think were leferled at kennedy and o'connor and speculate about that. i think it's -- i think he didn't like the fact that he were in the middle and wishy washy in his view but his personality was, obviously, very intense and strong and very loving. did i answer your question? >> yes, that was very good. >> let's talk about tone for a second. because on the one hand, a journalist dream fantastically quotable his writing very vivid. his questions and oral argument, you know, i probably quoted him while he was alive more than any other o justice. and yet, there was a question of tone that bothered some people in two senses one a strategic sense. it was alienating his colleagues
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and two, and rick writes about this. whether he was modeling for law students and lawyers -- a kind of course sarcastic attitude that maybe he could pull off but in hands of amateurs really cheapened legal profession. i want to give you a couple of quotations and maybe we can talk about whether some of these tendencies i'm describing got worse later on. but of course he was same-sex marriage decision, and scalia wrote of kennedy majority opinion that was couched in a style that is as pretentious as is content as ecotistic that's biting in large part because true -- but still a hell of a thing to say to it a colleague. similarly, in the same opinion scalia wrote -- i'm quoting from rick's book even as a price to be paid for a fifth vote i ever joined opinion for the court that began and quoting kennedy the constitution promises liberty to all within its reach. a liberty that includessings
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certain rights that allow american perns within a lawful rem m to define with and express their identity now scalia again, i would hide my head in a bag. so that's -- that's a different style of writing. and i know it's a compound question but what -- what did this tone both in writing and orally do to the legal culture? >> well so i think that's a difficult question. fifers first i think we can establish that justice scalia was much more sarcastic and costic than any justice on the court. i actually went with, looked at a lot of articles trying to whenever a opinion sarcastic i would have a sarcastic index. >> a creator of the sarcasm index -- [laughter] and adam wrote about it and justice scalia was a 2.78 that meant he had almost three sarcastic opinions per year on the court and next justice down
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was 0.43 and trying to piepgd something like hide my head in the bag same footnote he says, we've moved from -- you know kind of the imagine try of writing are from john marshall to of the fortune cook ye it is bhity but biting but what i found most troubling about his writing was that it wasn't -- only at the text i think you can call the preden issues comment but it was often leveled as to the other justices to delegitimatize what they were doing and this is what i found to be the most difficult thing about what -- what or most troubling thing about what scalia was doing. he claimed he was doing law while everyone else was doing politics. so if you didn't follow his way, you were somehow illegitimate and he used his language to emphasize that he said he wrote for law students and to be like that to people would pay attention but course language he moved this into the muck and i
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think much more common now and i get examples -- of other justices stash thing to use this similar language and it's not a left right thing. but justice and for example, campaign finance case, and justice and robert opinion said he had found a smoking gun that showed improper purpose. but she said only kind of smoke is kind that goes with mirrors. you know it's -- you know, biting and justice kagan and i think now is the writer on the court now that -- yoang that tone helps us in terms of respect for the court as an institution and how lawyers should talk to each other and -- the book is call thed justice contradiction one of the biggest contradictions is scalia repeatedly bemoan loss of society and complained about ladies saying f word on tv. but he -- that was his words not mine. but -- yet he was more responsible i think for the decline in the civility on the supreme court than anybody else. hard to think about anybody else on the court publicly that would
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say sure things were going on behind scenes for, you know, or for as long as the supreme court has been around. but to say so publicly hide my head in the bag. that should have been in notes to a colleague it shouldn't have been in the u.s. -- united states report. >> do you it share that video that he did did damage to our legal culture? in the questions of tone? >> no. [laughter] i think that's overstatement. i agree that -- it it was remarkable what would happen as i said when he put a pen in his hand as o opposed to when he spoke. he did get much more cost in biting and i think it was more selective than you indicate. i think he didn't haves much respect for all of his colleagues it it varied. but i think what we're missing and so -- i do agree that the public
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sphere when you read his stuff is -- it was striking. but i think what we're missing sort of a lot of behind the scenes. one of my favorite stories about him and it's not a story. and ruth ginsberg tells, one of the things they did they were writing a, she was writing the majority in fact virginia -- in the vmi case sex scridges case. and it was one of the end of the term cases where -- everyone has to hurry are up and we have to meet the decline and it has to come out on monday. he was writing desent and she was going away for the weekend. and he very cordially or more than cordially collegially is the word i said and he said here's my decent you know i'm still tinkering with it so you have enough time to really respond to it. i don't to, you know, just --
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fling it at you on monday when everything is chaotic. and that's the -- but that was the kind of colleague he was for a lot of them. he was that way with elena kagan, obviously, not putting myself in that category. but -- came to my class for 30 years . so there was a part of him that was incredibly word collegial. interested in furthering the debate that discussion, he was not costic. he is funny. he was funny. and is, you know, there's a fine line between some of his humor and being too sarcastic. but basically i think he was a very, warm, caring he loved the law. he loved language. he loved writing well and oral argument i think he enlivened arguments and enhanced argument added humor to the argument.
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one more just little personal thing when -- i clerked you know before he was on the court, obviously, and when i was clerking in the 70s, it was very different bench it was more quieter. there were nothing like the kind of questions that he and i believe that he gets the credit at least i would give him the credit for really enhancing oral argument. lierching it making it or more interesting, more -- informative -- funnier rick has had the sarcasm index but also the humor index. that and it came about, i believe, because of scalia. i didn't do the history on this. but -- people started counting what the, how many laughs were developed or generated in the oral argument. and who which of the justices got the most laughs.
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and scalia was i think almost always number one. and he loved that. that was one of his proudest achievements was to be -- you know to win the humor index. so ping he was very influential and warm and caring. >> courtroom isn't easy room for last people. people here to laugh. people are generous with their laughter but it's true i think jay did computation that came when transcript started to have racketed laugh tarn you can start counting up so another political sciences developed. now, i think the subtext of some of what you sue is that he was cordial to justices that he respected. kagan, ginsberg, maybe a little bit less oh connor, kennedy is there something to be said that theory in early in his career he managed to alienate someone who could have been an important ally justice o'connor? >> i do think there's something
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to be said for that. i think that -- well he wasn't very good at compromising. in any comengs. dimension, and whether he could have cultivated her and gotten her to move more in his direction -- actually i really, i don't know. i don't think his style would have ever really appealed to her. so, and i guess i don't think the law would have changed significantly had he been nicer to her so -- >> so what you've been hearing so far is that he was in many ways very influential. but let me ask you rick whether he was influential in the most important way. did he write a body of majority opinions that have lasting power? >> so this is -- really one of the paradoxes of justice scalia david cole who -- from here, right that's the --
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his institution is set after scalia's death that he was the most influential justice without influence. and supreme court history -- and i thought that kind of captured something so kind of two main measures if you were trying to figure out who is -- a scientist who is most influential justice so one thing to say who writes -- the most majority opinions in the significant cases the cases political a political science measure the cases that make it to front page of "the new york times" as long as we have a physical paper i think we'll use that measure as a significant case. so -- by that measure scalia was not northeast infliewn rnl justice but he was in a majority and concern decisions but he didn't write them often they were written by -- other os. and -- he was quite senior for a long time so you would think he would get those -- opinions assigned to him. except -- that chief justice roberts didn't think that he would be able to hold on toe five -- >> well -- sorry -- >> i'll -- so i think, he either it was
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what he was trying to say or how he was trying to say it that didn't let him get to five. the other way you might measure influence is by looking at the swing justice who votes is the fifth vote that is required that ties into why -- scalia didn't write a lot of these opinions because in order to get -- o'connor or souter or kennedy onboard you have to write thing to apole to them and as sue said about lack of compromise he was not going to -- compromise what he thought was the right way to decide the case in order to get the fifth vote. he -- pretty literally says that. so under conventional measures he wasn't influential but suggested earlier he was very influential but through his share force of his writing and his methodology he kind of moved the middle of the court. got people talking about statutes in the constitution in a way they weren't before. you can't write a brief today trying to construe what a
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statute means without first going through the words of the statute. the, you know, what a dictionary might say this and legislative history and purpose all of that but there's kind of a different way of talking about things and if you go back to the eclectic way these things would go and courts go on for five or ten pages about what a statue meant and quoting the statute so i do, he was inpliewn cial but not -- the way when we talk about justices. >> i think that's an a important statement i think he was very infliewn influential by measures that i would say are important. again when i was clerking it is hard to believe but people didn't start with the text or the text of the constitution. they didn't start with the text of the statute. and i think he was correct to tell us to at least start there. and that i think was a major contribution. i think he really focused on and
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made us focus on how do you interpret a written text. what are the methods? i think the fact that he tried to come o up with -- standards, force the others to respond. so i think justice breyers more relatively recent book is a response to scalia. let's talk about how we -- approach these texts that was not a conversation that was happening before. and i think it's a very valuable conversation similarly with interpreting statutes. it was common for legislators to stick little bits of business in legislative history with the hope that when a statute gets interpreted, someone might find this -- it little thing in the committee report and interpret the statute
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in a way that perhaps not everyone had focused on. that was a little cryptic i'm sorry. but he pointed that out. and i think elevated that conversation too. so i think it's unfair to take a conventional measure and say he wasn't that influential but i think we have to look at in what ways was he influential and are those -- are those ways as made ways of counting significant. and i would say -- that he made a significant contribution all around and the fact this he didn't write a lot of majority opinions is as rick said. if people who write the majority when the justice -- when someone is signing who is going to write the opinion -- the biggest concern is don't lose the majority. make sure when you're drafting the opinion, you're not so far,
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you know, to one extreme or the other that you're going to lose the middle. so -- the way you then assign the opinion is to assign it to someone in the middle who will, obviously, please him or herself and not alienate the extreme so not getting someone like scalia to write a large number of majority opinions. he didn't care. and -- i think to say well -- you're not that important because you didn't write a large number of majority opinions. you would go -- [laughter] >> what did you understand that gesture to mean? it wases -- he did it do that. he did do to. quoting him. [laughter] >> but wait -- wait, yeah here's another quote he would have said get over it. [laughter] that was what he said about bush versus gore, and a number of things where he thought you should get over it. >> so i think i agree with almost everything you said in terms of --
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how to measure the influence of a justice and to, you know, initially my book was going to be the scalia court i don't know if i would go that far but certainly one of the most influential justices. only place i would sphwrea disagree with you he at least publicly said that he did view -- majority opinions as the most important contribution to make to the court. he said that to the interview he was talking about heller in another interview he was talking about his criminal procedure cases which we haven't talked about those yet but those replace where is he plagued against type. where scalia is conservative it justice and tough on law and order and a sub sets not certainly not all of his criminal procedure cases. where he was remarkably in favor of the criminal defendant. most importantly -- on the confrontation clause and the crawford case. ...
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now, i don't know that proscalia we are in a world in terms of ending with world of statute, just last week in digital reality trust on which who counsels the whistleblower, six justices signed onto an opinion that referenced the senate report, three most conservatives descended. >> i would divide the courts -- supreme court's work and lower court's in categories, the supreme court is doing two things, the one thing it's doing it's serving function as union -- unifier and clarifier on law on issues that are not public importance. they don't make it in new york
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times, a case decided yesterday what was justice kagen's line, only interest to appellate justices. >> maybe not even to them. >> on those cases, statutory cases you do see textualism carrying the day. a guy threw some gruper overboard, there was a provision of financial law that you couldn't destroy document record or other tangible objects and the question is a fish a tangible object. ginsburg versus kagen and engaged in analysis. ginsburg is quoting hawk eye and kagen quoting dr. seuss.
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what we care about is whether or not the health care law is going to go a death spiral because one clause, 2700 word page, in those cases the political scientists called agenda, it wants to do something in high-profile way. there, i think, i don't think it affects the outcome of case, one example i give is you can take alito and scalia, alito being conservative but not a texturalist and you look at how they vote, they vote almost always in the same way. one of the terms in cases, 15 out of 16 they are together and with justice ginsburg it's one out of 16 where they are together. i think they talk the language but in case that is matters the most i don't think it's driving outcomes, i think ideology is, it always has and always will and the tool doesn't get us past
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the value judgments that all the justices make. let me be clear, i don't think justice scalia was less consistent than the other justice, i think they are inconsistent, we can point to all of the flaws, the difference is scalia set himself out, set a higher standard for himself, he was applying new real principles which he would follow and he set a higher standard which i think he did not meet. >> you make the very persuasive case, rick, that textualism which scalia said constrains judges, in fact, not terribly constraining, good lawyers can pick competing dictionary definitions and get to that place they wanting to while holding themselves out to be pure texturalist.
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>> it was like going to cocktail party to pick out friends. it's the same thing with textualism. well, the third definition this this dictionary says this and supports my idea. i really do believe that using textualism is not often constraining and the person who makes the argument the best is judge katsman of the second circuit. wrote a book and the best defense of holistic means of interpretation where you start with the text, you don't end with the text. i think, you know, that's the point and adam you indicated earlier, that's the point you some other justices, including alito get off the train, we really shouldn't stop with words of the statute, even scalia given example in the book, even scalia wouldn't know he stopped with text of the statute.
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in one case involving about federal rules of evidence, this statute is absurd and i'm going to rewrite it, it's not something that you expect textualist to do. he was a hardened originalist. i would never go that far and recanted in 2011, no, i'm a stout-hearted one. he wanted to have it both ways, i'm originalist, textualist. >> let's define our terms for a second. we talk about textualism is, what's originalism? >> different things to different people, the -- what did the founders intentionally intended.
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what does james madison games, what did he think of them, what did it mean at the time that the constitutional provision was written, sometimes he looked only at texts, sometimes at traditions, sometimes he ignored historical evidence and sometimes he embraced historical evidence. he wants to know what the original public meaning of the words meant. >> i think what we are missing a little bit is that he, i think, changed the dialogue or content of what we talk about and no one is consistent. so i'm not sure it's fair to accuse him of being inconsistent what he did was force people to try and articulate what they used and are doing to bury it
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less. by definition the case that is get to the supreme court is really difficult. there's a reason why we have splits in the circuit is because the questions are hard, so i think what scalia tried to do and to some extent succeeded and not totally was to clarify how he thinks, recognizing that occasionally, you know, he was inconsistent. but i think his trying to articulate forced others bryer and other justices to respond and what they are using, in that sense advanced the dialogue. the fact that we can't agree on outcomes shouldn't surprise any of us. >> we haven't talked about what is most significant majority opinion heller which was an
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originalist decision, tell us about heller, rick, and whether that might make the case for we are all originalist because the majority and decent in heller did what some people might dismissively call law office history. >> i think i'm going disagree with the premise of your question that it was an originalist opinion. heller involved the request whether or not the second amendment of the constitution provides right to bear arms, could you keep a handgun in your home in washington, d.c., did the constitution protect that? and the supreme court in opinion by justice scalia said, yes, in a follow-on decision, the court extended that to apply against the states in the case calls mcdonald. interesting issue there too. justice scalia said he was applying his original meaning, originalism, he points as his fullest original opinion, he took the words of the statute apart and he parsed the
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prefatory clause to the rest and figure out how it went together, nonoriginallist larry contend that it was not originalist, it looked at post radfication history, a bunch of cases that were decided afterwards. looked at social context, over time not just as the time it was adopted and most importantly, it required a kind of interest balancing, what -- where the court in justice scalia, you can't own a bazooka and all those kinds of things, in the end heller by liberals as terrible conservative decision has now become embraced. just last week justice thomas descended from the supreme court decision not to take a case
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involving a 10-day waiting period for guns in california and basically said the second amendment has become an orphan. if there's a 10-day waiting period for abortion, you know justices would be hearing the case. why is it that the other constitutional rights get greater protection? i think scalia -- tribe calls it example -- exclusive example of living constitutionalism which would have really made his face red but it has turned out to be balancing test with looking at a whole different context and i don't think we've had another case where the supreme court has come in and struck down -- struck down a weapon's ban and today justice scalia who is giving us room for political change to adopt more gun control which is maybe not where many of us certainly not where i thought
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heller was going to lead us ten years later. >> you're right, the supreme court hasn't taken a gun case since 2010 and to justice scalia most influential opinion may not be particularly influential. >> that's, -- that's okay. [laughter] >> you talked about how he transformed oral arguments. you listen to oral arguments, the lawyers will go on for a long time in a sleepy way without ever being interrupted by a justice, justice scalia interrupts, what happens? >> it's shocking. now there's a countdown to see, you know, how many seconds before you get interrupted. as adam said, when i was working in the 70's it was really sleepy and you might -- you might go for the whole 30 minutes with no interruption. now, i don't know what the
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record is but something like a few seconds before -- >> that one i don't know. >> okay. i think there are counts of how long you -- the lawyer can start -- go uninterrupted. >> i think it happened, before you get started, counsel, let me ask you a question. >> down to zero. and, yeah, it's like watching some kind of high drama and it's really challenging for the lawyer to respond and sometimes they all come at you at the same time and except for thomas, he reflects the old ways, he rarely asks anything. but all the others, and i think it was scalia who changed it. i think it's partly because that was -- he loves a good fight and loves language and likes to be
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funny and he likes to challenge people and, in fact, he was known f he saw a lawyer floundering, he would occasion i will say, perhaps -- he would he say it, isn't this really what you would like to say? >> i think you would argue. >> he lays out the perfect argument for that side and the lawyer would say, yeah, that was good. >> i agree. >> it made everything crispier and entertaining and that was, in part, what he wanted. it made the discussion better, the debate better, the decisions better and definitely added entertainment value. >> i just had a small points,
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some are made to lawyers, people who read the transcript and days later to recording since we don't have cameras in the courtroom. sometimes the claims are aimed at other justices. kagen, please justice kennedy in close case, they are communicating through the lawyers and so i think scalia opens it up. i don't know that he was trying to do that. i don't know that he was but i think that's certainly the dynamic, you're in the courtroom all of the time. >> i think he was in the following sense. the justices don't talk about the cases before argument, after the argument in a very ritualized way they go to conference and vote in order of seniority. if there's a point you want to make to your colleagues and particularly if you're justice kagen until recently was the junior justice, but the time the conference gets around to you, it's probably too late you better make point and argument if you have a point to put across and scalia similarly
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would complain that when he would arrive court at academic setting, he thought that he was going to a seminar and great discussion at the conference and they all hashed it out and argue and turns out it's a bureaucratic little formal process so he too had to take some of what he wanted to the at conference and move it to the argument. >> he always complained, in early days when he was junior justice and therefore didn't get to speak in the conference room until everyone else had expressed their been, he would say, by the time they got to me it didn't matter, they had all made up their mind. so he used oral argument as a way to get his views out there early. it's interesting to note that, again, when i was clerking, the bench was like this, a rectangle and if you -- if you picture that and you picture nine justices in a rectangle with the poor little lawyer there in the middle, when this justice asked the question, the lawyer looks that way but this one doesn't
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know what's happening, he can't hear his colleague, finally what they did is they rounded the bench and now there's less interruption. i think it's still -- there still are interruptions but little less often. >> i think it's also interesting that the new justices are sometimes picked on for oral argument style, does he know anyone else is here and complaints about sotomayor that she was asking too many questions and now complaints about gorsuch, so i think, you are trying to elbow your way into this conversation among these very smart lawyers who are trying to make a point, convince their colleagues, show how smart they are and sometimes the chief reduced to traffic cop trying to just get through the 30 minutes. >> one of the points that hasn't been made yet is it was relevant that scalia came from academic setting and he brought the -- you know, the method that you
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all are used to and that was, i think, significant difference and has continued, people like ginsburg and kagen and others. >> if you have any questions, line up in microphones. i have one more question for rick which he's on the empirical side, he's a genius and constructed a celebrity justice index and i hope you might tell us about that? >> sure, one to have claims is that scalia is responsible for the justices as intellectuals or to put the point more broadly, i blame scalia for justice ginsburg to say bad things about donald trump when running for election. there was a period in 1960's when supreme court justices were speaking to a lot but weren't talking about cases, justice
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douglas, for example, was big environmental and talking about the west and scalia comes on the court and starts giving speeches, he was doing this before on the court but after with the federalist society, federal society, acs, the two teams and would make provocative statements, i don't believe it in the living constitution or get over it comment n. response to that, after scalia comes on the court that the justices start making more and more public appearances, bryer feels the need to respond and ginsburg, if you look at justices from 1960 to 2014 where i cut it off, appearances by years, divide by number of years, nine were the current justices on the supreme court at the time. you really transform things in a way, now, what i think that's done is especially as justices have gotten older they feel less constrained by things and leaves justice ginsburg to call donald trump a fakeer and to make comments about how bad it would
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be if he's elected while running for office when there might be a case coming to the supreme court about his very election. i thought that was very ill-advised and scalia help create the cult of the judicial celebrity and i think i would much rather the justices do what justices sotomayor and justice thomas do which is go speak to high school teachers, poor high school students about working your way up to succeed. i think civics education which t justice o'connor has been doing. justice of celebrities where notorious, i think that's really a problem for how we construct our view of justices in society. >> i agree, i think that scalia led to this and i think ginsburg's comments were most unfortunate but i think that in general the justices reach lg --
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reaching out and talking about the court and other things it's fine, ginsburg made a serious mistake but i'm not sure we are suppose today blame scalia for her bad judgment on that. >> i'm going to take the moderators privilege of asking the first question before we get to the students and others. and it's about a topic that you barely glance on the book, rick, and i was wondering whether any or all three of you have any views on and that's the importance if any of justice scalia's catholicism on the service on the bench and on -- and being catholic, so one thing that's very well known is that for his entire life until he died justice scalia was a practicing catholic who didn't make a lot of that publicly but was very bias and very -- consistently church-going catholic who believed deeply in the catholic faith and studied very deeply in catholic theology
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including here at georgetown as undergraduate. and i'm just wondering, you know, some of his more important opinions on the court involved religion, sometimes division versus smith, he actually denied the power of the constitution to give religious exemptions to applicable laws but on the other hand he was strong proponent of legislators being able to reach out and give religious observers exemptions, i'm thinking more broadly. i give a couple of anecdotes and see whether you think -- whether they have anything to say about what sort of a justice he was and whether it affected his juries prudence. justice scalia wrote article in 2002 about the question of whether you could be a practicing and a devout catholic and yet be a justice on the u.s. supreme court given the number
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of death penalties that the court heard in every term and the fact that the catholic church at the time, the formal position of the catholic church was that the death penalty was immoral. and scalia somewhat surprisingly, i think to people wrote an article saying that if he believed that his catholic faith actually prohibited or the death penalty, he would have the obligation to resign from office rather than sit in judgment on death penalty cases, but he thought that rome was wrong on that, that his view of the catholic doctrine was that the death penalty was not immoral and that allowed him to continue to sit as justice. very provocative and very interesting take on things that was criticized by some in the catholic church and celebrated by others. the other one is less well known and i happen to know because i'm alumni at office of justice and scalia headed in the
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administration which n which he had to do extraordinary work in area where presidential power was being cut right after water cl -- watergate. he always, i saw him three or four times say the same thing about the office, he would say that it was the best job he ever had was being the head of office of legal counsel, he revered and that he lamented that he didn't think that it was what it used to be in the days that he was there because back in the mid 1970's, the office was populated largely by a bunch of brilliant jewish lawyers who were excluded from new york and washington law law firms and log for the day when the office had that kind of quality in it but now the jews were able to go into law firms, it wasn't what it was cracked up to be and i
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took some offense to that but i thought it was disturbing that he would think this is sort of line but i thought sincere, i wonder, it does strike me that there was a sense and maybe i'm imagining it where found himself minority, catholics and jews on the courts and in particularly the supreme court were, it was unusual for them to be there and had to navigate their way to juries prudence and tenure on the court was a little bit different. that seems strange today because all of a sudden we have a court that's either eight or nine of the justices for the last few years have been catholic or jewish, there have been no more protestants except gorsuch and consisting of jews and catholics now. do you think, rick, that that had -- what impact at all did it
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have on service on the bench, his catholicism? >> i'm going to not answer the question because i made a choice i was not writing a biography, i did not have the pleasure of meeting him, this is a book about his ideas, not about who he was as a person. i would suggest joan's book, since i was not psych analyzing him, what his affect was on legal culture in the supreme court, i shy away from that. but do i want to pick up on some point at the end of him seeing himself as a minority, this is why i say a neo trumpian, that's not something i said when i started the write the book but he was a -- he was a populist nonelitist, one point where he tells, louis powell is deciding the affirmative action cases,
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it's not going to hurt powell's family but the working kid. he saw the country under siege. he's talking about the immigrants coming on the border and taking america jobs an threatening security, i think he did feel like the minority under siege. there was a time where he was descenting and talking about how the court was not representative and he said, we've got no one from the west, california doesn't count, remember he says, a dig to kennedy. and he said if judges were really acting as judges then we wouldn't care but because they're not acting as judges and politicians in robes, he saw himself a minority but i will let the others define on the catholicism point. >> rick, does have a nice line in his line quoting scalia. scalia said he didn't care about
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he died he would be happy or very unhappy. [laughter] >> the whole discussion about the believe in the devil and interviewer couldn't believe that scalia believed in literal devil. >> he was certainly offended by the notion that his religion played role in judging, abortion decision featured five catholics and the majority and no catholics in decent, scalia was furious that wouldn't visit chicago and wouldn't take chicago clerks for years. >> should we move on -- >> move on. >> all right, please -- please tell us who you are and ask a question rather than a speech. [inaudible]
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>> more of a public view of the court, what would you say to that? [inaudible] >> our view, sarcasm and use of words my affecting lawyering and social aspects and this maybe -- [inaudible] >> i think you hit on a very positive aspect of legacy in that his opinions are much more readable. i would rather much read a scalia opinion than say a bryer opinion with nine-part test, it's just -- it's con -- compelling. a bunch of harvard students made a music video, how they are sitting and reading bryer and
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ginsburg but they would rather read scalia. he said that scalia used to read his opinions out loud to wife or clerks, he really wanted them to sound right and i think that's a very positive contribution to the court, when -- if i get a robert kagen or scalia, i'm happy because i know it's -- it's going to be about arbitration, something i don't know anything about but by the end it's something that i will understand. one of the positive legacies. >> i think what is important to note is he's an only child, his parents i believe were english teachers. >> his father was a professor of romance language in college. >> took great pride in the only child that they had and language was really important and education was really important and he continued to promote
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those values in a very important, i think, influential way. >> we have time for two more, so go ahead. [inaudible] >> law office, history, yeah. >> i'm curious how -- [inaudible] >> i catalog in the book all the ways in which justice scalia deflected these kinds of questions, alan dershawitz asked
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him, sarah palin said let me get back to you. that's jeff's words, not mine, he asked scalia about the fact that at the time that the equal protection clause was ratified, there were laws passed by congress that gave preferences to african americans, newly freed slaves. how did he explain that? and he -- he gave a laugh and said, well, nobody is always right and more seriously one of his clerks, gil sienfeld wrote article where affirmative action was pending, here is all of the historical research on this question, you would at least answer and explain and scalia never answered. he called it the good, the bad and the ugly, that was the bad
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scalia didn't explain and just last little piece. scad -- asked scalia and scalia wrote a book back saying i'm not going to read the book, i don't have time to respond to critics, i will follow the israeli's never complain, never explain and so he left it to others to defend legacy and what i say on both originals and textualism, those who defended scalia, that he was not scalia enough. would be more like justice thomas than justice scalia was himself. >> all right, one final question. >> hi, neil, rick, your -- >> get closer to the mic. >> okay. your comment about scalia, neo trumpism reminded me, i don't know if you read bryan gardner's
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memoir with friendship with scalia but one of the things that comes out of that is that scalia was very intrigued and positively admiring of donald trump who he viewed as a straight-talking man of the people which, you know, interesting to see what that does to his legacy, it's not that surprising but still shocking as many things, but are you aware of that and how does that fit in knowing, what does that tell you and susan, what is the fact, you know, about the kinds of issues -- the kind of issues you have been discussing? >> i didn't know at the time i wrote the book. there were stories about his widow having trump signs on the lawn. i wasn't surprised but i didn't write about it. the only time trump himself comes in the book is when scalia passes away and trump goes on talk show and says we have to look into this, it could be murder, you know, which turned out to be as i go through the chronology completely unsubstantiated claim.
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looks very much like the justice died of natural causes, but i do think there are theme that is come across from scalia, you read his immigration decent, the words could have come from donald trump, they had a lot in common even though that justice scalia's intellect and his ability to write nowhere near what we are talking about here but in terms of the views and about feeling besiege, there was a lot there that was in common. >> well, the only thing i know that i had heard that mareen scalia did have a trump sign on their lawn when -- and he had been alive when that was, i think, put up, so that surprised me. but and i don't know if -- what she thinks of trump now and obviously don't know what he would have thought of trump now, i agree with rick, that there was an element that appealed to
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him. >> i think that it might be -- it's the side of scalia which you described that perhaps he saw some of that in trump that would have appeal today him but at the same time i don't know that we can say for sure that he would have been approving of all the different facets of trump, he was a complicated figure. side by side with the deeply biased religious side of him and i'm not sure we can reduce it to just one thing, i don't know, perhaps he was admiring to have current president but -- >> no, i don't think he would be now. [laughter] >> and certainly wouldn't be admiring of whatever that woman's name is, what's her name, that's being paid? >> stormy. >> stormy. scalia would not have approved of that. >> with that, i would like to thank our wonderful panel for this very engaging hour about this terrific book that, i think, the justice scalia's
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champions and critics alike will really enjoy reading and enjoy engaging for i hope many years to come so if you would join me in thanking our panel. [applause] >> for nearly 20 years in-depth in book tv has featured the nation's best known nonfiction writers for live conversations about their books, this year as special project we are featuring best-selling fiction writers for monthly program in-depth fiction edition. join us live sunday april 1st at noon eastern with walter mosley,
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most recent book is down the river on to the sea, his other books include devil in a blue dress which was made into a major motion picture, gone fishing and fearless jones plus over critically acclaimed books and mystery sere, during the program we will be taking your phone calls, tweets and facebook messages, special series in-depth fiction edition with walter mosley sunday april 1st, live from noon to 3:00 p.m. eastern on book tv on c-span2. >> you know, i -- staying on this, for example, immediately confessed, you know, this woman came to our table, and i said i'm a journalist, i'm just asking some questions, do you mine? she was super helpful. yeah, all the companies are here all of the time and they come in groups of mostly guys, sometimes there's a woman tagging along for whatever reason, and, you
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know, they talk about work, they'll be with their boss, you know, after the big tech conferences, you know executives will door with special badges ands people flock to them, might go to private room together, business is getting done in the middle of the day in the heart of san francisco at a strip club. and, you know, we are talking about, you know, part of it sexism exists in every industry but in silicon valley, you know, this is supposed to be the most progressive industry in the world. it certainly is the most powerful industry in the world. and yet the people who have connected the world and organized the world's information trying to take us to mars, you know, when you ask them what can we do about hiring more women and diversity and oh, that's just so hard, i don't know how we are going to solve that. and so one of the really important reasons i wanted to write is simply the hypocrisy of
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it, but on top of that, i fully believe that the people that are taking us to mars and connecting the world, has given us ride at the push of the button, i believe they can do this, they can hire women and pay them fairly. another stat for you, the pay gap in silicon valley is five times the national average. you control for job title and experience and geographical location, the pay gap is about 5%. in silicon valley it's 28.5%, so at the very least you could look at all the data, we love data, right, on paper, just pay women what you're paying the men, seems pretty simple. >> you can watch this and other programs online at [inaudible conversations]


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