Beyond Politics

Washington, D.C.

Season 1 Episode 1

GUEST: Antonin Scalia, Associate Justice, US Supreme Court
BEYOND POLITICS HOST: Stan Pottinger

both men are eating pizza at a Washington pizzeria

ANTONIN SCALIA: Do I have to do this while I’m eating? Ah, jeesh.

STAN POTTINGER: Unfortunately. I’m so sorry.

SCALIA: I mean, all the rest gonna be pictures of me eating. Why- why don’t you just do a little shot of eating and we- we’ll do the rest later, okay? You will find this is really not-- Is anybody listening?-- not as good as the best New York pizza but I think it’s the best in Washington and it’s dog gone good. You know, really good pizza is chewy, you know. It- it’s not just crisp, but it’s chewy, the dough is. My mother is- is of Italian uhm... descent but she was born in Little Italy in New York, Mott Street or, you know, somewhere in there. My father is- is the only that was uhm... was an immigrant. He came over when he was a teenager. I get a lot of credit for being, you know, son of an immigrant as though uhm... I lifted myself up from nothing and that’s not true at all. My father was a very intellectual per-- more intellectual man than I am. I mean, he always had a book in front of his face. Uhm... He was always reading something in French or Spanish or Italian. Uhm... So, you know, I- I don’t take a whole lot of- of credit for coming from nothing and uh... that’s- that’s just not true at all, right. I- I had a solid background in- in my fu-- You- you asked if I had any mentor, I uh... certainly my father more than anyone, and my mother who was a school teacher. For grammar school, I went to public, pub-- PS 13 in Queens, between Forest Hills and Elmhurst. Great- great school. I mean, I’m-- I had a wonderful education. It was a very diverse student body. Terrific teachers. Every silver lining has a cloud. Uhm... It was in the days when uh... not- not very many jobs were open to women, really bright women. You- your choices were to be a- a school teacher or a secretary or a nurse and uh... you know, that was uh... very unfair, but one of the consequences was we had some wonderful, wonderful women as uh... as school teachers who today- who today would be, I don’t know, CEOs or something, you know, doing something different. I- I still remember the various teachers, including the principal, Ms. Eshenbecker [ph?]

POTTINGER: What’s the difference between how you’re generally perceived and who you really are?

SCALIA: I do know that I am sometimes surprised that uh... you know, the- the uhm... expressed vehemence of uh... of uh... of almost- almost uh... antagonism towards me, which uh... I don’t know. You know, I’m not that nasty a fellow.

POTTINGER: When you explain that you’re an originalist, some people look at you as though you’re some sort of eater of human flesh.

SCALIA: It seems to me a very peculiar question that one would never ask if someone who has another theory of constitutional interpretation but I- I sometimes get when I speak at- at uh... at universities. Uh... a question from the __________________________. “Justice Scalia, when- when did you first become an originalist,” you know, as though it’s some, you know, really weird uh... affliction that you must’ve uh... picked up somewhere. And uh... it really is- is not that. It- it used to be uh... orthodoxy until 60 years ago. Everybody was an originalist. Uh... All- all originalism means is that the constitution doesn’t change. It means what it meant when it was adopted. What was permitted then is permitted now. What was not permitted then is not permitted now. That’s all it means and that’s nothing unusual.

POTTINGER: Are there any circumstances you can imagine where the Supreme Court would be justified in stretching the language and finding concepts in order to do justice as opposed to letting injustice go by?

SCALIA: Why would you say that about the Supreme Court and not say it about the president for example? Would you ask that question about the President? Any- any occasion where you think, you know, in order to do justice, the president could violate the 4th Amendment? No, I- I think uh... you know, the- the rules are the rules and the law is the law and either the president should exceed his authority nor should the court. There- there’s a remedy for- for any uh... any absence uh... in the Constitution and that remedy is to amend the document, which we- which we’ve done.

POTTINGER: What would happen if the United States adopted an amendment to the Constitution that said something like “We the people of the United States entrust and empower the Supreme Court of the United States to do justice in cases where we can’t provide specific original language?”

SCALIA: That reminds me, uh... when William F. Buckley ran for mayor of New York on the conservative par- party ticket. He was asked what- what is the first thing he would do if he were elected, and he said call for a recount. And it’s- it’s the same thing with that kind of an amendment. I mean, who in- who in his right mind would adopt such a principle? The Constitution shall mean whatever nine lawyers on the Supreme Court, or five of them, think it ought to mean. Nobody in his right mind would vote for a Constitution like this.

POTTINGER: Sometimes the Supreme Court seems to have done that.

SCALIA: Well, you said it, I didn’t.

POTTINGER: The New York Times has gone to the trouble of printing out who is the most humorous person on the court and you win.

SCALIA: Absolutely. Justice Funny, that’s me.

POTTINGER: Did that interest you, what they did?

SCALIA: That was just sort- sort of a silly thing. Uh... It did remind me of uhm... I have a-- I have a uh... very bright little grandson and his father said “Timmy, do you- you remember this place,” and Timmy says yes. He says-- and his father said “You know who’s here?” He says “Yes, Pop Pop is here.” And he says “Do you know what Pop Pop does?” And Timmy says “Yes, he’s a Supreme Court jester.” There it is and the New York Times confirms it.

POTTINGER: There was a time when everybody sort of talked to each other across ideologies, across party lines. Is that all gone?

SCALIA: Yeah, I think so. When- when you and I were in the Executive Branch, it was uh... not quite as polarized uhm...

POTTINGER: What happened?

SCALIA: I don’t know. Uhm... What happened? I don’t know. I guess, well-- I don’t know. I’m- I’m not a political- political animal so I- I don’t- I don’t really know. The Court is often portrayed because the press, you know, controversy sells newspapers, and, you know, or are at each other’s throats. That’s just not true at all. We are all good friends and- and my best friend on the court is probably Ruth Bader Ginsburg who, you know, is- is not joining my- my opinions more frequently than uh... than a lot of others. But Ruth and I have been friends uh... since I-- we were on the Court of Appeals together and we, you know, we spend uh... New Years Eve together every year, have done it for 22 years or so. So it- it-- No, if- if you cannot disagree with- with your colleagues on points of law without taking it personally and uh... developing uh... personal animosities, uh... you gotta look for another job. I mean, you can’t-- you really can’t be a- be a judge on an appellate court and- and be like that.

POTTINGER: You hate being taken out of context and I don’t blame you. What’s the best way to communicate to the people complicated issues when we live in an era of nine-second sound bites?

SCALIA: You know, the reality is there- there-- that there isn’t any way and- and it’s- it’s nothing new. It has been the- the fate of uh... of judges uh... from the beginning. Uhm... You cannot-- I- I used to give uh... I- I once gave a talk on- on the court in the press. I never gave it again because it got-- the press got, you know. The press is very thin-skinned whether you know this or not. They can dish it out but they can’t take it and they were so upset by this talk. All that I really said was uh... that to understand all is to forgive all. The press does not do a very good job of explaining what the Supreme Court does but one should not exp- expect the- the press to do a very good job because what the Supreme Court does is for the most part exceedingly dull. I mean, if- if they were going to describe the real basis for an opinion of ours, they would- they would have to say well, you know, the statute has this section, 223B which we blah-blah-blah-blah and then they quote what it reads. And, on the other-- and this seems to- to say one thing but this other section, 1124I says blah-blah-blah-blah, and now the que-- the problem is to reconcile the two and then- then maybe do some of the legislative history that some judges think-- Nobody is gonna read all that stuff. All that the public wants to know is what was the issue and did the good guy win or did the bad guy win? If the good guy won, it’s a wonderful judge. If the bad guy won, terrible judge. And of course, that’s not- that’s not the way you oughta judge judges. It’s not their job to quote "do justice". What constitutes justice is decided across the street and it’s the job of judges to fairly and honestly apply that. Now, sometimes, uh... you know, it’s garbage in, garbage out if you have-- If you have a bad statute, it is my sworn duty to produce a- a bad result.

POTTINGER: How do you relax?

SCALIA: Uhm... I play tennis, which I’ve done for a long time. Uhm... I used to play the piano. I don’t do that much any more-- I don’t do it at all any more. I have gotten into hunting and fishing, which I- which had never been uh... particular avocations of mine, but it’s uh... I- I enjoy it a lot.

POTTINGER: What do you hunt?

SCALIA: I’ll hunt almost anything. Uh... I mean, you know, uh... ducks, uh... turkey, uh... deer, uh... elk, antelope.

POTTINGER: Do you eat the stuff?

SCALIA: I certainly do. I clean it and I- and I cook it. That’s sort of the rule in the house. You- you kill it, you clean it, you cook it.

POTTINGER: You seem to be conservative but sometimes your results are liberal.

SCALIA: I was the fifth vote that said you couldn’t prohibit flag burning because that’s- that’s my interpretation of the 1st Amendment. It uh... guarantees the right to uh... express disagreement with a government and uh... burning the flag is just a- a form of expression and uh... you cannot prohibit exp-- If the law on flag burning had been not you can’t burn flags. That’s all a lost. You cannot burn the American flag. That was obviously directed at the expression of contempt for the country, for the flag, whatever. That’s bad. If it had been a different law, if it had said uh... If it had been a municipal ordinance and there are a lot of- of municipal ordinance of this sort which say you cannot burn in the streets, it’s-- Well, I grew up in Queens and we used to-- there used to be-- Do you remember when you were a kid burning leaves in the streets? The current generation does not know what the smell of burning leaves is like. It’s a pretty smell. But there are ordinances now. You can’t burn leaves, you can’t burn rags, and you can’t burn flags. That’s perfectly valid because that law--

POTTINGER: All flags?

SCALIA: Any flag. Yeah. That law is not directed at expression; it’s directed at burning and- and that would’ve been okay. So, uh... yeah. I- I didn’t like that result. I- I don’t like burning the flag and I, you know-- If I were king, I would probably throw these people into jail for doing that. No, I- I don’t think I would but uh... I’m not happy with- with the burning of the American flag but that’s not my call.

POTTINGER: If you were king, what’s the first thing you’d change in America?

SCALIA: Oh my! Oh, I’m not sure that the things that uh... that I would most uh... like to have changed are changeable by any- any edict of a- of a king or of a- of a congress or anything else. I uh... I guess what concerns an- an awful is- is the coarsening of our culture. It- it’s become-- It has become a much- a much less uh... decent, respectful culture. All you have to do is turn on the tube any night and it’s coarse.

POTTINGER: Why?

SCALIA: I don’t know. Uh... I- I think it’s uh... the people probably get what they want and uh... maybe it’s just uh.... an inevitable race to the bottom.

POTTINGER: What injustice did you see growing up that might have influenced you?

SCALIA: Oh, I was- I was-- That- that’s a hard question. I-- Queens and the neighborhood I grew up in was uh... was a fairly uh... a very integrated community. I mean, it wasn’t just an Italian uh... neighborhood at all. Italian, Irish, Puerto Rican, uh... Germans. Uh... It was a wonderful uh... sort of uh... cosmopolitan uh... middle-class, I guess lower-middle-class uh... community. I- I thoroughly enjoyed it and I- I don’t have any uh... recollections of uh... of uh... burning uh... injustices uh... in my neighborhood anyway.

POTTINGER: Did your Italian background have any influence on you or are you past all that?

SCALIA: I think we’re probably-- we’re past all of that uh... when I was coming up. I never felt that I was uh... No, I take it back. Only once did I- did I feel that uh... that I couldn’t make the grade because of my uh... Italian background and that was when I uh... when I interviewed to uh... to get into Princeton and I sort of felt-- Princeton was still a very what we used to call white shoe place in those days and I sort of felt that the uh... interviewers, who were alumni of Princeton, uh... sort of felt this kid, you know, he’s not the Princeton sort. I had been in the- the ROTC and had I continued ROTC, I probably would’ve gone to Korea. During the uhm... Kosovo uh... era of our intervention, uh... some people opposed it and said, you know, we don’t have any interest there. What are- what are American troops uh... doing uh... spilling their blood there? If the Europeans don’t care about it, why should we care? And the response on the part of some people was why are these people spilling blood? These people are mercenaries. They- they, you know, they should go wherever- wherever they’re told to go and uh... Well, you know, you have a son who’s a- who’s a Marine, uh... a Marine officer as well. These kids are not mercenaries. They are patriots.

POTTINGER: You have a son who went to West Point.

SCALIA: Uh... That’s my son Mathew uh... who uh... is uh... I don’t know what to say. He’s a patriot. Uh... He has wanted to be a soldier uh... ever since he was in high school. That’s what he wanted to be. I tried to talk him into going into the Navy instead, you know, going to Annapolis instead of West Point.

POTTINGER: Why?

SCALIA: Why? It’s uh... better food, a cleaner rated dye and everything else. He would have none of it. Infantry. He wanted- wanted to be a- wanted to be an infantry officer.

POTTINGER: How often would you say you have to vote against your own personal values in order to be true to how you read statues or the Constitution?

SCALIA: Oh, I have-- I have never uh... calculated and I would just say often. I mean, if you think I like every opinion that I- that I render, I- I certainly don’t. I’m not that far out of the mainstream. Most of the stuff that Congress and the- and the state legislatures come up with are- are things that uh... that uh... that I would go along with. I think the case I felt the worst about was- was a federal statue which uh... which was designed to protect uh... Native American tribes and it said that uh... that no uhm.... child of Indian parents could be adopted without the consent of the tribal council and uh... a couple of young uh... Indians, uh... Native Americans had had a child out of wedlock, which they voluntarily gave up to adoption by a very wealthy rancher who was raising the kid with all of the- all of the benefits. And uh... I forget how old the child was but it was well along, at least three years old, maybe even older than that and the tribal council demanded the child be returned to the Indian tribe and that’s what the statue provided and that’s what we did. I- I thought that was uh... a terrible result. The parents wanted the child to be with- with the-- the uh... these ranchers. The ranchers were devastated at losing this child that they had lavished their- their affection upon and uh... But that was the law. There was just no way around the text of the statute.

POTTINGER: And Congress promptly fixed that.

SCALIA: I don’t think so. I don’t think so.

POTTINGER: What fantasies do you have that you can talk about?

SCALIA: I don’t have any fantasies at all. No.

POTTINGER: You’re into reality.

SCALIA: Yeah, I really am.

POTTINGER: What’s happening with sex in America? Here’s what I mean by that. It seems much more prevalent in every public domain today than it was when we were kids.

SCALIA: When I was a kid-- When you were a kid, there- there used to be an expression “Banned in Boston.” Uh... Communities used to be able to have different uh... different standards and if Boston wanted to ban a play, uh... that was Boston’s business. Uh... You wouldn’t live in Boston if you wanted uh... wanted to see uh... Hair. Uh... That’s not true anymore. We- we-- My court has imposed a national standard and it’s a national standard that uh... that allows uh... communities to prohibit obscenity but does not allow them to prohibit pornography. And, you know, the line between those two is not a line that- that anybody really knows. Uh...

POTTINGER: How would you define it?

SCALIA: I wouldn’t but the consequence is that every little town in America has to permit a porn shop. I mean, if all the shop is selling is pornography, it has to be allowed. That- that did not used to be the case.

POTTINGER: Was it Justice Potter Stewart who said “I don’t know how to define it but I know it when I see it?”

SCALIA: I know it when I see it.

POTTINGER: Is that of any help?

SCALIA: Not to me. Uhm... Justice White uh... in another case uh... he defined obscenity as an unhealthy interest in sex. Just good healthy, human interest in sex is okay. I don’t know.

POTTINGER: How have you changed since you came on the Court?

SCALIA: Oh, I’ve gotten fatter. Uh... You know, I was 50 when I got on the Court. It’s not as though I was a kid.

POTTINGER: Recently you’ve said look, I’m going to make myself available more to the public. Why are you doing that?

SCALIA: I- I’ve just sort of given up. I mean, I, you know, I stayed out of uhm... interviews like this, for example, uhm... not because I’m- I’m any more secretive and private a person. Uh... It wasn’t a Greta Garbo uh... phenomenon. Uh... Rather, it was my- my belief in accord with a tradition of- of Anglo-Saxon judges, that judges should not make public spectacles of themselves, that they should not be on the front pages, that courts in a democracy should- should be in the background. I mean, you’re gonna be on the front page whether you like it or not and uh... if you do not appear personally, uh... you can be demonized a lot more readily uh... than- than if you uh... if you appear occasionally and so on.

POTTINGER: Here’s a quick example. This statement is attributed to you. “Mere factual innocence is no reason not to carry out the death sentence properly reached.” Is that in context, out of context?

SCALIA: I never said that and- and there-- and if you Google it, there- there is a- a-- somebody wrote a piece uh... trying to find out where I said that. I never said it. I never said it. Now- now-- What I- what I do believe is that if you’ve been properly tried and convicted, uh... it is no basis for a retrial that you say “No, but you can’t execute me ‘cause I’m innocent.” So maybe I said s- something in an opinion but it was never-- I’m usually more careful than to say something as bald as that, which is so easily distorted. There are periods in- in human history when genius just- just bursts forth at a- at a particular point in the globe that- that has just no corresponding uh... phenomenon anywhere else like, you know, uh... 5th century BC in Athens for philosophy, uh... quincucento Florence for the arts. I mean, nothing like it. Boom, just genius and I think one of those eras was uh... was uh... 18th century America for- for government, for what uh... Madison, when- when he assembled all these people for the- for the convention. He says “Gentlemen, we are engaged in the new science of government.” Nobody had every tried to figure out, you know-- Governments just happened or they were imposed by the Normans or what not but nobody tried to figure out scientifically what’s- what’s the best way to design this thing. Then they spend, you know, spend a whole summer up there in Philadelphia and they come out with this- with this wonderful Constitution that we’ve- we’ve lived under for longer than-- a century longer than Italy’s been a nation. A century longer than Germany’s been a nation. Uh... It’s- it’s a phenomenal piece of work. It’s a work of genius, which is why I’m not much in favor of fiddling with it.