Justice Antonin Scalia gave us a rare treat this week. During an appearance at a Federalist Society luncheon in Phoenix, the conservative icon cheerfully answered questions from the audience for nearly an hour. The visit was intended to promote his book "Reading Law; The Interpretation of Legal Texts." Other than signing a few at the end, Scalia never mentioned it.
What follows are some highlights. You're welcome!
On the importance of the Supreme Court:
"Even with the vast expansion of the Federal government, we are largely still a Federal republic. Most people think of my court as the most important court in the land, and it is in some respects. We decide Federal law and Federal law is supreme. It trumps even the state constitution. But if you ask what court is most important in my life and the life of my family? It isn't my court because Federal law is a small part of the laws under which we are governed. I mean criminal law for example. You can murder someone anywhere in America and if you do it right, you have not violated a Federal law. Generally speaking, the most important court for you is your state supreme court."
What has been your favorite dissent?
"The most important element of a good dissent is a really stupid majority opinion. I guess my favorite was the case of that (PGA) golfer who wanted to ride around instead of walking and the Supreme Court of the United States decided, under the Americans with Disabilities Act, whether walking was an essential part of the game of golf. It's a game! Whatever the rules are, follow the rules! If the rules say you have to hit with a Coca Cola bottle, you have to hit with a Coca Cola bottle!"
How do conferences after arguments work and how do they affect the way a dissent is written?
"They don't affect how you write a dissent. They affect how you write a majority opinion. We don't really persuade each other in the conference. When we come into conference everybody's mind is pretty much made up."
"That's a lovely thing about dissents. You make your own dissent. Who cares what anybody else thinks?"
Is it possible to turn back judicial activism?
"I'd be wasting my time if I didn't think so. I think it's a long shot because, as I have often said, it's a very seductive philosophy that the Constitution, never mind the words, never mind what the people voted for. It's a lot more satisfying to ask yourself "What ought the Constitution say?" And if you think it ought to say a certain thing, that's what it says."
"If you gave a strict construction to the First Amendment, you would have to say that Congress could censor handwritten mail. Freedom of speech, freedom of the press. Handwritten mail is not speech. It's not press."
What changes would you like to see in the way law school curricula are structured?
"I gave a commencement address at William & Mary Law School. I criticized the American Bar Association Committee which had proposed that law schools be reduced from 3 years to 2 years."
"Law schools have largely abandoned the notion that there is a minimum you have to know."
"This is shocking. You can now get out of the University of Chicago, where I used to teach, without ever having studied the First Amendment. Can you imagine somebody posing as an American lawyer, learned in the law, who knows "diddly" about the First Amendment?"
"If I was starting a new law school I would put up a sign that says "For Lawyers Only!" If you want to go to Wall Street, go somewhere else!"
What are the qualities people should look for in a judge?
"You need somebody who is smart. I think more damage has been done by stupidity than by malevolence over the history of man kind."
"The main job of a judge nowadays is not to invent the law. It's to serve democracy by giving a reasonable interpretation of the laws the American people have adopted through their representatives."
"It's not supposed to be up to me. If you think every statute written across the street makes sense, you're crazy. The rule for me is garbage in, garbage out. If they give me a stupid statute, I'm bound by oath to produce a stupid result!"
What would you like to see that you don't usually see in oral arguments?
"I think the biggest flaw are lawyers who feel they are being interrupted by questions. When you're arguing before some courts you may suspect that the judges haven't read the brief, in which case, you want to be able to recite your brief. Before our court it's a waste of time. The only time you know for sure that you aren't wasting your breath is when you're answering somebody's question."