Tuesday, October 15, 2013

An Enlightening Interview With SCOTUS Justice Antonin Scalia

My last post was about an interview with Justice Kennedy, and today it's Justice Scalia's turn. Both of these interviews are nice glimpses into the current state of mind of the Supreme Court Justices.

The Law Deans Blog posted about a New York Magazine interview with Justice Scalia.

Scalia, in part, discussed his originalist views:

Had you already arrived at originalism as a philosophy [while in law school]?
I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

But as law students, they were taught that the Constitution evolved, right? You got that same message consistently in class, yet you had other ideas.
I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, “I better reexamine my position!” I probably believe that the worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.

There was also a discussion of his drafting process and his choice of clerks:

Let’s talk about your opinions for a second. Do you draft them yourself? What’s your process?
I almost never do the first draft.

How do your clerks know your voice so well?
Oh, I edit it considerably between the first and the last.

How do you choose your clerks?
Very carefully. What I’m looking for is really smart people who don’t necessarily have to share my judicial philosophy, but they cannot be hostile to it. And can let me be me when they draft opinions, can write opinions that will follow my judicial philosophy rather than their own.

How picky are you about which law schools they come from?
Well, some law schools are better than others. You think they’re all the same? Now, other things being equal, which they usually are not, I would like to select somebody from a lesser law school. And I have done that, but really only when I have former clerks on the faculty, whose recommendations I can be utterly confident of. Harvard, Yale, Stanford, Chicago, they’re sort of spoiled. It’s nice to get a kid who went to a lesser law school. He’s still got something to prove. But you can’t make a mistake. I mean, one dud will ruin your year.

He also talked about who he writes his dissents for:

When speaking about the tone of his dissents, Scalia said, "I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?"

Law students.
Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.

While I still don't fully understand or agree with many of Scalia's views, this interview does offer some understanding. I like that he admits to basically arguing devil's advocate because if no one has an opposing view, it makes him uncomfortable. The fact that he is open to taking a law clerk from a 'lesser law school' is nice lip service, and I hope he actually does it someday. Law students are the perfect audience for dissents! I had never considered it before, but the law students will be the ones to read and possibly agree with dissents. They are in the best position to see both sides of the law objectively and perhaps even work to change the law to agree with the dissent one day.

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