In Conversation: Antonin Scalia

On the eve of a new Supreme Court session, the firebrand justice

discusses gay rights and media echo chambers, Seinfeld and the Devil,
and how much he cares about his intellectual legacy (I dont).
By Jennifer Senior
New York Magazine, Published Oct 6, 2013

On September 26a day that just happened to be the 27th anniversary of his swearing-in
as associate justiceAntonin Scalia entered the Supreme Courts enormous East
Conference Room so casually that one might easily have missed him. He is smaller than his
king-size persona suggests, and his manner more puckish than formal. Washingtonians
may know Scalia as charming and disarming, but most outsiders tend to regard him as
either a demigod on stilts or a menace to democracy, depending on which side of the aisle
they sit. A singularity on the Court and an icon on the right, Scalia is perhaps more
responsible than any American alive for the mainstreaming of conservative ideas about -
jurisprudencein particular the principles of originalism (interpreting the Constitution as
the framers intended it rather than as an evolving document) and textualism (that statutes
must be interpreted based on their words alone). And he has got to be the only justice to
ever use the phrase argle-bargle in a dissent.
You came to Washington as a lawyer during the Nixon administration, just
before Watergate. What on Earth was that like?
It was a sad time. It was very depressing. Every day, the Washington Postwould come out
with something newit trickled out bit by bit. Originally, you thought, It couldnt be, but it
obviously was. As a young man, youre dazzled by the power of the White House and all
that. But power tends to corrupt.
Then you served in the Ford administration. That must have been an awfully
lonely time to be a young conservative.
It was a terrible time, not for the Republican Party, but for the presidency. It was such a
wounded and enfeebled presidency, and Congress was just eating us alive. I mean, we had
a president who had never been elected to anything except what? A district in Michigan?
Everything was in chaos.
It was a time when people were talking about the imperial presidency. I knew very well
that the 900-pound gorilla in Washington is not the presidency. Its Congress. If Congress
can get its act together, it can roll over the president. Thats what the framers thought.
They said you have to enlist your jealousy against the legislature in a democracythat will
be the source of tyranny.
But werent you just saying that you learned from Watergate that presidents
arent incorruptible?
What, and Congress is? I mean, theyre all human beings. Power tends to corrupt. But the
power in Washington resides in Congress, if it wants to use it. It can do anythingit can
stop the Vietnam War, it can make its will felt, if it can ever get its act together to do
anything.
Had you already arrived at originalism as a philosophy?
I dont know when I came to that view. Ive always had it, as far as I know. Words have
meaning. And their meaning doesnt change. I mean, the notion that the Constitution
should simply, by decree of the Court, mean something that it didnt mean when the people
voted for itfrankly, 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 theres nobody on the other side pointing out
all the flaws.
Really? So if you had the chance to have eight other justices just like you,
would you not want them to be your colleagues?
No. Just six.
That was a serious question!
What I do wish is that we were in agreement on the basic question of what we think were
doing when we interpret the Constitution. I mean, thats sort of rudimentary. Its sort of an
embarrassment, really, that were not. But some people think our job is to keep it up to
date, give new meaning to whatever phrases it has. And others think its to give it the
meaning the people ratified when they adopted it. Those are quite different views.
Youve described yourself as a fainthearted originalist. But really, how
fainthearted?
I described myself as that a long time ago. I repudiate that.
So youre a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used
fainthearted in reference to was
Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is
immensely stupid, but it is not unconstitutional. A lot of stuff thats stupid is not
unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges
a stamp, and the stamp saysWhack! [Pounds his fist.]STUPID BUT -
CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT -
CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL [Laughs.] And then
somebody sent me one.
So are there things in the Constitution you find stupid? I remember Judge
Bork saying that there were few people who understood what the Ninth
Amendment meant, as if it was partially covered by an inkblot.
You know, in the early years, the Bill of Rights referred to the first eight amendments. They
didnt even count the ninth. The Court didnt use it for 200 years. If Id been required to
identify the Ninth Amendment when I was in law school or in the early years of my
practice, and if my life depended on it, I couldnt tell you what the Ninth Amendment was.
Do you think there are flaws in the Constitution?
The one provision that I would amend is the amendment provision. And that was not
originally a flaw. But the country has changed so much. With the divergence in size
between California and Rhode IslandI figured it out once, I think if you picked the
smallest number necessary for a majority in the least populous states, something like less
than 2 percent of the population can prevent a constitutional amendment. But other than
that, some things have not worked out the way the framers anticipated. But thats been the
fault of the courts, not the fault of the draftsmen.
What about sex discrimination? Do you think the Fourteenth Amendment
covers it?
Of course it covers it! No, you cant treat women differently, give them higher criminal
sentences. Of course not.
A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis
of sex. Of course it does. The issue is, What is discrimination?
If theres a reasonable basis for not letting women do somethinglike going into combat or
whatnot ...
Lets put it this way: Do you think the same level of scrutiny that applies to
race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah
blah blah blah. Thats just a thumb on the scales.
But there are some intelligent reasons to treat women differently. I dont think anybody
would deny that. And there really is no, virtually no, intelligent reason to treat people
differently on the basis of their skin.
Whats your media diet? Where do you get your news?
Well, we get newspapers in the morning.
We meaning the justices?
No! Maureen and I.
Oh, you and your wife
I usually skim them. We just get The Wall Street Journal and the WashingtonTimes. We
used to get the Washington Post, but it just went too far for me. I couldnt handle it
anymore.
What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And,
you know, why should I get upset every morning? I dont think Im the only one. I think
they lost subscriptions partly because they became so shrilly, shrilly liberal.
So no New York Times, either?
No New York Times, no Post.
And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.
Not NPR?
Sometimes NPR. But not usually.
Talk guys?
Talk guys, usually.
Do you have a favorite?
You know who my favorite is? My good friend Bill Bennett. Hes off the air by the time Im
driving in, but I listen to him sometimes when Im shaving. He has a wonderful talk show.
Its very thoughtful. He has good callers. I think they keep off stupid people.
Thats what producers get paid for.
Thats whats wrong with those talk shows.
Lets talk about the state of our politics for a moment. I know you havent been
to a State of the Union address for a while, and I wanted to know why.
Its childish.
When was the last time you went to one?
Oh, my goodness, I expect fifteen years. But Im not the only one who didnt go. John Paul
Stevens never went, Bill Rehnquist never went during his later years. Because it is a
childish spectacle. And we are trucked in just to give some dignity to the occasion. I mean,
there are all these punch lines, and one side jumps upHooray! And they all cheer, and
then another punch line, and the others stand up, Hooray! It is juvenile! And we have to sit
there like bumps on a log. We can clap if somebody says, The United States is the greatest
country in the world. Yay! But anything else, we have to look to the chief justice. Gee, is
the chief gonna clap? It didnt used to be that bad.
When?
The Gipper may have been the one who started it. Hes the one who brought in people he
would recognize in the audience, and things of that sortmade it a television spectacle.
And once it becomes a television spectacle, its nothing serious.
Of course, the press has the whole thing, and theyre up in the galleryyou can hear them
turning pages as the president is speaking. Why doesnt he just print it out and send it
over?
Its like the Haggadah.
In the years when I went, we used to take bets on how long the speech would be. Rehnquist
loved to have betting poolson football games, baseball games.
Did you ever win?
I never won.
It was recently reported that the justices dont communicate with one another
by e-mail. Do you go online at all?
Yeah. Sure, I use the Internet.
Youve got grandkids. Do you feel like the Internet has coarsened our culture
at all?
Im nervous about our civic culture. Im not sure the Internet is largely the cause of it. Its
certainly the cause of careless writing. People who get used to blurbing things on the
Internet are never going to be good writers. And some things I dont understand about it.
For example, I dont know why anyone would like to be friended on the network. I mean,
what kind of a narcissistic society is it that people want to put out there, This is my life,
and this is what I did yesterday? I mean good grief. Doesnt that strike you as strange? I
think its strange.
Ive gotten used to it.
Well, I am glad that I am not raising kids today. And Im rather pessimistic that my
grandchildren will enjoy the great society that Ive enjoyed in my lifetime. I really think its
coarsened. Its coarsened in so many ways.
Like what?
One of the things that upsets me about modern society is the coarseness of manners. You
cant go to a movieor watch a television show for that matterwithout hearing the
constant use of the F-wordincluding, you know, ladiesusing it. People that I know dont
talk like that! But if you portray it a lot, the societys going to become that way. Its very
sad.
And you cant have a movie or a television show without a nude sex scene, very often
having no relation to the plot. I dont mind it when it is essential to the plot, as it
sometimes is. But, my goodness! The society that watches that becomes a coarse society.
What do you make of the new pope?
Hes the Vicar of Christ. Hes the chief. I dont run down the pope.
Im not inviting you to run down the pope. But what do you think of his recent
comments, that the church ought to focus less on divisive issues and more on
helping the poor?
I think hes absolutely right. I think the church ought to be more evangelistic.
But he also wanted to steer its emphasis away from homosexuality and
abortion.
Yeah. But he hasnt backed off the view of the church on those issues. Hes just saying,
Dont spend all our time talking about that stuff. Talk about Jesus Christ and evangelize.
I think theres no indication whatever that hes changing doctrinally.
I spent my junior year in Switzerland. On the way back home, I spent some time in
England, and I remember going to Hyde Park Corner. And there was a Roman Catholic
priest in his collar, standing on a soapbox, preaching the Catholic faith and being heckled
by a group. And I thought, My goodness. I thought that was admirable. I have often
bemoaned the fact that the Catholic church has sort of lost that evangelistic spirit. And if
this pope brings it back, all the better.
The one thing I did think, as he said those somewhat welcoming things to gay
men and women, is, Huh, this really does show how much our world has
changed. I was wondering what kind of personal exposure you might have
had to this sea change.
I have friends that I know, or very much suspect, are homosexual. Everybody does.
Have any of them come out to you?
No. No. Not that I know of.
Has your personal attitude softened some?
Toward what?
Homosexuality.
I dont think Ive softened. I dont know what you mean by softened.
If you talk to your grandchildren, they have different opinions from you about
this, right?
I dont know about my grandchildren. I know about my children. I dont think they and I
differ very much. But Im not a hater of homosexuals at all.
I still think its Catholic teaching that its wrong. Okay? But I dont hate the people that
engage in it. In my legal opinions, all Ive said is that I dont think the Constitution requires
the people to adopt one view or the other.
There was something different about your DOMA opinion, I thought. It was
really pungent, yes, but you seemed more focused on your colleagues
jurisprudence. You didnt talk about a gay lobby, or about the fact that people
have the right to determine what they consider moral. In Lawrence v. Texas,
you said Americans were within their rights in protecting themselves and
their families from a lifestyle that they believe to be immoral and
destructive.
I would write that again. But thats not saying that I personally think its destructive.
Americans have a right to feel that way. They have a democratic right to do that, and if it is
to change, it should change democratically, and not at the ukase of a Supreme Court.
The what?
U-K-A-S-E. Yeah. I think thats how you say it. Its a mandate. A decree.
Whatever you think of the opinion, Justice Kennedy is now the Thurgood
Marshall of gay rights.
[Nods.]
I dont know how, by your lights, thats going to be regarded in 50 years.
I dont know either. And, frankly, I dont care. Maybe the world is spinning toward a wider
acceptance of homosexual rights, and heres Scalia, standing athwart it. At least standing
athwart it as a constitutional entitlement. But I have never been custodian of my legacy.
When Im dead and gone, Ill either be sublimely happy or terribly unhappy.
You believe in heaven and hell?
Oh, of course I do. Dont you believe in heaven and hell?
No.
Oh, my.
Does that mean Im not going?
[Laughing.] Unfortunately not!
Wait, to heaven or hell?
It doesnt mean youre not going to hell, just because you dont believe in it. Thats Catholic
doctrine! Everyone is going one place or the other.
But you dont have to be a Catholic to get into heaven? Or believe in it?
Of course not!
Oh. So you dont know where Im going. Thank God.
I dont know where youre going. I dont even know whether Judas Iscariot is in hell. I
mean, thats what the pope meant when he said, Who am I to judge? He may have
recanted and had severe penance just before he died. Who knows?
Can we talk about your drafting process
[Leans in, stage-whispers.] I even believe in the Devil.
You do?
Of course! Yeah, hes a real person. Hey, cmon, thats standard Catholic doctrine! Every
Catholic believes that.
Every Catholic believes this? Theres a wide variety of Catholics out there
If you are faithful to Catholic dogma, that is certainly a large part of it.
Have you seen evidence of the Devil lately?
You know, it is curious. In the Gospels, the Devil is doing all sorts of things. Hes making
pigs run off cliffs, hes possessing people and whatnot. And that doesnt happen very much
anymore.
No.
Its because hes smart.
So whats he doing now?
What hes doing now is getting people not to believe in him or in God. Hes much more
successful that way.
That has really painful implications for atheists. Are you sure thats the Devils
work?
I didnt say atheists are the Devils work.
Well, youre saying the Devil is persuading people to not believe in God.
Couldnt there be other reasons to not believe?
Well, there certainly can be other reasons. But it certainly favors the Devils desires. I
mean, cmon, thats the explanation for why theres not demonic possession all over the
place. That always puzzled me. What happened to the Devil, you know? He used to be all
over the place. He used to be all over the New Testament.
Right.
What happened to him?
He just got wilier.
He got wilier.
Isnt it terribly frightening to believe in the Devil?
Youre looking at me as though Im weird. My God! Are you so out of touch with most of
America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil!
Its in the Gospels! You travel in circles that are so, soremoved from mainstream America
that you are appalled that anybody would believe in the Devil! Most of mankind has
believed in the Devil, for all of history. Many more intelligent people than you or me have
believed in the Devil.
I hope you werent sensing contempt from me. It wasnt your belief that
surprised me so much as how boldly you expressed it.
I was offended by that. I really was.
Im sorry to have offended you!
Have you read The Screwtape Letters?
Yes, I have.
So, there you are. Thats a great book. It really is, just as a study of human nature.
Can I ask about your engagement with regular pop culture?
Im pretty bad on regular pop culture.
I know you watched the show 24. Do you also watch Homeland?
I dont watch Homeland. I dont even know what Homeland is. I watched one episode of
what is it? Duck Dynasty?
What?
I dont watch it regularly, but Im a hunter. I use duck calls
Did you just stumble on it by accident?
No! So many people said Oh, its a great show that I thought Id better look at it. Have
you looked at it?
No. But there are three books on the New York Times best-seller list
about Duck Dynasty.
Is that right?
Yes. Three. Did you watch The Sopranos? Mad Men?
I watched The Sopranos, I saw a couple of episodes of Mad Men. I lovedSeinfeld. In fact, I
got some CDs of Seinfeld. Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? No soup
for you!
Speaking of Duck Dynasty, how does a nice boy from Queens become a
hunter?
You know, it may be genetic. My grandfathermy namesake, his name is Antoninohe
was an avid hunter. He used to disappear for a weekhis family would be very upset
because hed be off in the hills of Sicily, hunting. My last memories of him werewe had a
bungalow, which he had built out on Long Island, back in the days when Long Island was
really the country. I went in the woods hunting rabbits with himtheres a photo of me
holding a rabbit and his twelve-gauge shotgun. Then he got too old to go in the woods, but
my uncle Frank had a large vegetable garden, and my grandfather would sit on the back
porch of this bungalow, holding his twelve-gauge shotgun, and would wait for the rabbits
to come to him in the vegetable garden. Boom! He would shoot them there.
There isnt much sport in that.
Well, theyre hard to hit.
If youre waiting for them to come to your garden?
Listen, when youre 85
Fair enough.
And I inherited his gun. It was an L.C. Smith, which was a very expensive shotgun from the
time. Its corroded about six inches down from the end of the barrel, because thats where
he held it while he was waiting for the rabbits, and the salts from your hand corrode the
barrel.
My grandfather is partly the answer. But I also got into it because my eldest son married a
girl from Louisiana, whose father was an avid hunter. He got me into deer hunting up in
Mississippi. There, I fell in with some Cajunsincluding Louis Prejean, the brother of
Sister Prejean. Hes as conservative as she is liberal.
I was going to ask.
I got in with them, and I got into goose hunting, duck hunting, redfish fishingit has been
a great addition to my later years. It gets me outside the Beltway with people of the sort I
had never known before. They could live in the woods. Give em a gun, they could survive
in the woods on their own. Its nice to get in with a different crowd. None of them are
lawyers. Or very few.
Heres another thing I find unexpected about you: that you play poker. Do not
take this the wrong way, but you strike me as the kind of person who would be
a horrible poker player.
Shame on you! Im a damn good poker player.
But arent you the kind of guy who always puts all of his cards on the table? I
feel like you would be the worst bluffer ever.
You can talk to the people in my poker set.
Do you have a tell?
What?
A tell.
Whats a tell?
Whats a tell? Are you joking?
No.
A tic or behavior that betrays youre bluffing.
Oh! Thats called a tell? No. I never do you play poker?
Badly. But I feel like Washington has been playing a pretty high-stakes game
lately. Youve seen more Congresses than I have, and youve seen this nation
go through more turbulent events than I have. But now seems an especially -
acerbic moment.
Its a nasty time. Its a nasty time. When I was first in Washington, and even in my early
years on this Court, I used to go to a lot of dinner parties at which there were people from
both sides. Democrats, Republicans. Katharine Graham used to have dinner parties that
really were quite representative of Washington. It doesnt happen anymore.
True, though earlier you expressed your preference for conservative media,
which itself can be isolating in its own way.
Oh, cmon, cmon, cmon! [Laughs.] Social intercourse is quite different from those
intellectual outlets I respect and those that I dont respect. I read newspapers that I think
are good newspapers, or if theyre not good, at least they dont make me angry, okay? That
has nothing to do with social intercourse. That has to do with selection of intellectual
fodder, if you will.
When was the last party you went to that had a nice healthy dose of both
liberals and conservatives?
Geez, I cant even remember. Its been a long time.
Is that true on the Court as well? Are things tenser in this building? Were
there ever more harmonious groupings of justices than others?
No. Everybody Ive served with on the Court Ive regarded as a friend. Some were closer
than others, but I didnt consider myself an enemy of any of them. Now, that hasnt always
been the case. Frankfurter and Douglas, the Harvard Law professor and the Yale Law
professor, hated each other. They wouldnt talk to each other. Imagine being on a
committee of nine people where two of them wont talk to each other! But its never been
the case since Ive been on the Court.
You were asked this summer about the most wrenching case youve decided,
and you answered, Is Obamacare too recent?
[Laughs.]
Is that true?
No. Probably the most wrenching was Morrison v. Olson, which involved the independent
counsel. To take away the power to prosecute from the president and give it to somebody
whos not under his control is a terrible erosion of presidential power. And it was
wrenching not only because it came out wrongI was the sole dissenterbut because the
opinion was written by Rehnquist, who had been head of the Office of Legal Counsel,
before me, and who I thought would realize the importance of that power of the president
to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more
extreme than I think Bill Brennan would have written it. That was wrenching.
That sheds new light on your famous odd-couple friendship with Ruth Bader
Ginsburg. Do you think its easier to be close to a colleague who is so -
ideologically different?
There may be something to that. If you have low expectations, youre not disappointed.
When its somebody who you think is basically on your side on these ideological
controversies, and then that person goes over to the dark side, it does make you feel bad.
Who was or is your favorite sparring partner on the bench? The person who
makes or made your ideas and opinions better?
Probably John Paul Stevens. There are some justices who adopt a magisterial approach to
a dissent. Rehnquist used to do it. [He turns his nose up theatrically, flutters his hand in
dismissal.] Just, Dont even respond to the dissent. This is the opinion of the Court, and
the hell with you. I am not like that. I think you should give the dissenter the respect to
respond to the points that he makes. And so did John Stevens. So he and I used to go back
and forth almost endlessly.
Are there any lawyers who you also consider really formidable?
Thats one of the biggest changes on the Court since Ive been here. When I arrived, there
really was not what you could call a Supreme Court barpeople who appear regularly. But
now we have people who appear four, five times a term. What has happened is the big law
firms have adopted Supreme Court practices. Im not sure they make money on it, but they
get prestige from it. So we get very good lawyers. Many of them exsolicitor generals.
How does that change your job?
It makes my job easier. We are dependent upon these people who have lived with the case
for monthsin many cases yearsto clarify the facts and to clarify the law. I come to the
thing maybe a month beforehand. These lawyersthe reason to listen to them is that they
presumably know more about the subject than you do.
Another change is that many of the states have adopted a new office of solicitor general, so
that the people who come to argue from the states are people who know how to conduct
appellate argument. In the old days, it would be the attorney generalusually an elected
attorney general. And if he gets a case into the Supreme Court [pumps his fist], hes going
to argue it himself! Get the press and whatnot. Some of them were just disasters. They
were throwing away important points of law, not just for their state, but for the other 49.
Lets talk about your opinions for a second. Do you draft them yourself?
Whats 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 Im looking for is really smart people who dont 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. And Ive said often in the past that other things being equal, which they usually
are not, I like to have one of the four clerks whose predispositions are quite the opposite of
minewho are social liberals rather than social conservatives. That kind of clerk will
always be looking for the chinks in my armor, for the mistakes Ive made in my opinion.
Thats what clerks are forto make sure I dont make mistakes. The trouble is, I have
found it hard to get liberals like that, who pay attention to text and are not playing in a
policy sandbox all the time.
How picky are you about which law schools they come from?
Well, some law schools are better than others. You think theyre 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, theyre sort of spoiled. Its nice to get a kid who went to a lesser law school. Hes
still got something to prove. But you cant make a mistake. I mean, one dud will ruin your
year.
While your opinions are delectable to read, Im wondering: Do you ever regret
their tone? Specifically, that your tone might have cost you a majority?
No. It never cost me a majority. And you ought to be reluctant to think that any justice of
the Supreme Court would make a case come out the other way just to spite Scalia. Nobody
would do that. Youre dealing with significant national issues. Youre dealing with real
litigantsno. My tone is sometimes sharp. But 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. Thats
who I write for.
Is your favorite one-liner still the sausage one? This case, involving legal
requirements for the content and labeling of meat products such as -
frankfurters, affords a rare opportunity to explore simultaneously both parts
of Bismarcks aphorism that No man should see how laws or sausages are
made.
Its the best opening line of an opinion.
It was a really good opinion.
Isnt that good? I was on the Court of Appeals, that wasnt even up here. But my favorite
one-liner is from Morrison v. Olson: But this wolf comes as a wolf. You know the one Im
talking about?
Yes.
Thats a great one. You gotta read the whole paragraph. Boom. [Punches the air.] But I
often worry when I go back and read one of my early opinions like Morrison v. Olson. I say,
God, thats a good opinion. Im not sure I could write as good an opinion today. You
always wonder whether youre losing your grip and whether your current opinions are not
as good as your old ones.
Wasnt it Stevens who said to Souter, Tell me when Im losing it and need to
retire?
No, it wasnt Stevens. I think it was Holmes who asked Brandeis.
Oh, so I got it completely wrong.
[Smiles.] Completely wrong.
But how will you know when its time to go? It doesnt seem like you have
anything to worry about at the moment, but its interesting to hear you even
flick at that.
Oh, Ill know when Im not hitting on all eight cylinders.
Are you sure? All these people in public lifeathletes in particularnever
have a clue.
No, Ill know.
What will the telltale sign be?
One will be that I wont enjoy it as much as I do. I think thats the beginning of the end. I
was worried lately about the fact that the job seems easier. That I really dont have to put in
the excessively long hours that I used to. I still work hard. But it does seem easier than it
used to. And that worried me. You know:Maybe Im getting lazy. You know, Im not doing
it as thoroughly, or whatever. But after due reflection, Ive decided the reason its getting
easier is because so many of the cases that come before us present the issue of whether we
should extend one of the opinions from the previous 27 years that Ive been here, which I
dissented from in the first place!
Yet today, youre a conservative icon, and federalist societies abound on -
university campuses, and originalism and textualism are no longer marginal.
Do you feel like youre winning or losing the battle for constitutional
interpretation?
I dont know how much progress Ive made on originalism. Thats to be seen. I do think
originalism is more respectable than it was. But theres still only two justices up here who
are thoroughgoing originalists. I do think things are better than they were. For example, I
truly thought Id never see an originalist on the faculty of Harvard Law School. You know,
everybody copies Harvardthats the big ship. There are now three originalists on the
faculty, and I think I heard that theyve just hired, or are considering hiring, a fourth. I
mean, thats amazing to me. Elena Kagan did that, and the reason she did it is that you
want to have on your faculty representatives of all responsible points of view. What it
means is that at least originalism is now regarded as a respectable approach to
constitutional interpretation. And it really wasnt twenty years ago, it was not even worth
talking about in serious academic circles.
An area where I think I have made more progress is textualism. I think the current Court
pays much more attention to the words of a statute than the Court did in the eighties. And
uses much less legislative history. If you read some of our opinions from the eighties, my
God, two thirds of the opinions were discussing committee reports and floor statements
and all that garbage. We dont do much of that anymore. And I think I have assisted in that
transition.
Fifty years from now, which decisions in your tenure do you think will be
heroic?
Heroic?
Heroic.
Oh, my goodness. I have no idea. You know, for all I know, 50 years from now I may be the
Justice Sutherland of the late-twentieth and early-21st century, whos regarded as: He was
on the losing side of everything, an old fogey, the old view. And I dont care.
Do you think youre headed in that direction?
I have no idea. There are those who think I am, Im sure. I can see that happening, just as
some of the justices in the early years of the New Deal are now painted as old fogies. It can
happen.
Wow, its amazing your mind even went there. I ask about a triumph, and you
give me another answer entirely, about the possibility of failure. I was
expecting you to end on a high note. Do you want to try another stab at a
heroic decision?
Heroic is probably the wrong word. I mean the most heroic opinionmaybe
the only heroic opinion I ever issued was my statement refusing to recuse.
From the case involving Vice-President Cheney, with whom youd gone
hunting?
I thought that took some guts. Most of my opinions dont take guts. They take smarts. But
not courage. And I was proud of that. I did the right thing and it let me in for a lot of
criticism and it was the right thing to do and I was proud of that. So thats the only heroic
thing Ive done.
As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we
have different standards, I suppose, for whats a great opinion. I care about the reasoning.
And the reasoning in Morrison, I thought, was devastatingdevastating of the majority. If
you ask me which of my opinions will have the most impact in the future, it probably wont
be that dissent; itll be some majority opinion. But itll have impact in the future not
because its so beautifully reasoned and so well written. Itll have impact in the future
because its authoritative. Thats all that matters, unfortunately.