[Senate Hearing 112-137]
[From the U.S. Government Publishing Office]
S. Hrg. 112-137
CONSIDERING THE ROLE OF JUDGES UNDER THE CONSTITUTION OF THE UNITED
STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
OCTOBER 5, 2011
__________
Serial No. J-112-46
__________
Printed for the use of the Committee on the Judiciary
_____
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70-991 PDF WASHINGTON : 2011
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 42
WITNESSES
Breyer, Hon. Stephen, Associate Justice, The Supreme Court of the
United States, Washington, DC.................................. 4
Scalia, Hon. Antonin, Associate Justice, The Supreme Court of the
United States, Washington, DC.................................. 6
SUBMISSIONS FOR THE RECORD
Roberts, Hon. John, Chief Justice, The Supreme Court of the
United States, Washington, DC, September 28, 2011, letter...... 44
CONSIDERING THE ROLE OF JUDGES UNDER THE CONSTITUTION OF THE UNITED
STATES
----------
WEDNESDAY, OCTOBER 5, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:34 p.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Durbin,
Whitehouse, Coons, Blumenthal, Grassley, Sessions, Hatch,
Graham, Cornyn, Lee, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good afternoon. First, I just want to
express my appreciation to both Justice Scalia and Justice
Breyer for being back here in the Senate Judiciary Committee.
Having been there for both your confirmation hearings, we did
not have this great room at that time. I also want to thank all
the students who are here. I know when I was at Georgetown Law
School, I would have loved to have done something like this.
We have scores of students and we have other Americans who
are attending this hearing and following the proceedings over
the Internet and on television who are interested in hearing
what I hope is going to be a civic-minded conversation about
the role of judges under our Constitution.
I actually believe that such public discussions serve our
democracy. As public officials, we owe it to all Americans to
be transparent about what we do in our official capacities. We
justify their trust by demonstrating how our Government works
to uphold our common values, how we are guided by the
Constitution, and how that Constitution has served over the
years to make our great Nation more inclusive and more
protective of individual rights in our continuing effort to
become that ``more perfect union.''
As the great Chief Justice John Marshall acknowledged many
years ago, our Constitution is ``intended to endure for ages .
. . and consequently, to be adapted to the various crises of
human affairs.''
In recent months, there has been renewed focus on our
Constitution. Almost every week, I open the newspaper or see an
electronic posting that involves some radical invocation of the
Constitution that certainly differs from what I was taught at
Georgetown Law Center many years ago. It could be someone
suggesting that Congress should just get rid of dozens of
judges if that strikes our fancy, or it might be the assertion
that the three branches of our Federal Government are not of
equal importance under the Constitution; or even the assertion
that our fundamental charter was drafted solely to limit the
Federal Government's ability to solve national problems. These
comments show the need for more opportunities to increase
understanding of our democracy. That is what gave me the idea
to invite two of the Nation's leading jurists to speak with us
today about the role that judges play under our Constitution.
I know in the Court both Chief Justice Roberts and Justice
Scalia have remarked that the fundamental genius of the
Constitution is its separation of powers. The legislative, the
executive, and the judicial branches each have different powers
and are limited or checked by the other branches, and the three
branches interact frequently. We recently observed the 222nd
anniversary of Congressional enactment of the first Judiciary
Act, which established both the Supreme Court and the Federal
judiciary. We in the Senate have an obligation to provide our
advice and consent to the President to fill a growing number of
judicial vacancies. And on this committee, we are working
diligently to address the serious judicial vacancy crisis that
the Chief Justice highlighted in his most recent annual report.
And I thank the Senator from Iowa for his help in that regard.
We have also worked to pass legislation recommended by the
Judicial Conference of the United States in order to help the
third branch operate fairly and efficiently. We also
appropriated resources to fund the important work of our
independent judiciary.
The judicial branch, including the Supreme Court, decides
cases to resolve controversies in accordance with the rule of
law. It is called upon to interpret and apply statutes passed
by Congress to specific disputes and to review acts of the
other branches to determine whether those acts violate the
Constitution. On rare occasions, court decisions can be
overturned with legislation or with an amendment to the
Constitution.
Now, many of you remember that 4 years ago I invited
Justice Anthony Kennedy to appear before this committee to
discuss judicial security and judicial independence. It was a
great day. That appearance renewed a tradition of Justices
testifying before Congress on matters other than their
appropriation requests, a tradition which included appearances
by Chief Justice Taft and Chief Justice Hughes in the 1920s and
1930s, as well as by Justice Jackson in 1941, among others.
I would note that one of my friends said, ``Well, you
probably remember those,'' and I assure you I do not. But,
fortunately, the staff found it.
Justice Kennedy recognized that the Supreme Court's rulings
would be debated and criticized but noted ``that is the
democratic dialog that makes democracy work.''
In furtherance of that democratic dialog, the committee has
held several hearings highlighting the significant impact of
recent Supreme Court hearings on hard-working Americans. This
has been an effort to raise awareness about the relevance of
the Court's interpretations of laws that Congress enacted with
the intent of protecting American workers, retirees, consumers,
and small business owners.
Today's hearing is designed to have a different focus.
Rather than examining recent or upcoming decisions of the
Supreme Court, which we will not, we will discuss the proper
role that judges play in our democracy. In a time of increasing
political rancor, some like to emphasize divisions as though
they were between warring factions. Although the witnesses
before us approach decisionmaking in many cases in different
ways, I know as a personal matter they demonstrate a profound
respect for each other. That is also the example that the
ranking member and I have tried to achieve in our work together
on this committee. The American people expect their Government
to work for them, and that requires us to uphold our National
values. We all need to work together to uphold the predictable
rule of law where liberty and prosperity can thrive.
Let me conclude with what Judge Learned Hand said: ``The
spirit of liberty is the spirit which is not too sure that it
is right; the spirit of liberty is the spirit which seeks to
understand the minds of other men and women.'' That is this
spirit that we open this with today, and again, I cannot tell
you how much I appreciate both Justices for being here.
I will yield to Senator Grassley, and then we can yield to
the witnesses.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Thank you, Mr. Chairman, for holding this
very important hearing. I appreciate your efforts to secure the
testimony of our distinguished witnesses. This hearing will be
an enlightening experience in which we will discuss the role of
judges in our constitutional system. And, of course, this is a
question as old as the Constitution itself, and it will always
be debated.
I welcome each of our witnesses, and for you, Justice
Breyer, you ought to feel right at home here since you served a
long time as Chief Counsel of this committee. I remind you of
your statement in your recent book, ``Criticism of judges and
judicial systems''--no, let me start over again.
Chairman Leahy. Yes, you have to get it right.
Senator Grassley. ``Criticism of judges and judicial
decisions traces back to our founding. It is a healthy thing in
a democracy.'' I hope you will feel that way at the end of the
hearing.
Senator Grassley. Justice Scalia, I am also glad to see you
here today. As Judge Posner recently remarked, you have ``a
real flair for judging.'' That is an understatement, as I see
it. You as much as anyone have strongly advanced the
traditional views that a judge's role under the Constitution is
to interpret the law according to the text.
For my own part, I believe that the role of judges under
the Constitution is an important but limited one. Unless the
Constitution provides otherwise, the people through their
elected representatives govern themselves.
In determining the meaning of the Constitution, judges are
to apply the intent of the Framers since that is the extent of
the limitation on self-government that the people have agreed
to impose on themselves.
When judges change the meaning of the Constitution and
create new rights or grant Government powers that it was not
intended to have, they reduce the right of people to govern
themselves through the representative government process.
Historically, these are the circumstances in which judges and
their decisions have been fairly criticized.
It is rare for sitting Supreme Court Justices to appear
before the Senate Judiciary Committee, so I thank both of you
for sharing with us.
Thank you very much.
Chairman Leahy. Thank you. You know, these two
distinguished jurists have a lot in common. Both received their
law degrees from Harvard. Both serve as Associate Justices of
the Supreme Court. Prior to their confirmation by the Senate,
both were well-respected administrative law scholars. They are
both elevated from positions on the Federal appellate bench.
Justice Breyer served in the First Circuit; Justice Scalia, on
the D.C. Circuit. Actually, I am probably one of the few here
who had a chance--I voted for both of you on the circuit court
and both of you on the Supreme Court, and I was there for the
hearings both times.
Now, despite their different perspectives on constitutional
interpretation, they were confirmed by a whopping margin. In
the past, they have agreed on the importance of precedent,
judicial independence, and respect for democratic
decisionmaking. Justice Breyer has been on the Supreme Court
for 17 years; Justice Scalia, a quarter of a century. And I
understand--we left it up to you who you wanted to go first,
and I just got the word from Justice Scalia, and in case I ever
have to practice law again, I am listening. So Justice Breyer
goes first. Is your microphone on?
STATEMENT OF HON. STEPHEN BREYER, ASSOCIATE JUSTICE, THE
SUPREME COURT OF THE UNITED STATES, WASHINGTON, DC
Justice Breyer. We both agreed I would go first to
introduce the question as we see it. And we are both very glad
to be here; I particularly because I did work here, which I
loved, but also because you have invited high school students,
college students, law school students, and we both talk to
those groups of students a lot, and we want to do that. And the
reason we do in special part is because there is a lot of
skepticism and cynicism about Government in the United States.
And I will say to the students, I understand that, and probably
some of that is justified. But if there is too much of it,
well, the Government just will not work, because you are part
of the Government, and if you are not going to be part, we do
not have a Government. That is what I want to tell them.
Now, how can I tell them that, how can I do my bit on this?
I am a judge. You know, I do not run for office. It is hard to
get people's attention on a general question like that. But my
bit consists of trying to explain my institution. What is it I
do? What is it that Justice Scalia does? What do we do every
day? What do we do that affects those students and that they
will have to understand and explain to their parents and to
others?
The way I put the question--and this is really all I am
going to say first, is how I think of the question. And I think
from my institutional point of view; I want to tell people why
maybe they would give our institution support.
Suppose I have the attention of a man or a woman who is
going into a supermarket. Now, it is tough to get their
attention. That woman stays pretty busy. They may have two
jobs. They may have a growing family. They have bills coming in
every month. And they do not have too much time to listen to
judges.
But suppose I get their attention on this question for just
a few minutes. What would I say? The first thing I would say is
the question. I would say I have tell you what the question is.
The question is this: The nine of us are not elected, but we
live in a democracy, and we do decide matters that will affect
you. So why should nine people who are not elected have that
authority?
And it is worse than that, because if you look at why
Hamilton gave us the power and why the Founders gave us the
power to set aside a law of Congress as contrary to the
document, the Constitution--read Federalist 78. Well, you know,
she may be asleep by this time, but I have to get her
attention. In Federalist 78, here is what he says.
He says, first, look at the document. It is a great
document, and it is. But if nobody is going to say when anybody
else goes beyond its boundaries, let us hang it up in a museum.
Let us put it in the National Gallery. He actually did not say
the National Gallery because it was not built at that time,
but, nonetheless, you understand the point. He said somebody
should have that power. Who? The President? Since the President
has an awful lot of power, he could become a tyrant with that
as well.
Well, what about Congress? Congress is elected. He said,
yes, that is the advantage, but that is also the problem,
because Congress will have just passed a law because it is
popular. This document gives the least popular person in the
United States the same rights as the most popular. Are you sure
Congress, having just passed that law, will turn around and say
it is unconstitutional when it is very unpopular to do so?
But here we have some judges. They are sort of bureaucrats.
Nobody knows who they are. Fabulous. This has something to do
with law, doesn't it? And they do not have the power of the
purse, and they do not have the power of the sword. Wonderful.
They do not have much power. And, in addition, they are sort of
judges, and it is not Congress and not the President. And he
stops there.
So I say, ma'am or sir, we are not elected. We are supposed
to decide things that are unpopular on some occasion. And you
know what? Do not tell anyone. We are human beings, and we may
be wrong. Indeed, when I am in dissent, I do think the majority
is wrong, and so does Justice Scalia. And we cannot both be
right if we are on opposite sides.
So there we are--unelected, doing unpopular things, and
quite possibly wrong. Why should you ever give us your support?
And that is the question. And I get that question not just from
people in supermarkets, not just from students or their
teachers. I get that question from people all over the world.
They are judges at our Court that come to visit. They are Latin
American judges or Asian judges. There was a woman who was
Chief Justice of Ghana, and she posed that very question. She
said, ``Why do people do what you say? ''
You know, they have Henry IV over here. It is sort of
Hotspur's question. Hotspur says, ``I can call spirits from the
vasty deep.'' Or Glendower says that. And Hotspur says, ``Why,
so can I, or so can any man; But will they come when you do
call for them? '' And to answer that question, I have to give a
little synopsis of history. But all I was doing in these 4
minutes was sketching out the question, and then I will turn to
my colleague who can address that or anything else he would
like.
Chairman Leahy. Justice Scalia.
STATEMENT OF HON. ANTONIN SCALIA, ASSOCIATE JUSTICE, THE
SUPREME COURT OF THE UNITED STATES, WASHINGTON, DC
Justice Scalia. Thank you, Mr. Chairman, members of the
committee. I am happy to be back in front of the Judiciary
Committee where I started this pilgrimage.
I am going to get even more fundamental than my good friend
and colleague. Like him, I speak to students, especially law
students but also college students and even high school
students, quite frequently about the Constitution because I
feel that we are not teaching it very well. I speak to law
students from the best law schools, people presumably
especially interested in the law, and I ask them: how many of
you have read the Federalist papers? Well, a lot of hands will
go up. No, not just No. 48 and the big ones. How many of you
have read the Federalist Papers cover to cover? Never more than
about 5 percent. And that is very sad, especially if you are
interested in the Constitution.
Here is a document that says what the Framers of the
Constitution thought they were doing. It is such a profound
exposition of political science that it is studied in political
science courses in Europe. And yet we have raised a generation
of Americans who are not familiar with it.
So when I speak to these groups, the first point I make--
and I think it is even a little more fundamental than the one
that Stephen has just put forward--I ask them, what do you
think is the reason that America is such a free country? What
is it in our Constitution that makes us what we are? And the
response I get--and you will get this from almost any American,
including the woman that Stephen was talking to at the
supermarket--is freedom of speech, freedom of the press, no
unreasonable searches and seizures, no quartering of troops in
homes, etc.--the marvelous provisions of the Bill of Rights.
But then I tell them, if you think that the Bill of Rights
is what sets us apart, you are crazy. Every banana republic has
a bill of rights. Every president for life has a bill of
rights. The bill of rights of the former evil empire, the Union
of Soviet Socialist Republics, was much better than ours. I
mean that literally. It was much better. We guarantee freedom
of speech and of the press. Big deal. They guaranteed freedom
of speech, of the press, of street demonstrations and protests,
and anyone who is caught trying to suppress criticism of the
government will be called to account. Whoa, that is wonderful
stuff.
Of course, they were just words on paper, what our Framers
would have called ``a parchment guarantee.'' And the reason is
that the real constitution of the Soviet Union--think of the
word ``constitution;'' it does not mean a bill of rights, it
means structure. When you say a person has a sound
constitution, you mean he has a sound structure. Structure is
what our Framers debated that whole summer in Philadelphia, in
1787. They did not talk about a Bill of Rights; that was an
afterthought, wasn't it? The real constitution of the Soviet
Union did not prevent the centralization of power in one person
or in one party. And when that happens, the game is over. The
bill of rights becomes what our Framers would call ``a
parchment guarantee.''
So the real key to the distinctiveness of America is the
structure of our Government. One part of it, of course, is the
independence of the judiciary, but there is a lot more. There
are very few countries in the world, for example, that have a
bicameral legislature. England has a House of Lords for the
time being, but the House of Lords has no substantial power. It
can just make the Commons pass a bill a second time. France has
a senate; it is honorific. Italy has a senate; it is honorific.
Very few countries have two separate bodies in the legislature
equally powerful. It is a lot of trouble, as you gentlemen
doubtless know, to get the same language through two different
bodies elected in a different fashion.
Very few countries in the world have a separately elected
chief executive. Sometimes I go to Europe to speak in a seminar
on separation of powers, and when I get there, I find that all
we are talking about is independence of the judiciary. Because
the Europeans do not even try to divide the two political
powers, the two political branches--the legislature and the
chief executive. In all of the parliamentary countries, the
chief executive is the creature of the legislature. There is
never any disagreement between the majority in the legislature
and the prime minister, as there is sometimes between you and
the President. When there is a disagreement, they just kick him
out. They have a no-confidence vote, a new election, and they
get a prime minister who agrees with the legislature.
You know, the Europeans look at our system and they say,
well, the bill passes one House, it does not pass the other
House (sometimes the other House is in the control of a
different party). It passes both Houses, and then this
President, who has a veto power, vetoes it. They look at this
and they say, ``It is gridlock.''
And I hear Americans saying this nowadays, and there is a
lot of that going around. They talk about a dysfunctional
Government because there is disagreement. And the Framers would
have said, ``Yes, that is exactly the way we set it up. We
wanted this to be power contradicting power because the main
ill that besets us,'' as Hamilton said in the Federalist paper
when he justified the inconvenice of a separate Senate, is an
excess of legislation.'' This is 1787. They did not know what
an excess of legislation was.
So unless Americans should appreciate that and learn to
love the separation of powers, which means learning to love the
gridlock that it sometimes produces. The Framers believed that
would be the main protection of minorities--the main
protection. If a bill is about to pass that really comes down
hard on some minority, so that they think it terribly unfair,
it does not take much to throw a monkey wrench into this
complex system.
So Americans should appreciate that, and they should learn
to love the gridlock. It is there for a reason: so that the
legislation that gets out will be good legislation.
And thus I conclude my opening remarks.
Chairman Leahy. You may not get total unanimity on the
issue of gridlock, but I found listening to both of you to be
fascinating. I made a little note to myself. Everything that
might go wrong this week, and all of this makes up for it, just
having both of you here. So I do appreciate that.
Justice Scalia, the Court, of course, often reviews laws
passed by Congress--and I apologize for the voice. It is an
allergy. But when the Court reviews a law passed by Congress
and you want to find out whether it comports with the
Constitution, do you have a different standard if it was a law
that passed by the slimmest of margins or if it is a law that
passes overwhelmingly? And I will ask that question of both of
you.
Justice Scalia. No, sir. A law is a law. If it meets the
requirements of the Constitution, having passed both Houses,
and either being signed by the President or having been passed
by two-thirds over his veto, it is a law. And what we do is
law.
Chairman Leahy. Justice Breyer.
Justice Breyer. Yes. Yes, sir, I agree.
Chairman Leahy. And, Justice Scalia, under our Constitution
what is the role, if any, that the judges play in making
budgetary choices or determining what is the best allocation of
taxpayer resources? Is that within their proper role or is that
somewhere else in the----
Justice Scalia. You know it is not within our proper roles,
Mr. Chairman. Of course it is not. Of course it is not.
Justice Breyer. It is a worthwhile question for this
reason: When we try to talk about this document in general,
what I say--and he will have some version of it--is: What does
this document do, the Constitution? I cannot tell you in one
word, but I can tell you in about five. It creates a structure
for democracy. That is the first part. That is the whole seven
articles. It is a structure so people can make their own
decisions through their representatives and decide what kind of
cities, towns, States, and Nation they want. But it is a
special kind of democracy. It guarantees basic and fundamental
rights. It assures a degree of equality. It does, as Justice
Scalia has emphasized, separate power, both vertically, state,
federal, and horizontally, three branches, so no group of
government officials can become too powerful. And it insists
upon a rule of law. So now we have five basic things, and I
tend to think the rest of it elaborates those five basic
points, and I think probably Justice Scalia and the others, we
are not in disagreement at that level. Very rarely.
So what people do not understand very often are given those
broad boundaries in this democratic process, we are the
boundary patrol. There used to be some kind of radio program
called ``Sky King of the Mounties'' or something. It was
something like that.
Chairman Leahy. I think it was before my time.
Justice Breyer. But, look, it said----
Justice Scalia. It was Sky King, and Sergeant Preston of
the Mounties.
Justice Breyer. Sergeant Preston of the Yukon, that is it.
The Yukon. It was cold. It is on the boundary. It is very cold.
Life on the boundary is tough. And we are in a sense the
boundary patrol, and those issues are very tough. Is the choice
inside, outside? What about prayer in schools? What about this
or that? There are two sides to these questions. They are tough
ones. And what people forget is just what you were emphasizing
with the budget question, that inside those boundaries there is
a vast democratic space where it is up to the average American
to decide what kind of cities, towns, State, and Nation he or
she want. And those decisions are not ours. All we can say,
with a forum like this, is please participate in that
democratic decisionmaking, which is not our institutional job.
Chairman Leahy. With the smile on Justice Scalia's face
when I asked the question, I think he was probably anticipating
some of the next questions, and so I will start first with you,
Justice Breyer. In your book, ``Making Democracy Work,'' you
describe how the court system relies on public confidence
because it has neither the power of the purse nor the sword, as
you both alluded to earlier. And so then people ask, well, is
the rule of law predictable? Because Americans rely on certain
programs and so forth. Do you feel the public's confidence is
affected when judges overturn longstanding precedent when there
is settled expectation if they have something that people
relied on for generations and then suddenly it is overturned?
What does that do with public confidence? And what does that
for the rule of law? You have neither the purse nor the sword.
You have, however, a question of what confidence the American
public has. So, Justice Breyer, do you want to try that first?
Justice Breyer. On that I think there is no definite
answer. You want to say never--what you give is reasons against
overturning something or strong reasons. But Plessy v.
Ferguson, which said separate but equal, should have been
overturned, and Brown v. Board of Education, which said no more
racial discrimination, was absolutely right to overturn it. So
I think your advice is good. It means that the judge has to
remember not too much, not too fast, not too often, be careful,
people have relied on formal law. But you cannot say never.
Chairman Leahy. Justice Scalia.
Justice Scalia. Yes, I think part of the jurisprudence of
my Court and all Federal courts is stare decisis. It is not an
absolute rule, but it is a subject that should be given careful
attention. And all Federal courts have given stare decisis very
much more weight in statutory questions. It is very rare that
my Court would overrule a prior decision on a statutory point,
the reason being if we got that wrong, you can fix it. You can
amend the statute. But when we get something wrong with respect
to the Constitution, there is nobody that can fix it unless you
are going to go through the huge trouble of enacting a
constitutional amendment.
So throughout our history, there has been a rule of stare
decisis, but beginning with the Marshall Court, it has been
less strict in constitutional questions than it is in statutory
questions, and I think that is as it should be.
Chairman Leahy. Well, and, of course, it is easier for the
lower courts if there is a binding--the district courts, if
there is a binding circuit court opinion, and for the circuit
courts, if there is a binding Supreme Court opinion. But the
buck really stops with you, with you nine.
Now, you talk about amending the Constitution. We have
obviously amended it. The 13th Amendment got rid of the stain
of slavery. Nobody could think of that, having now a 15th,
racial discrimination; the 19th, giving women the right to
vote; the 24th, young adults and so on.
Justice Scalia, I have read some of your works, and I hope
I am paraphrasing you correctly. We should not mess with the
Constitution by amending it. Since I have been here in the
Senate, I have seen probably 1,500 to 2,000 constitutional
amendments that have been proposed. It is probably even more
than that. You get them from things that I think a board of
aldermen in a small town would not have thought of doing
because it was so ridiculous. And some have serious issues. But
is it in our country's interest to be tampering with the
Constitution if that can be avoided?
Justice Scalia. Well, no. This is another respect, by the
way, in which we differ from most of the countries of the
world. Many foreigners cannot understand our affection for the
Constitution. It is no big deal to amend the constitution in
most of the countries of the world. In most of them, all you
need is to have the legislature, a unicameral legislature, pass
the amendment. Then there has to be an intervening election.
And then they have to pass the amendment again.
Chairman Leahy. But their constitution is almost like a
statute.
Justice Scalia. It is almost like a statute except that it
has to be passed twice with an intervening election.
Chairman Leahy. Sure.
Justice Scalia. Ours is very much more difficult to amend.
And you are right, I have said that that is a good thing.
Indeed, I have said that the only provision I am sure I would
think about amending is the amendment provision because that
sets a very, very high bar. But that is not going to happen, so
I am not worried about it.
Chairman Leahy. Justice Breyer, my time has run out, but
would you like to respond on that, too?
Justice Breyer. I tend to agree with that.
Chairman Leahy. It is going to surprise the rest of the
Court to find out how much you two----
Justice Breyer. Look, we are unanimous in our Court 40
percent of the time. Our 5-4's are about 20 to 25 percent and,
surprisingly enough, it is not always the same 5 and the same
4.
Justice Scalia. And you should be suspicious if we do not
have a lot of 5-4 decisions, because the main reason we take a
case is that there is a circuit conflict below--that is, very
good Federal judges who have been appointed the same way
Justice Breyer and I were appointed have disagreed. So you
would smell something wrong if there are these disagreements
below and the Supreme Court always comes out 9-0 one way or the
other. You should expect a lot of 5-4 decisions.
Chairman Leahy. Thank you.
Senator Grassley.
Senator Grassley. I will start with Justice Breyer, a
couple questions based upon a recent C-SPAN interview that you
had. You remarked that although judging is not entirely about
politics, you would ``not say zero politics never.''
Justice Breyer. That is one of the hardest things to
explain, and that is part of what I have written about in this
book. I think there are two great questions that I want to get
across to the audience, if it is high school, college, law
school particularly.
First is the one we mentioned. When you call them, will
they come? Why is it that Americans over the course of 200
years have begun to have responded to the Supreme Court? And
there are some good stories on that, but I put that to the
side.
The other thing I put this way: I say I know you are being
very polite, but I also know a lot of you are thinking this.
You are thinking in those tough 5-4 cases that we really are
junior league politicians. And I say that would be ridiculous.
For one thing that is not the job. Didn't Hamilton give us the
job because he thought we would not be politicians?
And, second, read a case like Dred Scott, one of the worst,
probably the worst ever. There the most you can think of why
they were doing this is they were trying to act like
politicians. But judges are terrible politicians. If you wanted
to give this job to politicians, give it to Congress. I mean,
we know nothing of--we are not--all right, in any case.
So how do I explain it? I explain it this way. I say in the
17 years since I have been a judge, do I see a decision turn on
political considerations? I did work in this Committee. I have
an instinct that politics consists of who has got the votes. Is
it the Democrats or the Republicans? Who is popular? Who is
going to win the election? And in that sense, I have to say my
answer is never. And I know you will think of this case or that
case where you think that is wrong. I'd need an hour to explain
it to you, but I think I could bring you around.
What about ideology? Ideology. Are you, you know, an Adam
Smith free enterpriser? Are you a Marxist, Maoist troublemaker?
You know, what is good in general for the world? I say if I am
thinking of it that way, I know I am doing the wrong thing. But
I can tell you, there is a third thing. I was born in San
Francisco. I went to Lowell High School, a public high school.
I went to the university out there. I have lived the life I
have led. And by the time you have 40 or 50 years in any
profession, you begin to formulate very, very general views.
What is America about? What are the people of America about?
How in this country does law related to the average human
being? How should it?
At that level of generality, people may have somewhat
different outlooks, and there is no way that those different
outlooks can fail to influence them some. And is that a bad
thing? No. I think it is a good thing. This is a very big
country. We have 309 million people, 308 million of whom, to
everyone's surprise, are not lawyers. And they have many
different views, and it is a good thing, not a bad thing, that
people's outlook on that Court is not always the same. And by
outlook, I mean those very, very basic ideas of judicial
philosophy, if you like, or about the country and its people
and about the law and how judges are there to act and what they
are to do and what not. So that is what I meant by that word
there.
Senator Grassley. Okay. And I will start with Justice
Scalia on my second question. Why would it ever be appropriate
for American judges to consider foreign law in interpreting the
meaning of the United States Constitution? And Justice Breyer
can respond as well.
Justice Scalia. Senator, I am afraid we are getting beyond
what I had planned to discuss with you gentlemen, the role of
the courts, and we are getting into the manner in which the
courts go about deciding their cases. And I have a view on
that, and Justice Breyer probably has a different view. But I
have not prepared any testimony on that, and I would rather
pass. Of course, it is an issue, and I think my views on that
issue are known. But that is not the level of--what should I
say?
Senator Grassley. Let us move on then.
Justice Scalia. Okay.
Senator Grassley. To both of you, discussing the Supreme
Court, Justice Brandeis stated, ``The most important thing that
we do is doing nothing.'' To what extent do each of you agree
with that?
Justice Breyer. It depends on the case. It is important,
yes. I do not know if it is the most important. I am not sure
what he was thinking of.
What do you think?
Justice Scalia. Well, yes, I think the normal state of
things is rest. Leave things alone unless there is reason to
change.
I served in the executive branch for a while, and when I
was there, there was something that came to be known as the
``Moscow option,'' which sounded, you know, like CIA stuff. It
was named after a fellow named Mike Moscow, who was one of the
President's assistants, and he observed that whenever action
memos went in to the President, they always gave the President
three options: number one: Do X; number two: Do the opposite of
X; and, number three: Do what whoever wrote the memo wanted,
which is somewhere between X and the opposite of X. And Moscow
noted that you will never see among the options number four: Do
Nothing. And that that very often is the right answer.
But it is certainly the case for courts. Do not make waves
unless there is a reason for a change. Unless what the Congress
has done or what an agency has done is wrong, you leave it
alone.
Justice Breyer. What your question brought to my mind was
something in Tocqueville, which is really--you know, I like the
students to read Tocqueville, too, because it is amazing in
1840 what he is writing, and you think, My God, he wrote it
yesterday, about this country. And one of the things he says
which really stuck is he says, ``Whenever I come to the United
States, the first thing that strikes me is the clamor.'' Well,
what is he thinking of? Everybody is screaming at each other is
what he meant? And what he really meant is they are debating.
They are talking about things; they are disagreeing. And he
thinks that is good, and I do, too, because that is--you have a
really tough problem sometimes. Let us imagine when you are
trying to figure out some bill and it has to do with privacy
and it has to do with free expression, and there are all kinds
of tensions right there with the Internet and the new methods
of communication and Twitter and Facebook or whatever they are
and people's privacy, and you are more familiar with all those
than I. How do we decide those in this country?
I think the general word I use to talk to about that is the
word ``bubbling up.'' The first thing that happens, people
start to talk. They talk in newspapers. They talk in
classrooms. They talk in articles. They talk in small groups.
They talk with the policemen. They talk with the firemen. They
talk with the civil liberties groups. They talk to everybody
under the sun, and they begin to debate, and they get into
arguments. Eventually it gets to you. You have hearings. You
eventually decide maybe an agency should do it. Maybe we should
have a statute. Maybe we change our mind five times. And
eventually things will settle down.
And what I say about my Court, it is really wonderful if we
do not get involved until it settles down, because our only job
is going to be to decide if what you decide is within the
boundaries. And it is going to be a subject where we will know
less about it than those Americans who have gone into it in
depth, so be careful of intervening before this big debate,
this clamor that Tocqueville is talking about, has a chance to
take over, take effect, scream, change, try it on, try it off.
And I think that is really the wisdom that underlies this view
of do not decide too much too fast.
Justice Scalia. We do a lot of nothing.
Justice Scalia. I told you that the main reason we take a
case is because there is disagreement below. But if there is no
disagreement below, we do not get involved. We do not go
prowling around looking for Congressional statutes that are
unconstitutional. It is only when there is disagreement below
that we take a case, with rare exceptions. If a lower court has
found one of your laws to be unconstitutional, we will take
that case even though no other court has held the opposite. But
except for rare situations like that, we let sleeping dogs lie,
which is the way one should live his life, I think.
Chairman Leahy. Thank you.
Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Justice Scalia, in your opening remarks you talked about
how brilliant our system is, our Constitution, and the kind of
disagreement it provokes and how difficult it is to get things
done. That is the greatness of the American Constitution in
contrast to so many other countries. And yet we are described
now by people all over the country as dysfunctional, as unable
to get anything done, and the level of dissatisfaction is up to
about 88 or 90 percent now among the American people because
they say we cannot get anything done, that the system does not
work. How do you respond to that?
Justice Scalia. Well, I suppose there is a point at which
you do reach unbearable, dysfunctional gridlock. However, I
think the attitude of the American people--and this is the
point I was making--is largely a product of the fact that they
do not understand our Constitution, that its genius is
precisely this power contradicting power, which makes it
difficult to enact legislation.
It is so much easier to enact legislation in France or in
England, but, you know, the consequence of that is you have
swings from one extreme to another as the legislature changes.
That does not happen that much here, largely because of the
fact that, as a general matter, only laws on which there is
general agreement will get through.
So, I think that this is one of the reasons why we have to
educate the American people, as we have not been doing for
decades, about what our Constitution produces and what it is
designed to produce.
Justice Breyer. It is same problem Sandra O'Connor is
always talking about. I mean, we are limited in what we can do,
and probably you are, but she is out there non-stop trying to
get civics restored to the high school curriculum. I mean, what
do most people think about taking a case which we were just
discussing? I bet if you did a survey, those who know anything
about it would say, ``Oh, they sit up in that big building, and
they just decide, `This would be an interesting subject. Let us
decide it.' '' And that is very far from the truth. We have a
system, as you have heard described.
So what we try to do is talk to people. Annenberg does
that, the foundation. They are in 55,000 classrooms. And Sandra
and I, and sometimes Nino, have discovered that it is very
useful to get a film taken of a case or something, of something
in the past, and have us come and try and get it in the high
schools. Vartan Gregorian is trying to do that with Carnegie.
You have a very different institution, but you do try to
communicate with the public quite a lot, and all I can say is
it is probably harder for you than it is for us. But to get
across the idea that the student today has to know how
Government works, they have to know something about their
history, and they have to be willing to participate, it is very
easy to say, and it is very hard to get across.
Senator Kohl. Gentlemen, as you know, you have the power to
decide cases themselves, but your power is also to decide which
cases you are going to hear. And you have some 8,000
opportunities to make decisions every year on the cases you are
going to hear, and last year you decided to hear 77 cases,
which is just 1 percent or less than 1 percent.
So what goes through your minds collectively when you
decide on which 1 percent you are going to hear? And what do
you say to the 99 percent who do not get heard?
Justice Scalia. To the latter, we say, ``Denied.''
Justice Scalia. But for the former, you are quite right;
there ought to be some rules. It should not be random. It
should not be whatever tickles my fancy. And that is why we
have a general rule that unless there is a circuit conflict,
you are wasting your time and your client's money to file a
petition for certiorari. It is overwhelmingly likely that we
will not grant it.
It is not the case, I assure you, that we prowl about
looking for an issue that we want to get up to the Court. I do
not know any of my colleagues who behaves that way. I think
they all have standards. Is there a circuit conflict? Is there
a significant issue on which the lower courts are divided? And
for the other cases--I am surprised the number of petitions is
only 8,000. I thought it was up to 9,000 by now. And, by the
way, when I first joined the Court, it was only 4,000. That is
how much that has increased. So it is now a fairly large part
of our job just deciding what we are going to decide. Every one
of us looks at at least summaries of all 9,000 of those
petitions.
Justice Breyer. There are 150 a week in memo form that come
into the office, and the originals are back there on my shelf.
Now, I bet if we sat down tomorrow, the two of us, even though
it is not part of your job, I will make an initial cut, and
maybe it will be like 140 and 10, and I bet if we were there
together, the cut that you would make would not be much
different from the one I would make. It is interesting. Why?
Because they sort of speak out.
And the only other thing I will add is in the Conference--I
know there are groups of lawyers who particularly would like to
see us take more cases, and the people who would like to take
more cases in a sense is us. When Sandra was on the Court--and
I think she has said this publicly, ``We have got to get more
cases here.'' Nobody is making an effort to take fewer. That is
not the attitude in the Conference. The attitude in the
Conference is there is a split, let us take it, we have room,
we have room to hear more. Nobody is thinking that there is not
the room.
Senator Kohl. Well, let me just respectfully disagree, and
perhaps you can respond. When you came on the Court in 1987,
you heard 277 cases that year. And when you came on the Court,
Justice Breyer, that year you heard 105 cases. Last year you
heard 77 cases. So I do not understand.
Justice Scalia. Senator, we never heard 277. When I came on
the Court, I think we were deciding about 150. And I will tell
you, I do not think we can decide 150 well. If you go back and
look at our opinions in those days, and you read an opinion in
which the majority opinion and the dissent are like ships
passing in the night--they never quite meet each other--you
turn to the first page and will find that it is a June opinion.
The month when we were rushing out opinions at the end of the
term. I do not think we can do 150 well. I think we could do
100 well. And, frankly, I am probably voting to take some cases
that I would not have voted to take 10 or 15 years ago.
But it is not as though we sit down at the end of the year
and say, Okay, let us take 75 cases, let us pick the best 75.
That is not what happens. They trickle in week by week, and we
vote on the ones that week that seem worth taking. And at the
end of the term, they have added up to whatever they have added
up to.
If my standards have changed, it is only because I am
trying to take more rather than trying to take less. I suspect
that the major reason for the decline is that when I first came
on the Court, there was a lot of really breathtakingly
important new legislation--a new bankruptcy code, Title VII,
ERISA. In the last 10 years, there has been very little
legislation of that magnitude. The major generator of circuit
conflicts below is new legislation because it always has some
ambiguities that have to be decided by the courts. So where
there has not been a whole lot of major new legislation, you
would expect our load to go down.
Justice Breyer. I agree with that. But it is just a theory.
We have not measured. But every word in a bill is an argument.
Every word you pass, there are lawyers who can debate. And so
if a lot of legislation is passed, then I think with a 5- or
10-year lag, you will suddenly see a lot of cases in the
Supreme Court. And if you go 5 or 10 years and there is less
legislation passed, fewer words, you will discover a diminished
number of conflicts among the circuits.
When you passed the habeas law, then go back 2 or 3 years
and suddenly you will see lots of habeas cases coming up to
that. And the same is true with IIRIRA, the immigration thing.
So you are now passing laws with thousands of pages, not
budgetary laws but laws, you know, that are likely to come to
us. My guess is with the lag that caseload will start going up.
Senator Kohl. Thank you.
Chairman Leahy. We are about to go to Senator Hatch, and I
have been sitting here trying to resist temptation, and I will
not. When you mentioned from Henry IV the discussion of
Glendower, you have that in your book, and I noticed it earlier
when I was going through your book. It is one of my all-time
favorites quotes, usually to express exasperation somewhere.
Senator Hatch.
Senator Hatch. Well, thank you. I personally appreciate
both of you being willing to do this. I think it is a very good
thing. And I know that it is unusual for you, and so I am
grateful to the Chairman for calling this particular meeting.
And I am particularly grateful to both of you. You both have
been great Justices. You have been on the Court for a long
time, and you have decided a lot of important cases, and we now
have this year, it looks like, a docket that is going to be
pretty doggone important compared even to past years. Let me
just say this----
Justice Scalia. You sound happy about it, Senator. I am not
sure I am.
Senator Hatch. Well, I am very happy. I want you working
really hard, Justice Scalia.
Senator Hatch. And you, too, Justice Breyer. I have great
hope for you. There is no question about that.
Senator Hatch. No, I remember when you were here on the
Committee. You were a terrific chief of staff for Senator
Kennedy, and you meant a lot to us then, and you mean a lot to
us now.
Let me just say, when Federal judges construe our statutes,
they try to figure out what we meant by what we said.
Legislators on both sides of the aisle would object if judges
changed the meaning of the statutes we enact. And as you know,
we even differ on that. But who knows? We might even hold a
hearing about it. You never know.
But the point is that even if we do not express clearly
what we mean, it is still our meaning that counts. Should the
basic approach be any different when judges interpret the
Constitution? In other words, if statutes do not mean
whatsoever judges say they mean, how can the Constitution mean
whatever judges say it means?
Justice Breyer. In a sense the answer is it should not when
I have a statute. I think all judges when they have a text and
the text is not particularly clear or there are questions, they
all have the same weapons. You read the text. You look at the
history. You look to the traditions around the words. Say it is
habeas corpus. A lot of tradition there. You look to the
precedents. You look to what I would call the purposes or the
values. And you look to the consequences read in terms of the
purposes or values.
So if I have a statute, the first thing I want to know is
somebody wrote that statute. These words may be hard to figure
out what they mean one way or the other, but somebody had
something in mind in Congress, and I want to find out what that
is and I want to stick to it.
Now, when you are talking about the Constitution because
there are words like ``liberty,'' or because there are words
like ``freedom of speech,'' ``the freedom of speech,'' it is
not so much purposes that I would use to describe that. I would
describe that as basic values. And I think those basic values
that were enacted in the 18th century have not changed, or at
least not much. The values are virtually eternal, but the
circumstances change.
So I say, you know, sometimes when we discuss this, which
Justice Scalia certainly knows and agrees with, George
Washington did not know about the Internet, and a lot of our
job is to apply the values that are there in the Constitution,
which really do not change, or at least not much, to
circumstances that change all the time, every 5 minutes. And
that is not so easy to do.
But put at the level you have put it at, which I think is a
very good level, should we follow those purposes in terms of
the values of the Framers? Absolutely yes. In terms of trying
to apply it to situations that they did not foresee? Well,
there I think you cannot do that. I think you have to figure
out how those basic values apply to the world today, a world
that is international and national in terms of commerce, in
terms of the Internet, in terms of a thousand different things
that face you every day. And then how much emphasis you give to
what in trying to answer that question is a matter that
sometimes divides judges. But the need to answer it I think is
a matter that unites them.
Justice Scalia. I do not agree with most of that.
Justice Scalia. In fact, I hate to say this, but I am not
sure I agree with the premise that our object is to figure out
what Congress meant. I think our object is to figure out what
the law says. If Congress meant one thing but enacted a law
that says something else that is promulgated to the people, I
am bound to apply the law. That is what it means to have a
Government of laws, not of men. And that is why I do not use
legislative history. (I am glad Senator Grassley is gone
because I think this is one of his pet peeves.) That is why I
do not use legislative history, but Justice Breyer does. I
think we are governed by laws, and when I approach a statute or
the Constitution, I ask myself, What do these words mean to the
people to which they were promulgated? And once I figure that
out, I can sleep at night.
Senator Hatch. Well, I think it may take a few more years,
but I am confident you will.
Let me just say it is common today for people to evaluate
judges and their decisions based on what people want judges to
do or on whether they like a judge's decision. Both liberals
and conservatives do that. I am looking for a more principled
or objective job description for judges. You know, given the
title of this hearing, does the Constitution itself offer
anything to help define the role of judges? And is there some
practical, concrete guidance we can draw from the Constitution
itself as a way of defining what judges are supposed to do?
Justice Scalia?
Justice Scalia. Do you want me to start?
Senator Hatch. Sure.
Justice Scalia. Boy, that is a hard problem. Your intro
suggests a point that I wanted to make to the Committee. One of
the difficult things about the job that Steve and I have is
that we are criticized in the press for our opinions, but
cannot respond to press criticism. That is just the tradition.
But usually the criticism in the press and the reaction of the
public to the opinion has nothing to do with the law. If they
like the result, it is a wonderful opinion and these are
wonderful judges. And if they dislike the result, it is a
terrible opinion. They do not look to see what the text of the
statute is that was before us and whether this result is indeed
a reasonable interpretation. None of that will appear in the
press reports, which will just tell you who the plaintiff was,
what the issue was, and who won. And if you like the result, it
is a great opinion. If you do not like it, it is terrible.
That is just one of the disabilities we operate under, and
that is one of the reasons we are not supposed to advert to
whether the public likes our opinions or not. We are supposed
to just go down the middle and interpret the text as we think
it ought to be interpreted.
Now, you are quite right that those who do not like one of
our opinions will call it ``judicial activism.'' Judicial
activism always consists of the Court's doing what you do not
like it to do. I suppose there is----
Senator Hatch. We understand that.
Justice Scalia. I know that. I do not know any solution for
it, Senator.
Justice Breyer. There is not a solution. I mean, we are
both judges. We have been judges for a while. We have a rough
idea of what it is to be a judge, and we both know that what we
are trying to do is apply the law and interpret the law. No one
at that level disagrees.
All right. But you say, well, how do you do that? And I
think I can get a little more specific before I will find
disagreement, and that is why I mentioned those things of
reading the text. You know, if the text says fish, that does
not mean carrot. A carrot is not a fish no matter what your
intent. You have to follow those words, and it rules out a lot
of things. So the words are there. And the history is there.
And the tradition is there, and the precedent is there. And the
purpose--it may be hard to find sometimes, but sometimes it is
not. And the consequences, you do not know all of them, but you
know some of them, and you said some evaluation in terms of
those purposes, so we will try to do that.
And Justice Scalia may place more weight on some of those
things, and I will place more weight on purposes and
consequences, but that is putting different weight on different
parts of tools that we all have. And then when we get into the
constitutional area, I might say, look, I am looking to values
and how they apply today. And he might think he can find more
in history. But I can see that. I am not going to say history
is irrelevant. And I do not think he will say that sometimes
you just do not find that much there. At least sometimes.
And so it is a question of degree and so forth, but the
bottom line for an appeals court judge--and it is a very useful
bottom line--is you have to write an opinion, and that opinion
is going to be based on reason. You cannot prove it. It is not
logic. We are not computers. But I can honestly set forth my
reasons for saying it is this way rather than that way. And he
does the same. And one of the great things about dissenting
opinions, if he writes a dissent or I write a dissent, he will
read it, and I will read it, and I will respond, because I am
not going to let him, put in quotes, ``get away with that,'' or
I am not going to let him--he has pointed out something, I do
not know how that got in my opinion, I better change it. And so
this strengthens the opinions, and ultimately they can be read
by the public, and they are read by some of the public. And the
strength there is in its reasoning tied back to the documents
and tied back to this country and tied back to a lot of things.
But there is the basis there for criticizing and for valid
criticism and valid praise or blame of a particular judge. And,
of course, we love it if people take the opinion at that level
rather than responding simply to a press report. But I think
pretty much that is what we see as the job.
Chairman Leahy. You know, in some ways I feel like I am
back in my favorite seminars in law school, which is a lot more
fun than sometimes being in the Appropriations Committee or
some of the other things doing this. But I do want to move this
along--I have tried to give extra time to everybody--just
because of the Justices' time.
I will go now to Senator Feinstein. Just so we will know
what the order is, I have received this from Senator Grassley
on the Republican side. It will be Senators Graham, Cornyn,
Lee, Coburn, and Sessions. On our side it is Senators
Feinstein, Blumenthal, Durbin, Whitehouse, and Coons.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman, and
thank you for holding this hearing, and, Justices, thank you
very much for being here.
I was looking at the faces in the audience, most of them
young, all of them listening and interested. And I think really
what it says is the respect that we have for the rule of law in
this country and that that highest order of the rule of law
rests with the authority that you have. And I for one am very,
very proud of it and am always proud when I travel that America
is represented by the distinction of this great Court.
Now, I want to ask you something about the 14th Amendment,
and if both of you could respond to it. It is simple. ``No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the law.''
Is a woman included within that definition?
Justice Breyer. Yes. A woman is a person. I think that is
well established.
Justice Scalia. Yes, the issue is not whether a woman is a
person. The issue is----
Senator Feinstein. You know where I am going.
Justice Scalia. The issue is what constitutes equal
protection.
Senator Feinstein. Yes, all right. Are women included?
Justice Scalia. Yes, of course, they are included.
Justice Breyer. Yes.
Senator Feinstein. Well, let me ask you----
Justice Scalia. But does equal protection mean that you
have to have unisex toilets? I mean, that is the kind of
question you have to get into.
Senator Feinstein. Your quote, Mr. Justice, in California,
``Certainly the Constitution does not require discrimination on
the basis of sex. The only issue is whether it prohibits it. It
doesn't. Nobody ever thought that is what it meant. Nobody ever
voted for that. If the current society wants to outlaw
discrimination by sex, hey, we have things called legislatures,
and they enact things called laws.''
So why doesn't the 14th Amendment then cover women in this
respect?
Justice Scalia. The 14th Amendment, Senator, does not apply
to private discrimination. I was speaking of Title VII and laws
that prohibit private discrimination. The 14th Amendment says
nothing about private discrimination, only discrimination by
Government.
Justice Breyer. Yes.
Senator Feinstein. Oh, I see. I see what you meant.
Justice Scalia. Yes.
Senator Feinstein. Okay. All right. If I can, let us go
to--Justice Scalia, I think in the past you have advocated a
constitutional interpretation called ``originalism'' in which
the meaning of a constitutional provision is determined based
on the provision's meaning in 1789. You have also said that
Government, even at the Supreme Court level, is a practical
exercise, and that--well, let me just say what I am trying to
think. In other words, that the Constitution should be
interpreted for its meaning at its origin. And, Justice Breyer,
you have taken the position that the Constitution is a living
document and, therefore, it adjusts to times and changes within
the time period.
Could each of you give us your legal interpretation of that
and how you approach it?
Justice Scalia. You start. I started last time.
Justice Breyer. It is not quite as starkly different as it
is sometimes painted.
Justice Scalia. It is pretty different.
Justice Breyer. It is pretty different. All right. I tend
to think that the values, as I say, in the Constitution--you
have to go back and find out those values. They have not
changed a lot. The fact that freedom of expression was
important in the enlightenment, it was. So was freedom of
religion. So were a lot of those things. And those are the
values that underlie the word ``liberty,'' et cetera.
But in my own view, to use sort of a slightly rhetorical
example, which I did, George Washington was not aware of the
Internet. I think we agree on that. And so most of our job is
applying those values which do not change very much to a world
that changes a lot. And ``the freedom of speech,'' those words
do not explain themselves. They do not tell you how they are
going to apply to a really tough case where the Internet wants
to communicate something that is private information about an
individual. Which is it? The right of privacy or is it the
right of expression that predominates there? Very hard.
And so if I had to incorporate four words, I would go back
to a judge who was in the 18th century--I found it in Gordon
Woods' book--in Connecticut, near Rhode Island, but in
Connecticut, who said--Root, I think his name was, and he said,
``The American tradition of judging involves prudence and
pragmatism, reasonableness and utility.'' Well, I think those
are elements of an effort by a judge in a difficult case to
work out how those ancient values apply to modern
circumstances.
Justice Scalia. I have no problem with applying ancient
values as they were understood at the time to new modern
circumstances. Originalism does not mean that the radio is not
covered by the First Amendment. Of course, you have to apply
the text of the Constitution to new phenomena. But what
originalism suggests is that as to those phenomena that existed
at the time, the understanding of the society as to what the
Constitution prohibited at that time subsists. Take for
example, the death penalty. Now, there are good arguments for
and against the death penalty. Is it prohibited by the Eighth
Amendment? For an originalist the answer is easy: Of course it
is not because it was the only penalty for a felony when the
Eighth Amendment was adopted. Nobody thought that the death
penalty was prohibited. It continued to be used in all the
States. Nonetheless, I have sat with four colleagues, all off
the Court now, who thought the death penalty is
unconstitutional. That is the difference, essentially, between
a living Constitution approach and an originalist approach.
When I apply the text of the Eighth Amendment, I apply it as it
was understood by the people who adopted it. What they thought
was prohibited is still prohibited, and forms the basis for
assessing the Amendment's appliction to new phenomena. Since
hanging was not considered cruel, for example, execution by
lethal injection it surely not.
That is the basic difference between originalism and the
living Constitution. I do not trust myself to be a good--what
should I say? A good interpreter of what modern American values
are. You people are much better at that than I am. I have very
little contact with the American people, I am sorry to say. You
do, and the Members of the House probably even more. So if you
want to keep the Constitution up to date with current American
values, you ought to decide what it means and you could, you
know, kiss us goodbye.
Senator Feinstein. Thank you.
Justice Breyer. I would add one thing, that we have this
discussion from time to time in public. We have had it before.
It is very interesting, I think. I do not know if the audience
thinks so. And I have a lot of good arguments and
counterarguments. But I cannot resist asking him to make what I
think is one of his best arguments, because it is so funny.
Justice Breyer. When I produce really, really very good
arguments, I think, he responds with a joke.
Justice Scalia. Not the bear?
Justice Breyer. Yes, the bear.
Justice Scalia. What bear?
Justice Breyer. He cannot remember his joke. This is what
his joke is.
Justice Breyer. Every time I think I have really got very
good arguments here, what he says, ``Well, it is like the two
hunters,'' his view about what I say.
Justice Scalia. Oh, Okay. I will tell it.
Justice Scalia. There are those people who are always
criticizing originalism because it is not perfect. You know,
you have to figure out history and whatnot, and that is so
difficult. And my point is I do not have to show that
originalism is perfect. I just have to show that it is better
than anything else. And the story to exemplify that point is
about the two hunters who are out in the woods in their tent,
and there is growling in the brush near them. And they open the
tent flap, and there is a huge grizzly bear, and they start
running. And the guy who is a little heavier and is running
behind, says, ``It's no use. We are never going to outrun that
bear.'' And the guy who is running in front says, ``I do not
have to outrun the bear. I just have to outrun you.''
Justice Scalia. It is the same thing with originalism. I
just have to show it is better than his theory.
Chairman Leahy. Justice Scalia, you remember my son, Mark,
who used to play, when he was 8 or 9 years old, soccer with
your son. We used to stand sometimes on rainy Saturday mornings
watching these games. Then he went into the Marine Corps. One
of his Marine buddies ran a marathon through a game park in
South Africa with lions roaming around. He remembered that. He
used your line.
Chairman Leahy. And I must admit, in 35 years on this
Committee, this is the most unique discussion we have had in
the Committee.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman. Yes, this is
unique, and fun, too.
Let us talk a little bit--there are some high school
students out in the audience. How do you become a judge at the
Federal level?
Justice Breyer. Be appointed by the President of the United
States.
Senator Graham. Okay.
Justice Scalia. There is an Irish saying, Senator: ``Good
luck beats early rising.''
Justice Breyer. Often on a recommendation of a Senator.
Senator Graham. And from a politician's point of view, when
you pick a judge, you make one ingrate and ten people mad at
you. So it is a political decision under our Constitution? Is
it fair, Justice Scalia, for a President to look at the
philosophy of a person they would like to nominate to the
judiciary?
Justice Scalia. You know, I----
Senator Graham. Who appointed you?
Justice Scalia. Ronald Reagan appointed me.
Senator Graham. Do you think it was an accident Ronald
Reagan picked you?
Senator Graham. Do you think he went through the phone book
and said, ``Hey, this looks like a good guy''?
Justice Scalia. The Europeans sometimes criticize our
system because of the political appointment of judges. When you
place the appointment in the President and in the Senate--
anything the President or the Senate touches becomes political.
It should be political.
Senator Graham. And to any high school student out there, I
think it should be. And we are going to have an election in
2012, and one of the issues will be what kind of judges will
you pick if you get to be President of the United States.
Justice Scalia. There is nothing wrong with that.
Senator Graham. As a matter of fact, I think it is healthy
for the public to say, ``When I vote, the Supreme Court does
matter''--the lady at the supermarket--''I really should think
about who I am voting for because the Court does have a lot of
power, and I am going to consider that.'' Is that Okay, Justice
Breyer?
Justice Breyer. Yes, but you have to keep a couple of
things into account, and one is when you put on the robes, you
take off the politics. And that is over and over. But that is
not your--I am not going to disagree----
Senator Graham. That is not where I am going, if you would
just hang in there with me. Okay. So the whole idea that a
Republican conservative would campaign on picking conservative
judges is not only Okay, I think that is to be expected. Do you
both agree with that? And a liberal Democrat----
Justice Breyer. Well, here are my caveats. One, very often
at any level of detail, Presidents have been disappointed.
Teddy Roosevelt said of Oliver Wendell Holmes who in 3 months
decided the opposite way on an antitrust case, he said, ``I can
carve a judge with more backbone out of a banana.'' And
Presidents are sometimes disappointed even at the level of
general philosophy.
Senator Graham. Absolutely.
Justice Breyer. And that can happen. But as far as asking
me in a way about the rest of it is I have said--I say this a
lot, so I might as well repeat this joke because it has some
point to it. When I am asked about the confirmation process and
the nomination process, I remind people that I was the person
who was nominated. I was not the nominating person. I was the
person who was confirmed. I was not the confirming person. And
to ask me about those processes is slightly like asking the
recipe for chicken a la king from the point of view of the
chicken.
Senator Graham. Okay. Fair enough.
Senator Graham. But that does not mean I cannot keep
asking.
Justice Breyer. No, no.
Justice Scalia. Senator, can I? I agree that politics is a
check on the Court. When the Court gets too big for its
britches, the one check is the political confirmation process
and appointment process.
However, in my view, when the Court is operating properly,
when it is not applying its own view of what the Constitution
ought to be but is interpreting the legal text, as lawyers do,
understanding the meaning of those words and the history behind
those words, there is a lot less need for politics to intervene
I mean, there is no such thing as a Republican good lawyer and
a Democrat good lawyer. You are either a good lawyer or you are
a bad lawyer.
Senator Graham. I could not agree more, but the point I am
trying to make is that we do have a political person appointing
judges and political people confirm the judges. That is the way
it works.
From a Federalist point of view, Justice Scalia, since I
have not read all the Federalist Papers and do not expect to--
and that probably says bad things about me, but at least I am
being honest--should a Senator say no to an appointment because
it is of a different philosophy than the Senator himself or
herself would have chosen?
Justice Scalia. Senator, I have views on that, but I do not
think it is appropriate for me to express them.
Senator Graham. Okay.
Justice Scalia. I leave you alone, and you generally leave
me alone.
Senator Graham. Okay. Well, let us talk about the
confirmation process. You both have been through it. How many
votes did you get, Justice Scalia?
Justice Scalia. 98, Senator.
Senator Graham. How many did you get, Justice Breyer?
Justice Breyer. I think I only got 88, but who is counting?
Senator Graham. Okay. I bet you remember the 12, too, don't
you?
Senator Graham. The point I am making is that since I have
been here, it is getting more and more difficult to get someone
through the process. Do you worry at all that the confirmation
process, if it gets too out of hand, will have a chilling
effect on recruiting the best and the brightest? Is that a
concern at all to members of the Court?
Justice Scalia. Oh, I think it has had that effect already
at the court of appeals level.
Senator Graham. What is the biggest threat to an
independent judiciary as you see it in America right now?
Justice Scalia. Well, this will surprise you. My view is
that Federal judges ain't what they used to be. When I got out
of law school, there were 67 court of appeals judges, two-
thirds as many as Senators. It was a big deal to be a Federal
court of appeals judge.
Senator Graham. Can I interrupt you?
Justice Scalia. Yes.
Senator Graham. And I hate to do this. Two-thirds of the
people coming to the judiciary today come from the public
sector. Thirty years ago, two-thirds came from the private
sector.
Justice Scalia. I was getting to that.
Senator Graham. We are becoming a European model.
Justice Scalia. That was my point.
Senator Graham. Good.
Senator Graham. I have only got 18 seconds, so we have got
to get there.
Justice Scalia. Okay. That is exactly my point. And the
main difference in my mind between the common law system and
the European system is the difference in the character of the
judges. In the European system, a judge is a bureaucrat who has
been a judge all his life----
Senator Graham. And I would argue that we are creating--
because of pay problems, confirmation problems, we are going to
gut our judiciary of the best and the brightest if we do not
watch our politics and the way we take care of our judges.
Would you please comment, Justice Breyer?
Justice Breyer. I would think there is much truth to that.
Much truth to that. The great thing, I think, in the Federal
judge is that the Federal judge always was, and I would hope
always will be--the Federal district judge is where it is
important, too. You know, a Federal district judge is a local
person, and he understands or she understands that community.
And he or she will sit on the bench, and this is a fairly high
level official, and that official will make it apparent to the
community that he or she is willing to give up that personal
time face to face with anyone in that community, rich or poor,
who has a problem that calls for the work of the judge and that
time is given. That is not a bureaucrat. That is not an
administrator. It is not an elected official. It is a different
job. But here in this country, this person who is supposed to
be and is a pretty high level official gives you the time, Mr.
or Mrs., that your problem calls for. And that is shown in the
way the courthouse looks. It is shown in the attitude of the
judge. It is shown in the way the community responds to the
judge. And all of that is part of an institution, and
institutions are not built overnight, and they can be hurt.
And so the thrust of your question is how do we maintain
the strength of what has really been a unique institution in
the world, and it is not just the Supreme Court now. It is that
entire Federal judiciary at all levels. And I am glad you are
interested in that, and I think it is a problem. And I do not
have a definite solution, but some of the things you have
mentioned are certainly part of the mix.
Justice Scalia. It is not just the pay. It is also the
numerosity, and the numerosity goes back to the laws you pass.
I think it was a great mistake to put routine drug offenses
into the Federal courts. That is just routine stuff that used
to be handled by State courts. If you want excellent Federal
judges, you want an elite group, and it is not as elite as it
used to be.
Chairman Leahy. I would note that I agree with you on that.
Having been a prosecutor in the State system, there are too
many things going to the Federal system.
I would also note Senator Graham raises some very good
questions on this, and I know we have pending right now,
waiting to be confirmed, stalled on the floor by objections I
guess somewhere, judges that would represent over 100 million
Americans who have vacancies today. The Chief Justice has said
that we ought to--he has called it critically--he spoke of the
critically overworked districts. Frankly, I think we have to do
a better job of getting these people confirmed; I do not care
who is President. But also, Justice Scalia, there are too many
things before Federal courts that should be in the State
courts. It is like the old days of J. Edgar Hoover. If you
found a stolen car, they wanted to claim it so they could say
how much money they had recovered. It is not the place.
Senator Durbin, Senator Blumenthal has yielded to you to go
first and he will go next. Senator Durbin?
Senator Durbin. I want to thank my colleague from
Connecticut. I am in his debt.
Thank you both for being here for this historic meeting of
the Senate Judiciary Committee. Most people are not aware of
the fact that we have a rather unique dinner where the Senate
visits the Supreme Court and we have a chance to break bread
with our families and have an informal moment. And I will not
give this Justice's name, but the last time we got together, I
mentioned to one of your colleagues, who has been on the bench
for some period of time, that I was Chair of the Subcommittee
on the Constitution, Civil Rights, and Human Rights. And I
asked your colleague, without attribution, if I could ask you:
``What do you think I should be taking a look at in that
Constitution Subcommittee, gauging the issues that come before
your Court, the constitutional questions that present
themselves to our generation, under the civil rights/human
rights category? '' And it was interesting. That Justice's
response was, ``You ought to take a look at the number of
people who are in prison in the United States of America.''
I am aware of it, and I am sure you are, too. Over 2
million people incarcerated in our jails and prisons; more
prisoners per capita than any other country in the world;
obvious overcrowding; and terrible racial disparities in terms
of those who end up in prison in our country. African-Americans
six times the rate of Caucasians' incarceration. A 2009 study
showed that one out of every 11 African-Americans is in prison,
on parole, or on probation.
Senator Sessions and I joined forces in a rare bipartisan
show here and addressed the crack cocaine sentencing disparity.
I think we could have done it differently, but we reached an
agreement--and that is pretty historic when you consider the
different philosophies that were part of that agreement--in an
attempt to reduce some of this incarceration. I am not going to
hold you to that particular issue but ask you if you would like
to comment. Where do you think we should be making inquiry at
the Congressional level when it comes to our Constitution and
the challenges we face today?
Justice Breyer. What would we think? I would think it is
fine that you are going into that. Sentencing is part of that;
mandatory minimums are part of that. There are a whole range of
things. There have been articles in the newspapers about all
kinds of elements which are not within our control necessarily,
but, I mean, that are really within your control in the
sentencing area, the prosecution area, the criminal area. That
is a huge matter, and I am glad you are going into it.
Senator Durbin. I do not want to confine you to that if
there are other issues that you think are worthy of at least
inquiry at this point.
Justice Scalia. I am going to pass. This is within the
category of, you know, I leave you alone, you leave me alone.
It is your call. It is a policy question.
Justice Breyer. It is a policy question.
Justice Scalia. I do not really want to get into it.
Senator Durbin. All right. I have another question, and
this relates to the question of ethics, which it turns out is
handled differently in our different branches of Government. As
someone who has been involved in political campaigns and public
service for a long time, I obviously know the need for us to
not only be honest in our dealings, but to have the appearance
of honesty in our work. Our major ethics laws accomplish this
by imposing certain restrictions. For example, every other
Member of Congress, our staffs, the entire executive branch of
Government, and all Federal judges are restricted from
receiving certain gifts and outside income under the Ethics
Reform Act of 1989. The members of the Supreme Court and its
employees are the only employees of the Federal Government who
are exempt from these restrictions.
Do you believe the Supreme Court should be required by law
to follow the same financial restrictions as everyone else in
Government?
Justice Breyer. Oh, no, no. We are. I certainly have
thought so. We file these long reports every year, quite
expensive to prepare, where every penny that I take in, or my
wife or my minor children, every asset has to be listed in
depth, and it is all filed. And the amount of money that you
can take from anyone outside is far more limited, I believe,
under the codes of ethics than people who are not judges.
Judges have special restrictions there. And so I do not think
that the life of the judge in terms of ethics is less
restricted than the life of any other member of the Government,
to my knowledge.
Senator Durbin. Incidentally, I should preface this by
saying no reflection on either one of you.
Justice Breyer. I understand.
Senator Durbin. But I would just say I anticipated that
answer, and I understand that the Court is bound by these
restrictions by a Court resolution adopted 20 years ago in
1991, and I wonder if you could tell me about that resolution.
It is not public law like the Ethics Reform Act. Would you
agree that this resolution should be more public?
Justice Breyer. I think there are several different things.
I think one is what money you can take, or cannot take for the
most part, the reporting requirements, and some of the general
ethics requirements that you cannot sit in cases. Those are
statutory, and I think they bind us, period. I have always
thought so. I mean, I have never heard to the--now, there are
some that are just in this ethics volume. That is probably what
you are thinking of. If you were to ask me which ones are they
specifically, I could not answer. I do not know. But there are
some that fall in that category.
So probably like most of us, I have this whole--it used to
be seven volumes. Before, if I had an ethical question, when I
would recuse myself or something, I would go look and see what
they say. And I did not distinguish in my own mind whether they
are legally binding or whether they are something I just
follow. And so I read them, and if I have a problem, I call an
ethics professor. Everybody has some such system. You know,
they have to figure out--there is no one who wants to violate
any of those rules.
Now, there is a big difference between the Supreme Court
and the lower courts, and the difference is simply this: When I
was on the court of appeals, if I had a close question, I would
take myself out of the case. They will put someone else in. One
judge is as good as another, frankly. But if I take myself out
of the case in the Supreme Court, that could change the result
because there is no one else to put in. And the parties,
knowing that--I am not saying they would, but it is possible to
try to choose your panel, which is undesirable in the Supreme
Court.
So what that means is that there is an obligation to sit
where you are not recused as well as an obligation to recuse.
And sometimes those questions are tough, and I really have to
think them through, and I have to make up my own mind. Others
cannot make it up for me. And that is a very important part, I
think, of being an independent judge. We are given tough
questions to answer.
And so the answer is, A, there is a big set where we are
bound by law; B, there is a set where we may not be bound by
law, but we are bound in practice; and, C, in that set, whether
it is law or practice, we, I think, have to think it through
and try to work out which is the predominant force there.
Senator Durbin. I do not have any more time left, and I do
not want to disadvantage Senator Blumenthal, but my next line
of questioning was how much of this should be known to the
public.
Justice Breyer. I have just made it known to the public.
Senator Durbin. The question is whether--for example, we
make disclosure as Members of Congress that would lead to
conclusions as to whether we are in a conflict situation. I do
not believe the same public disclosure is made at the Supreme
Court level, is it?
Justice Breyer. It is pretty much--I cannot say 100
percent, but, I mean, if there is a difficult question, usually
there is a press inquiry. And I know, you know, sometimes we
write opinions about it, and usually the press gets an answer.
So I am not sure that there are things that matter where--you
know, like I have to take myself out of quite a few cases
because my brother is a judge in San Francisco, and so if I
recuse--or I take myself out because he was sitting on the
case, I usually tell Kathy Arberg, our press officer. I say--
well, this is normally off the record because I do not want a
long article, but I will say, ``Just tell them the reason I am
not in that one is because my brother is in it, Okay? '' And so
I do not think there is some kind of secret thing that goes on.
I cannot prove it so in every case, but I cannot think of any
case.
Senator Durbin. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. I am going to go to Senator Lee,
but at this point, if I might have your indulgence, and you can
answer this one very quickly. You talked about if one of you
has to step out, there is nobody else to step in. We have three
retired Supreme Court Justices now. In all our courts of
appeals and our district courts, those who have taken senior
status can step in if there has been a recusal or a necessity.
How would you feel about allowing former Supreme Court Justices
to step in if there is a recusal?
Justice Breyer. I have not thought that one through.
Justice Scalia. Who is going to pick the former Supreme
Court Justice to step in?
Chairman Leahy. I would assume the Chief.
Justice Scalia. Well, I do not think that would make
anybody happy, to tell you the truth.
Chairman Leahy. Well, then, how about the remaining eight?
Justice Breyer. I do not know.
Chairman Leahy. By a majority vote.
Justice Scalia. I do not know that that would make anybody
happy either. What if it is 4-4?
Chairman Leahy. Then you do not have somebody.
Justice Scalia. No, I think we can stumble along the way we
are.
Justice Breyer. You are getting the reaction, you know, do
not change anything, but that is the--I have not really thought
that one through. It sounds--there might be problems. I do not
know.
Chairman Leahy. I may chat with you more about this one.
Senator Lee, thank you very much.
Justice Scalia. I do not think it is much of a problem,
Senator. There are very few cases where we affirm by an equally
divided Court. How many the last term?
Justice Breyer. Very few. There are some occasionally.
Justice Scalia. It is very rare that that happens.
Chairman Leahy. Thank you. Senator Lee?
Senator Lee. Thank you, Justice Scalia and Justice Breyer,
for joining us. It is an honor to have you here today.
Justice Scalia, I wanted to follow up on some things you
had said in your opening statement along the lines that it is,
and properly should be, a difficult, cumbersome, time-consuming
process in our constitutional republic to enact legislation. I
think the courts can and should play a significant role in
ensuring that that is always the case. The Court certainly has
played a role in the past in cases like INS v. Chadha, in which
the Court has stepped in and said, notwithstanding the fact
that you, Congress, may have found something that makes the
process of legislating easier or perhaps even more efficient,
you have not dotted your I's and crossed your T's in the same
way that we contemplated under Article I, Section 7, Clause 2,
requiring bicameral passage and then presentment, and so this
provision is invalid.
So let me ask the question: Is there also a role for the
courts, can you foresee a role for the courts in other
situations in which Congress, some future hypothetical
Congress, might do something different that would prove easier
and more efficient, but perhaps in a way that is antithetical
to the Constitution?
For instance, let us suppose that Congress, when
legislating on the delicate and pressing issue of maintaining
the proper records in the dog-breeding industry, since we are
talking about Federal legislation, these would, of course, be
dogs either moving in commerce or taking advantage of some
channel or instrumentality of interstate commerce, but a law in
which Congress just passes a law saying we are outsourcing, we
are delegating the authority to regulate dog breeding and
recordkeeping for purebred dogs to the board of directors of
the American Kennel Club. That passes both Houses of Congress.
It goes to the President. It is signed into law, and we then
have outsourced the regulation of this practice to the American
Kennel Club. Is that a situation in which you can anticipate
the Court might step in?
Justice Scalia. Well, I would step in. I do not know if the
Court would. I was the dissenting vote in the first case
involving the constitutionality of the Sentencing Commission. I
hate to mention this with my friend Stephen here since he was
on the Sentencing Commission. When Congress created a
Sentencing Commission with no other function than to decide how
many years everybody should spend in jail because, presumably,
Congress did not have the time to figure it out for themselves,
I did not think that that was constitutional. So I am sure I
would not like your dog-breeding body either. But I cannot
speak for the Court. I do not know what the Court would allow.
Senator Lee. But for you personally looking at it,
notwithstanding the fact that it is more efficient,
notwithstanding the fact that you do have bicameral passage and
you have presentment of this hypothetical law, the problem is
that you have delegated the lawmaking power.
Justice Scalia. Exactly.
Justice Breyer. You have to be careful because John Jay--I
just read this in John Stevens' book. It is pretty good. In the
first chapter, he says John Jay, first Chief Justice, and
George Washington went to him and said, ``I have a lot of
questions here. I do not want to do anything unconstitutional.
Here are a bunch of them. Will you answer them? '' And John Jay
said, ``No. No advisory opinions. I am not giving any''--but
the real reason, of course, is he did not know the answer.
Senator Lee. And he was right. And his tenure on the Court
proved to be short-lived, in any event.
Justice Scalia. Now, the situation you pose is quite
different, of course, from your leaving it to an agency to----
Senator Lee. How is it different then? How do those differ?
Justice Scalia. Well, because when you leave it to an
agency, you are giving it to the executive. The executive can
make rules. You cannot run an executive operation without
making rules. The doors open at 8 o'clock. If you are running
the Interior Department, say that no fires are allowed on
public land, or that private cattle can be grazed on it. It is
up to the agency to make rules. But there is an obstacle that
discourages you from giving too much power to the executive
agency because you are increasing the power of the President--
your competitor, the President. You know, the separation of
powers with different branches competing. And there is no such
disincentive when you leave it to this private group that you
are talking about. That is just a pure delegation of
legislative power. You are not authorizing an executive to act
like an executive, but you are delegating legislative power to
a group that has no executive responsibilities.
Senator Lee. So the difference, you would insist, is based
on the fact that this is an executive branch agency, which at
least in theory is subject to the disposition, subject to the
control, to the direction of the Chief Executive?
Justice Scalia. I think that is right. We are talking here
about the doctrine of unconstitutional delegation of
legislative authority, which is a bad name for it because there
is no such thing as a constitutional delegation of legislative
authority. You cannot delegate legislative authority.
Now, when you give rulemaking to an agency, how far can you
go? Can Congress just get together and say the President can do
anything he wants and adjourn? Of course not. That has to be
unconstitutional. But is it up to the courts to decide where
the line is drawn between giving enough authority to the Chief
Executive and too much authority? It is simply a non-
justiciable question, and I for one would not apply--would not
let the courts apply the doctrine of unconstitutional
delegation where the delegation is to the executive.
Senator Lee. As long as it is to the executive branch
agency, then even----
Justice Scalia. I would not get into it. Some of my
colleagues would, I suppose.
Senator Lee. Even in the extreme situation where we passed
a law saying, for example, we shall have good law, the power to
make good law is hereby delegated to the Department of Good
Law, which is hereby created?
Justice Scalia. Oh, you got me. I would do that one. All
right. But that is not going to happen.
Justice Scalia. I am talking about any real situation. I
cannot imagine my sticking my toe in that water.
Senator Lee. Okay. Okay. And, Justice Breyer, I had a
question for you. I have really enjoyed reading parts of your
new book, ``Making Our Democracy Work.'' It is very well
written and fascinating. I think it is good reading for any law
student or lawyer or American who wants to learn more about the
system.
You suggest in your book at page 126 that there is rarely
an easy answer to the question of what level of Government
should be primarily responsible for helping to resolve the
problems that potentially call for legislation and that the
question usually turns on empirical information such that facts
help determine the answers.
You go on to explain on pages 125 and 126 that very often
this means that the courts ought to step aside and, if I am
understanding you correctly, have Congress more or less decide
the precise contours of the boundaries of federalism. Am I
understanding the book correctly in that regard?
Justice Breyer. Yes, that is right. You go into the
abstract, but if you start talking abstractly, the trouble is
you can characterize any individual situation usually in 15
different ways at different levels of abstraction. And
depending on how you characterize it, it will seem appropriate
for a Federal answer, or it will seem appropriate for a State
answer or local answer. Is it a police department problem? You
say, well, it is arresting somebody; yes, yes, but you are
arresting him for having guns. Well, it is a State problem.
Well, but the guns are torpedoes and they are only made
internationally. You know, and so that is so complicated and
difficult that it is hard for the courts to find a general
principle there. That is my point there.
Senator Lee. So if that is the case and if it is also the
case that, as we are reading Federalist No. 45, the powers of
the Federal Government are few and defined, whereas those of
the States are numerous and indefinite and Members of Congress
should read the Constitution, decide what those contours are,
and restrain ourselves rather than waiting for the courts to
step in and say, no, you have overstepped the bounds----
Justice Breyer. My point that I was making there is you are
elected by officials in a State, and so you will make such
judgments on such matters as you believe are appropriate in
light of how people--partly how they feel and partly what you
are trying to represent, but a lot of that is your decision.
Justice Scalia. Senator, of course you have to make those
constitutional decisions. You take the very same oath that I
take. The only reason I can look at a Federal statute and say I
have to disregard this because it does not comport with the
Constitution, the only reason is that I have taken an oath to
uphold the Constitution. You take the same oath. And we give
deference to legislation on the assumption that the Members of
the Senate and of the House have tried to be faithful to their
oath. And if indeed they are not even looking at or even
thinking about the constitutionality of it, that presumption
should not exist. So, yes, of course, you----
Senator Lee. So in that respect and to that degree, our
oath to uphold the Constitution, our commitment not to overstep
the bounds of federalism means more than simply doing that
which NLRB v. Jones and Laughlin Steel or Wickard v. Filburn
might say that we can get away with in court.
Justice Scalia. Well, I think you have to make your own
decision about constitutionality. In normal times you follow
what the Supreme Court law has said. But we do not strike down
any of your laws. People sometimes say, ``It got struck down.''
We never strike down your laws, gentlemen. We just ignore them.
Justice Scalia. Where your law does not comport with the
Constitution, it seems to be a law but really is not, and so we
ignore it and apply the rest of the law, the statute
notwithstanding, as one of our early cases put it. But it is
really you--you have the first cut, and the most important cut.
Senator Lee. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Next we will go to Senator Blumenthal, and I thank you
again for letting Senator Durbin go out of order.
Senator Blumenthal. Thank you. Thank you, Mr. Chairman, and
thank you for having this hearing. Thank you, Justice Breyer
and Justice Scalia, for spending so much time with us and
having so much patience with our questions.
Before coming here--and as you may know, I am one of the
more junior Senators--I was Attorney General of the State of
Connecticut--I did not have the honor of knowing Mr. Root--for
about 20 years, and the highlight of those 20 years was the
cases that I argued before your Court, so I have been waiting
for the day----
Justice Scalia. This is payback?
Senator Blumenthal [continuing]. When I could interrupt you
as mercilessly and relentlessly as you did me.
Senator Blumenthal. And give you as hard a time. But,
fortunately, in those cases--I think there were four in all
that I argued--you decided the right way, so I am going to
avoid the temptation. But I was very impressed and moved by
your explanation as to why you think it is so important for the
public to understand and appreciate what judging is and what
role it plays in our system. And I agree with you totally that
not only is there the need, but there now is the lack, really,
of that understanding.
And so I guess I say as not only one who has argued but
also as a former law clerk who sat through a year of arguments
and learned so much about the system in that process, why not
open it to video recordings? Why not in the Federal courts give
the public the benefit of seeing it firsthand in your Court and
other Federal courts and so appreciate really the quality as
well as the diversity and the extraordinarily often
excruciating difficulty of what you do?
Justice Scalia. I will start. Senator, when I first came on
the Court, I was in favor of--you are just talking about
televising the arguments, right?
Senator Blumenthal. Correct.
Justice Scalia. Not the conference. You know, the Brazilian
Supreme Court televises their conference.
Senator Blumenthal. I would never presume or think of
televising the conference.
Justice Scalia. Thank you.
Chairman Leahy. Nor would I.
Justice Scalia. I was initially in favor of televising
argument, but the longer I have been there, the less good an
idea I think it is.
The justification usually put forward is we want to educate
the American people about what the Court is and does. Now, if I
really thought the American people would get educated, I would
be all for it. And if they sat through a day of our proceedings
gavel to gavel, boy, would it teach them a lot. They would
learn that we are not most of the time looking up at the sky
and saying, ``Should there be a right to this or that? '' but
that we are doing real law, the Bankruptcy Code, the Internal
Revenue Code. People would never again come up to me and ask,
as they sometimes do, ``Justice Scalia, why do you have to be a
lawyer to be on the Supreme Court? The Constitution does not
say so.'' No of course it does not. But 99 percent of what we
do is law. It is stuff that only lawyers can do. And if the
people would learn that, it would be a great piece of
education.
But for every ten people who sat through our proceedings
gavel to gavel, there would be 10,000 who would see nothing but
a 30-second outtake from one of the proceedings, which I
guarantee you would not be representative of what we do. So
they would, in effect, be given a misimpression of the Supreme
Court. I am very sure that that would be the consequence, and,
therefore, I am not in favor of televising.
Senator Blumenthal. But it would for high school students
or even middle school students and for the general public who
were interested in an important and pertinent case provide a
means for them to see what right now only a very limited
audience can view because of the size of the Court.
Justice Scalia. Yes, but for those who are interested in it
for those intellectual reasons, surely the tapes are good
enough.
Senator Blumenthal. Well, the tapes, with all due respect--
and I understand your argument--do not convey in the same way
with as much interest the kind of debate, the back-and-forth,
the visual sense of the action in Court, and I know and you
know really how dramatic it can be.
Justice Scalia. Yes, well, we just sit there like nine
sticks on chairs. I mean, there is not a whole lot of visual
motion. There really is not. It is mostly intellectual motion.
That is all I----
Senator Blumenthal. Well, I can say it certainly is
gripping if you are answering questions.
Senator Blumenthal. Justice Breyer, do you have a different
view.
Justice Breyer. Sort of, a little, but it is that we are
conservative. And you would be too, if you were there. The
Court has lasted the country well and served the country well
over a long period of time. We are there for a short time. We
are trustees. And we do not want to make a decision that will
be non-reversible and hurt the Court. So you start there. And
then sometimes I think--you know, when we had the term limits
case out of Arkansas, I just wish people could have seen that.
It was such a good case. You had Jefferson and Story on one
side and Madison and Hamilton on the other side, and it was the
term limits. And what you saw is everything evenly balanced
with the precedents and are the--I will not go into the case,
but if they could have seen that across the country, people
would have been able to see in that oral argument nine
individuals struggling with a really difficult and important
constitutional question. That would have been good for the
Court and everybody.
All right. So what is the problem? Well, one problem is
that we are a symbol, and if it were us in our Court, you could
probably be in every criminal case in the country, and you
would get rid of what? What would we do with jurors? What about
the criminal witnesses, et cetera? And you do not know what
happens with symbols. Or would people come up with a
misimpression, namely, the oral argument is 5 percent of the
case, 3 percent of the case. It is really done in writing, and
they do not see that. And, more importantly, people relate to
people. You relate to people. I do. When you see them, they are
your friends or not your friends, or whatever. But we are
making decisions that are there to affect 309 million people
who are not there. And in our minds, we have to take those 309
million into account. And will that come across?
And then there is the problem that Justice Scalia
mentioned, which is, Nino says quite right, you know, you can
make people look good or you can make them look bad, depending
on what 30 seconds you take, and it is already cult and
personality, and let us not make it worse. We wear black robes
because we are speaking for the law, not for ourselves as
individuals, and that is a good thing.
So add those up, and you say I do not know. I would like to
know more. I really would. There are places that have it and do
not have it. There are courts that have it and others that do
not have it. There is Canada that has it. There is California
in some situations. You have a hundred different situations in
respect to that. Why can't we get some real information, not
paid for by anybody that has an interest in this, but Pew or
some of the foundations, and see what happens to attitudes, to
judicial attitudes, to others.
So what you are getting, I think--and maybe eventually, you
know, it is going to be there is no other way to see things but
visually, and everybody is doing that, and then it will not
even--it will just seem weird, what we do now, and it will all
change. But before that time, I think--it is a little boring,
but I think information is something that would make me easier.
And until I become easy about it, until we become reasonably
convinced that will not hurt the institution, you are going to
get a conservative reaction. That is what I think is the truth
of it.
Justice Scalia. Senator, it may be unfair to put this
question to you since you are such a youngster here, but do you
really----
Senator Blumenthal. That is the best thing that has been
said about me in a long time.
Justice Scalia. Do you really think the process in the
Senate has been improved since the proceedings have been
televised?
Senator Blumenthal. Well, just as you took a pass earlier--
--
Senator Blumenthal. I think that there are mixed views, but
in general, I think that openness and transparency improves
institutions. And for all the reasons that you have so
eloquently talked about your role in educating the American
public, I think that an audio and visual recording of Supreme
Court proceedings would potentially do the same. And I think
that whatever the result of televising Senate proceedings--and
I was only facetious when I said I would take a pass--I do
think that it has been a step in the right direction of
providing more transparency and disclosure and understanding on
the part of the public.
Now, I will let you and the public be the judge of how it
views us, but I think in general Americans should understand
the challenges as well as the role that their institutions
face. And since my time has expired, I want to thank you again
for being here, and I am not at all dismissive of the points
that you have made. On the contrary, I have great respect for
them. But perhaps we can provide you with some more information
that would be persuasive in the advantages and the positives in
those kinds of greater availability or accessibility.
So thank you for being here today, and I also want to thank
you for raising the issue of State courts, because I am one who
has spent a lot of time in State court. You often have to
consider the results of State courts, and all too often, we in
this body fail to understand how integral the State courts are
to dispensing justice in this country.
Thank you.
Chairman Leahy. Thank you very much.
Senator Sessions, you have been waiting patiently.
Senator Sessions. Thank you, Mr. Chairman, and I thank both
of you for attending and your good comments and insight. I hope
the young people have appreciated this.
I would say to the young people, having traveled around the
world in this role for a number of years, we have the greatest
legal system in the history of the world. We really do. It is a
marvelous thing of inestimable value to this republic. People
can rely on fair dealing in court. They can invest large
amounts of money. They can place their liberty at risk and feel
like consistently they are getting a fair day in court.
I practiced virtually full-time before Federal judges as
United States Attorney and Assistant United States Attorney for
14 years, and when I had the law on my side, I almost always
won. The rulings were for me. If the law was not with me, I
lost. I think that happens in courts pretty much all over
America, and judges try to do that.
Justice Scalia, I do believe it is law, and it does take a
lawyer some time to dig through these matters and understand
the precedent. But I guess what I would say is the American
people do care. They have a high opinion of the Court. They
believe that you should follow the law. And the greatest threat
to the Court, in my opinion, is if the American people believe
that judges are consistently redefining the meaning of words to
advance their agenda, their views, whether conservative or
liberal, and that law is not the essence of what you do. And
that is just my own observation from the political world and
the legal world.
With regard to Senator Graham's comment, I think there is
an area which we can respect as to the more activist or the
more living constitutional view of the Constitution. But if it
goes beyond that, in my view the judge should not be confirmed.
The nominee should not be confirmed. I have to know that when
they say that they understand they will serve, as the oath
does, under the Constitution and under the law, that they are
willing to comply with that. So that is how we wrestle with
these issues, and each Senator has a different standard.
Justice Scalia. You do not scare me, Senator.
Senator Sessions. No. Professor Van Alstyne made a speech
to the 11th Circuit one time, and he said, the essence, what he
called on the judges to do was, in his view, to enforce this
Constitution. He concludes with, ``We established this
Constitution for the United States.'' And he said, ``The good
and bad parts, whether you like it or not, in the long run that
document will be stronger and a greater bulwark if the courts
enforce it as it is written, this Constitution.'' Would you
agree with that? I will ask you both just to discuss that
point.
Justice Scalia. Yes, sir, I certainly do agree, and I
think--I have said this in some talks--I think that the--what
shall I say?--controversial nature of recent confirmation
proceedings is attributable, to some extent, to the doctrine of
the living Constitution. When you indeed have a Supreme Court
that believes that the Constitution means what it ought to mean
in today's times, it seems to me a very fair question for the
Senate to ask or for the President to ask when he selects the
nominee: What kind of new Constitution would you write? You
know, do you believe this new right is there or this old right
is not there? It seems to me it is much less important whether
the person is a good lawyer, whether the person has a judicial
temperament. What is most important is what kind of a new
Constitution are you going to write? And that is crazy. I mean,
that is like having a mini-constitutional convention every time
you select a new judge.
So, you know, I am hopeful that the living Constitution
will die, and----
Justice Breyer. I know what you said, of course I agree
with that. It is this Constitution. I said ``Constitution''
because I want you to think of John Marshall's famous words.
``It is a Constitution that we are expounding.'' And he is
thinking that that document has to last us for 200 years. And
as I say, that does not mean you change the words. But the
hardest problem in real cases is that the words ``life,
liberty, or property'' do not explain themselves, ``liberty,''
nor does ``the freedom of speech'' say specifically what counts
as the freedom of speech. And, therefore, there is a job, and
lower court judges come to different conclusions on the same
difficult question of what happens when you are on the Internet
and you reveal somebody's personal information and then it is
picked up in a newspaper and how does the freedom of expression
invade there? Does it extend to that invasion of something the
person would like to keep personal? And does it depend on who
he is, da, da, da? In other words, it is very complicated. And
trying to apply this Constitution with those values underlying
the words, to circumstances that are continuously changing, is
not something that can be done by a computer. Neither of us
thinks that. No one thinks that. And, therefore, it calls for
human judgment, and as soon as human judgment enters the
picture, fallibility is possible.
And then some of us think that, oh, but by really reading
that history carefully, we can get answers, and beware of the
judge like me, all right, who tries to look to see what are
circumstances now and how does it fit today, because there is a
risk with me that unbeknownst to me myself, I will become too
subjective and will tend to substitute what I think is good for
the Constitution as it was written and intended to apply. And
what I say is, yes, you are right about that, and all I can do
is be on my guard, write my opinions, try to look to objective
circumstances.
And I see the opposite danger. The opposite danger is
called rigidity. The opposite danger is interpreting those
words in a way that they will not longer work for a country of
308 million Americans who are living in the 21st century, work
in the way those Framers would have wanted them to work had
they been able to understand our society. And all that is in
those words. It is a Constitution we are expounding.
Senator Sessions. Well, do you do polling data or do you
have a hearing to determine whether it will work or not like
Congress does? Or do you just----
Justice Breyer. What do you do? I mean, you have to look at
the examples there. What is a good example where we did not
agree? I mean, you know, there are cases when you say, ``Will
it work? '' What you are doing is looking to what are the free
speech consequences? We had a case where somebody took a tape
recording of something that was in the public interest but it
involved somebody's personal conversation, and then threw it
over the transom into a newspaper. And they printed it, and
there was a law saying you could not wiretap to get that
information. And how did that all fit within the framework of
free expression?
And so what you try to do is try to see what are the risks
to the expression, what are the expectations of the individual,
and you have 42 briefs filed that are helping you on that. So I
said that----
Justice Scalia. Those are new phenomena, Stephen. We are
not talking--you and I do not disagree very much on new
phenomena.
Justice Breyer. You see, he is right with me on that. I do
not know why he did not join my opinion.
Justice Scalia. On new phenomena you have to calculate the
trajectory of the First--let us take as an example the First
Amendment, the freedom of speech. It was absolutely clear when
the people ratified the First Amendment that libel was not part
of the freedom of speech, and that included libel of public
figures such as you gentlemen. But the Supreme Court in a case
called New York Times v. Sullivan, a marvelous example of the
living Constitution, just decided it would be a good idea if
there were no such thing as libeling a public figure so long as
you have good reason to believe the lie you tell about him.
Now, I think, Who authorized the Supreme Court to change
the law? That may indeed be a very good rule, and the people
are free to adopt that rule by legislation. New York could have
amended its laws to eliminate libel for public figures. So do
not charge the prior system with inflexibility. What is
inflexible is the inability now to change the libel law that
the Supreme Court has instituted throughout New York Times v.
Sullivan. It may be a good law, it may be a bad law, but you
cannot change. Nobody can change it. I guess we can change it.
Senator Sessions. Mr. Chairman, could I just thank both of
these witnesses for their great comments? I would note, Justice
Breyer, that I voted for well over 90 percent of President
Obama's nominees, but I do think we have a range in which if
you believe they are too flexible about interpreting the
Constitution, then I would conclude they are not faithful to
the Constitution and, therefore, I could not support them, even
though they may be wonderful, decent people, intellectually
gifted in that regard. And one of my standards is a death
penalty case. Any judge that says the U.S. Constitution calls
for the elimination of the death penalty really should not be
on the bench. At least they will not get my vote for the bench.
But we all have individual standards, and we wrestle with
that. But all in all, we have got a great judicial system. I
congratulate you.
Justice Scalia. Thank you, Senator.
Justice Breyer. Thank you.
Chairman Leahy. I am resisting a temptation.
Senator Whitehouse will be our last person to question. I
cannot thank the two of you enough for being here, and I will
say something after he finished.
Senator Whitehouse.
Senator Whitehouse. Gentlemen, let me join the Chairman in
thanking you for being here. As two individuals who have been
here for the confirmation process, I am impressed that you are
willing to return.
Justice Scalia. It was not bad for either of us, I do not
think.
Senator Whitehouse. It has gotten livelier.
We have talked a lot today about the role of the judiciary
in the larger American system and architecture of Government,
and I wish you would say a few words about the role of the jury
within that architecture and whether or not you see the jury as
just a little piece of fact-finding machinery for dispute
resolution or whether the Founders and you saw and see a larger
role for it as a political, small ``P,'' institution in our
system of Government. Is it an important piece of our
governmental architecture as well as opposed to our dispute
resolution system? And if so, how?
Justice Scalia. Absolutely is, which is why it is
guaranteed in the Bill of Rights in criminal cases and, indeed,
in all civil cases at common law involving more than $20. The
jury is a check on us. It is a check on the judges. I think the
Framers were not willing to trust the judges to find the facts.
Indeed, you know, at the beginning, or when the
Constitution was ratified, juries used to find not only the
facts but the law. And this was a way of reducing the power of
the judges to condemn somebody to prison. So it absolutely is a
structural guarantee of the Constitution.
Senator Whitehouse. Justice Breyer.
Justice Breyer. Yes, I think it is very important. I have
never been a district judge. I was an appeals court judge. But
my brother is a trial court judge, and I was there a while ago
in San Francisco, and he said, ``I want you to see me select a
jury. You should not go through your''--I was on a jury in
Massachusetts, actually. I got selected. But he said, ``You
should not go through your life without seeing that.'' And he
said, ``Congratulations,'' at the end. ``You and Justice
Sotomayor now know how to select a jury. At least a little.''
All right. I saw a morning pass which was just terrific.
You take 12 people randomly from that community and two
alternates, and by the time they are finished, they are
thinking that the future of this individual who is the
defendant is all likelihood in our hands, and they take that
because of the instructions and the way the lawyer behaves as a
very, very, very serious matter. And they are participating,
they are part of the Government of the United States. And you
begin to think, you know, it is really a wonderful thing that
before you deprive a person of his or her liberty, you go
through this process where the community is brought in as
really judges of the facts.
So they are not just a fact-finding machine. This is a way
of saying to people in a community, it is all of you in this
democratic system who will participate in this terribly
important matter, a matter of depriving an individual of his
freedom. And just listening to the instructions and noticing
the jury's reaction, they take that in.
And I saw the same thing in the courthouse in Boston where
a room is set aside for that, and they have things for people
to read in that room, and the judges talk to them in a way that
when the person comes away from the jury--and I think most of
them do--they are very proud to have participated as a citizen
in this exercise of application of community power.
So I find that partly fact-finding, partly showing people
how they, too, are part of the Government of the United States
in its most important processes, and a way of overcoming
isolation and bringing an entire community into the legal
process. A very good thing.
Senator Whitehouse. At the time that the Constitution and
Bill of Rights were adopted, my understanding is that the
Founders also had a fairly skeptical view of Governors. The
colonial Governors had shown considerable arrogance and high-
handedness. They were skeptical of assemblies. Thomas Jefferson
had described the Virginia Assembly as, I think, 207 tyrants
replacing one, and that was not a big improvement. I probably
have the number wrong. And I wonder if the stature of the jury
in the architecture of American Government could not just be as
a check on judges, but also as sort of the last bastion where
somebody who is put upon or set upon by political forces can
get away from the political forces that most lend themselves to
corruption, governors, assemblies, and get themselves before a
random group of their peers if the case is right, and that it
has a slightly larger significance than just as a check on you
all, it is also a check on all of us and the rest of the system
of Government?
Justice Scalia. Well, I think that is probably right if you
believe that jurors can ignore the law where they think that in
this case the law is producing a terrible result--they do that
sometimes, I am quite sure. And that makes them a check not
just on the judges but, of course, on the legislature that
enacted the law to apply in this particular situation.
I am a big fan of the jury, and I think our Court is, too.
Senator Whitehouse. Let me ask a final question about--you
know, the jury has this fact-finding role. What is the role of
a court of final appeal with respect to fact finding? And
hypothesize that you have a case in front of you from a State
Supreme Court, and the State Supreme Court has indulged in fact
finding at the Supreme Court level. What standard of review or
deference do you as the United States Supreme Court accord
findings of fact that have been indulged in by a State Supreme
Court that is before you--whose decision is before you on
review?
Justice Scalia. You mean the State Supreme Court has
overruled the jury's finding of fact, or just----
Senator Whitehouse. It has just made a finding of fact in
the course of its discussion. It does not have a record to
support it, so that is not the issue. Do you credential that at
all or is that by the boards?
Justice Scalia. I think if it is a criminal case that
somehow is being appealed to us for a violation of a Federal
constitutional provision, and if the State Supreme Court has
made a finding of fact that is not supported in the record, and
if that finding of fact is crucial to the conviction, we would
set the conviction aside. Would we not set the----
Justice Breyer. There is a rule that says if there are two
lower courts that hold a particular finding of fact, we will
not go into it further. It is an area that I sort of noticed
over time, like finding facts we are particularly bad at. You
have nine people and to try to get people to read this enormous
record and come to a conclusion, we are just not very good at
it. And so we have a lot of rules. So you can never say never.
You never say never about anything. But, by and large, we stay
away from the fact finding.
Senator Whitehouse. Well, as the last Senator, I stand
between you and the exits, and I will not trespass on your
patience with us further. Again, I do appreciate very much that
you have returned to this chamber and shared your thoughts with
us this afternoon.
Justice Scalia. Thank you, Senator. I think both my
colleague and I have enjoyed it--to our surprise, I might add.
Justice Breyer. Yes, we did enjoy it.
Chairman Leahy. You know what? One, I appreciate you
accepting the invitation, and I will put into the record the
letter from the Chief Justice, what he was saying very
approvingly of these hearings.
[The letter appears as a submission for the record.]
Chairman Leahy. I think I can speak for all the Senators
here in both parties. This means a lot that you did this. What
I hope it means, too--and I look at the students here, but I
hope high schools will look at this, I hope colleges will look
at this, not just law schools--that is why we have streamed it.
We have made a copy and everything else. We are in a Nation
where too many times people look for a bumper sticker solution
to everything, I do not care on the right or the left. Things
are a little bit more complex than that, and a sense of history
never hurt anybody. The two of you have given us a sense of
history. I applaud you both for that.
If there is nothing further, we will standing in recess.
Justice Scalia. Thank you, Mr. Chairman.
Justice Breyer. Thank you.
[Whereupon, at 4:54 p.m., the Committee was adjourned.]
[Submissions for the record follow.]