updated 5/5/2008 10:29:44 AM ET 2008-05-05T14:29:44

Guest: Justice Antonin Scalia

TIM RUSSERT, HOST:  And with us today, you don‘t see him often on

television.  He is a Supreme Court justice, but he‘s a written a new book -

“Making Your Case: The Art of Persuading Judges.”  With us, Antonin Scalia.

Mr. Justice, welcome.

ANTONIN SCALIA, SUPREME COURT JUSTICE:  Thank you, Tim.  Glad to be here.

RUSSERT:  In your book “Making Your Case,” you start off by saying be sure the tribunal has jurisdiction, an obvious question.  Then you say know your audience.

What is a lawyer supposed to know about his audience?

SCALIA:  Well, if you‘re arguing before judges, you have to know what their judicial philosophy is, for one thing.  There‘s some judges who are more turned on by the consequences of what you‘re arguing.  There are others who are much more strictly attuned to precedent and unlikely to bend precedent in order to reach a better result.

There are some judges who use and like legislatively history.  There are some who, like me, avoid it like the plague.  It helps to know...

RUSSERT:  Why do you avoid it?

SCALIA:  You don‘t want to shoot the whole show.

(LAUGHTER)

SCALIA:  I do not think it is legitimate.  The only—the only sure, clear expression of congressional intent is the language that both houses voted for and the president signed.  And the mere fact that in a floor debate, some senator said something about it, or some committee report in one of the houses said something about it, that doesn‘t show anything except that that senator, or probably not even that committee, but the teenager that wrote the committee report thought that that was the answer.

RUSSERT:  How about a presidential signing statement?

SCALIA:  I would not use that either.  But I would say that if you‘re going to use committee reports, there‘s no reason not to use—I would say a presidential signing statement is probably more authoritative than a committee report.

But anyway, I would avoid it all.  And anyone who‘s hung around Washington long enough knows that it‘s very manipulable.  It‘s—one of the businesses of Washington lawyers is writing legislative history, which they then send up to the Hill and somebody reads it or incorporates it in a committee report.

RUSSERT:  But if you‘re arguing a case before judges, you really do believe it‘s important that you get to know who they are, and how they decide, and how they approach the law?

SCALIA:  Exactly.  And as we mentioned in the book, law firms keep book on judges.  I mean, they—you know, they have a file on this judge.  You know, he‘s short-tempered, lets you go on too long or cuts you off quickly. 

It‘s important to know.  And frankly, even if you don‘t learn anything about their philosophy, just to learn their background, it humanizes the person. 

You‘re not talking to an empty robe, you‘re talking to somebody whose background you know, what college he went to and, you know, how many kids she has.  And it sets it up differently, I think.

RUSSERT:  One of your principles, appeal not just the rules, but to justice and common sense.  That intrigued me, that you were willing to say, OK, look at common sense, not—don‘t be afraid to argue that.

SCALIA:  Oh, yes, I think, you know, rules are fine, but people are driven by other motives than just adhering to the rules.  Judges don‘t like to reach a result that is absurd, and you should try to show why your result is sensible.

Now, sometimes, you know, you have no other ammunition but the rule, in which case you stress how important the rule is.  And although in this case it may not—it may not seem to produce the most desirable result, over the long term it will, and you have to adhere to it.  But where you have common sense on your side and good results on your side, of course you point that out.

RUSSERT:  You love to argue the law, don‘t you?

SCALIA:  I just love the law.  I love to think about the law, I love to argue the law.

RUSSERT:  It is said that you often hire a liberal law clerk in order to have someone to spar with.

SCALIA:  Other things being equal, if I could find a hard-headed, flinty-minded liberal whose visceral reaction to things is the opposite of mine, I will snap that clerk up in a minute.  But they‘re hard to find, Tim.  I have to tell you that. 

(LAUGHTER)

RUSSERT:  It‘s all mushy?

SCALIA:  You said it, I didn‘t say it. 

RUSSERT:  It was only a question.

Has the quality of lawyering, the quality of lawyers, improved or declined over the last 22 years you‘ve been on the bench?

SCALIA:  Well, I can‘t speak, you know, nationwide, but, you know, I never thought that the quality was very bad.  Warren Burger, you know, two chief justices ago, used to criticize the quality of the representation.

I was more amazed at how good it was at the Supreme Court than how bad it was, because frequently, you know, if you‘re lucky enough to get cert granted, you may be, you know, a small-time lawyer representing criminal defendants in Podunk.  And this lawyer comes and, by George, this lawyer is really good.  And frankly, I began asking myself, why are we wasting such a high percentage of our best minds on this enterprise?

As I say, I love the law, but, you know, somebody has to be inventing the

automobile or doing something useful, whereas lawyers, lawyers are

facilitators.  They enable the real work of the world to go on efficiently,

and with preservation of human freedoms.  But we don‘t dig ditches, we

don‘t produce anything that‘s of material use to people.  And a system that

requires too much of society‘s best minds just to run the legal system is -

there‘s something wrong with it, I think.

RUSSERT:  You advise banish jargon, hackneyed expressions and needless Latin.  Avoid acronyms and don‘t overuse italics.

You‘re basically saying, to me, forget the gimmicks.  Talk straight.

SCALIA:  Oh yes.  Absolutely. 

Somehow after—well, we point that out in the book.  After going to law school and reading largely nothing but legal opinions for three years, it can warp the mind, because legal opinions are frankly, most of them, not written very well.  And you read them not because they‘re the best writing, or you don‘t even read them necessarily because they‘re the best reasoning.  You read them because they‘re authoritative.

No matter how badly written, no matter how badly reasoned, that‘s the law.  And part of our advice in the book, if you want—and this is a long-term preparation—but if you want to be a good brief writer, you have to read good stuff.  And that means, you know, getting out of—getting out of the law books and reading great writers from today and earlier times.

RUSSERT:  Who‘s your favorite author?

SCALIA:  My favorite of all?  My goodness.  So many.  I don‘t know, Hawthorne. 

I love Dickens.  I could read Dickens forever. 

RUSSERT:  You had a high school teacher who gave one of your classmates some advice about Shakespeare.

SCALIA:  I have used this in some of my talks about—you know, being humble in your approach to things.  We were reading Shakespeare I think my sophomore year of high school, and the teacher was a crusty old Jesuit from Boston, Father Tom Matthews.  And one of my classmates offered some really stupid criticism of the play, very sophomoric, you know, but thinking he‘s very smart.

And Father Matthews looked down at this kid and he said, “Mister, when you read Shakespeare, Shakespeare‘s not on trial.  You are.”

RUSSERT:  Good advice...

SCALIA:  Good advice.

RUSSERT:  ... from Justice Scalia, the author of the new book, “Making Your Case: The Art of Persuading Judges.”

We‘ll be back with more of our conversation right after this.

(COMMERCIAL BREAK)

RUSSERT:  And we are back talking to Antonin Scalia.  He is a Supreme Court justice.  He co-authored a book with Bryan Garner called “Making Your Case:

The Art of Persuading Judges.”

A question—some viewers found out you were going to be on.  They sent me saying, “What does a Supreme Court justice do all day?”

SCALIA:  What does he do all day?  It depends on the day.  I mean, the days that we have argument, you hear argument.  And in the good old—bad old days, when I first came on the court, we used to hear four a day—two in the morning, two in the afternoon. 

Thankfully, in recent years our docket has been somewhat slimmer, maybe too slim.  I‘d like to take on a few more cases.

RUSSERT:  You would?

SCALIA:  I think we can do 100 a year pretty well.  I don‘t think we can do more than 100, or more than 100.

RUSSERT:  And the days you‘re not hearing arguments you‘re reading and writing?

SCALIA:  Well, yes.  I mean, it‘s not as though—you know, you‘re reading the briefs for the next round.  We sit for two weeks, then we have a two-week break, sometimes a three-week break.  And during that time you‘re not goofing off.  You‘re reading the briefs for the next round and writing the opinions from the previous round.

So, frankly, the easiest part of the job—and I also find it the most pleasant part of the job—is hearing argument.  I mean, you just—no pressure on you.  It‘s all on the lawyers.  You just have to sit there and stay awake and don‘t drool.  That‘s about it.

RUSSERT:  Do you like to put pressure on the lawyers?  Do you like to ask challenging questions?  That‘s the book on you.

SCALIA:  I don‘t what the book on me is.  I ask a lot of questions because, you know, in the Supreme Court we have half an hour a side.  That‘s not much time.  And if you let the lawyer talk instead of asking questions, he‘s just going to regurgitate his brief.

I‘ve read his brief.  I‘ve underlined significant passages.  I have written “nonsense” in the margin.

What I want to use the half hour for is to probe those parts of the brief that seem to me weak and see if he has an answer that would satisfy my objection.  If you spend the half hour that way, it is very, very productive, indeed.

RUSSERT:  You give some other advice.  Never read an argument, never deliver it from memory, except the opener and perhaps the closer.  Be conversational but not familiar. 

Look the judges in the eye.  Connect.  Be cautious about humor.  And don‘t chew your fingernails.

SCALIA:  Yes.  I—that was originally—originally headed not “Don‘t Chew Your Fingernails,” but “Don‘t Pick Your Nose.”  And people thought that was a little too gross to put in the book.

And the section begins, OK, we actually have never seen counsel chewing his fingernails during argument, but we have seen every other kind of mannerism that will annoy and distract.  I mean, you know, taking the glasses off and on and, you know, clacking them shut, and waving them in the air.  And leaning forward on the podium, stepping to the side of the podium.  All of that.

You know, that‘s stage business which is good in a Perry Mason show, but not helpful when you‘re trying to get judges to understand a complex legal issue.  Leave all that out.

RUSSERT:  What happens if you ask a question and the lawyer doesn‘t know the answer?  What should he or she do?

SCALIA:  He or she should say, “Your Honor, you know, I don‘t know.  I don‘t know the law on that, but I will be happy to submit a supplemental brief on the point, by letter if you like.”

RUSSERT:  If you try to bluff it?

SCALIA:  Oh, very bad.  Very bad.  Very bad to bluff.

The main thing you have going for you, especially if you‘re going to appear before this court on another occasion, is credibility.  You want the judges to trust you, to know that you‘re a reliable person, you don‘t exaggerate, you don‘t twist cases.  If you can get them to regard you that way, you have a big advantage over your competitors.

RUSSERT:  When you‘re sitting listening to an argument, Your Honor, do you ever think, why aren‘t you saying this?  Why aren‘t you making that point?

SCALIA:  I not only sometimes think it, I sometimes interject it.

RUSSERT:  Could I give you a hand?

SCALIA:  That‘s right.  And that‘s another advice we give.  Some lawyers will not accept the hand.

They assume that every question from the bench is hostile.  And sometimes you‘re throwing them a life preserver, you know, and they push it away.

RUSSERT:  You say recognize a friendly question.

SCALIA:  That‘s right.  There are such things.

RUSSERT:  Learn how to handle a difficult judge.

SCALIA:  There are difficult judges.  I am sure there are those who consider me a difficult judge at times.

RUSSERT:  Why?

SCALIA:  Well, what I mean by a difficult judge—and I hope that I‘m not guilty of this, or at least not guilty of it often—is a judge who is no longer questioning to get an answer, but he knows you don‘t have an answer, and he keeps pressing the point and pressing the point and pressing just to make you look bad in the eyes of the other judges on the bench and to show how weak your case is.  You have to know how to get out of that trap.  And, you know, ultimately, you have to say, “Your Honor, I‘ve answered that as best I can.  I really have nothing more to say on the point.”

RUSSERT:  I surrender.

SCALIA:  Yes.

RUSSERT:  Another quick break.

Antonin Scalia, justice of the Supreme Court.  His new book, “Making Your Case: The Art of Persuading Judges,” he co-authors it with Bryan Garner.

We‘ll be right back.

(COMMERCIAL BREAK)

RUSSERT:  And we are back talking to Antonin Scalia, justice of the Supreme Court.  His new book, “Making Your Case: The Art of Persuading Judges.”  He co-authors it with Bryan Garner.

Has an oral argument ever changed your mind?

SCALIA:  Rarely.  I think it has, but very rarely.  What happens not at all rarely, but with some frequency, is that it‘s a very close case. 

You go in on the knife‘s edge.  You haven‘t made up your mind.  And most lawyers don‘t realize that.

I think a lot of lawyers think that oral argument is just a dog and pony show.  You know, I‘ve read a 60-page petitioner‘s brief, a 60-page respondent‘s brief, a 40-page reply brief, as many amicus briefs as I can stomach.  What‘s somebody going to tell me in half an hour?

And the answer is, sometimes the case is so close, that persuasive counselor, their oral argument, can make the difference.  There are things you can do in oral argument that can be done as effectively in a written brief. 

Perspective, for one thing.  Very often you‘ve written a brief, there is a logical order that you have to follow—jurisdiction first.  And then there‘s a preliminary issue.  And your big issue may be pretty far down in the brief.  You know, what you think is your strongest point.

And that issue may not be the most complicated one.  So you don‘t give that much page length to it.

Now, at oral argument, you get up and you—you know, never mind all the preliminary stuff.  Say, you know, “Your Honors, what this case comes down to is” and then, boom, you hit your big point.  Put your case in perspective.

RUSSERT:  How do the justices interact?  Do you lobby each other?  Do you communicate in writing?  Do you try to argue with each other, make each other‘s case, question each other?

SCALIA:  No, it‘s not—and I‘m not giving away any secrets.  The former chief, in his book on the court, said that conference is perhaps a misnomer for what we do when we get together to discuss a case.

Each justice says, this is how I see it and this is how I vote.  And then you move on to the next one—this is how I see it and this is how I—you know, try to persuade each other.  I‘m not sure you can do it with nine people.

I mean, after it‘s gone all the way around the table, you can if you wish to say, now, you know, John, you said this.  Why did you say that?  You wouldn‘t interrupt him while he‘s saying it, but after it‘s gone all around the table you might do it. 

Quite frankly, it does not—it is not an exercise in persuading one another.  I don‘t think you can do it with as many as—you‘ve been on a committee with eight other people.  It‘s—with two other judges, which is what it was like on the court of appeals, it was possible.

RUSSERT:  But you do send each other notes sometimes asking for clarity or explanation.

SCALIA:  Well, that‘s after the opinion circulates, after the person who‘s been assigned the opinion writes it, and he circulates it, perhaps.  And if you plan to join it, you say, you know, I can join, but this passage here I don‘t agree with.  And if you can change that, I‘ll join.

RUSSERT:  You said there are some close calls.  What‘s the toughest case you ever had?

SCALIA:  You don‘t want to know, Tim.  You really—there is—there is no necessary connection between how hard a case is and how important it is.  The hardest case I had was something involving the government contractor doctrine, and a relatively insignificant piece of law, but I found it very, very hard, indeed.

RUSSERT:  And both sides having worthy arguments?

SCALIA:  Both sides having—yes, both sides having worthy arguments.

RUSSERT:  When people see...

SCALIA:  Or take some, you know, very highly technical review of the FERC opinion, the Federal Energy Regulatory Commission.  You know, massive volumes of records and whatnot.  It‘s very hard to slog your way through that.

RUSSERT:  When people see “Making Your Case: The Art of Persuading Judges,” and they say, I‘m not a lawyer and I‘m not going to be before a judge, why should these lessons apply to me?

SCALIA:  Well, the book‘s written for lawyers.  And make no mistake about that.  Some of the lessons of effective advocacy I suppose apply to people who don‘t argue before judges, but argue before other government bodies, or argue with people on a commission.

You know, Cicero—we use the advice of Aristotle.  People have been giving advice on this subject for as long as there have been judges, or for as long as there have been Senates.

Cicero wrote for people who expected to be in public life.  And some of the principles of that apply to any attempt to persuade somebody.  For instance, lead with your strongest argument.  If you‘re speaking second, before you proceed to your argument, if your opponent has made a very strong point, you‘ve got to clear the underbrush.  You have to erase that point from your audiences‘ mind, or they‘re not going to be listening to you.

That‘s what Aristotle said.  And I think that‘s good advice.  And that would apply in any debate format.

RUSSERT:  You talk also about, at the lectern, get comfortable.  Adjust it if you need to.  Look people in the eye.

I often remember the handshake advice I gave to my son, give me a firm handshake.  Those basic things in life apply in all aspects.

SCALIA:  They do.  The only thing I—the only advice I remember from my debate coach when I was in college, he taught me to button my jacket.  It‘s the only thing I took away from it—button your jacket.

RUSSERT:  And now you have a robe.

SCALIA:  Now I have a robe.  I don‘t have to worry about it, you‘re right. 

You‘re right.

RUSSERT:  We‘re going to take a quick break.  More of our conversation.  “Making Your Case: The Art of Persuading Judges,” the co-author, the justice of the Supreme Court, Antonin Scalia, right after this.

(COMMERCIAL BREAK)

RUSSERT:  And we are back talking to Antonin Scalia, justice of the Supreme Court.  He‘s co-author of his new book, “Making Your Case: The Art of Persuading Judges.”

You went to Villanova University in Philadelphia recently and said there‘s no such thing as a Catholic judge.  You happen to be Catholic.  Explain why there‘s no such thing as a Catholic judge.

SCALIA:  The same reason there‘s no such thing as a—you know, in my estimation, no such thing as a female judge.  I mean, a good judge is a good judge.  And at least if you have my judicial philosophy, which is to give the fairest possible meaning to the text that you‘re dealing with.  And when you‘re dealing with the Constitution, you ask the question, what did it mean when the people adopted it?  And once you find that, the case is done. 

How does my religion have anything to do with what those words mean and what they were understood to mean by the people who ratified them? 

Obviously nothing at all.  So the only—I may have said that at Villanova

the only part of my faith that has any play in my judicial enterprise is whatever commandment it is—sixth—Thou Shalt Not Lie.

I try very hard not to lie.  I don‘t distort cases.  If I‘m overruling a case, I say that I‘m overruling it rather than, you know, twist it so that it doesn‘t look as though I‘m overruling it.

Now, I have to say that if you have a different judicial philosophy, if you believe that the Constitution changes—never mind what the people thought it meant when they ratified it—you think it changes, the so-called living Constitution...

RUSSERT:  Leaving and breathing.

SCALIA:  Leaving and breathing.  I would find it very hard to keep my own philosophy, which includes my religion, out of my decisions, because I‘m asking myself, what should the Constitution mean?  And that has to be informed by my own philosophy, my own theology.

RUSSERT:  You describe yourself as an originalist. 

SCALIA:  Originalist.

RUSSERT:  Which means?

SCALIA:  Which means I give the Constitution its original meaning.  And what it prohibited then it prohibits now.  And what it permitted then it permitted now.

So, you know, for example, the death penalty.  If you‘re an originalist, the issue of whether the death penalty is unconstitutional is really a non-issue.

RUSSERT:  Why?

SCALIA:  Because it is—it was—it was the only penalty for a felony at the time the Constitution was adopted.  Nobody ever thought that the Constitution branded the death penalty as cruel and unusual punishment.  It just didn‘t.

RUSSERT:  Is it different for Catholic legislators when the church will say you should not be voting for abortion rights, or the church feels this way on the issue of stem-cell research or the death penalty than it is for a Catholic judge?

SCALIA:  It may well be.  I‘ve always been happy that I‘m a judge.  And all I have to do is look at the law.  What does it say?  Tell the truth about what it says, and that‘s my job.  It would be harder for me as a legislator.

RUSSERT:  What about things that the founding fathers never anticipated—scanning imagery, computers, laws that involve things that have emerged in recent years?

SCALIA:  Well, sure.  Any—even if you‘re an originalist, you have to confront new situations.  And for those new technologies, you know, things that never existed, you have to sort of figure the trajectory of the provision you‘re dealing with.

The example I always use is there was a famous case in the 1920s from New York City, and the city had prohibited the use of sound trucks after 10:00.  Sound trucks were pretty new in those days, and politicians were using them.  Did that by like (ph) the First Amendment to say no sound trucks.

Well, what you have to do is, there weren‘t any sound trucks in 1791, when the First Amendment was adopted.  So you have to say, well, what would they have thought of it?

Well, they had nuisance laws, including nuisance laws for too much noise.  And I think it‘s easy enough to come to a conclusion.  It doesn‘t violate the First Amendment to impose a reasonable restriction like that.

RUSSERT:  What role does precedent play for someone on the Supreme Court, decided law?

SCALIA:  Well, I think it depends on whether it‘s a statutory question or a constitutional question.  I think for statutory questions, precedent is almost always determinative. 

I very rarely—I can‘t recall—well, I will not say never, but it is the long tradition that you stand by statutory decisions because Congress can fix it.  If indeed you have messed it up, you know, Congress can revise the statute.

That is not the case with constitutional decisions.  And so from the earliest times, from, you know, the first half of the 19th century, we overruled prior constitutional decisions, because Congress can‘t fix it.  If you‘ve gotten it wrong, it‘s going to be wrong forever unless you go back and revise the opinion. 

And that is really how we began to separate ourselves from our English forebearers, because they adhered to rigid stare decisis.  Adhering to precedent, that was their rule, while we were overruling constitutional cases.

RUSSERT:  Whatever you read in the mainstream press about Justice Scalia, let‘s say a conservative jurist, but when you approach the law on issues like abortion or gay rights, you‘re constantly writing, if a state wants to pass a law, then can pass a law.  My job is to find what I see is in the Constitution.

SCALIA:  That‘s absolutely right.  And that‘s why this notion of a living Constitution, that it creates more flexibility, is just absolutely false. 

The purpose and effect of the Constitution is not to make things flexible, but to rigidify them.  I mean, if we upheld that the death penalty was unconstitutional, which we came close to doing, that would have been the end.  It‘s no use debating it anymore with your fellow citizens.  You just can‘t have it.

Whereas if you say the Constitution has nothing to say about the subject, persuade your fellow citizens.  You don‘t like the death penalty?  Repeal it, as some states have done.

And you can change your mind.  You know, you find there are a lot more murders, you can re-institute it.

So, no, I—it is the person who reads more and more into the Constitution who is restricting democratic choice.  Every time there‘s a new constitutional right, democratic debate ends.

RUSSERT:  How  about an issue like slavery, where the court did change its mind?

SCALIA:  Well, I don‘t know that the court changed its mind.  I mean, we adopted the 13th, 14th and 15th amendments which abolished slavery.  It wasn‘t—it wasn‘t a decision by the court.

And I think the early—it wasn‘t the court that upheld slavery.  I mean, the original Constitution did not prohibit slavery, and indeed acknowledged the existence of the institution, although they did as much as was practically possible to limit it, prohibiting the importation of new slaves after a certain date.

But the Civil War ended all of that.  And after the Civil War, since we wanted to change the Constitution, we could come to the Supreme Court and say, hey, change the Constitution for us.  We adopted amendments.  And an amendment abolishing slavery, and then requiring the states to give equal protection of the laws to all of its citizens.

RUSSERT:  But the court often can be the “leader in change” on civil rights, for example.

SCALIA:  Yes.  I think that‘s right.  But, you know, you can‘t—you can‘t decide whether you like the notion that the Constitution morphs, and it morphs the way the court wants it to morph.  You can‘t decide whether that‘s good or bad on the basis of whether one or two good results may ensue from that.

Of course.  I mean, you know, a king can do some good stuff that a democracy probably couldn‘t put together.  You have to look over the long term.

Over the long term, do you want our basic laws to be made by nine lawyers in Washington, or is it mostly democracy that we‘re after?  And just a few limited things that are in the Constitution, and for all the rest, persuade one another.

RUSSERT:  We‘ll take a quick break.

Going to come back and talk about how the Constitution defines us as Americans, because you said some interesting things about that.

The new book, “Making Your Case: The Art of Persuading Judges.”  The co-author, the justice of the Supreme Court, Antonin Scalia.

We‘ll be right back.

(COMMERCIAL BREAK)

RUSSERT:  And we‘re back with Justice Scalia.  His new book, he‘s co-author of “Making Your Case.”

The Constitution, in your mind, defines us very much as Americans.  To be un-American is not to abide by the Constitution.

SCALIA:  Yes.  And I‘ve made that point in some talks that I‘ve given.  Points not original with me.  It was original with a political scientist who used to teach at Georgetown named Martin Diamond (ph).

And he observed that there is no adjective in foreign languages equivalent to un-American.  I mean, we have un-American activities.  Some things are un-American.

It would make no sense in French political discourse to talk about a particular idea as un-French, or German discourse to say un-German.  We are a very strange people, that we really identify ourselves not by our blood or where we were born, but we identify ourselves by fidelity to certain political principles.  I don‘t know that there‘s ever been a society like that before.

RUSSERT:  Why is it? 

SCALIA:  Don‘t know why it is.  I guess because the country started that way.  People largely coming here for political freedom, and then adopting a Constitution that placed a great premium on that.  But anyway, that‘s what Americans are.

RUSSERT:  I want to ask you—a comment that you told “60 Minutes” when talking about Bush v. Gore, you said, “Just get over it.”  Many people have analyzed the decision, found it curious about some justices embracing equal protection, other states‘ rights, thinking that states‘ rights as more of a conservative doctrine, or conservative justices gravitate to that.

Looking back at that decision, do you understand why to many people it was controversial?

SCALIA:  Oh, I understand why, because they didn‘t read the Florida Supreme Court opinion.  You can‘t understand that opinion without reading the Florida Supreme Court opinion and understanding the law.

Look, people—do you really think that the people who criticize it intimately know what was afoot there?  I don‘t think so.  And...

RUSSERT:  What was afoot?

SCALIA:  What was afoot was—look it, on—I don‘t know.  Get over it. 

I don‘t want to go back over it.

I mean, the man was elected after that in a different election.  The election would have come out the same way anyway.  Your colleagues in the press did a check in all the counties of Florida, and had the dimpled chads and the dangling chads been counting the Al Gore wanted, it would have come out the same way.

And even if that hadn‘t happened, the Florida legislature would have—which was Republican-dominated, would have come out that way.  And—anyway, on the principal issue—and people forget this—whether there had been a constitutional violation in what the Florida Supreme Court had done, it wasn‘t close.

RUSSERT:  Seven to two.

SCALIA:  Seven to two.  The only issue on which it was close was whether we should give the Florida Supreme Court another couple of weeks to try to...

RUSSERT:  More time.

SCALIA:  ... to try to fix it.  And I think it was most unlikely that they would be able to fix it.  And meanwhile, if you recall, the country was the laughing stock of the world. 

The world‘s greatest democracy, we couldn‘t run an election?  We didn‘t know who our next president was going to be?  There couldn‘t be a transition team to enable a smooth transition to the next administration?

It was time to put an end to it.  And I frankly think most Americans agreed with that...

RUSSERT:  Was it a tough call?

SCALIA:  ... and heaved a sigh of relief.  No, I think both on whether—whether what had been done was unconstitutional and whether it was time to blow the whistle, I didn‘t find it a tough call.

RUSSERT:  Justices take that into consideration with the image of the country, the laughing stock, what‘s going on, the need to make a decision to bring things to closure?

SCALIA:  I am certain that on that last question, whether to give them more time, which is an equitable question, you take into account all sorts of things.  Sure, those were valid things to take into account.

RUSSERT:  Your dissent can be very forceful.  You use very strong language. 

“That‘s pure applesauce,” or “This opinion should not be taken seriously.” 

How do your colleagues react to that?

SCALIA:  I suppose they don‘t like to be—you know, to be called.  I don‘t think they hate me because of it.  They know I‘m criticizing their opinion and not them.

They know that I have genuine affection for all of them.  All the justices I‘ve sat with I consider good friends.  So—you also don‘t know what‘s on the cutting room floor, Tim.

(LAUGHTER)

SCALIA:  You don‘t know what majority opinions have never seen the light of day.

RUSSERT:  Well, share that.

SCALIA:  Because, you know, a fairly harsh dissent that pointed out the absurdity.  It sometimes works.  It doesn‘t always.

RUSSERT:  Does it make them better when you challenge them intellectually?

SCALIA:  Oh, it makes me better when there‘s a dissent.  I am firmly of the view that the worst opinions of my court have been unanimous.  It‘s always good to have somebody pointing out all the weaknesses in your opinion.

And you can patch them or, if it‘s correct, you know, revise that section of the opinion.  But the opinions I worry the most about are the ones that I‘m writing for the whole court.  There‘s nobody to keep me honest.

RUSSERT:  Which is interesting, because there are many people who think that more of the Supreme Court decisions should be unanimous in sensitive areas.

SCALIA:  No.  I think that‘s—that‘s silly.  What would be remarkable—people say, ooh, so many of the opinions are 5-4.  What would be remarkable, if there were not many 5-4 opinions, because after all, we only take a case when the lower courts, usually federal courts with very good judges, appointed by the president, confirmed by the Senate, only when they disagree.  So you‘d expect a lot of 5 -- these are close questions, many of them. 

RUSSERT:  Another break.  “Making Your Case: The Art of Persuading Judges.” 

Antonin Scalia is the co-author with Bryan Garner.

We‘ll be right back.

(COMMERCIAL BREAK)

RUSSERT:  And we‘re back.  The book, “Making Your Case: The Art of Persuading Judges.”  The co-author, Antonin Scalia, justice of the Supreme Court.

You were confirmed 98-0 back in 1986.

SCALIA:  Right.

RUSSERT:  And you said now the political environment...

SCALIA:  Wait a minute.  Let‘s be fair.  The two missing were Barry Goldwater and Jake Garnes. 

RUSSERT:  Where were they?

SCALIA:  They were ill, I think.

RUSSERT:  So you wanted a shutout. 

SCALIA:  I did.

RUSSERT:  You wanted 100-0.

SCALIA:  Call it 100.  Come on.

RUSSERT:  You now say that in these times you probably couldn‘t get 60 votes.

SCALIA:  I think that‘s probably true.

RUSSERT:  Why?

SCALIA:  I think things have changed.  I think --  my explanation—and I had been predicting it for a while—is that the people have finally figured out what the Supreme Court had been doing for the previous 40 years or so since the Warren court, since the advent of the morphing, living Constitution.  And when the people figured out that, by George, they are rewriting the Constitution, term by term, and once you realize that that‘s what‘s going on, it‘s terribly important to have good lawyers.

I mean, that‘s nice, other things being considered—being equal.  But the main thing is you want people who are going to write the new Constitution that you‘ll like.  And that‘s how the hearings go now.

They ask the—you know, the nominee, do you think there‘s a right to—you don‘t?  Well, I think it‘s there and my constituents think it‘s there, and we‘re not going to put anybody on the court who doesn‘t think that that right is—you know, that‘s what‘s going on.  It‘s absolutely crazy.  It‘s like having a mini constitutional convention every time you put a new nominee on the court.

RUSSERT:  There seems also the search for people without a paper trail, people who haven‘t offered opinion on any subject.

SCALIA:  Exactly.  That‘s the consequence.  That‘s the consequence.

But it‘s inevitable.  And frankly, I prefer it to the alternative.  If indeed the court is going to rewrite the Constitution term by term, I‘d rather have the people decide what the new Constitution ought to be than have the court.

RUSSERT:  Is it hard withholding your opinions when you‘re out talking publicly?

SCALIA:  On pending cases?  No. 

RUSSERT:  No, pending cases you never do.  But the other day, in terms of torture, you said, well, you know, in terms of punishment for a crime, it‘s one thing, but in terms of whether it‘s permissible, interrogation is another thing.  And it created a huge debate.

SCALIA:  Oh, god.  Yes.  And I made the mistake of saying, well, you know, I wouldn‘t—I wouldn‘t even get into this back home.  But I was in London.

RUSSERT:  You were citing Jack Bauer.

SCALIA:  You guys follow us everywhere now.

RUSSERT:  Jack Bauer—you talk about Jack Bauer.

SCALIA:  No, I talked about Jack Bauer in Canada, and you guys were there too.

(LAUGHTER)

RUSSERT:  But is it hard limiting, offering your views?

SCALIA:  Yes, it is.  At least if you‘re a former academic.  You know, we like to mouth off, the academics.

RUSSERT:  Your dad, Eugene, an academic, Brooklyn College, romance languages, he gave you some advice about brains versus character.  What was it?

SCALIA:  Well, yes.  You have to know that he was a man of the mind, a real intellectual, much more intellectual person than I am.  And I never forget the advice.

He said, “Son, brains are like muscles.  You can hire them by the hour. 

The only thing in this world that is not for sale is character.”

I always remembered that.

RUSSERT:  Made an impression, didn‘t it?

SCALIA:  Made a big impression.  You can buy brains, you can‘t buy character.

RUSSERT:  You were an only child.

SCALIA:  Yes.

RUSSERT:  And you have nine children.

SCALIA:  It wasn‘t all bad either.

RUSSERT:  But now you have nine children.

SCALIA:  That‘s true.  That‘s true.  We didn‘t set out to have nine.  It just sort of happened that way.  But, you know, I don‘t know which one I‘d throw away if I had...

(LAUGHTER)

RUSSERT:  You haven‘t thought about that?

SCALIA:  Well, it‘s a different one each month.  Put it that way.

RUSSERT:  Justice Antonin Scalia, “Making Your Case: The Art of Persuading Judges.”

We thank you very much for coming and sharing this book, and sharing a most interesting conversation.

SCALIA:  Thank you, Tim.  I‘ve enjoyed it.

RUSSERT:  And we‘ll be back next week.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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