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Recent rulings by the US Supreme Court on healthcare reform and immigration.
Demonstrated once again what a central role the court -- in our government.
The justices rarely do interviews or talked outside the court about how they reach their decisions.
But a new book called reading the law the interpretation of legal tax.
Justice Antonin Scalia the longest serving member of the court.
As well -- law professor Bryan garner explain what they believe is the right way to decide cases.
And we are delighted Justice Scalia has agreed to join us today to talk about it justice welcome to FOX News Sunday.
Thank you very much mr.
-- -- to be here EU in your new book you explain your approach.
To judging which is called text to realism or original listen what exactly -- the.
A regionalism is sort of a sub species of text to listen textual is a means you're you're governed by the text.
That's the only thing that is relevant -- -- decision.
Not whether the outcome is desirable not whether legislative history says this -- that but the text of the statute.
Says that when you consult the text you give it the meaning it had when it was adopted.
Not not some leader modern meaning.
So I figure if vehicle was the constitution written in the eighteenth century.
You try to find what those words meant in the -- exactly the best example being the death penalty I've sat with three colleagues who thought it was unconstitutional.
What it's absolutely clear.
That the American people never voted to.
Proscribed the death penalty they.
They adopted a cruel and unusual punishments clause at the time when every state had the death penalty in every state continue to have -- nobody thought the the eighth amendment prohibited.
Are you criticize -- -- -- to -- you say some your colleagues another approach.
Using the word I have to admit that I did not know existed prior to reading your -- purpose of this -- I did I pronounce -- correctly you did too nice long word aren't what I didn't make it up what does an -- took issue.
What it means is.
And it's probably the most popular.
Form of of interpretation.
In in recent times.
It means consulting the purpose of the statute and deciding the case on the basis of what will further the purpose.
-- shoeless consult purposes well -- only the purpose that is apparent in the very text.
I have to give you an example here you you -- on this won't understand the difference let's let's assume statute which provides.
The winning party in litigation will obtain attorneys' fees.
The issue is whether.
The fees paid to expert witnesses.
Which can you know -- to the thousands of dollars.
The purpose of this would be inclined to approach that by saying you know what's the purpose of the statute -- the purpose is to make the plaintiff whole.
So that the money he received for winning the case is money he can keep and he doesn't have to spend half of it on expert witnesses.
The textual this would say.
Who would not say that would say what what is the understood meaning of attorneys' fees.
And in fact it was never thought to include expert witness fees are in -- A couple of years ago we -- one of your colleagues who I think you would say as on the other side of the judicial divide justice Stephen Breyer on the show and he said it is him.
Possible to apply the law as that was -- take a look.
The founders -- no -- commerce included airplanes.
They didn't know about the Internet or even television.
And so the difficult job.
In open cases.
Where there is no clear answer is to take those values in this document which all Americans hope we can do not change and to apply them to a world that is every change.
Is Justice Breyer wrong.
Yeah that bad stats.
Say a pretty common -- and totally.
Description of what original as a means.
What original lose -- means is that you give.
The meaning that it had with respect to those phenomenon that -- in existence at the time say the death.
But there are a lot of phenomenon that aren't they wanted to just Warren and for a -- was of course you have to decide what.
What the meaning ought to be but the criterion for deciding what the meaning today ought to be.
Is what was the understood meaning as applied to criteria at the time for example in the death penalty when the electric chair comes -- It's a new phenomenon what in the -- think of the electric chair who knows there wasn't any electric chair.
But they they did have the death penalty and they did impose death by hanging.
So what the originals would say is is is need is the electric chair more cruel and unusual when hanging us.
And of course it isn't because it was adopted to be to be less -- and the same thing with -- -- -- lethal injection.
-- it in your book you lay out.
Beyond this general argument 57.
Specific candidates principles.
For judgment -- here's number thirty.
You have 57 it's likely a Heinz varieties a statute should be interpreted in a way that avoids placing its constitutionality.
In doubt and other -- trying to find a way to avoid judicial conflict.
With the legislature can and number there are thirty -- right.
But you voted.
To strike down obamacare which the legislature in this case.
The congress was -- debated for a year and in your dissent you criticize chief Justice Roberts.
For following cannon 38 by finding the you're shaking your -- that you bought her finding that the individual mandate is -- -- didn't.
Justice Roberts do exactly what you say a good judge should do try to find a way to avoid striking down a law.
So if you read the rest of the section you would say to find a way.
To -- -- meaning that the language will bear that will uphold a constant -- -- the constitutionality.
You you don't interpret the penalty to be a pig.
It can't be a cake.
And then what my dissent said in in the.
Affordable care Affordable Care Act was simply that there is no way to regard this penalty is -- -- it simply does not bear that meaning you cannot give.
In order to save the constitutionality.
You cannot give the text.
Meaning it will not -- Let's turn to an issue that is in the news right now with a massacre in Colorado and that is.
You wrote in 2008.
That the opinion in District of Columbia V Heller.
The majority opinion -- -- the Second Amendment -- it's what it says people have a right.
To bear arms.
How far does that constitutional right -- -- and a legislature -- Semiautomatic weapons or -- -- -- magazines.
That carry a hundred rounds.
An individual's constitutional right to bear arms.
What the opinion Heller -- is that it will have to.
Be decided in future cases.
What limitations upon the right to keep and bear arms are permissible some undoubtedly -- because there were some.
That were acknowledged at the time for example there was a -- called off right king.
If you carried around a really horrible weapons just to scare people like -- and acts or something patent that was.
I believe a misdemeanor.
Yes there are some limitations that can be imposed.
What they are will depend on what that what the society understood were reasonable limitations at the time there were certain location limitations.
Where where what about these technological limitations obviously when I'm not talking about a hand guttural -- we're talking about a a weapon that can fire hundred shots and and that.
Will will will see.
Obviously the the amendment does not apply to.
Arms that cannot be hand carried it's to keep and bear -- on the -- it.
Tap -- but I suppose there are hand held rocket launchers they can bring down airplanes that will will have to be.
He'll have to try to find out if your attack off to a very carefully.
My -- my starting point and probably -- landing point will be.
What limitations are -- the end.
The understood limitations that the society had at the time they had some limitations on the nature of -- arms that could be born.
So it we'll we'll we'll see what what what those limitations are -- to modern weapons.
There is one Supreme Court decision meeting.
A lot of your writings and and and speeches over the years that seems to -- you more than any other and that is.
Wade the 1973.
Says that women have a constitutional right to abortion -- say that it is a law.
And in fact while generally willing you say to accept long standing precedents.
You say you will continue to compress to overturn rough question why.
Well I'm I'm I'm I'm mature -- could say this distresses me more than any other did it is.
In my mind the clearest example of being a non textual list and the non originally stood.
Nobody ever thought.
That the American people ever voted to prohibit limitations on abortion I mean -- there's nothing in the constitution that says that.
All of what about the right to privacy that the court found in 1965 national right to privacy in the constitution no generalized right to privacy well -- the Griswold case the court said there was indeed it did and that was that was wrong.
In an earlier case the court has said the -- to look the way but with the way the Fourth Amendment reasons a person -- The people shall be secure in their persons houses papers and effects.
Against unreasonable searches and seizures and the first time my court had a case involving wiretapping.
It said that's not covered by the forth -- -- there there can be state laws against it in most states had laws.
But it it's not persons houses -- papers and effects is not covered by the for the moment.
The court reversed that.
I don't know twenty years later so.
It in a wave of non original -- in the constitution means what it ought to mean well it it simply doesn't doesn't cover that.
Which means that it's left to.
It's left to democratic choice.
As most things are even important things like -- Democrat -- small.
Important questions like abortion.
Have you ever change your mind in -- case from casting your original vote in conference to when it is finally announced by the court.
I have not only done that -- have.
Changed my mind after having been assigned to write the majority opinion.
Britain could he opinion the other way because when you what -- write and clearly you think there's nothing wrong with that I think when -- Did chief Justice Roberts change his mind in the obamacare case I don't know you'll have to ask him.
Did -- let me ask you -- you at one point in that case in the majority to strike down Obama can I don't I don't talk about.
Justice wants -- never ever -- never ever got an analyst and those who do.
You shouldn't believe what you read about about.
Internal court procedures because the reporter who reports that is either a lying.
Which can be done with impunity because as you know we don't responded it's just the tradition of -- -- judges.
To lay back and take it you've you don't respond in the press corps being.
That reporter had the information from someone who was breaking.
The -- of confidentiality.
Which means that's an unreliable person.
So either way you should not.
He should not put any stock in in reports about what was going on in -- in the secrecy of the court.
Finley Peter -- the famous Chicago -- once wrote the Supreme Court follows the election returns.
How political is the court.
-- I don't I don't think I don't think the court's political at all.
People say that because.
-- at least -- in the recent couple of years.
Since John Paul Stevens in and David Souter have left the court.
The break out is is often five to four with five.
Republican of -- -- for Democrat on the other side but it doesn't that doesn't show that they're voting their politics it shows that they have been.
Because of their judicial philosophy that Republicans have been looking -- you know a regional lists and text you'll listen reached.
Strained judges for fifteen years in the Democrats have been looking for the opposite for people who who believe in Roe vs.
-- why should it be so some properties.
That after here you know assiduously trying to get people -- these philosophies they end up with people with these philosophies.
Willingly or not the court has certainly been dragged into the political arena in his.
State of the union speech President Obama called out the justice is seated right in front of them in the well of the house chamber.
For the court's decision on Citizens United let's take a look.
Last week the Supreme Court reversed a century of law that I believe will open the floodgates.
For special interest including foreign corporation.
Could spend without limit.
Chief Justice Roberts.
Said that he found that spectacle.
In my own adjective.
I wasn't there and it's yet another reason why I will not be there -- the future.
-- -- I stopped going to to what is essentially a political spectacle.
Some years ago as did John Paul Stevens and I think bill -- which didn't go -- do you -- lets you mentioned.
That that when a president.
Directs comments at the Supreme Court when they have to sit there.
Like potted plants is was one sudden hearing and everybody else's standing there jeering him and that's unseemly you can look at in the come to your own judgment.
I I don't.
Publicly criticize the president and he normally does not publicly criticize me he -- -- guys.
And I was I wasn't there then you have to let me spelled out at ethnic.
Then there was the president's statement in April after the oral arguments in the Obama care case did not go well before the Supreme Court.
When he seemed to be jawboning the court take a look at us I'm confident that the supreme court's.
Will not take what would be an unprecedented.
Step of overturning.
A law that was passed.
A strong majority.
They democratically elected congress.
Just as what did you think of that.
It's unusual but as I say I don't and I don't criticize the president publicly and he normally doesn't criticize me did you feel.
Any pressure as a result of that to vote a certain -- you know what can do to me.
-- to any of us we have like ten years and we have -- precisely so that we will not be influenced by by politics.
By threats from not from anybody did you view that as a threat.
I didn't viewers threat on -- -- I heard it.
We heard -- -- -- you brought it to my attention.
-- -- -- you combine you heard it hot as a matter of just fact as a legal scholar was the former constitutional law lecturer correct.
Was how unprecedented.
Is it for a court.
Or as the president put it there an unelected group of people to overturn an act of congress.
Are not going to be engaging.
-- -- that to Beirut.
Look at where we have overruled.
What are we.
Marbury vs -- A very old case -- we we did just that and we've done it in.
A large number of cases since then it's it's part of the function of the court.
Look it is the most important role we play -- the reason we have like ten here.
Is precisely because now and then we have to tell the majority of people that they can't do what they wanted to.
That what they want to do was unconstitutional.
And therefore go away.
Now let's look -- make it's popular.
And you can say oh it's very undemocratic and in the small sense it is.
In the larger sense it isn't however because it's the American people who gave us that power -- the American people who said.
No there's some things we're not going to let future legislatures do.
Even if they want to do it.
And we're simply applying that judgment of the people who think the American people over time.
Some people say that you who crossed the line.
Last month in your dissent in the Arizona immigration.
Case you brought up the fact that the president.
After the case had been argued shortly after the law had been passed the fact that the president and and on related decision had decided not to deport the children.
All the illegal immigrants let's take a look at your -- he wrote this to say -- the court does that Arizona contradicts federal law by enforcing applications.
Of the immigration not that the president decline is due in for us.
Boggles the line.
To which conservative.
Judge Richard Posner.
Wrote about -- to -- -- gives that part of the opinion the air -- Campaign speech.
He's a Court of Appeals judges and yes and he doesn't sit in judgment on my opinions as far as I'm concerned you sit in judgment because of it that's what happens.
Well what about the argument go through her but -- then people wonder why -- can you would you.
Push people's buttons every once in awhile.
It's fun to push buttons.
Is -- it -- -- want.
When Richard -- comes out with a statement like that and I should fire back -- that statement equally provocative.
Okay but here's the point that he's making.
-- -- the president's decision months later after the case has been argued after the law has been passed what to do about immigration.
And deportation and -- the whole opinion.
Not okay -- you know I neither of the hole.
Neither neither have I have the people who who read that quote the context in which it was was that the solicitor general have argued to the court that's the only reason.
The Arizona was suffering the incursion of immigrants that it was was that there was just not enough funding.
For immigration enforcement and the executive -- to make decisions about where to allocate the funding.
Now I said in my opinion that even bat.
Is no justification for letting for her -- for refusing to -- Arizona.
Supplement the enforcement -- it's only enforcing federal law and not not going beyond federal law.
I said even if that were the reason.
But I hadn't I don't know that the solicitor general's representation.
Any longer correct in light of the statement by the president.
Didn't talk about lack of funding which is simply said we're not going force these provisions of the law.
I didn't criticize that I didn't say he had no authority to do -- I said he may well be right in doing it.
But it it demonstrates the point that Arizona is being.
From enforcing federal immigration law.
Even when the executive rightly or wrongly simply chooses not to enforce.
You have a reputation and some would -- we've seen it today of being cantankerous.
On the bench and I would like to do if I may -- -- tech.
I have talked about your book this is a text to allow right all right you wrote Sandra Day O'Connor his decision and -- 1989 abortion case quote.
Cannot be taken seriously.
You called an opinion by Chief Justice Rehnquist and in 1988 case a short -- exercise inequality.
In -- 2007 to send -- what you wrote about justice breyer's opinion the sheer applesauce of the statutory interpretation should be obvious.
Are you content -- You know in tanker -- -- express myself vividly.
Those criticisms are criticisms of opinions not of my colleague.
I'm common good friend of steam prior like -- Milan and of Sandra Day O'Connor.
And whoever else it.
Whose opinions I criticize and they call one of your opinion sheer applesauce and that's fine so long is -- so long as they can demonstrate that it's true.
I actually think apple -- is -- is something good to whom.
We it's not good and opinion.
You're 76 years old will you time your retirement.
So that a more conservative president can appoint a like minded justice.
I don't know I haven't decided.
When to retire but I mean does it go through your mind -- I retire I'd like to -- since you talk about Republicans of playing one kind of justice and Democrats another that you would want somebody who would.
Adhere to your view -- it has it in your locally I thought I would not like to be replaced by someone who immediately sets about undoing everything that I tried to do for 25 years 26 years.
But I mean I shouldn't have to tell you that.
To -- you think I'm a fool.
I was in the White House briefing room -- 1986 when Ronald Reagan he remembered me there now -- I don't regret I was over there if you look at that picture I was over to the left is gonna battle that is there when Reagan named -- -- the court and over the years at various points you've admitted to being discouraged is starting to repeat yourself -- after 26 years on the job.
How do you feel about these days.
Or am I didn't know more discouraged -- remember -- you know win some lose some I think we're fighting the good fight and I think.
Things are better as far as the supreme court's jurisprudence is concerned by my lights.
They're better today than than what they were 26 years ago so you know.
So -- -- any thoughts about stepping down.
Immediate no immediate -- -- -- My wife doesn't want -- hanging around the house so I know that.
I can understand how.
Justice Scalia the name of the book is reading law it is fascinating that you are -- and -- thank you so much.
For coming in today to discuss judging it's been a real treat you have an open invitation to.
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