Thursday, December 07, 2006

There you go again (Justices Scalia and Breyer)

As I noted this morning, Justices Breyer and Scalia had a discussion about how they view their role, available as streaming video here. Here's my report of the Breyer/Scalia colloquy: I've now watched and listened, and must confess that I didn't learn very much (although I especially enjoyed Justice Scalia's comment that he doesn't expect his dissents to convince his colleagues, but he hopes that they'll persuade future generations, who will read them in the casebooks).

While they talked a little bit about statutory interpretation, the heart of the conversation concerned constitutional interpretation, with Breyer defending a pragmatic/purposive/dynamic approach, and Scalia defending originalism. Scalia did a better job of defending his position, mostly because Breyer mostly let him get away with it (except for Breyer's invocation of Brown v. Bd in response to a question). Scalia's basic position (which he has expounded many times before) is that while the original understanding does not resolve all questions, it does resolve many of our most contentious questions: So, he says, that no one who voted for the Bill of Rights or Fourteenth Amendment thought that Due Process or Equal Protection forbade the states from forbidding abortion, assisted suicide, sodomy, or same-sex marriage. Fair enough, but the obvious and unasked follow-up question is the one Thomas Healy asked a couple of days ago: Did anybody who voted for the Fourteenth Amendment (or, for goodness sake!) the Fifth Amendment, think it prohibited states and localities from using race as a factor in promoting racial integration? Or that it forbade affirmative action? Why do you ignore original understanding on this question (or on the First Amendment, for that matter)?

Tellingly, on the rare occasions when Justice Scalia has been asked this question, he has answered with a kind of Freudian slip. The Fourteenth Amendment's Equal Protection Clause, he says (and here I'm quoting from memory of at least two of his speeches) is an "explicit" prohibition on race discrimination. This is of course false. The Equal Protection Clause doesn't mention race or any other specific criterion. I call this a Freudian slip because I think it shows that the dangers that Scalia attributes to Breyer's reliance on purpose and consequences also lurks in his origjnalist/textualist approach: One will tend to see one's preferences even in a text that clearly does not contain them.

One further and unrelated thought: In response to a question that had nothing to do with his answer, Justice Breyer said that the Justices get along with one another very well, a point he has been making in public for at least the last 6 years (since Bush v. Gore). The frequency with which he has publicly made this point strikes me as bizarre. Either it means that maybe the Justices don't get along well at all (he doth protest too much), which I doubt, because I don't think Justice Breyer is a liar. Or it means that Justice Breyer thinks the public thinks the Justices don't get along, and he wants to reassure us all. But why would he think this? And even if the public thinks that the relations among Justices are sometimes testy, so what? Why is this misimpression, among all the misimpressions that people have about the Court, one that it's important to correct.