RENEE MONTAGNE, HOST:
We're going to spend the new few minutes in a wide-ranging conversation with Supreme Court Justice Antonin Scalia, the influential conservative and pugilistic dissenter. Scalia has a new book out with co-author Bryan Garner. The hefty volume pulls together the justice's views on how to interpret the Constitution and statutes. NPR legal affairs correspondent Nina Totenberg sat down with him yesterday.
NINA TOTENBERG, BYLINE: The always voluble, charming and combative Scalia answered questions for close to an hour about his book, about his relationships on the court, and the recent leak alleging anger among the justices over the health care decision. First, the leak. Citing unnamed sources with knowledge of the court's internal deliberations, CBS reported that Chief Justice John Roberts had changed his mind while considering the case and that his reversal infuriated the four other court conservatives, who dissented. Scalia disputed any notion that the decision sparked anger and acrimony inside the court.
ANTONIN SCALIA: That's just not the way justices of the Supreme Court behave, you know, go into pouts. I mean that's - it's absurd. If you can't disagree, even vehemently, on the law without taking it personally and getting angry at the person, you ought to look for another job. As you know, my best friend on the court is Ruth Bader Ginsburg, and God knows she doesn't vote my way much of the time.
TOTENBERG: Indeed, while refusing to discuss the court's internal deliberations, Scalia added...
SCALIA: You shouldn't believe this stuff that you read in the press. Don't believe it. It's either made up or it comes from an unreliable source.
TOTENBERG: And when I asked Scalia if he had ever changed his mind, he replied: Many, many times.
SCALIA: I remember at least one case where I was assigned the opinion and ended up writing it the other way, and I had to tell my colleagues, I'm sorry, it just wouldn't write itself. The law was just not there.
TOTENBERG: One thing he has not changed his mind about at all is campaign finance legislation. He long viewed the ban on corporate spending as unconstitutional, a view that finally, though narrowly, prevailed in 2010. But Scalia has also consistently favored disclosure laws, so I asked him why.
SCALIA: To evaluate speech intelligently, it's good to know where the speech is coming from. Who's telling me this?
TOTENBERG: In our interview, Scalia reiterated the major themes of his book. The Constitution provides for majority rule, with the exceptions set out in the Bill of Rights - freedom of speech, religion, et cetera. But he hotly disputes the notion that the meaning of the Constitution can change over time. It means what it meant at the founding of the republic. Thus, since the death penalty existed at the time the Constitution was written, it cannot be that the Eighth Amendment ban on cruel and unusual punishment bans capital punishment.
The only question is whether the method of execution is more cruel than hanging, the method used in 1789. He also believes the court was wrong in barring warrantless wiretapping under the Fourth Amendment's ban on unreasonable searches. That brought us to the question of stare decisis, the court's general policy of respecting precedent.
So you would let stand many decisions that you would not have reached?
SCALIA: Many, many, many, yeah.
TOTENBERG: So one person, one vote. You wouldn't have reached that decision, right?
SCALIA: Certainly not.
TOTENBERG: And the wiretapping decision?
TOTENBERG: What about covering women under the Fourteenth Amendment guarantee to equal protection of the law?
SCALIA: So if you think it's a good idea, amend the Constitution, which is what they did to give women the vote, isn't it?
TOTENBERG: And what about Brown vs. the Board of Education, the 1954 case that declared public school segregation unconstitutional? The court justified its decision then by what Scalia calls the somewhat fraudulent notion that education in modern America plays a far different role than it did nearly a century earlier. The more originalist view, he maintains, would have been to base the decision on the text of post-Civil War amendments which he says clearly bar official discrimination based on race.
His originalist view would seem to be contradicted, though, by the fact that those amendments were passed by the same Congress that segregated public schools in the District of Columbia.
SCALIA: You say it's my view. Let's not call originalism my view. I'm the traditionalist here. I'm not making it up. The other guys are making it up.
TOTENBERG: We move on to the New Deal court and its decisions, which after 1937 largely deferred to Congress in regulating the economy. Some of those cases Scalia thinks were wrongly decided, but he regularly cites them nonetheless in his opinions.
SCALIA: Nina, read my lips - stare decisis, okay? I'm not in favor of ripping up all of the Commerce Clause legislation that we have. I apply it. I'm not willing to extend it any further, as my dissent in a recent case made clear. But the stuff that it's already water over the dam, I, you know, let it go.
TOTENBERG: That recent case, of course, was the health care case. So I asked Scalia about what, in his book, he calls the cardinal principle of statutory construction. As between two possible interpretations of a statute, he says, our plain duty is to adopt that which will save the act. So why would he have struck down the entire health care law even though not all of it in his view was unconstitutional?
SCALIA: You should have emphasized: as between two possible interpretations of a statute. You favor the one that upholds rather than destroys, but it has to be a possible interpretation. It doesn't mean you can rewrite the statute, and that was the basis for the dissenting view in the recent unnamed case that you're alluding to. (Laughing)
TOTENBERG: This term, Scalia took some hits for the tone of his dissent in the Arizona immigration case, a dissent that no other justice joined.
SCALIA: That's why I have life tenure. I'm not supposed to be swayed by, you know, what would make people like me. That's not the job.
TOTENBERG: On a more personal note, I asked Scalia about his wife, Maureen, the mother of their nine children. So what happens when she thinks you're wrong in a case?
SCALIA: She never thinks I'm wrong.
TOTENBERG: Oh, yes, she does. I know she thinks...
SCALIA: She does?
TOTENBERG: I know she thought you were wrong in the flag-burning case.
SCALIA: Oh, yeah. I was the fifth vote that said it was unconstitutional to prohibit the burning of the American flag. When I came down to breakfast, she was humming "It's a Grand Old Flag." But you know, she's Irish and sort of, you know, a smarty. She was just pulling my leg, I think.
TOTENBERG: Scalia may not relish a clash with his wife, but he loves to go into the lion's den, appearing before somewhat hostile audiences - debating the head of the ACLU, for instance, at the organization's annual meeting.
SCALIA: Well, I mean, that's - it's an opportunity to persuade people, to, you know, show them that you don't have horns and a tail, and explain why it is that you think this approach is right. It's no fun preaching to the choir.
TOTENBERG: Justice Scalia's latest sermon, meant for anyone and everyone, is entitled, rather unglamorously, "Reading Law: The Interpretation of Legal Text." Nina Totenberg, NPR News, Washington.