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"60 Minutes" Interviews Justice Scalia:
Part 1 is here, and Part 2 is here. I thought Part 2 was particularly engaging and worth watching. Thanks to Howard for the links.
BruceM (mail) (www):
Saw it earlier, it was a really good interview. Ergo, Orin must have thought it sucked.
4.28.2008 2:27am
OrinKerr:
Brucem,

Looks like we finally found something to agree on. Glad to hear it. (For those unaware of such things, BruceM and I have sort of a running joke that he and I disagree on everything.)
4.28.2008 2:39am
BruceM (mail) (www):
*Hug*
4.28.2008 2:43am
Fearless:
It is an excellent interview. Nothing new philosophically. But, it does paint Scalia as a more interesting person.
4.28.2008 6:57am
Fearless:
I should add this. I think that Scalia is a shrew.

Torture is not punishment?

Give me a break. In many cases, there would be no torture if there wasn't the thought the person being tortured did nothing wrong.

I think this is a good example of Scalia's narrow-mindedness.

There must be only one reason for torture. i.e. to get information. That defies reality.
4.28.2008 7:11am
The Real Bill (mail):

There must be only one reason for torture. i.e. to get information. That defies reality.
Hasn't he ever read 1984?
4.28.2008 7:27am
Hoya:
It is essential to punishment that the punisher holds that the punishee did something wrong. It is not essential to torture that the punisher holds that the punishee did something wrong. So torture ≠ punishment.

It's not just a good idea; it's Leibniz's Law.

Furthermore, by Fearless's argument, forgiveness is a form of punishment, because one wouldn't forgive someone unless one thought that the person being forgiven had done something wrong.
4.28.2008 8:58am
Al Maviva (mail):
Hoya, your puny human logic does not work here.
4.28.2008 9:10am
ERH:
Doesn't CBS realize exams are right around the corner? Who's got time to watch TV interviews?
4.28.2008 9:11am
George Weiss (mail) (www):
ERH:

here's a transcript:
4.28.2008 9:38am
BruceM (mail) (www):
Fearless, all Scalia was saying is that according to SCOTUS precedent, the 8th Amendment only applies once someone has been punished. It doesn't even apply to pretrial detainees. Ingraham v. Wright, 430 U.S. 651, 671--72, n.40 (1977) ("these cases demonstrate, the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment."). Two people in jail, one sentenced on a misdemeanor and one awaiting trial, are both waterboarded. Only the one sentenced can have an 8th Amendment claim (the other would have a due process claim). So I agree w/ Scalia in theory that torture to gain information is not "punishment" but it's really just a matter of semantics.

However, I've always felt that this was a stupid precedent... just an example of judges letting the government do what it want by finding cute ways to give words meaning... maybe the ultimate example of form over substance.

But Scalia was merely talking about existing SCOTUS precedent (and longstanding precedent at that).
4.28.2008 10:09am
Zywicki (mail):
I thought Part 2 was great as well. I loved Scalia's lack of false modesty referring to his elementary school grades. I also loved the line when he was referring to the de facto requirement that in an Italian Catholic family with 5 boys at least one had to be a priest--and that they all breathed a "sigh of relief" when Paul decided to "take one for the team." Just a great window on the guy.
4.28.2008 10:32am
tarheel:
Interesting discussion of Scalia's disappointment at the end of every term with the results of the big cases. I wish Stahl had asked the next question. Does he think his occasionally caustic tone, especially aimed at O'Connor over the years, played any role in his inability to garner a majority in some of those biggies? I know RBG discussed this briefly earlier in the interview, but I wonder if CBS tried to get Scalia and O'Connor on the record on this issue.
4.28.2008 10:57am
Q the Enchanter (mail) (www):
"the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication"

That is hilarious. I wonder if the SCOTUS thinks before formal adjudication the government acquires the power to "confine"? (Conditions of confinement fall under the ambit of the Eighth Amendment as well.)
4.28.2008 11:21am
Andy C.:
It would have been nice if he was asked, "You claim to be an Originalist, but in the Raich decision you essentially said that Congress can do whatever it wants as long as it says the magic words, 'interstate commerce'. Do you think the Founders thought that Congress had the power to criminalize a private citizen growing a plant in their own yard for their own use?"
4.28.2008 11:23am
J. F. Thomas (mail):
So I agree w/ Scalia in theory that torture to gain information is not "punishment" but it's really just a matter of semantics.

Yeah, which is why I dislike the smarmy smartass so much. While the 8th amendment may not attach, the due process clause along with a bunch of other laws and treaties do, and they all require a higher, not lower, standard of treatment generally than the eighth amendment.
4.28.2008 11:48am
Dilan Esper (mail) (www):
I didn't mind the punishment section, though Scalia should have been clearer about why the Eighth Amendment doesn't apply. The real action is with the Fifth Amendment.

What I did mind was Scalia's claim that Bush v. Gore was Al Gore's fault, because he started the litigation. Come on! Under Florida law, Gore had to file suit to get his recounts. Bush filed suit too, to stop them.

Scalia's also kind of funny about all the ethnic pride that Italians felt about his nomination to the Supreme Court as the first Italian-American justice, and the diverse background he grew up in. Read his affirmative action opinions and you would think that all that stuff is completely irrelevant in life.

Finally, the elephant in the room is how he came to originalism. He touts what a great theory it is because he puts his personal views aside, but the reason one picks that theory in the first place is because of one's personal views. He is a conservative Catholic who played "Vatican Roulette" (his words), he can't stand abortion, so he picked the philosophy that allowed him to say, purely on principle, mind you, that Roe needed to be overturned.

And how he pretends that everything is so simple! There is one right answer-- his. One way to interpret these texts. Has he ever appreciated just how vague the Constitution is in its key provisions? If getting the answer were really as simple as he portrays, we could program 9 computers to decide our cases. We have judges-- justices-- because we need people who have good judgment and will do justice.
4.28.2008 12:25pm
George Weiss (mail) (www):

I loved Scalia's lack of false modesty



diagram that
4.28.2008 12:42pm
Res Ipsa Blog (mail) (www):
Here is a summary of what he said


I am looking forward to reading his new book!
4.28.2008 12:54pm
A. Zarkov (mail):
That is hilarious. I wonder if the SCOTUS thinks before formal adjudication the government acquires the power to "confine"? (Conditions of confinement fall under the ambit of the Eighth Amendment as well.)


Pretrial confinement is not a punishment, that's why we have bail. So I think the pertinent question is, "Has a court ever held that the conditions of pretrial confinement a violation of the 8th Amendment?" If the answer is "no," then your comment has no substance.

Now is all this talk about torture not being a punishment simply a distinction without a difference? I don't think so. Expanding the 8th Amendment beyond adjudicated punishments would open up all sorts of opportunities for mischief. For example any novel way of gathering evidence could get attacked as "unusual." Tainted and inadmissible evidence is generally not an 8th Amendment question.

I realize that the idea that torture is not a punishment is a bitter pill to swallow for some. For them it's not enough to simply outlaw torture, because somehow you have to get what you want into the constitution without amending it. Thus their enthusiasm for "living constitution." But such a constitution is really no constitution at all.
4.28.2008 1:13pm
A. Zarkov (mail):
"Read his affirmative action opinions and you would think that all that stuff [diversity] is completely irrelevant in life."

Scalia simply says that diversity considerations don't generally apply in interpreting laws. That's a lot different than saying "completely irrelevant in life."
4.28.2008 1:18pm
Jiminy (mail):
The point of the english law and the 8th amendments were to curtail the sheriffs, King's judges, and other law enforcers who abused their power to throw and keep people in jail. First, they'd jail someone and not offer them bail. Then, they'd jail someone for a bailable offense, but the King (and his judges) could keep you there without bail. Then, they'd jail someone, offer you bail, but it would be an impossibly high amount of bail that you could never afford.

Scalia did a good job of oversimplifying his concept of originalism, and sidestepped the common law that the text of the 8th is drawn from and inspired by. You'd almost be right in saying that torture isn't punishment, until you realize that this amendment specifically is designed to protect prisoners from overzealous law enforcement who have arrested/detained them for as long as they wanted.
4.28.2008 1:30pm
KWC2000 (mail):
Question: What is the propriety of a justice going on 60 minutes to advertise his book? Something tells me that the original ratifiers of the constitution didn't envision Article III judges peddling their books and philosophies on primetime news.
4.28.2008 1:58pm
KWC2000 (mail):
Bush v. Gore was, is, and will always be a huge blemish on his record. He is completely unable to give a compelling justification for how this decision was consistent with his judicial philosophy.

His untenable position that torture does not violate the 8th Amendment because it is not meant to "punish" is completely absurd.

(sorry, my running commentary)
4.28.2008 2:12pm
Scaliaaaaaaaaaaa:
I think Leslie Stahl has a new crush.
4.28.2008 3:02pm
Piano_JAM (mail):
KWC,
So in the Marathon Man, when Dustin was getting drilled to find out whether 'It is safe', he was being punished for what? - not cleaning up the blood in his office. He was being tortured for information. I see NO punishment. You're 'lack of an argument' is absurd!
4.28.2008 3:45pm
Dilan Esper (mail) (www):
Scalia simply says that diversity considerations don't generally apply in interpreting laws. That's a lot different than saying "completely irrelevant in life."

Not true, Zarkov. In Metro Broadcasting, in Gratz and Gutter, and in other affirmative action cases, he has decried that racial diversity could ever be a compelling interest. He has to, because even under the strict scrutiny he prefers, affirmative action would be constitutional if it is necessary to achieve a compelling interest. But yesterday, he seemed to indicate that ethnic diversity is pretty important.
4.28.2008 3:50pm
Dilan Esper (mail) (www):
Bush v. Gore was, is, and will always be a huge blemish on his record. He is completely unable to give a compelling justification for how this decision was consistent with his judicial philosophy.

Yeah, his only explanation was "6 members of the Court agreed with me". That's not satisfactory for a guy who is willing to say that 7 justices are wrong about interpretative theory and only he and Thomas are right. Where's the justification that Bush v. Gore was consistent with the original understanding of the equal protection clause?
4.28.2008 3:54pm
BruceM (mail) (www):
Dilan, could you please explain to me how the government could ever have a compelling interest in "diversity" (which I assume means the mixing of various races and ethnicities)? Considering people of different races and ethnicities, by default, do not get along, I'd say if the government has any interest with respect to diversity, it is in preventing it.

The notion that the government has an interest (compelling or otherwise) in all happy-sounding nouns is a notion I vehemently and categorically reject.

In the interest of full disclosure, I don't believe "the government's interest in X" should ever be a relevant consideration to determining constitutionality.
4.28.2008 3:58pm
CDU (mail) (www):
J. F. Thomas wrote:
Yeah, which is why I dislike the smarmy smartass so much. While the 8th amendment may not attach, the due process clause along with a bunch of other laws and treaties do, and they all require a higher, not lower, standard of treatment generally than the eighth amendment.


Evidently you dislike the, "smarmy smartass" so much that you can't be troubled to mention that he mentions that torture is illegal in that very same portion of the interview.
4.28.2008 5:22pm
KWC2000 (mail):
Piano_JAM:

The argument that the prohbition against "cruel and unusual punishment" is not violated if the cruel and unusual treatment by the government isn't for "punishment" purposes is inane. By that same logic, the takings clause's prohibition on takings "for public use without just compensation" would not apply to government takings for private use (for which, it would follow, there are NO restrictions on government takings).

Clearly the Constitution's 8th Amendment is meant to prohibit all "cruel and unusual" mistreatment by the government, and that that protection doesn't hinge on the mistreater's mentality (i.e., whether or not they intend to punish or just excise information).

Moreover, there is ALWAYS a punishment aspect. Because these individuals are seen as bad-doers, there is no limitation on what the government will do to them. The excising of information would be a lot different, if let's say, Laura Bush held the secret information. Something tells me a simple subpoena would do -- there would be no torturing.
4.28.2008 5:53pm
Q the Enchanter (mail) (www):

So I think the pertinent question is, "Has a court ever held that the conditions of pretrial confinement a violation of the 8th Amendment?" If the answer is "no," then your comment has no substance.
The argument in issue was that punishment that occurs before trial isn't "punishment" under A8 because there's been no formal adjudication. To which I answered: If there's no "punishment" absent a formal adjudication, then neither is there "confinement." My suppressed premise was: Of course the government "confines" prisoners when it holds them in pretrial confinement. (Note to self: Enthymemes never save time.)

Given that my comment was normatively targeting the prima facie illogic of the argument in issue, then, how is it a "pertinent" question to ask whether any court has ever ruled otherwise?
4.28.2008 5:57pm
Dilan Esper (mail) (www):
Dilan, could you please explain to me how the government could ever have a compelling interest in "diversity" (which I assume means the mixing of various races and ethnicities)? Considering people of different races and ethnicities, by default, do not get along, I'd say if the government has any interest with respect to diversity, it is in preventing it.

Bruce, you miss my point. Actually, I have my own doubts about the diversity rationale as a basis for affirmative action.

What I was commenting on is Scalia, who has ripped into diversity as what he claims to be a completely insufficient interest to justify racial and ethnic preferences, citing exactly the diversity rationale when it comes to his own service on the Court and his upbringing in a mixed-ethnicity neighborhood.

It has nothing to do with what I think. It has to do with what Scalia thinks.
4.28.2008 6:22pm
josh:
BBBBBButttt ... BBBButtttt ... the liberal media!!!!

But seriously, even as a lefty, I liked the piece, and, as I came to understand as early as first-year law school school, I like Scalia, despite my disagreements with his legal opinions and philosophies.

Loved Ginsberg's short retort to originalism, too. Don't hear that too often in the "liberal media." Who were "we the people" originally? Certainly not women, and certainly not the 3/5th African-Americans!
4.28.2008 6:42pm
BruceM (mail) (www):
Dilan, what do you mean, about there being several Catholics on the court?
4.28.2008 8:39pm
SCollingwood (mail):

Yeah, which is why I dislike the smarmy smartass so much. While the 8th amendment may not attach, the due process clause along with a bunch of other laws and treaties do, and they all require a higher, not lower, standard of treatment generally than the eighth amendment.


Wow. What a profound lack of respect. Certainly disagreement and debate lend to the "marketplace of ideas" that Scalia stands for. But at the end of the day, he's still a Supreme Court Justice, and I think that warrants a little more deference than deeming him a "smarmy smartass" to get a rise out of the blog's readers. Last night's interview was yet another example of his incredible intelligence tempered with a down-to-earth, keen wit. Like him or not, seems like a shame to reflect so poorly upon the profession. And no, I'm not an idealistic idiot in an academic ivory tower or in my early twenties.

In response to the conversation above, I must say that I was very surprised by his response. I wouldn't have expected him to head into a "What is torture?" line of reasoning instead of citing something about the power of the Executive. Reading everyone's many interpretations of what this means and why he said it is quite the food for thought.
4.28.2008 8:41pm
Guest101:

Loved Ginsberg's short retort to originalism, too. Don't hear that too often in the "liberal media." Who were "we the people" originally? Certainly not women, and certainly not the 3/5th African-Americans!

Even as a fellow lefty, and a non-originalist, I find that a pretty weak response. The originalist answer (and for that matter, I think the reasonable answer) to that would be that, to the extent the Constitution fails to reflect the views or interests of some group within society, then that group is free to avail itself of the democratic processes provided for the amendment of the Constitution, but has no justification for attempting to impose its own preferred reading through "interpretation." Unless of course Ginsburg wants to argue that because women and racial minorities were not involved in the drafting of the original document, they are not bound by the social contract that it embodies-- but that would be an extremely radical view which I doubt she would really assert if she thought about the implications.
4.28.2008 9:16pm
KWC2000 (mail):
But couldn't an originalist say that "we the people" meant those individuals recognized to have full rights, so that now that African-Americans and women have full rights, they fall under the definition of "people"?

An originalist just takes the original meaning of the text, not what the text was thought to encompass. This is why Scalia can read in the constitutional implications regarding wire-tapping, even though, clearly the founders did not contemplate that such a possibility would exist.

The problem -- as this confusion points out -- is that at some point originalists (like Scalia) have to fudge a bit. If the ratifiers didn't have wire-tapping (or other technological advancements) in mind when they ratified, it is just a guess on anyone's part whether or not these certain things would fall under the consitution's purview. At this point the text requires interpretation, which requires -- ALWAYS -- some judgment call. These judgment calls, whether or not Scalia wants to admit it, will more often than not align with one's personal beliefs.
4.29.2008 1:37pm
Dilan Esper (mail) (www):
I think Ginsburg's response is better than the last 2 commenters did.

Let's think about this. Women and blacks were not part of the original "we the people", but they can use democratic processes to amend it. Really? Women didn't have the right to vote, and married women were considered to be merged into their husbands. Blacks were mostly enslaved, and also didn't have the right to vote or own property. Exactly how were they going to change the Constitution through democratic processes?

But, you might say, they can change it now. Sure enough. But that gives white males a tremendous advantage, doesn't it? Because they got to write the rules at the time blacks and women were disenfranchised. And now those rules are in place and you need state and national supermajorities to change them.

Now where does that lead us? Well, for one thing, the nonoriginalist interpretation of the 14th Amendment as extending to sex discrimination makes perfect sense, doesn't it? If women had full rights in 1787, there might be such a provision in the original Constitution. But there isn't, and it is too hard to amend so they don't get it there now. Why? Only because white males denied them any power when the thing was written.

It seems to me there is no good originalist answer to THAT.
4.29.2008 2:38pm
Guest101:
Dilan,

What solution would you propose? Again, it seems to me that the only alternatives are that women and minorities accept the system as it currently exists and work from within to change it in whatever manner they desire (and can persuade their fellow citizens to accept), or they can argue (no doubt unsuccessfully) that they are exempted from the deal-- which would logically entail the rejection of all rights and benefits to which they are entitled under the Constitution, as well as any obligations. I don't believe for a second that Ginsburg would support that outcome.

I'm also somewhat skeptical of the proposition that the categories on which Ginsburg relies have any particular legal or moral relevance in this context. No one alive today was a party to the social compact originally conceived by the framers of the Constitution, so in a sense we've all had it thrust upon us somewhat unwillingly. It's not at all clear to me, as a white male in the twenty-first century, that my interests and values are any more or less represented by the group of white males who passed the Constitution in 1789 than are the interests and values of twenty-first century women, blacks, gays, etc.
4.29.2008 7:25pm