Scalia, in Brooklyn, Says He Can't Judge Hate or the NSA

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Antonin Scalia, the longest-serving active justice of the Supreme Court, has a great deal of charm at his disposal, in person. From a distance, it's easy to imagine Scalia as a sort of aloof, smoldering demon, throwing cruel barbs at popular notions about justice and progress. Yet he is dear friends with Ruth Bader Ginsburg.

Nicholas Allard, the dean of the Brooklyn Law School, mentioned that friendship last Friday, on the stage of the opera house of Brooklyn Academy of Music, before bringing Scalia out to meet the crowd. The dean also mentioned that Scalia has written more concurring opinions than any other justice in the history of the court, along with his copious body of dissents. Grumpy and dismissive as his official persona may be, Scalia wants to be heard.

And the crowd wanted to hear Scalia. The event, in which the Fox News host and former judge Andrew Napolitano would be asking the justice questions, had been relocated from the law school campus to the opera house to accommodate demand. Two wooden chairs with padded seats waited, on an Oriental rug.

Scalia took the stage with an arm-swinging walk and took the chair at stage left. He wore a suit with narrow pinstripes; his necktie was yellow; the top of his dark hair has gone white. As he settled into his chair, he kicked out both feet, a childlike movement. He kicked them out again. Maybe his legs were stiff.

Napolitano is a dear friend of Scalia's as well. He supplied an introduction after the introduction, in which he told a story about how the two of them had been dining together in a restaurant once and some of his own fans had come over to greet him, completely ignoring the famous and powerful justice at the table. TV professionals have a way of telling stories like these.

Then they were off, with Napolitano gently goading Scalia about the idea that American law might recognize certain inherent transcendent rights, so that Scalia could cheerfully reject the concept, in favor of his own doctrine of originalism. "You're a big natural-law freak," Scalia said. That, the justice said, is the province of philosophers and theologians and other specialists, of which he is not one.

"I'm a lawyer," Scalia said.

The gist of Scalia's legal philosophy, as he wishes it to be understood, is that whatever abstract and universal ideas may have inspired the Founders were codified into the Constitution, at which point their abstract or universal nature ceased to apply. All that remained, going forward, was the specific text of the Constitution and subsequent legislation: "I enforce American law, and it's up to the American people to conform that to natural law."

Scalia salted his remarks with similarly tidy constructions: "The rule of democracy is the majority rules." "The text is the text." "A liberty is a liberty." At the bottom of every hotly contested issue, he finds a self-evident principle, demonstrating that there is nothing even to be contested.

"Did the Eighth Amendment bar the death penalty?" he asked at one point. "Not a hard question." The people who wrote the Eighth Amendment practiced the death penalty, ergo its prohibition of "cruel and unusual punishments" could not possibly exclude capital punishment. The only question, he said later on, is "Is the electric chair any more cruel than death by hanging?"—the presumption being that the answer was clearly that it was not.

The rhetorical underpinning of all this was Scalia's notion of humility. Again and again, he returned to describing himself as a lawyer—that is, a mere technician, bound to work only with the textual tools he had been provided with. "What prepared me to decide these cosmic moral questions?" he asked. "Harvard Law School?"

It was a good question, but not as expansive as it could have been. Theology and philosophy are not the only technical specialties in the academy; people also spend years training to become historians or linguists. One might deem those skills essential to understanding precisely why documents drafted by a committee of educated 18th-century men in the former British colonies used certain words and phrases and not others. Yet Harvard Law doesn't give out Ph.Ds in those disciplines, either.

That lack of expertise didn't prevent Scalia from going on an extended disquisition on the significance of the word "the" in the Bill of Rights—a critically important word, in his reading. Americans do not enjoy "freedom of speech," but "the freedom of speech"; that is, the Founders, in the process of converting abstract law to a fixed code, guaranteed only "what was the right of Englishmen in 1791."

Not that Scalia isn't willing to take a broader view. "No one should be a strict constructionist," he said. "That is stupid. Texts should not be interpreted strictly, they should be interpreted reasonably." So: "The reasonable meaning of the First Amendment is freedom to communicate, whether you do it by semaphore or by burning an American flag."

The flag-burning subject gave Scalia a chance to demonstrate his personal modesty. "I would send that guy to jail so fast if I were king," he said. The flag-burner who came before the court in Texas v. Johnson, he said, was "a bearded weirdo, sandals, long hair and everything." But the sensibilities of Scalia the opinionated human had to yield to the textual restrictions on Scalia the lawyer. "I am not king," he said, cheerfully throwing up his hands.

Scalia used his hands constantly as he spoke. He is a gifted extratextual communicator, his words constantly shaded by his tone, his gestures, and the comic application of his stern, heavy-lidded gaze. Frequently, he spoke ironically or from an assumed persona, so that the audience understood that he meant something opposite to or aslant from his literal words. He cited the teaching powers of "Harvard Law School, or even Yale Law School," in a way that clearly treated the high end of legal academia as ridiculous, even as he seemed to endorse the hierarchy among elite schools.

But he did all this in a venue where video and audio recording were forbidden. So you'll have to take my word for it. He was funny, even if the evidence is not necessarily there in the text.

Ultimately, Scalia's legal humility is meant for other people. It's his fellow justices who keep overreaching, failing to recognize the commonsense limits on their power. He clings to his integrity, in a neatly closed intellectual loop. Originalism, he said, "is really the only possible criterion for how a judge should apply the Constitution....What other possible criterion is there?"

Obviously his colleagues must believe that there are other criteria, but Scalia excludes those possibilities. He may delight in Ginsburg's company, but he does not even try to reach her on legal matters.

"I have never discussed legal philosophy in depth with any of my colleagues," he said. He theatrically imagined the result, if he did: "'My God, Nino, you're right!'" His meaning was that he did not expect the other justices ever to say any such thing.

"No, it's too late," he said. "It's too late for them and their generation."

So he makes his arguments after the fact, for posterity. "I write my dissents for the students at law schools," he said.

It was sometimes peculiar which matters struck Scalia as airtight, and which did not. In another aside on language, he meditated on the absurdity of "substantive due process": "The world is divided into substance and procedure," he said. (Recall, Scalia is not a trained philosopher.) Substantive process was inherently nonsensical. "It's the opposite of procedural substance," he said. The little word "due," floating in the middle in a cloud of unexamined assumptions, went unexamined.

Nor did he convincingly articulate why it was reasonable to interpret the First Amendment's protection of "speech" broadly, but the Fourth Amendment's protection of "persons, houses, papers, and effects" narrowly. He ticked of those those four items multiple times, even using his fingers, to express the formal limits on privacy.

One of those recitations came up when Napolitano raised the question of the secret court proceedings that govern the NSA's surveillance. "I don't want to get myself recused," Scalia said. He went on to argue, though, that the court had brought disaster on itself long before when it decided that wiretaps fell under the Fourth Amendment. Now, he said, decisions about the surveillance state must be made by the branch of government "least competent" to make them.

"My court doesn't know diddly about the degree of the threat," he said.

Originalist modesty, then, would apparently demand that the NSA's high-tech Panopticon be allowed to gaze without limit. But in the question-and-answer period, a different possibility came up. Why, a student from NYU asked, wouldn't data on a computer count among a person's "effects"?

"Ooh!" Scalia said. "Ooh! I'd better not answer... It's a really good question. That's fun."

Here, for a moment, was the Scalia of the 21st century, the author of the majority opinion that said that looking at the outside of a house with thermal imaging, for the purpose of picking out what was inside, constituted a search. "It may be effects," he said. "Don't you think that may be effects?"

It was little bit nice and a much bigger bit dismaying. The Supreme Court, on both wings and its center, is populated by people with limited experience of modernity. Search-and-seizure cases are often where this shows up (four justices, including the liberal John Paul Stevens, had disagreed with Scalia's view that thermal imaging would require a warrant). Even so, till this moment, had the possibility really never crossed Scalia's mind that in a world where everything is done by computer, someone's "effects"—let alone "papers"—might be virtual?

This is how a mind, even a clever one, ends up working when it's stuck in a cloister. The final question of the night came from a student who asked Scalia about whether his history of opinions resisting gay rights contributed to the "demeaning and persecution" of sexual minorities. He spoke in a nervous rush, with a trembling voice and none of the justice's ease of manner.

The question—"Is that a question?"—was "ridiculous," Scalia told him. Scalia did not agree with the conclusion that his legal opinions, his reading of the limits of the text, could have "promoted hate in America or abroad."

"If that provokes hate—I can't imagine how it would," Scalia said. "But hate whom you like."

[Photo by Damion Edwards Photography for Brooklyn Law School]

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