On the radio program "Your Turn — Meeting Nonsense with Common Sense," the Centers General Counsel, Renee Giachino, recently interviewed Kevin Ring, author of Scalia Dissents: Writings of the Supreme Courts Wittiest, Most Outspoken Justice, about the U.S. Supreme Court and Justice Antonin Scalias place on its bench.
What follows are excerpts from the interview
GIACHINO: My first guest this afternoon joins me from Washington, D.C. He is the author of Scalia Dissents, a hot-off-the-press book that examines the writings of the Supreme Courts wittiest and most outspoken Justice. Joining me is author and attorney Kevin Ring. Thank you for talking with us today
RING: Thank you for having me
GIACHINO: I read somewhere that you are a "self-proclaimed" Scalia expert. What is your fascination, if I can refer to it that way, with Justice Scalia
RING: Well, I guess that just means that I am an über fan. I have, as many conservative lawyers have, followed his career on the Court and his noteworthy opinions, and I would always look to see if he issued an opinion whenever the Court issued an opinion. I would read his opinions and usually find them to be the most fascinating opinions of the Court. I have just followed him for his 18 years on the Court and always made it a note to collect different opinions that I thought stood out. After enough time, there was a book-full
GIACHINO: I envy you. I wish I had thought of doing something like this. It is a fascinating book
RING: Well, you can do Thomas Dissents.
GIACHINO: There you go. Yes, he is starting to get quite a few of his own, as well.
Kevin, your biography indicates that you served as counsel to the U.S. Senates Constitution Subcommittee. What was your role and how did it help you, if it did at all, in writing this book
RING: It did. Actually, it did more to help me prepare for the questions I have been asked since I have been talking about the book because, as you know, it looks like there are going to be some vacancies on the Court, and people are looking at the process. When I was on the Senate Judiciary Committee one of my jobs was to vet President Clintons judicial nominees, and so I actually did a fair helping of that — although there were no Supreme Court nominees during my tenure with Senator Ashcroft. Other than that, I did usual counsel things: I helped him prepare for hearings (we ran our own hearings on issues of abortion, gun control and privacy); I made sure that the Senator and now Attorney General was prepared for those hearings, and that we had witnesses who could speak to those topics to help illuminate different areas of the law
GIACHINO: Thats great. I know the book has just recently been released and is available on Amazon.com and let me set this up for the listeners. The book is called Scalia Dissents, and in it Kevin Ring examines some of the most important constitutional issues of our time, including affirmative action, abortion, gender equality, free speech, and many others. In doing so, he showcases Justice Scalias opinions and reveals his philosophies. As I said, I am envious that you did this, and I applaud you for your efforts and really want to recommend this book to the listeners because I found it to be a compilation of the most interesting and controversial cases heard by the Supreme Court since Justice Scalia joined the bench in 1986. How did you decide which cases and quotes to include in the book
RING: I think about 90 percent of the ones that I chose just stood out. I had known them from the time that they were issued; they were in high profile cases, as you mentioned, whether it was abortion, death penalty, affirmative action. Some just stood out from the moment he wrote them. Others, after culling through several hundred of his opinions I didnt know about, grabbed my attention. Again, my criteria was not so much that these were some of the most important decisions because they set a new course for the law or were important cases necessarily. It was just that they had a combination of all the different things that he brings as a writer of opinions. Just great argumentation, great one-liners, hes just a brilliant writer and I thought it would be entertaining to read these opinions regardless of whether you agreed with his philosophy or thought they were opinions that were going to stand the test of time.
GIACHINO: I think there are plenty of people out there — at least those in the media — who disagree with the statement that they are brilliant. I think Scalia has a lot of critics in the media and perhaps more than all of the other Justices combined. Why do you think that is the case?
RING: I think because he is the most forthright about his positions, and I think there are some conservatives who are half apologetic about their views. I think Scalia takes a less, and I use these terms loosely, but I think he takes the ideas that are prominent on the left, ideas such as the "living Constitution" and those sorts of ideas, head on and very directly, and I think he is not afraid to be critical of reasoning that he finds faulty. He uses sharp language when he thinks the Court is way off base, and I think that has attracted a lot of attention. I also think that because he endeavors to implement a very methodical approach to interpreting the Constitution and federal statutes he has invited criticism, both good and bad. Because he is trying to set forth a consistent philosophy, there are a lot people out there waiting to play "gotcha" and find examples where he did not do it. And he has been a magnet for criticism as a result
GIACHINO: Well, he certainly is one of the few Justices who do not leave us guessing as to where he stands on important social issues. Rumor has it that he is growing increasingly dissatisfied with calls for him to be silenced on issues of public importance. Very often he is criticized for expressing his opinions in public.
Youve already addressed my first question, which was whether or not this criticism is warranted. So let me follow it up and ask you whether you think Supreme Court Justices should be silent about their opinions, or is the American public entitled to know where they stand on issues of such importance
RING: Well, I think that once they are on the bench they do have, they should have, the freedom to speak about important issues of the day so long as they are not putting themselves in the position where they cannot be seen as impartial judges of future cases. Now, when Justice Scalia has put himself in that position he thought enough to recuse himself. And that was in the Pledge of Allegiance case. But in other cases, I think it is totally appropriate. And what he is doing is letting people know his philosophies and how he approaches decisions, interpretive questions, and I think that is critically important for people to understand. Otherwise we have these caricatures out there of "this is a conservative judge" or "this is a liberal judge" or "he is for abortion" or "he is against abortion" when that is really not the debate that happens on the Court. The debate is whether the text of the Constitution protects privacy which includes abortion. And so knowing how they approach the constitutional questions is very important, and it is a debate we need to have and a debate we no longer seem to have during the confirmation process ever since Robert Bork was defeated in 1987
GIACHINO: In your book, Scalia Dissents, you make a pretty good case that Justice Scalia is a strict constructionist. Would you agree with that, or is it more accurate to refer to him as a textualist or a judge who believes in original understanding? Where would you put him?
RING: He is two of the three things that you mentioned. He is a textualist. His philosophy directs judges to look first to the text of the Constitution or the statute that he is interpreting. People say "yeah, no kidding, why wouldnt you?" But that was not always the case. It had become fashionable — and in some cases it still is — for a judge to listen to a case and think what is the best resolution of this, or what is the most fair and equitable in my view. And Scalia says: No, we have a rule of law and the only way we know what that rule of law is is to look at what that law says in black and white. So he is a textualist.
He is not, however, a strict constructionist, which is a fashionable term on the right. He has actually said that no one should be a strict constructionist, although better that than a non-textualist. And by strict constructionist, I think he means a too narrow reading of words. So, he uses as an example where somebody says "do you use a cane," they mean "do you walk with a cane" not "do you have a decorative cane hanging in the front hallway as a decoration for your house." In Scalias view, words should be given their ordinary and reasonable meaning. Not a strict or a narrow reading. So that differentiates him from some others.
And, as you said, he does look for the original understanding. He doesnt try to discern intent, because that is unknowable. But understanding — what did the word mean to the reasonable person at that time, what did the person think? And he does analysis to try to figure that meaning out. So again, there is a fixed meaning and not one that changes over time and can be distorted by judges
GIACHINO: Do you think Justice Scalia would like to be Chief Justice should Rehnquist retire?
RING: You know I have no way of knowing if that is what he wants. Ill say this — I think that to the extent that he thinks he has earned it, he is right. He has been the intellectual leader on the Court during his 18 years there. In much the same way Justice Rehnquist was known as the lone ranger and the great dissenter when he was a Justice and then elevated in 1986 to be Chief Justice, he was considered the intellectual leader and that is why he was elevated. Scalia occupies that same role today. He does not always command a majority, but he is no doubt the intellectual firepower on the Court, especially for a President who seeks to put constitutionalists on the Court
GIACHINO: As a follow-up, if he were selected as Chief Justice do you think he would be effective? Part of my understanding of the Chief Justices role is to cobble together majorities, and given the fact that so often he seems to be one of the dissenters, do you think the Court would remain marginalized or do you think he could lead the Court or would he just be Chief Justice in title only?
RING: Well, I think that understanding of Chief Justice is one that some people might disagree with. I have heard it many times and know that many people agree with what you are saying, that the job is to fashion majorities, and I think that depending on how many nominees President Bush is able to make given the vacancies, Scalia may very well be in a position of commanding majorities. That remains to be seen. However, leadership can take another form and that is through the powerfulness of your ideas. I think Justice Scalia is a powerful advocate for his view. He does not always find himself in the majority, but he is not always in the minority either. He has written a number of important majority decisions, and I think he can lead the Court and keep comity on the Court and keep the trains running on time. I absolutely think he has that ability, and I think his service proves that
GIACHINO: What would you say is the single most misunderstood trait belonging or assigned to Justice Scalia
RING: I would say that he is a "political conservative" — that is that he is, let me put it more pejoratively, that he is a "political hack." That is that he favors conservative outcomes and then tortures his philosophy to arrive at that outcome. But his record is replete with examples of just the opposite. In fact, I talk in the introduction that there are numerous instances where he comes down — because he applies his philosophy so evenly — he comes to a resolution that no political conservative would like. He voted to strike down the law against flag burning; he said the First Amendment protected that because it was clearly political speech. Just recently he voted against President Bushs prosecution of the War on Terror, at least with regard to detaining citizens who he deemed enemy combatants, and he said, look, if habeas corpus means anything, it means that the executive cannot indefinitely detain people. That was an opinion joined only by liberal [Justice] John Paul Stevens. There are just so many instances where he talks a principled jurists view and not that of a partisan political operative, and I think people dont know that about him
GIACHINO: Well, Im not surprised that the phone lines are lit up. Lets take some calls. Go ahead caller, its your turn
CALLER: Kevin, you mentioned the right to privacy with regard to Roe v. Wade. I did not think it was the intent of the writers, but the role of the judiciary was not to make law, but when you see the effect, what people will generally say is that Roe v. Wade is generally the law of the land. I wondered if you would address that. You did not say your opinion on that, but do you feel that the right to privacy was really a foundation to lead us to Roe v. Wade or do you think that was a perverted way to go at it
RING: I agree with Justice Scalia, which is to say that when doing analysis on abortion — or he has said this with respect to right-to-die cases or all the rest — his philosophy looks first to the text of the Constitution. And abortion is nowhere to be found. The right to privacy is usually considered to be the umbrella for that, but he doesnt find it anywhere in the text of the Constitution. The next step of his analysis says, well, but is this a liberty or right that has historically been protected in this country? And he says, well, it is quite the opposite up until 1973, all 50 states had laws or regulations restricting the exercise of this liberty so it cannot in any way be considered so fundamental that we need to enshrine it in the Constitution. So, I dont find it to be something included in the Constitution. Its not to say it is not a liberty or cannot be a state right somewhere, and it is not to say it cannot be added to the Constitution by amendment — but it certainly is not something that is included as written
GIACHINO: Thank you caller. Next caller, go ahead its your turn
CALLER 2: Renee, this is for you. I tuned in late so Im not sure how much I missed in the conversation, but I heard you say that its your understanding that the duties of the Chief Justice include doing so and so. My question is, and Im going to sound real dumb this way, but is there such a thing as a job description for a Chief Justice?
GIACHINO: Kevin, Im actually going to let you answer that question because I think Kevin has schooled me and many others out there like me who believe that it is the role of the Chief Justice to try to cobble together a majority when it is so fractured. However, Kevin, I think you may feel differently and I would like you to express your opinion if you will?
RING: Sure. I do think that people have different ideas of the role that they see for the Chief Justice and that historically it has been the case that a great Chief Justice has cobbled majorities together. But, not to minimize it, but the Chief Justice has the same one vote as the rest of the Justices. People have different theories of what a Chief Justice should do. You may remember the late former liberal Justice Brennan who said that: with five votes around here you can do anything. Thats one view of interpreting the Constitution. Scalia has a different view which is: lets just get it right and hopefully have enough votes to get it right. The Chief Justices duties, the primary ones are he has a more advanced role in the docket, selecting what cases will be considered. And even there, the other Justices do have input. And then the Chief Justice has the duty or responsibility to assign the opinion writing after the Justices vote in conference on a decision and how it is going to break down. The Chief Justice, if he is in the majority, will assign the opinion. He can write it himself — he can cast himself with it — or he can assign it to someone else. That can be an influential tool because you can sort of reward and punish those. Chief Justice [Rehnquist] has not done that all too often. And, again, there are some administrative duties. You run the Supreme Court, so you have to have some administrative abilities. Without minimizing this, I think that the more important thing of this is that you do only have one of nine votes, and so your ability to influence is not that much greater than any of the other nine justices
GIACHINO: Kevin, I only have about 2 minutes left in this segment. I want to make sure that the listeners know how they can get your book, Scalia Dissents. Its available on Amazon.com and they can order it at a local bookstore. Is there any other way?
RING: Amazon.com is the choice of many, but it is at Barnes & Noble and Borders everywhere that I have seen
GIACHINO: If you could pick one quote for Justice Scalia to erase from his opinions, what would it be
RING: I think in the Lawrence v. Texas case, which is the sodomy case, I think as a matter of law he is right on and most people would agree — for much the same reason as they would hold that opinion with respect to abortion — that the Constitution is silent here. I think, however, in arguing that Texas did have a rational basis for passing the law, I think the language he chose there was sincerely held beliefs, but he allowed his legal opinion to be undermined somewhat by what he was presenting as a policy argument for Texas. So, therefore, when he said that a lot of people do not want homosexuals to be cub masters or teachers or all the rest, I think that put him a position where now he has to defend what could have been Texas reasons rather than the better position — which is what the Constitution says.
GIACHINO: Well, Kevin, Ive got to take a break. Thank you very much for joining us
RING: You are welcome.
GIACHINO: Kevin Ring, author of Scalia Dissents, its available on Amazon.com. We appreciate your time.December 1 , 2004