On Tuesday, the American Constitution Society and the Federalist Society co-sponsored “A Conversation on the Constitution,” featuring Supreme Court Justices Scalia and Breyer. Scarcely letting moderator Jan Crawford Greenburg get a word in edgewise, the two justices engaged in a lively but largely predictable debate -- which felt a bit like old sparring partners circling one another but never landing any punches. Justice Breyer, echoing comments from his recent foray on Fox News Sunday, emphasized the need to look at statutory purpose when deciding cases. Justice Scalia eschewed Justice Breyer's purposive method, saying judges need only look to—surprise, surprise—the text. Justice Breyer responded by saying the text isn’t always clear. Etc., etc....
Hidden within the usual back and forth were a few notable moments, including when Justice Scalia touted himself and Justice Thomas as the Court’s only two “certified originalists.” We wondered if they really get certificates, and if so, are they displayed prominently on their office walls for all to admire? Justice Scalia also said the “living Constitution” is one “I wish would die,” but in a major concession he granted that --- drum roll please -- for the most part, the "living Constitution" is not an "idiotic" interpretive model.
When Ms. Greenburg asked what the justices thought about the new Chief’s desire to bring more consensus to the Court, Justice Scalia joked, “Lots of luck.” However, both Justices Breyer and Scalia opined that consensus wasn't all it was cracked up to be, since writing extremely narrow opinions just to get unanimity on the Court was not necessarily feasible or desirable.
In response to an audience question about the meaning of the phrase “judicial activism,” which has most commonly been used to attack liberal judges, Justice Scalia confessed that calling someone an “activist judge” is merely an empty insult. He tacitly acknowledged that conservatives too engage in something that could very well be labeled activism: Despite his frequent references to democracy and deference, Justice Scalia proclaimed that it is sometimes the very job of a judge to strike down acts of Congress. We wonder where he got this insight. Perhaps he’s been reading our blogs, or hosting secret screenings of our film Quiet Revolution! Or maybe not.
All in all, it was an interesting night.