U.S. Supreme Court Justice Antonin Scalia told an audience of law students in San Francisco Friday that he thinks his greatest legal achievement is advancing a theory of constitutional interpretation known as “originalism.”
“I like to think I have brought to the fore, at least, more traditional ways of interpreting the Constitution,” Scalia said in remarks before about 400 students and professors at the University of California’s Hastings College of the Law.
“I haven’t persuaded a majority on the court or the professoriat, but I’ve brought it into the discussion, anyway, and I’m proud of that,” Scalia said.
Originalism, as applied by Scalia, is a theory of interpreting the 1789 Constitution and later amendments according to the meaning understood at the time they were ratified.
As Scalia explained it during his talk, “I interpret in the way it was understood by the society at the time.”
An opposing theory, sometimes known as the living Constitution and described by Scalia as “evolutionism,” holds that the document is flexible enough to take account of changing societal conditions and values.
Scalia, 74, a leader of the court’s conservative wing, was appointed by President Ronald Reagan in 1986. With the retirement of Justice John Paul Stevens in June, he became the panel’s currently longest-serving member.
He made his comments in an informal conversation with Hastings constitutional law professor Calvin Massey, answering questions posed by Massey.
Scalia said originalism is the basis for his views that the death penalty is constitutional, there is no constitutional right to abortion and no right to assisted suicide.
Originalism gives “easy, easy answers” to such questions, while constitutional evolutionists constantly have to assess changing societal circumstances, Scalia said.
“Every day is a new day for evolutionists,” he said.
Scalia also said he doesn’t believe the Constitution bans sex discrimination.
The 14th Amendment, enacted after the Civil War in 1868, guarantees due process and equal protection and in recent years has been interpreted by courts to prohibit sex discrimination as well as racial discrimination.
But Scalia said he believes the amendment doesn’t apply to discrimination against women because that use of the measure was not intended in 1868.
He said he personally opposes bias against women, but said it can be banned by laws rather than reliance on the Constitution.
“If the current society wants to outlaw sex discrimination, hey, we have legislatures,” Scalia said.
Scalia did not directly address same-sex marriage rights, but one issue in that dispute is whether the 14th Amendment guarantees apply to gays and lesbians.
That issue is one of several legal questions in a challenge to California’s Proposition 8 that began in federal court in San Francisco and could reach the Supreme Court eventually. An August decision by U.S. District Judge Vaughn Walker to overturn the voter-approved ban on gay marriage is now on appeal before a federal appeals court.
Asked about possible Koran burning, Scalia said that action would be protected by the First Amendment right of free speech “unless it is going to immediately cause a riot the police can’t deal with.”
It may be a very bad idea, but a lot of stupid stuff is perfectly constitutional,” he said.
Originalism also figured into a landmark ruling written by Scalia in 2008 that found that the First Amendment right to bear arms guarantees an individual right to possess handguns.
Scalia said, “I do not pretend originalism is perfect. We don’t have the answers to everything, but we have answers to a lot of stuff.”
When queried on his view on televising Supreme Court hearings, Scalia said he was open to the possibility when he first arrived on the court, but “over the years, I’ve come to believe it’s a bad idea.”
Scalia said he thinks broadcasting wouldn’t help to educate the public about the court because most people would see only 30-second excerpts on television news that would give a distorted view of the court’s work.
If members of the public were able to see all arguments before the court in their entirety, they would see “we spend most of our time on pretty dull legal stuff,” Scalia said.
Scalia was part of a 5-4 majority of the court that blocked a plan by Walker to allow a delayed broadcast of a January trial in his court on the constitutionality of Proposition 8.
Massey’s final question in the 90-minute session was about Scalia’s proudest achievement. Scalia said that overall, he was most proud of his family and helping his wife, Maureen McCarthy Scalia, raise their nine children. The couple celebrated their 50th anniversary earlier this month.
But in his professional life, Scalia said, he was most gratified to have advanced originalism.
Julia Cheever, Bay City News
