Justices Breyer And Scalia Take Their Constitutional Show To The Senate

WASHINGTON -- Supreme Court Justices Stephen Breyer and Antonin Scalia took their constitutional law road show to Congress on Wednesday at the invitation of the Senate Judiciary Committee. For more than two hours, the men discussed the differences between their judicial philosophies and fielded questions on the role of judges.

"I'm hoping that the 'living Constitution' will die," said Scalia in an exchange with Sen. Jeff Sessions (R-Ala.).

That was no novel sentiment from Scalia, who is the longest-serving justice on the current Court and this week celebrated the 25th anniversary of his confirmation. As a law professor and federal judge, he was one of the earliest and strongest advocates of "originalism," a mode of constitutional interpretation that directs judges to look to the meaning of the Constitution's text at the time of its ratification.

Breyer, who was confirmed to the Court in 1994, retorted, "It is a constitution we are expounding" -- a quotation from the legendary Chief Justice John Marshall in an 1819 case in which he explained that the document is "to be adapted to the various crises of human affairs."

It wasn't the first time the two justices have traded such remarks. Over the years, Scalia has perfected his defense of originalism against Breyer's call for "active liberty" -- commonly referred to as "living constitutionalism" -- in front of audiences across this country and as far away as Australia.

Sitting before the Senate Judiciary Committee, however, the justices were not in total control over the terms of the debate. And this time, Breyer and Scalia, two of the more active questioners among the nine Supreme Court justices, were the ones getting interrupted.

Nevertheless, the change in environment did not yield too many revelations. When Sen. Chuck Grassley (R-Iowa) asked Scalia whether judges should consult foreign law to answer questions about the U.S. Constitution, Scalia declined to answer the question, stating that he believed his "views on that issue are known," but that the topic was beyond the scope of the afternoon's hearing.

And when Sessions attacked "living constitutionalism" as judicial activism run amok, Breyer insisted that the public shouldn't "beware of a judge like me," but rather of those judges so "rigid" in following the letter of the law that they forget its spirit.

Even if the justices didn't make any news in Wednesday's hearing, the discussion served as a reminder of the woeful state of today's judicial confirmation process. Breyer and Scalia showed the kind of openness to discussing the merits of liberal and conservative judicial philosophies that was lacking in the confirmation hearings of the Court's four newest members.

Just as both John Roberts and Samuel Alito stonewalled questions from liberal senators intended to root out the conservatism the George W. Bush nominees had already displayed as appeals court judges, both Sonia Sotomayor and Elena Kagan repeatedly dispatched conservative senators' concerns that the two Obama nominees would end up, as they have, among the Court's liberals.

On Wednesday, Scalia said that he believes the "controversial nature of recent confirmation proceedings," in which nominees fear to state their true feelings lest they be rejected by the Senate, "is attributable to some extent to the doctrine of the living Constitution."

In a less philosophical sense, the hyper-politicized nature of the confirmation process can be traced back to the Senate's 1987 rejection of conservative jurist Robert Bork's nomination to the Court, which was seen as a triumph of liberal constitutionalism over Bork's steadfast originalism. Over the past two years, in the face of a vacancy crisis on the federal bench, Senate Republicans have used procedures from filibuster threats to secret holds to slow to a near halt dozens of President Barack Obama's judicial nominations.

Sen. Lindsey Graham (R-S.C.), for one, is no fan of what the confirmation process has become. One of the sole Republicans to have voted in favor of both Sotomayor and Kagan, Graham looked directly into C-Span's cameras on Wednesday to tell those watching that nominations are a "political decision" and, accordingly, the Senate should accept the consequences of elections and vote for competent judges even if their philosophies don't line up with those of the senator's political party.

Turning to Scalia, Graham noted that it wasn't "an accident Ronald Reagan picked you." And when neither Breyer nor Scalia found it proper to answer Graham's question about whether a senator should "vote for a person of opposing views," Graham asked them how many votes they received at their confirmations.

"Ninety-eight," Scalia said.

"Eighty-seven," Breyer followed.

With that, Graham had made his point to his colleagues.

The hearing, entitled "Considering the Role of Judges Under the Constitution of the United States," came on the heels of the Supreme Court's first week of oral arguments after its summer recess. Click here to watch the senators talk with Scalia and Breyer.

Earlier on the Huffington Post:

Comments

[jimtodd]

10:28 AM on 10/09/2011

Scalia would lock society in the 18th century along with the constitution. In his view we should all be slaves to the corporations that have funded his cloistered life.

[marilyn 63]

04:07 AM on 10/09/2011

.i never liked Scalia's answer to stopping the counting in the Bush V Gore presidential election he said Bush would be irreparably harmed what by losing? pretty slippery well i guess he is Cheneys buddy for 30 years and went fishing with him and big oil WOW!! court cases with big oil didn't recuse him self huh? that how he and 4 others roll

[marilyn 63]

03:34 AM on 10/09/2011

for Scalia and the other 4 followers how do they explain Citizens united is this something the founders would sanction?

[jstov48]

12:50 AM on 10/07/2011

When you sign a contract with someone, IS IT A LIVING CONTRACT? Do you later fail to fulfill your obligations because something has changed? Would that be fair and reasonable to the other party?

The Constitution is a contract between the Government and the people. Why is it fair for the terms of that contract to change over time at the whim of a group of individuals?

There is a basic legal concept called statutory construction that essentially says that the law means what the authorizing body intends it to mean. If there is any question of interpretation, one needs to look to the statements of the authorizing body to determine meaning.

Our supreme court often fails to follow this most basic of legal concepts. Those members who fail to honor the constitution and its original meaning, are acting unethically and should be removed from the court. THERE IS NO SUCH THING AS A “LIVING CONSTITUTION”, that is nothing but an excuse for bad behavior!

[torgman3]

10:05 AM on 10/07/2011

So, any amendments to it are moot?

[jstov48]

01:44 PM on 10/07/2011

Amendments are fine, expected, and the correct course. Amendments from the bench are unethical and inappropriate

[blackranger]

10:25 AM on 10/07/2011

Our founding fathers knew they could not predict the future, and depended on the wisdom of the supreme court members to deal with things accordingly. Of course our constitution is a living document, we can amend it, and interesting to not that the so called conservatives constantly talk about amendments in that constitution to defend a lot of their positions. It is also subject to the interpretation of those judges, they system seems to work but there are those in this country who would prefer a panel of judges that represents only their own opinion I am not so sure it is not a good thing to have all sides of an argument represented, it usually ends up bringing forth the best results..

[lw1]

11:51 PM on 10/06/2011

Scalia is not upholding the meaning of the Constitution's text at the time of its ratification. Citizens United goes against the Founders wishes.

"When American colonists declared independence from England in 1776, they also freed themselves from control by English corporations that extracted their wealth and dominated trade. After fighting a revolution to end this exploitation, our country's founders retained a healthy fear of corporate power and wisely limited corporations exclusively to a business role. Corporations were forbidden from attempting to influence elections, public policy, and other realms of civic society."
http://www.reclaimdemocracy.org/corporate_accountability/history_corporations_us.html

[dsb1252]

09:28 PM on 10/06/2011

The insite and thoughtfullness of the founding fathers is remarkable and for the most part their ideas are for the good of all in this country. But, I cannot believe they would say that child porn should be protected under the Constituti­on of the United States of America.

[Cacey]

11:17 PM on 10/06/2011

They had no idea a camera would be invented but if you look at some of the drawings of the time they were fully aware of "child porn", a relatively new invention in the just completed century.

[torgman3]

09:59 AM on 10/07/2011

I missed that ruling. Could you cite it for me?

[pwright433]

09:22 PM on 10/06/2011

The arguement that we have a "living Constitution" is flawed from the get go.

So as the founders of the new world they set up a specific set of rights, priciples and guidelines. They did so in order to guarantee forever that the US would not revert to the Monarchy of England and be restrictive in religious practice.

And yet a living constitution would seem to indicate that none of that matters and with the stroke of a pen by the Supreme Court all of that can be undone.

This is why we now have freedom from religioin rather than freedom of religion, why we can't teach the theory of intelligent design in schools but are forced to teach the THEORY of evolution, why freedom of speach means a union can force people into joining them regardless of the constitutional priciple of right of association.
This is why Senators can pass laws that impose sanctions on people for not buying products and services.
This is why we have cowboy poetry paid for with tax payer money.

[torgman3]

10:23 AM on 10/07/2011

"...and with the stroke of a pen by the Supreme Court all of that can be undone."

The Supreme Court's job is to interpret laws to determine whether or not they are permissible by the Constitution, which includes amendments that were allowed to be added by lawmakers AFTER the Bills of rights were approved, as arranged by our Founding Fathers.

"the constituti­onal priciple [sic]of right of associatio­n", is not mentioned in the Constitution. Hence, asserting that as a principle that has not been explicitly said by the Fist Amendment means that you believe that it has a living component?

"This is why Senators can pass laws that impose sanctions on people for not buying products and services." Agreed. I'd like to buy marijuana legally. :D

Rest assured, while you may not believe that your freedoms under the Bill of Rights--including your freedom of SPEECH--are protected, laws that are passed that you think don't follow the guidelines of the Constitution are supposed to be challenged by people like yourself, through the court system.

[blackranger]

10:36 AM on 10/07/2011

Please do not even think about teaching my children the fantasy about your religion. Science is not a religion, it is simple an exposure to facts, the "theory" is just a conclusion drawn by some scientists based on facts. It is a lesson in critical thinking as well as science. To read a book and interpret the book as you wish (and most interpretations are NOT even from the original script, but from someone else translating and yet another person interpreting) is not critical thinking but simple lazy thinking. Keep your religion in your home and church where it belongs, it is your choice to take on "faith" what they teach you. I want my children to learn to think for themselves, look at the world around them, and draw their own conclusions.

[breakspear]

08:09 PM on 10/07/2011

Very well said to the above poster. He is a member of the portion of society that REALLY wants to shove its very clear Christianist agenda onto the rest of society. If he wants to be addled by religion and have others (preachers/politicians) think for him, then he can do that. And if he wants to be afraid of everything, he doesn't even come close to understanding, then he can go right ahead. Also if he and his ilk want to 'take' their country back, they first have to explain what they're so shrill about. They wrap themselves in ALL of our flag and then leave the ones they dont like out. And why don't all collectively get into a time machine and en masse return to about 1850 when this country had laws and values more akin to what they want, for times will change regardless of how much they want to 'take' things back. History is in the past for a reason: we've lived through it, and it's the past. As the future marches on, times will change - even if they don't believe it.

[jsgaetano]

09:02 PM on 10/06/2011

Scalia's made it quite clear he wants the Constitution to die.

[callingcar13]

08:55 PM on 10/06/2011

The Constitution is a living documnet but it is not up to the Supreme Court to enforce it as a living document by changing it with their rulings, that is the job of the people. The Supreme Court Justices take an oath to protect the Constitution and the Admendments to the Constitution that have been approved by the people.

[nfischet]

09:02 PM on 10/06/2011

the Constitution is not "a living document"

[callingcar13]

09:05 PM on 10/06/2011

It is and has been ammended on numerous occassion that is why there are so many ammendments. The process for the ammendmnts is spelled out in the Constitution

[eyeforeye42]

08:51 PM on 10/06/2011

I think there are people are hoping the living constitution lives and not Scalia

[jsgaetano]

09:03 PM on 10/06/2011

Those people are called "Real Americans".

[TimFredrickson]

07:51 PM on 10/06/2011

This is part of the text from Justice Steven's dissent from the Citizens United case. "At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics." This is what Justice Scalia opposed.

[jerrym930]

10:26 PM on 10/06/2011

Actually, having read Justice Scalia's dissent, it is clear that he was not only protecting corporations rights to free speech, he was protecting a Union's right to free speech, a religious groups right to free speech, a woman's groups right to free speech, etc.

Justice Scalia says that the right of free speech is to be protected, regardless of who the speaker is. He is saying that the text of the First Amendment "is written in terms of speech, not speakers." He also says that, "its text offers no foothold for excluding any category of speaker, fromsingle individuals, individuals to partnerships, to unicorporated associations of individuals, to incorporated associations of individuals".

So, let me ask you this. If corporations are to be banned for political speech during elections, should Unions also be banned, or women's rights groups, or civil rights groups? Should it only be that individual citizens can make political speeches during election campaigns?

[lw1]

11:55 PM on 10/06/2011

Speaking is one thing - spending unlimited amounts of money to promote false information is another.

[blackranger]

10:43 AM on 10/07/2011

There is a point at which "free speech" does violate the constitution and that is when it presents a danger to citizens (the classic example is yelling "fire" in a crowded hall when there is no fire). Corporations, undercover money, does just that, working up the crowds of ignorant to believe whatever lies they chose to spread. If corporate "free speech" rights are used to hurt our country, that is not their right. Does it harm our country to have anonymous "people" spreading lies? Was that not the subject of the great chasing of "communists" in this country? Personally I totally disagree with the concept that a corporation is a "person" and that is the supreme court ruling that needs to be changed, there is no way to deliver justice to that "person" under our current system.

[fmirabelli]

07:00 PM on 10/06/2011

Senator Lindsey Graham made an interesting point. President Reagan nominated Justice Scalia and Breyer to the Supreme Court.

Presidetn Obama nominated Justice Kagan and Sotomyer. Let's see; yes the nominations are politcally motivated in order for either party to have a majority within the Supreme Court.

Is Lindsey Graham suggesting that republicans and democrats stop "political nominations" and only recommend candidates that will do a "good" job ?

The American voter has been wating for this approach for decades. Perhaps with a grassroots effort beginning in small towns and cities; the American voter will learn to demand "good" candidates who follow what the voter wants; rahter than political partisanship.

[politicorn]

04:36 PM on 10/15/2011

Breyer was Clinton's choice.

[jerrym930]

06:40 PM on 10/06/2011

I have always maintained that it not, nor has it ever been the Supreme Court's job to interpret the Constitution. The Constitution says the Legislative Branch has sole authority to make law, and the Judicial Power is in Law. So, here is the question that needs to be answered. Does a law, or even the Constitution, get its interpretation when it is written, or when a case involing that law comes before a Judge? I say the law and the Constitution got their interpretation's when they were written. This includes all the subsequent amendments to the Constitution.

The fact is, by allowing Judges and Justices to put their own political philosophies into their rulings, we are in fact creating a bunch of "Judge Roy Beans", who feel they are above the law themselves. One of the purposes of the Constitution, as stated in the Preamble, is to establish Justice. By having a bunch of Judge Roy Beans, or a Supreme Court who's rulings change as the Court make-up changes, are we not a nation who has allowed itself to be filled with citizens who see nothing but injustice in the system? And, because this is true, we will never be able to form a more perfect Union.

[lawmutt55]

06:50 PM on 10/06/2011

Although your opinion runs counter to virtually the entire legal history of the United States, it is arguably correct. The Constitution, while providing for a federal judiciary, does not give them any function. The Marshall Supreme Court created the right to review federal law's constitutionality. It was not disputed because the President at the time did not like the law found to be unconstitutional and failed to dispute the court's right.

[jerrym930]

09:04 PM on 10/06/2011

The Constitution, in Article 3, Section 2, says the Judicial Power shall extend to all cases "in law and equity". Since the Constitution gives the Legislative Branch the sole authority to make law, and the Judicial power is "in law", it seems that this says the Judges are to apply the law makers interpretations of the laws. It means the Supreme Court is to apply the interpretation of the Constitution that the Founding Fathers gave it.

I would point out that the appointment for Federal Judges is lifetime, with good behavior. So, who are those responsible for determining "good behavior", in terms of whether the Judges have overstepped their true authority under the Constitution. I would say that it is we the people, through our Representatives in the House and Senate. You see, the Legislative Branch is the only Branch of Government with the power to remove members of the other 2 Branches. I would say that this reason alone makes the Legislative Branch the most powerful.

What has happened over the history of this nation is that the people have neglected to learn and remember the true intent the Founders had for the Constitution. In the Declaration of Independence, Thomas Jefferson wrote that "Governments are instituted among Men, deriving their just powers from the consent of the governed,". This means we are to keep the government in check, including the Judicial Branch. If we the people fail, we will lose our freedom and independence.

[BigotThudd]

06:52 PM on 10/06/2011

Questions:

What is cruel and unusual punishment (Eighth Amendment)?

What is unreasonable search (Fourth Amendment)?

What exactly does the Free Exercise clause protect? Contrast Reynolds doctrine vs. Sherbert-Yoder doctrine.

How speedy is a speedy trial?

ALl questions of interpretation.

[Faux]

02:59 PM on 10/07/2011

True, though it is worth recognizing that neither Scalia nor Breyers is going to challenge that the job of the Supreme Court is to interpret the law. The question is only whether one applies a formula for interpretation (Scalia's "originalism"), or whether you craft a formula for each case based on the then existing reality of the moment (Breyer's "Living constitution").

Scalia can approach the question of what is "cruel and unusual" by looking to what those terms meant in the legal world that crafted them. Breyer can look to today's moral and ethical understanding, make some estimation of what he thinks people today would consider cruel and unusual, and reach some conclusion.

The problem, at least in my mind, is that Scalia is engaged in legal research by reviewing opinions, reading the congressional records and debates, and analyzing prior decisions that used the language to determine what the people who wrote that phrase meant. Breyer is engaged in contemporary fact finding- his method is most effective not when he has access to vast legal tomes, but a very accurate poll. Indeed, with regards to a variety of death penalty cases (see Atkins v. Virginia), the court's decision rests on a poll of state opinions.

When a judge is engaged in determining the constitution not based on law but on polls and opinions he has stepped from the realm of interpretation and into the realm of policy making. He is not reading the law, but making it.

[janya38]

06:27 PM on 10/06/2011

SCOTUS, POTUS, the US Ninth Circuit Court of Appeals and the USDOJ have all been corrupted. Putting them under one tent would be like super circus and would easily unseat Ringling Brothers as "The Greatest Show on Earth."

Some are just plain freaks, some are tight rope artists whose single slip could end their career, some are like elephants who never forget, or lions who can't be trusted, chimps who smile alot but are very dangerous, bears who can dance around anything and others are just participants in a great dog and pony show. If that's not enough, when the command comes to "Send in the clowns" there wouldn't be a circus ring big enough to hold them all.

I think term limits are necessary. No one should have a position for life.

[TimFredrickson]

08:02 PM on 10/06/2011

You make a lot of noise with your circus reference but you do not make a lot of sense. Your examples are figurative and not backed with facts.

[blackranger]

10:48 AM on 10/07/2011

pretty apparent that this person has little respect for the rules of law.

[janya38]

10:12 PM on 10/09/2011

Guess you haven't been paying attention. president Onumnuts' crimes are evidence that there is no more rule of law.

[Cacey]

05:41 PM on 10/06/2011

The Constitution which created the Second American Republic reflected the needs of a small, isolated and comparitivly week nation emerging from a series of colonies cum-States in a very short period of time. One must question if the Framers ever envisioned a nation spanning a continent -- Jefferson was almost impeached due to his purchase of Louisiana -- superior in powe to any of the existing powers of 1790. I'm also unsure if the Framers could have envisioned the tremendous disparity between those states having wealth and those enmeshed in poverty thanks to poor leadership. Of course the Constitution is a living document. Otherwise it will not survive.

[blackranger]

10:49 AM on 10/07/2011

Even at the time of the nation's founding, some states flourished while others were dirt poor.

[Cacey]

10:54 AM on 10/07/2011

While the economic bases of the several states varied, there was nothing like the extreme economic disparity that exists today. Compare California with Mississippi for example. One has the 8th largest economy in the world and the other could not exist alone.