Antonin Scalia

"Of Course I Believe in Heaven and Hell"

Antonin Scalia, by our lights, is one of the greater justices in US Supreme Court history.  He has been a resolute opponent of judicial activism which sees the role of a justice and the courts to make law, not test whether human actions and arrangements are lawful or not. 

He has been a champion of  "originalism" and "textualism".  The latter insists on paying attention to the actual text of the law (not the more subjective focus upon intent, or motive, or goals of legislation).  The former insists on basing opinions upon the actual text of the constitution itself.  He is not interested in a constantly evolving constitution, where the latter becomes a wax nose to be twisted and reshaped according to the passing fancies of a generation. 

Scalia was interviewed recently by Jennifer Senior.  The whole text was published in the New York Magazine.

Here are some excerpts:


On September 26—a day that just happened to be the 27th anniversary of his swearing-in as associate justice—Antonin Scalia entered the Supreme Court’s enormous East Conference Room so casually that one might easily have missed him. He is smaller than his king-size persona suggests, and his manner more puckish than formal. Washingtonians may know Scalia as charming and disarming, but most outsiders tend to regard him as either a demigod on stilts or a menace to democracy, depending on which side of the aisle they sit. A singularity on the Court and an icon on the right, Scalia is perhaps more responsible than any American alive for the mainstreaming of conservative ideas about ­jurisprudence—in particular the principles of originalism ­(interpreting the Constitution as the framers intended it rather than as an evolving document) and textualism (that statutes must be ­interpreted based on their words alone). And he has got to be the only justice to ever use the phrase “argle-bargle” in a dissent.

Had you already arrived at originalism as a philosophy?
I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

But as law students, they were taught that the Constitution evolved, right? You got that same message consistently in class, yet you had other ideas.
I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, “I better reexamine my position!” I probably believe that the worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.

Really? So if you had the chance to have eight other justices just like you, would you not want them to be your colleagues?
No. Just six.

That was a serious question!
What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views. . . .

Do you think there are flaws in the Constitution?
The one provision that I would amend is the amendment provision. And that was not originally a flaw. But the country has changed so much. With the divergence in size between California and Rhode Island—I figured it out once, I think if you picked the smallest number necessary for a majority in the least ­populous states, something like less than 2 percent of the population can prevent a constitutional amendment. But other than that, some things have not worked out the way the framers anticipated. But that’s been the fault of the courts, not the fault of the draftsmen.

What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.

A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”

If there’s a reasonable basis for not ­letting women do something—like going into combat or whatnot ...

Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin. . . .

You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?
I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that ­people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.

I’ve gotten used to it.
Well, I am glad that I am not raising kids today. And I’m rather pessimistic that my grandchildren will enjoy the great society that I’ve enjoyed in my lifetime. I really think it’s coarsened. It’s coarsened in so many ways.

Like what?
One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it. People that I know don’t talk like that! But if you portray it a lot, the society’s going to become that way. It’s very sad.

And you can’t have a movie or a television show without a nude sex scene, very often having no relation to the plot. I don’t mind it when it is essential to the plot, as it sometimes is. But, my goodness! The society that watches that becomes a coarse society. . . .

You believe in heaven and hell?
Oh, of course I do. Don’t you believe in heaven and hell?

No.
Oh, my.

Does that mean I’m not going?
[Laughing.] Unfortunately not!

Wait, to heaven or hell?
It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.

But you don’t have to be a Catholic to get into heaven? Or believe in it?
Of course not!

Oh. So you don’t know where I’m going. Thank God.
I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?

Can we talk about your drafting process—
[Leans in, stage-whispers.] I even believe in the Devil.

You do?
Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.

Every Catholic believes this? There’s a wide variety of Catholics out there …
If you are faithful to Catholic dogma, that is certainly a large part of it.

Have you seen evidence of the Devil lately?
You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.

No.
It’s because he’s smart.

So what’s he doing now?
What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.

That has really painful implications for atheists. Are you sure that’s the ­Devil’s work?
I didn’t say atheists are the Devil’s work.

Well, you’re saying the Devil is ­persuading people to not believe in God. Couldn’t there be other reasons to not believe?
Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.

Right.
What happened to him?

He just got wilier.
He got wilier.

Isn’t it terribly frightening to believe in the Devil?
You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.

I hope you weren’t sensing contempt from me. It wasn’t your belief that surprised me so much as how boldly you expressed it.
I was offended by that. I really was.

I’m sorry to have offended you!
Have you read The Screwtape Letters?

Yes, I have.
So, there you are. That’s a great book. It really is, just as a study of human nature .. . .

Yet today, you’re a conservative icon, and federalist societies abound on ­university campuses, and originalism and textualism are no longer marginal. Do you feel like you’re winning or losing the battle for constitutional interpretation?
I don’t know how much progress I’ve made on originalism. That’s to be seen. I do think originalism is more respectable than it was. But there’s still only two justices up here who are thoroughgoing originalists. I do think things are better than they were. For example, I truly thought I’d never see an originalist on the faculty of Harvard Law School. You know, everybody copies Harvard—that’s the big ship. There are now three originalists on the faculty, and I think I heard that they’ve just hired, or are considering hiring, a fourth. I mean, that’s amazing to me. Elena Kagan did that, and the reason she did it is that you want to have on your faculty representatives of all responsible points of view. What it means is that at least originalism is now regarded as a respectable approach to constitutional interpretation. And it really wasn’t twenty years ago, it was not even worth talking about in serious academic circles.

An area where I think I have made more progress is textualism. I think the current Court pays much more attention to the words of a statute than the Court did in the eighties. And uses much less legislative history. If you read some of our opinions from the eighties, my God, two thirds of the opinions were discussing committee reports and floor statements and all that garbage. We don’t do much of that anymore. And I think I have assisted in that transition. . . .