Antonin Scalia and Stephen Breyer debate the

Constitution
Organisers: Federal Society and the American Constitution Society
Moderator: Lisa Brown, executive director of the American Constitution Society
Discussant: Jan Crawford Greenberg, an ABC News correspondent who covers the
Supreme Court and provides legal analysis for ABC News. Previously worked at:
Chicago Tribune, PBS, CBS.

Moderator: Clearly, constitutional issues are the subject of much lively debate today
and in both legal discourse and much broader public discussion, and so, we're really
lucky to have with us the biggest experts in the country on constitutional
interpretation.

Discussant: I thought that we would just start by kind of looking very far back - I
wanted to bring up this famous story between long-ago legal Titans who had had
lunch - Justice Hand and Justice Holmes. And as Justice Holmes left the lunch, Justice
Hand said, "Do justice, sir. Do justice!". And Justice Holmes stopped his carriage and
said, "It's not my job to do justice. My job is to apply the law." Justice Breyer, are you
Holmes or Hand?

Breyer: I'd be very happy to be either one. And the shortest answer is that when we
have cases, we try to apply the law and get the right answer in the case. And of course,
we both think, I believe, that ultimately the point of law is to satisfy a human desire
that's probably 10 or 20,000 years old that people, of course, want justice – "just as
just as shall you pursue" and they want it, and they expect ultimately that the law will
help them achieve that very basic and noble end. And we understand what the basic
end is. But we also think, or at least I do, and I'm sure so does Scalia - that you don't
necessarily get to that end simply by trying to look for what is the intuitively nicer
result in each case. So, we're there to apply the law, but we don't forget what the
ultimate objective is.

Discussant: Justice Scalia, what do you think Justice Holmes meant by that?

Scalia: Let me describe probably the cases I had over the last 20 years that I felt that
real justice was not being served if I was to be the arbiter of justice. There was a piece
of legislation designed to preserve the integrity of American Indian tribes which
prescribed that, "No child of members of the tribe (could be of any tribe) could be
adopted by persons outside the tribe without the permission of the Tribal Council",
and there was a young Indian man and a young Indian girl who had a child – they
were not married, and they'd given the child up for adoption by a very well-to-do
rancher. And as I recall, the child had been with these people for two or three years,
and the issue was - whether the child had to go back to the tribe if the tribal council
said so. We decided the case – yes, the child had to do it because that was very clearly
what the statute provided. Now I don't think that that was the way things should have
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come out. I would think that if the child's parents wanted the child to be with someone
that they thought would best take care of their child, that it should be up to them and
not up to some tribal council. Nonetheless, it is not my job to say - what's justice is
and what isn't justice. My job is to interpret the law adopted by the people's
representatives as fairly as possible, and the only fair interpretation of that law will
produce that result.

I would say that I might feel differently if I sat on a trial court. A trial court is much
more interested in getting results in a particular case. By the time you get up to an
appellate court and lawyers ought to learn this - I don't much care about your
particular case. I am not about to produce a better result in your case at the expense of
creating terrible results in a hundred other cases because that's what appellate courts
do - they set forth principles that govern an immense number of other cases. So what
I'm concerned about as an appellate judge is a legal principle that will produce justice
in the sense of giving the fairest interpretation of the statute over a large number of
cases. As I say, if I were a district judge - there are a lot of non-reviewable ways in
which he can make the case come out right.

Discussant: Justice Breyer, when have you had a case where the law took you to a
conclusion that you found personally repugnant.

Breyer: Quite a lot. I won't go into specifics. I think normally the cases that we have
where I agree with him very much, and people don't understand this and but we're in a
court particularly where what we decide, and I just emphasised what he said. What we
decide affects 300 million people, and if you try to worry about the equities just before
the two individuals before the court, you could really get it wrong in respect to two
hundred ninety-nine million others. So that is important. Now what I think normally
happens in our court in a lot of appellate courts is that the issue in front of us is
actually not clear what the answer is – particularly when we divide five to four, seven
to two or eight to one or something else. And we're unanimous 40% of the time. You
start getting to those other questions, and we're five-four maybe 20% of the time. And
it's not always the same five - the same four. And the reason is normally because those
words in the statute or the application of the Constitution is really open. They look to
the precedents. If the precedents decided it - what's it doing in our court? And if in
language decided at night say even in any of the obvious tools that we have and so
when you have those open matters I might for example where the absolutely open I
thought are pretty open what this statute really meant, and there were two ways of
interpreting it and one would have closed the habeas corpus door to many prisoners
who I thought had done nothing wrong themselves to close it and the other would
have kept the door open and I opted for the latter interpretation, and I will say in my
mind is the fact that in a country with traditions of affording justice to everyone and
keeping that habeas corpus door open even to prisoners where you don't know from
the text where you don't know from the precedents. Lord certain what Congress meant
by this language let's interpret it in accordance with those traditions. And there, I
think, is an example of where something like basic justice, a tradition of providing

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justice for individuals, can influence an interpretation of a judge of an open language,
even in an appellate court.

Scalia: I know the case he's talking about. I thought the language was pretty clear. But
that you know that's what makes ….

Breyer: I think it said whether it was a state or other collateral proceeding, and the
issue is whether the word 'other' meant 'other state proceedings' or 'other state and
federal proceedings.' I would say the word 'other' there by itself is not so clear.

Discussant: what's in a way? We're talking too abstract.

Scalia: Let me come back to your original question - if people agree with Holmes and
do not want their judges to simply apply their own notions of what's a good rule but
rather to follow as best they can what the people have decided through the
Constitution and through the statutes, if that is the case, it follows that you cannot
judge a judge simply on the basis of whether you like the outcome of the case - which
is normally all you're going to find in a newspaper report. You're not going to find that
the textual gymnastics that the judges had to go through to reach the result you're
going to see if 'the good guy won and the bad guy won' and you're inclined to say if
the good guy won - wonderful judges! And if the bad guy won- terrible judges! That's
not true unless you believe that every statute ever written produces a sensible result.
But you know the ideal rule for the honest judge is 'garbage in, garbage out.' You are
supposed to interpret the statute reasonably even if you don't agree with the result
because it's not up to you to decide what's garbage. And bear that in mind, you should
be more careful to either praise or criticise judges just because you like the outcome or
dislike the outcome of their cases.

Discussant: But I'm afraid I'm misunderstood. Are you saying that there's one case that
you can recall since you've been on the Supreme Court where you personally
disagreed with the outcome, but you felt bound by the law?

Breyer: There are lots. You want me to go into some of them, and I won't because I
haven't come here prepared with the list, and you have to read through them in cases
that produce some outcome that's horrible. I probably disagreed with the outcome,
but…

Scalia (interrupts): I bet I have more than you do …

Breyer: … you're on dangerous ground here. You see Justice Scalia's last point, which
is that you evaluate a case, and that's why I think one of the reasons that we're pleased
that the people here are here is because they're interested in the details, they're
interested in the cases. You're on very dangerous ground because you're tempting us
to join in our attack on …we won't say on journalists … but we get the occasional
article that doesn't go into it in our opinion in sufficient depth, which I'm sure you
don't even know about.

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Discussant: Well, of course not! But how do justices constrain their personal views,
how do they cabin their personal preferences? Justice Scalia, I would guess that you
have a different view on that than you do, Justice Breyer.

Scalia: Now, I think we probably both have the same. It goes with the job if you are
incapable of producing a policy result and you don't simply because the statute
requires it, and I do that all the time. I have decided on cases preventing agencies from
deregulating. For Pete's sake, before I became a judge, I was mister deregulation. I
was editor of a magazine called Regulation Magazine, which was all in favour of the
deregulating. But I've written several opinions which prevented an agency that wanted
to deregulate from deregulating because the statute didn't allow it, and unless you can
realise that your job is to be faithful to the statute, you're in the wrong job. I mean, run
for Congress or something.

Breyer: So you note the Deregulation Magazine is called 'Regulation' and now you
begin to understand why the law is a confusing subject. I think here you say an end
that we both think, and I think that's true -- that subjective judgment of the judge
should not play a significant role in the outcome of the case. But where I suspect we
tend to disagree is the means that judges will use to bring about that end. But I think
most judges, appellate judges, in particular when they face a difficult question of
statutory or constitutional interpretation. I think they normally start with six tools:
- They have the text,
- They can look to the history- how do those words get there,
- They can look to the tradition - how those words have come to be used before
and after, i.e. The precedent
- The purpose of the statute
- The statutory phrase in question and
- The consequences and by that, I don't mean every consequence in the world; I
mean the consequences that are relevant to the purposes in the statute at issue

The Fourth Amendment is about privacy, not speech. The first is about, say, speech,
not privacy. All right? Now I think we all have those six tools: text, history, tradition,
precedent, purpose, and consequence. But I think some of us emphasise the first four
and try to avoid the last two. And they think that in doing that, it's less likely that
you'll get subjective. I don't think that. I think you have to emphasise in many of these
cases the last two: purpose and consequence. And I think there are ways of doing that
which are honest, writing down what you're doing, never having a secret or hidden
motive explaining to the reader exactly what's going on in the opinion that acts as a
significant check on the subjectivity of the judge. And I think that's just as likely to be
objective as to rely solely on the first four. And I think it's at least equal 50/50, and if
it's equal, I think that emphasising the latter is more likely to keep the judge in touch
with the legislature in a statutory case which is in turn in touch with the people, and
that is an appropriate thing in a democracy.

Discussant: purpose and consequence

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Scalia: the problem with purpose and consequence is that they invite subjective
judgment. To decide the purpose of a statute, it depends at what level of generality
you look at it. What is usually before us is whether a particular limitation in the statute
should be applied or not. Is that limitation part of the statutory disposition? Well, if
you say the purpose of the statute is to protect civil rights, and if you do not interpret it
to have this limitation upon it - you will protect civil rights all the more. And
therefore, you should adopt that interpretation. The problem is that the limitations in a
statute adopted by the legislature are as much a part of its purpose as is the general
purpose of protecting civil rights. No legislature pursues a general-purpose at all costs.
There are always some limitations we're willing to do it up to here but no further. And
so, to look at the broad purpose, which is what often happens in consequentialist
opinions, is simply to beg the question- it's to assume the answer. It's to assume that
the limitation was not intended because it would limit the purpose. But that's the
whole issue. And the same thing is true for the consequences. How do you decide if
it'll produce these consequences? I like those consequences; therefore, I should
interpret it to do that or I don't like those consequences, and therefore I should
interpret it not to do that? I don't think that's the job of a judge that. the only objective
criteria are the words that Congress adopted. And once you get away from trying to
give them their fairest meaning - you're in trouble.

Breyer: just like that word 'other', it sometimes doesn't tell you whether it means -
other - what? And there we're in trouble! And at that point, I think it's important not to
confuse the improper use of purpose with the proper use of purpose. I mean, judge
Leventhal who is a great judge, once said that the problem with using legislative
history is like going to a cocktail party and looking over the crowd to pick your
friends. Well, that's not a very proper use of it, but that doesn't mean there isn't a
proper use. And with purpose too sometimes in a statue, the more general-purpose is
the one that will help you answer the question, and sometimes the more specific
purpose say accompanying a limitation is what's useful. How do you know which is
which? - well, the context will tell you. If a person is lost and he's driving around, and
he says, "Where am I?" The correct answer is not in a car. How do you know that?
Because you have the context in front of you, and the same is true with the use of
purpose or the use of consequences. And if a judge is using them to be subjective and
write his preferences into the law, that's a misuse. If he's doing it to try to find out
what the basic objective is of the legislator using that to interpret ambiguous words in
the statute, that's the correct use. And the only check that we have or you have that a
judge is doing it properly and not improperly -- is that the judge writes down the true
reasons, explains what he or she is doing and then people can evaluate.

Scalia: …. Of course, you should use purpose properly and not use it improperly. The
difficulty is that it invites your subjective evaluation of what is a good purpose. Well,
of course, any Congress that have this limitation on it would be a foolish Congress. So
in light of that, I should give more weight to the general purpose. I mean, that's just a
natural reaction. Once you get into the business of evaluating purposes as opposed to
reading language and giving it its fairest way, I try to avoid that. Now I will give you

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this limited concession there. I suppose some readings of a text can be eliminated
because they produce a ridiculous result. To that extent, I say consequentialism and
purposes have someplace. But that's pretty limited ….

Breyer: yeah, but we're making progress.

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