March 26, 2024 • 28 mins
Antonin Scalia’s staunch advocacy for constitutional originalism and textualism—and his 1986 appointment to the U.S. Supreme Court—defined a new era in American jurisprudence. As his heirs move to form majorities throughout the federal court system, only now is the full impact of his legacy being realized. In this episode, Jacob Heilbrunn speaks with James Rosen, chief White House correspondent for Newsmax. Rosen is the recent author of Scalia: Rise to Greatness, 1936 to 1986, the first installment in an expected two-volume biography of the Supreme Court justice.
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(00:00):
Hi, I'm Jacob Heilbrunn and welcome to another podcast of In the National Interest.
(00:28):
My guest today is the Chief White House Correspondent of Newsmax and James Rosen.
James is a longtime friend and the author of a scintillating new biography, Antonin
Scalia, Rise to Greatness, 1936 to 1986, which has been published by Regnery.
(00:51):
James, I'm delighted to have you here and wanted to ask you the first question.
What prompted you to become the Boswell of Antonin Scalia?
Well, it's great to be with you, my friend.
And this, of course, is a poor substitute for seeing you.
I'm flattered to be considered the Boswell of Antonin Scalia.
I hope that the final products live up to that high standard.
(01:12):
I have the benefit of having met Antonin Scalia and known him a little bit.
One of the first things I did when I came to Washington almost exactly 25 years ago
to start my career as a Washington correspondent at the time for the Fox News Channel was to
write a letter to Antonin Scalia, to Justice Scalia, and to ask for an interview.
(01:33):
And I assured him that it would be a dignified thing.
And he wrote back on Supreme Court stationery.
This was September of 1999.
Fox News was only about two and a half years old at that point.
It was still some distance away from seizing the ratings mantle.
And it was frequently confused with Fox 5 at the time.
(01:54):
And Justice Scalia wrote me on stationery to say, thank you for your note.
He said, I am a fan of Fox News, which was jarring to read as coming from someone of
such stature at that time.
And he said, I have no doubt that you would conduct a dignified interview.
He said, however, I have a policy as a judge never to make a spectacle of myself.
(02:16):
And sitting for TV interviews such as you described would do that.
So please accept my regrets.
Words to that effect.
And I wrote back to say, thank you for yours.
I said, but what other than a spectacle would we call it when a sitting justice of the United
States Supreme Court appears in a theater in the round setting with other eminent minds
of the era, such as Dan Rather and Joe Califano and the likes, and takes questions from a
(02:41):
law professor serving as a moderator entertaining hypotheticals for the benefit of the audience
and six or seven cameras present.
That was a show called Ethics in America for which Justice Scalia had taped four episodes
and which I had watched in high school.
It was why I had written to him is because I found him fascinating in those settings.
He was so unlike all the other participants and panelists.
(03:04):
And he wrote back to say, again on stationery, you are right, which right away makes that
a very rare Scalia letter to own.
He said, you are right.
I probably should not have done the Fred Friendly shows despite the importuning of a good and
old friend in Fred Friendly.
Friendly had been the president of CBS News in the 60s and he was well known as an advocate
for the First Amendment thereafter.
(03:26):
And he used to put on these theater in the round shows that convened these eminent minds
on PBS and they were riveting to watch.
And he said, I should probably should not have done those despite the importunings of a good
and old friend in Fred Friendly.
And he took the off ramp that I had extended in the previous letter, which was my offer
(03:46):
if he could not do an interview to get together for an off the record lunch.
And we did that and we met at his favorite place, which was the A.V. Ristorante Italiano,
which was a very modest restaurant with plastic grapes on the wall that was situated in what
was then a fairly sketchy neighborhood in Washington, D.C.
The restaurant is long gone, of course, but he had been going there since the 1950s when
(04:07):
he had been the valedictorian at Georgetown.
And we had lunch and I'm forbidden because the lunch was off the record from disclosing
any of the substantive contents of our discussions.
But I am authorized by the Scalia estate to share the following that I arrived first.
And when he showed up, you know, he had a kind of a Jackie Gleason grandiloquence about
(04:30):
him.
And I know that you are doubly impressed, Jake, by the reference to Jackie Gleason and
the use of the word grandiloquence.
And he showed up, he introduced himself, he sits down and he says to the waiter who was
a young guy who spoke barely any English, who was a real Italian, pulpy.
What is pulpy?
Scalia said.
And the waiter said octopus.
(04:51):
And he says octopus.
I'll have the pulpy.
And he makes a great display of handing back the menu.
Now, I have little rules for and you've probably noticed them in play when I lunch with you,
Jacob, when I'm trying to impress somebody, you know, I don't need anything that requires
me to use my hands when in eating and nothing that's going to splatter.
You know, you want something that's easily manipulable by knife and fork and coming from
(05:14):
Staten Island, which is two thirds Italian.
I knew just what to order.
I said I'll have the veal parmesan.
And the guy's taking down the order and Justice Scalia system.
No, no, give him the rabbit.
And the waiter and I look at Scalia and we say in unison rabbit.
He goes, yeah, he's going to you're going to like the rabbit.
He's going to like give him the rabbit.
And the guy disappears with the menus and walks off.
(05:34):
I didn't want rabbit.
I had never had rabbit.
I don't think I've had rabbit since.
I was pretty grossed out by it.
And I just recognized it immediately is one of those things that I was going to have to
do and just get through and continue to maintain eye contact.
What we have here.
So we're clear, Jacob, is nothing less than the country's foremost opponent of judicial
(05:57):
activism overruling my lunch order, which not even Mrs. Rosen tends to do.
We broke bread together.
We had wine.
We shared a bottle of wine.
He drove me back to Fox News in his car.
And and there was a second lunch, which took some years to arrange.
But I don't want to go on too long.
And I just resolved that this man was so kind and generous with his time and his insights
(06:21):
to a young reporter 25 years ago that someday I would write about him.
And after he died and after my book about William F. Buckley had been a bestseller,
my publisher at the time suggested that I write a short, concise biography of Anton
and Scalia.
And I agreed to do that.
But you know how I am.
Just from this first answer, I don't do anything concise.
And so now it's metastasized into a two volume project.
(06:44):
James, he didn't just overrule you.
It occurs to me that he sundered your free speech rights and was behaving in a rather
authoritarian and arbitrary manner.
Not only did he overrule me, but he remanded to the local authorities, i.e. the waiter
for additional proceedings, which was the bringing of the rabbit.
He made sure that you hop to it.
(07:06):
James, Scalia is the original originalist.
Or is he?
Talk to me about the relationship between him and Robert Bork.
Was Robert Bork in fact the greater intellect who was surpassed and influenced by Scalia?
(07:27):
My friend Sam Tannenhaus has this theory that Bork is the true inception of originalism
actually comes from Bork.
Yeah, that's not a theory.
That's an established fact that Robert Bork and there's a lot about this in my book, Scalia
Rise to Greatness.
Robert Bork was the first national figure, so to speak, in what became a kind of conservative
(07:54):
legal revolution.
At a time when Scalia was serving as the general counsel to a newly created agency called the
White House Office of Telecommunications Policy, negotiating contracts between cable competitors
and doing other very important work, Bob Bork had already launched onto the national scene
by 1971 with a very famous speech published in the Indiana Law Review in which he chastised
(08:22):
the Warren Court for judicial overreach.
There were very few people, if any, of any note certainly at that time who were critical
of the Warren Court.
And Robert Bork as a Yale law professor, then as the solicitor general during the Nixon
administration, then as a scholar at AEI, and then as a judge on the Court of Appeals
(08:47):
for the District of Columbia Circuit, which is one rung below the Supreme Court and often
considered kind of the farm team that produces Supreme Court justices.
In all of those guises, Bork advocated for laws and the Constitution itself to be interpreted
according to the original intent of the framers or the original intent of the Congress that
(09:12):
produced a given federal statute.
The idea was to stand a thwart what was then the prevalent notion in the law, which was
a liberal notion, the idea of a living Constitution.
And this is something you still hear school children taught and repeat, the idea that
the Constitution is a living document that can expand or its meaning can be made to expand
(09:38):
as the times require to take account of phenomena that the founders never heard of or envisioned,
such as broadcasting or the internet or nuclear weapons.
This idea of a living Constitution was championed most ardently by William J. Brennan, who was
the liberal justice who has been called the playmaker for the Warren Court.
(10:02):
And Bob Bork was the first major figure to stand a for that.
And his argument was that if we if we allow judges or justices of the Supreme Court to
expand the meaning of the Constitution or given statute enacted since then, what is
to prevent someone from doing the same thing to us today?
(10:24):
So for example, if you liked the twenty twenty two law that President Biden signed that recognized
same sex marriage in all 50 states as legal, what would you think if ten minutes from now
or five years from now or 200 years from now, a judge or a justice can come along and say,
actually, that law may have meant what it meant in its time, but now it should be expanded
(10:45):
the meaning to cover X or Y or perhaps the meaning should be contracted.
The idea is that that laws are immutable and inviolable.
And it runs contrary to democratic governance.
If we decide years later that a law actually means something that we decide it means now,
(11:07):
Bork was of great help to Antonin Scalia in his rise to greatness.
The two were really good friends.
Their kids hung out.
And and even after Bob Bork's first wife, the mother of his three children, Claire died,
by the way, on the exact same day that John Lennon was killed, December 8, 1980, the Scalia
state friendly with Bork.
He remarried and it was the Scalia's who threw the rehearsal dinner for Judge Bork and his
(11:33):
new wife at the Cosmos Club in Washington.
Bork was always there for Scalia.
He gave him a hand up at the Department of Justice when they worked there together and
allowed Scalia to argue his one case before the Supreme Court as an advocate in 1976.
He was already at AEI when when Scalia joined there.
(11:54):
And in fact, according to my research, it was Judge Bork who smoothed Scalia's path
to join him as a judge on the Court of Appeals for the D.C. Circuit.
But of course, once President Reagan made good on his campaign pledge from 1980 to appoint
a woman to the court, which he did with the selection of Sandra Day O'Connor and the next
(12:14):
vacancy that arose, Reagan elected to to appoint William Rehnquist, who was an associate
justice for 15 years on the court at that point, and to elevate him to chief justice
and to appoint Antonin Scalia to succeed Rehnquist.
You talk in your book about the rupture of the friendship between Bork and Scalia.
And I was wondering if you could talk to us about that a little bit.
(12:37):
Right.
Well, so the the truth is that the friendship was greatly damaged, both for sure when Scalia
got the nod from the president to for a Supreme Court vacancy that everybody expected would
go to Bob Bork instead.
Bork was the more senior figure.
He was the more leading light.
But as judges together on the Court of Appeals, where they sat alongside Ruth Bader Ginsburg
(12:59):
and Kenneth Starr and Lawrence Silberman and James Buckley, I mean, this real murderers
row of judicial talent on that Court of Appeals, Bork and Scalia split ways over a libel case
involving the famous syndicated columnist Evans and Novak.
And Bork's opinion, majority opinion, called for an evolution in libel law based on the
(13:24):
modern state of libel in the United States.
And it was the kind of kind of thing that could have come out of the lips of Justice
Brennan.
This was real living constitution type stuff.
And and Scalia wrote a concurrence specifically to take Bork, his friend, to task.
And Bork never forgot it.
(13:45):
And as late as five years later, after Scalia was well established on the Supreme Court
and Bork had been rejected by the Senate for the following nomination in 1987, Bork was
still writing bitterly about this concurrence of Scalia's.
It's worth noting that Scalia, just as he was about to be nominated by President Reagan,
(14:06):
evolved a kind of an elaboration on Bob Bork's concept of original intent.
Scalia came to say right in June 1986, right before he was nominated at a very famous speech
where Bork was in the audience, that it doesn't do simply to honor original intent, because
(14:27):
if the founders didn't put into the text of the Constitution what their intent was, then
their intent is irrelevant.
What Scalia then began arguing in behalf of and which he championed for the rest of his
life was for original meaning, not original intent.
He would say, I don't care if we should discover some scrap of paper signed by all the founders
(14:49):
that makes it very abundantly clear that their actual intent was X, as opposed to what we
see in the Constitution.
He said, I don't care about their original intent.
I care about the original meaning of the Constitution.
The original meaning was the meaning that the Constitution or a given provision or a
given statute was widely understood to have at the time.
(15:13):
The best way to discern the original meaning was to look at the text of the Constitution
or the text of that law.
I like to say that textualism for Scalia was the metal detector that he would use to discern
the original meaning of a law.
If the original text was ambiguous or inscrutable, then Scalia would look to traditions of the
(15:36):
United States.
But yes, Bob Bork was the sort of the first leading exponent of originalism, but he championed
original intent and Scalia came along and championed original meaning instead.
And yes, exceeded his friend and influence.
I want to push you right here.
There's a new book out by another former Supreme Court justice named Stephen Breyer called
(16:01):
Reading the Constitution and Breyer says that he espouses a traditional interpretation.
And he recently said, if you overrule too many cases, law will turn into chaos.
Before you know it, you won't know what the law is.
What do you think about Breyer's critique that the conservative approach to how the
(16:24):
Constitution was originally understood when written itself becomes ossified in its own
dogma?
So, Breyer and Scalia were kind of debating partners.
They took their show on the road.
They used to appear together at colleges and they even testified before the House of Representatives
once together in 2010.
Prior to becoming a Supreme Court justice, Steve Breyer had been a counsel to the Senate
(16:46):
Judiciary Committee at the time, I don't think it was at the time of the Bork hearings, but
he was very close to Senator Kennedy.
And prior to that, Breyer had worked at a now defunct agency called ACUS, the Administrative
Conference of the United States.
And in the early 70s, Scalia had been the chairman of ACUS.
The Administrative Conference of the United States was a quasi-public agency, which was
(17:11):
kind of a think tank.
And its objectives were to produce suggested reforms for federal agencies and regulatory
bodies so that they would be more efficient in their operations.
And in 2010, the Clinton administration revived ACUS and Scalia and Breyer made a joint appearance
very unusual for two justices of the Supreme Court before a House subcommittee to provide
(17:34):
their expertise on the revival of ACUS and what it would mean.
And as the very first question in the testimony, the chairman of that subcommittee said to
Justice Scalia, well, Justice Scalia, you previously were the chairman of ACUS.
The person who's going to be taking that job is seated only a few rows behind you.
What advice do you have for him?
And Scalia's answer was, do good and avoid evil.
(17:57):
Well, that's pithy.
Breyer and Scalia disagreed over many things, not just whether there was a living constitution
or whether the constitution should be interpreted according to its original meaning, but also
over such things as the value of justices turning to foreign countries and their laws
and their statutes and their case law for guidance such as it might provide in their
(18:23):
deliberations over cases here.
And Breyer felt that there was a place for justices to consider foreign law in their
rulings here.
And Scalia said, no, there really is no, unless you're talking about the English common law,
there is no reason for us to consider what France or the Supreme Court of France has
had to say about anything.
With respect to Breyer's new book, he has been making the rounds.
(18:46):
And he told Politico earlier this week that he used to say to Scalia, yes, but if we adopt
your method of originalism, your method of interpreting the constitution or the statutes,
we will have a constitution that no one wants.
And Scalia's answer to that, of course, was, I don't care about a constitution that the
people want.
(19:06):
I care about the constitution that we have.
That's what governs us.
And that's what the justices should be looking to.
The idea that originalism produces static, wooden or otherwise unsatisfactory approaches
to the law is false.
Scalia would say, yes, I don't believe in the living constitution, but that doesn't
(19:28):
mean I believe in a dead constitution.
I believe in an enduring constitution.
And words have no meaning, especially as legal documents.
If five minutes from now, 10 minutes from now, or 200 years from now, someone can come
along and say, well, I think due to modern exigencies, we need to interpret this legal
document more broadly or more narrowly or what have you, then you really you don't have
(19:55):
a Congress enacting laws with any meaning or presidents signing laws into existence
with any meaning because they are subject to judicial fiat down the line.
Well, this is a conundrum that you and I are not going to resolve today.
It is interesting.
We just resolved it, Jake.
Oh, yeah.
That's simply.
(20:16):
It is interesting that Justice Ken Tanji Brown is now invoking originalism in her writings
on the Supreme Court.
You know, when Scalia joined the court in 1986, not only were were none of the justices
employing an originalist approach to constitutional and statutory interpretation, which is the
(20:38):
central business of judging.
They were most of the lawyers before the court, most of the justices were employing totally
different means by which to go about interpreting the Constitution and statutes.
And one of the favorite preferred methods was the use of legislative history.
What was said in all of those House and Senate committee reports that were generated about
(21:00):
a given measure as it snaked its way through the process.
And Scalia made it his mission, in addition to advancing originalism and textualism, to
destroy the use of legislative history, because he would say not one member of Congress even
read, let alone voted on, a committee report or a floor speech.
He would say, don't bring to me, don't pluck out of the legislative history of a given
(21:25):
statute the language you like that isn't in the law that you want to now as a judge say
was in the law or as part of the intent.
The intent was the law, the text itself, what you voted up and down and what a person said
the president signed.
By the time Scalia died, no less a figure than Justice Kagan, who was appointed by President
(21:46):
Obama, who was the Dean of the Harvard Law School, had come to say that, in effect, thanks
to Scalia's revolution, we are all originalists now.
We're all textualists now.
And nowadays it's very uncommon for anyone to begin an argument before the justices in
any way other than looking at the text of the statute at issue or the constitutional
(22:09):
provision at issue.
Legislative history is not entirely abandoned, but it has fallen out of favor.
Scalia also had this impact at oral arguments where he was really the first justice to start
asking a lot of questions and peppering and cutting in.
And now all the justices do that.
So his impact is profound, not just in terms of specific areas of the law where his opinion
(22:33):
held sway, but in the very ways in which lawyers argue the law, in which judges and justices
interpret the law, even the ways in which members of Congress craft the law.
Scalia was famed for his rebarbative dissents.
Do you think there is anyone on the court today that matches his fervor?
(22:55):
I don't know that any justice today would seek to match Antonin Scalia's fervor.
There is no question that Justice Scalia's dissents in particular were sometimes written
so forcefully, so pointedly that they turned off his colleagues.
It's not clear that it cost him any majorities at any particular point, but I'm not sure
that it's the model that any justice would seek to emulate per se.
(23:19):
But I think Justice Alito is a pretty sharp writer.
I think his opinion in Dobbs, which owed more than a little to Justice Scalia's jurisprudence
in preceding decades, was very sharply written.
But it's not clear to me that anybody really wants to be the next Scalia because it's impossible
any more than anyone should aspire to be the next Beatles.
(23:41):
How much do you think Scalia was shaped for all his emphasis on originalism by his own
Catholic heritage and beliefs?
So Justice Scalia was adamant that he never tried to impose his Catholic belief system
on his jurisprudence.
He would say that there's no such thing as a Catholic hamburger.
(24:03):
The closest we could come to a Catholic hamburger, he would say, would be a hamburger that is
prepared perfectly.
When one of his friends, Jeffrey Stone of the University of Chicago Law School, wrote
in a 2007 op-ed that Scalia was in fact grafting his Catholicism onto his jurisprudence, it
caused such a rift between them that it wasn't healed for five years before they made up.
(24:28):
These are two guys who had known each other for decades at that point.
Scalia was proud of the fact that his approach of originalism and textualism often produced
judicial outcomes that he, from his own personal sociopolitical or religious belief system,
found abhorrent.
So, for example, one of his rulings on the Supreme Court served to overturn effectively
(24:53):
the conviction of a child molester because a screen had been placed between the complaining
witnesses in the case who were minor girls and the defendant's table where the accused
was sitting.
And Scalia found that a violation of the Sixth Amendment right to confront your accuser.
It means eyeball to eyeball, and even if that has the effect of traumatizing complaining
(25:17):
witnesses in sexual assault cases all over again, he said in essence that the Constitution
protects the child molester and the falsely accused child molester alike.
And that's part of the price we pay for having a constitution and having a bill of rights.
He came down in favor of the constitutional protection under the First Amendment for burning
(25:39):
the American flag.
And he would say, I'm a lower-in-order type.
I don't like the idea of scruffy, sandal wearing, bearded weirdos burning the US flag.
So he felt that if you're an honest judge, occasionally you will come to outcomes that
are starkly different from what you personally believe.
(25:59):
On the subject of abortion, it is true that his rulings in that area, his opinions in
that area were not opposite his Catholic belief system.
But that's not to say that his embrace of originalism or textualism was fraudulent.
James, I know that you as chief White House correspondent for Newsmax are an extremely
(26:20):
busy man.
So I will forbear to ask more than one question that I hope you do not find too benoscik,
which is, is this the Scalia Supreme Court that we see today?
I think Scalia himself, while not known for modesty per se, would would eschew any such
characterizations.
(26:41):
He would say, I had my time in promoting this book.
I was asked so often, what do you think Antonin Scalia would have said about current event
or personality or trend X, such as, for example, January 6th?
And in general, I sought to avoid placing any particular sentiments in the mouth of
(27:01):
a justice who, after all, left us in 2016, especially because he was so wedded to originalism
and so opposed to the idea of latter day judges or justices grafting their latter day preferences,
policy preferences onto legal texts from an earlier time.
So I certainly wouldn't want to do that where he is concerned.
I don't think he would seek to have any subsequent Supreme Court declared Scalia's court.
(27:28):
As far as I would take this is to say, I do think that he would have been dismayed by
the general coarseness of our discourse, our political discourse today.
That is a valuable observation.
And James, the attentive observer will note that your book ends in 1986.
The second volume is eagerly awaited by your fans.
(27:54):
You and my mom, right?
That's who you're talking about.
I am extremely grateful to you for coming on to this podcast.
And I look forward to discussing the next volume with you.
Thank you, my friend.
Pleasure to be in your company, even if only remotely.
Thank you, James.
Thank you.
Hi, I'm Jacob Heilbrunn and welcome to another podcast of In the National Interest.
(00:28):
My guest today is the Chief White House Correspondent of Newsmax and James Rosen.
James is a longtime friend and the author of a scintillating new biography, Antonin
Scalia, Rise to Greatness, 1936 to 1986, which has been published by Regnery.
(00:51):
James, I'm delighted to have you here and wanted to ask you the first question.
What prompted you to become the Boswell of Antonin Scalia?
Well, it's great to be with you, my friend.
And this, of course, is a poor substitute for seeing you.
I'm flattered to be considered the Boswell of Antonin Scalia.
I hope that the final products live up to that high standard.
(01:12):
I have the benefit of having met Antonin Scalia and known him a little bit.
One of the first things I did when I came to Washington almost exactly 25 years ago
to start my career as a Washington correspondent at the time for the Fox News Channel was to
write a letter to Antonin Scalia, to Justice Scalia, and to ask for an interview.
(01:33):
And I assured him that it would be a dignified thing.
And he wrote back on Supreme Court stationery.
This was September of 1999.
Fox News was only about two and a half years old at that point.
It was still some distance away from seizing the ratings mantle.
And it was frequently confused with Fox 5 at the time.
(01:54):
And Justice Scalia wrote me on stationery to say, thank you for your note.
He said, I am a fan of Fox News, which was jarring to read as coming from someone of
such stature at that time.
And he said, I have no doubt that you would conduct a dignified interview.
He said, however, I have a policy as a judge never to make a spectacle of myself.
(02:16):
And sitting for TV interviews such as you described would do that.
So please accept my regrets.
Words to that effect.
And I wrote back to say, thank you for yours.
I said, but what other than a spectacle would we call it when a sitting justice of the United
States Supreme Court appears in a theater in the round setting with other eminent minds
of the era, such as Dan Rather and Joe Califano and the likes, and takes questions from a
(02:41):
law professor serving as a moderator entertaining hypotheticals for the benefit of the audience
and six or seven cameras present.
That was a show called Ethics in America for which Justice Scalia had taped four episodes
and which I had watched in high school.
It was why I had written to him is because I found him fascinating in those settings.
He was so unlike all the other participants and panelists.
(03:04):
And he wrote back to say, again on stationery, you are right, which right away makes that
a very rare Scalia letter to own.
He said, you are right.
I probably should not have done the Fred Friendly shows despite the importuning of a good and
old friend in Fred Friendly.
Friendly had been the president of CBS News in the 60s and he was well known as an advocate
for the First Amendment thereafter.
(03:26):
And he used to put on these theater in the round shows that convened these eminent minds
on PBS and they were riveting to watch.
And he said, I should probably should not have done those despite the importunings of a good
and old friend in Fred Friendly.
And he took the off ramp that I had extended in the previous letter, which was my offer
(03:46):
if he could not do an interview to get together for an off the record lunch.
And we did that and we met at his favorite place, which was the A.V. Ristorante Italiano,
which was a very modest restaurant with plastic grapes on the wall that was situated in what
was then a fairly sketchy neighborhood in Washington, D.C.
The restaurant is long gone, of course, but he had been going there since the 1950s when
(04:07):
he had been the valedictorian at Georgetown.
And we had lunch and I'm forbidden because the lunch was off the record from disclosing
any of the substantive contents of our discussions.
But I am authorized by the Scalia estate to share the following that I arrived first.
And when he showed up, you know, he had a kind of a Jackie Gleason grandiloquence about
(04:30):
him.
And I know that you are doubly impressed, Jake, by the reference to Jackie Gleason and
the use of the word grandiloquence.
And he showed up, he introduced himself, he sits down and he says to the waiter who was
a young guy who spoke barely any English, who was a real Italian, pulpy.
What is pulpy?
Scalia said.
And the waiter said octopus.
(04:51):
And he says octopus.
I'll have the pulpy.
And he makes a great display of handing back the menu.
Now, I have little rules for and you've probably noticed them in play when I lunch with you,
Jacob, when I'm trying to impress somebody, you know, I don't need anything that requires
me to use my hands when in eating and nothing that's going to splatter.
You know, you want something that's easily manipulable by knife and fork and coming from
(05:14):
Staten Island, which is two thirds Italian.
I knew just what to order.
I said I'll have the veal parmesan.
And the guy's taking down the order and Justice Scalia system.
No, no, give him the rabbit.
And the waiter and I look at Scalia and we say in unison rabbit.
He goes, yeah, he's going to you're going to like the rabbit.
He's going to like give him the rabbit.
And the guy disappears with the menus and walks off.
(05:34):
I didn't want rabbit.
I had never had rabbit.
I don't think I've had rabbit since.
I was pretty grossed out by it.
And I just recognized it immediately is one of those things that I was going to have to
do and just get through and continue to maintain eye contact.
What we have here.
So we're clear, Jacob, is nothing less than the country's foremost opponent of judicial
(05:57):
activism overruling my lunch order, which not even Mrs. Rosen tends to do.
We broke bread together.
We had wine.
We shared a bottle of wine.
He drove me back to Fox News in his car.
And and there was a second lunch, which took some years to arrange.
But I don't want to go on too long.
And I just resolved that this man was so kind and generous with his time and his insights
(06:21):
to a young reporter 25 years ago that someday I would write about him.
And after he died and after my book about William F. Buckley had been a bestseller,
my publisher at the time suggested that I write a short, concise biography of Anton
and Scalia.
And I agreed to do that.
But you know how I am.
Just from this first answer, I don't do anything concise.
And so now it's metastasized into a two volume project.
(06:44):
James, he didn't just overrule you.
It occurs to me that he sundered your free speech rights and was behaving in a rather
authoritarian and arbitrary manner.
Not only did he overrule me, but he remanded to the local authorities, i.e. the waiter
for additional proceedings, which was the bringing of the rabbit.
He made sure that you hop to it.
(07:06):
James, Scalia is the original originalist.
Or is he?
Talk to me about the relationship between him and Robert Bork.
Was Robert Bork in fact the greater intellect who was surpassed and influenced by Scalia?
(07:27):
My friend Sam Tannenhaus has this theory that Bork is the true inception of originalism
actually comes from Bork.
Yeah, that's not a theory.
That's an established fact that Robert Bork and there's a lot about this in my book, Scalia
Rise to Greatness.
Robert Bork was the first national figure, so to speak, in what became a kind of conservative
(07:54):
legal revolution.
At a time when Scalia was serving as the general counsel to a newly created agency called the
White House Office of Telecommunications Policy, negotiating contracts between cable competitors
and doing other very important work, Bob Bork had already launched onto the national scene
by 1971 with a very famous speech published in the Indiana Law Review in which he chastised
(08:22):
the Warren Court for judicial overreach.
There were very few people, if any, of any note certainly at that time who were critical
of the Warren Court.
And Robert Bork as a Yale law professor, then as the solicitor general during the Nixon
administration, then as a scholar at AEI, and then as a judge on the Court of Appeals
(08:47):
for the District of Columbia Circuit, which is one rung below the Supreme Court and often
considered kind of the farm team that produces Supreme Court justices.
In all of those guises, Bork advocated for laws and the Constitution itself to be interpreted
according to the original intent of the framers or the original intent of the Congress that
(09:12):
produced a given federal statute.
The idea was to stand a thwart what was then the prevalent notion in the law, which was
a liberal notion, the idea of a living Constitution.
And this is something you still hear school children taught and repeat, the idea that
the Constitution is a living document that can expand or its meaning can be made to expand
(09:38):
as the times require to take account of phenomena that the founders never heard of or envisioned,
such as broadcasting or the internet or nuclear weapons.
This idea of a living Constitution was championed most ardently by William J. Brennan, who was
the liberal justice who has been called the playmaker for the Warren Court.
(10:02):
And Bob Bork was the first major figure to stand a for that.
And his argument was that if we if we allow judges or justices of the Supreme Court to
expand the meaning of the Constitution or given statute enacted since then, what is
to prevent someone from doing the same thing to us today?
(10:24):
So for example, if you liked the twenty twenty two law that President Biden signed that recognized
same sex marriage in all 50 states as legal, what would you think if ten minutes from now
or five years from now or 200 years from now, a judge or a justice can come along and say,
actually, that law may have meant what it meant in its time, but now it should be expanded
(10:45):
the meaning to cover X or Y or perhaps the meaning should be contracted.
The idea is that that laws are immutable and inviolable.
And it runs contrary to democratic governance.
If we decide years later that a law actually means something that we decide it means now,
(11:07):
Bork was of great help to Antonin Scalia in his rise to greatness.
The two were really good friends.
Their kids hung out.
And and even after Bob Bork's first wife, the mother of his three children, Claire died,
by the way, on the exact same day that John Lennon was killed, December 8, 1980, the Scalia
state friendly with Bork.
He remarried and it was the Scalia's who threw the rehearsal dinner for Judge Bork and his
(11:33):
new wife at the Cosmos Club in Washington.
Bork was always there for Scalia.
He gave him a hand up at the Department of Justice when they worked there together and
allowed Scalia to argue his one case before the Supreme Court as an advocate in 1976.
He was already at AEI when when Scalia joined there.
(11:54):
And in fact, according to my research, it was Judge Bork who smoothed Scalia's path
to join him as a judge on the Court of Appeals for the D.C. Circuit.
But of course, once President Reagan made good on his campaign pledge from 1980 to appoint
a woman to the court, which he did with the selection of Sandra Day O'Connor and the next
(12:14):
vacancy that arose, Reagan elected to to appoint William Rehnquist, who was an associate
justice for 15 years on the court at that point, and to elevate him to chief justice
and to appoint Antonin Scalia to succeed Rehnquist.
You talk in your book about the rupture of the friendship between Bork and Scalia.
And I was wondering if you could talk to us about that a little bit.
(12:37):
Right.
Well, so the the truth is that the friendship was greatly damaged, both for sure when Scalia
got the nod from the president to for a Supreme Court vacancy that everybody expected would
go to Bob Bork instead.
Bork was the more senior figure.
He was the more leading light.
But as judges together on the Court of Appeals, where they sat alongside Ruth Bader Ginsburg
(12:59):
and Kenneth Starr and Lawrence Silberman and James Buckley, I mean, this real murderers
row of judicial talent on that Court of Appeals, Bork and Scalia split ways over a libel case
involving the famous syndicated columnist Evans and Novak.
And Bork's opinion, majority opinion, called for an evolution in libel law based on the
(13:24):
modern state of libel in the United States.
And it was the kind of kind of thing that could have come out of the lips of Justice
Brennan.
This was real living constitution type stuff.
And and Scalia wrote a concurrence specifically to take Bork, his friend, to task.
And Bork never forgot it.
(13:45):
And as late as five years later, after Scalia was well established on the Supreme Court
and Bork had been rejected by the Senate for the following nomination in 1987, Bork was
still writing bitterly about this concurrence of Scalia's.
It's worth noting that Scalia, just as he was about to be nominated by President Reagan,
(14:06):
evolved a kind of an elaboration on Bob Bork's concept of original intent.
Scalia came to say right in June 1986, right before he was nominated at a very famous speech
where Bork was in the audience, that it doesn't do simply to honor original intent, because
(14:27):
if the founders didn't put into the text of the Constitution what their intent was, then
their intent is irrelevant.
What Scalia then began arguing in behalf of and which he championed for the rest of his
life was for original meaning, not original intent.
He would say, I don't care if we should discover some scrap of paper signed by all the founders
(14:49):
that makes it very abundantly clear that their actual intent was X, as opposed to what we
see in the Constitution.
He said, I don't care about their original intent.
I care about the original meaning of the Constitution.
The original meaning was the meaning that the Constitution or a given provision or a
given statute was widely understood to have at the time.
(15:13):
The best way to discern the original meaning was to look at the text of the Constitution
or the text of that law.
I like to say that textualism for Scalia was the metal detector that he would use to discern
the original meaning of a law.
If the original text was ambiguous or inscrutable, then Scalia would look to traditions of the
(15:36):
United States.
But yes, Bob Bork was the sort of the first leading exponent of originalism, but he championed
original intent and Scalia came along and championed original meaning instead.
And yes, exceeded his friend and influence.
I want to push you right here.
There's a new book out by another former Supreme Court justice named Stephen Breyer called
(16:01):
Reading the Constitution and Breyer says that he espouses a traditional interpretation.
And he recently said, if you overrule too many cases, law will turn into chaos.
Before you know it, you won't know what the law is.
What do you think about Breyer's critique that the conservative approach to how the
(16:24):
Constitution was originally understood when written itself becomes ossified in its own
dogma?
So, Breyer and Scalia were kind of debating partners.
They took their show on the road.
They used to appear together at colleges and they even testified before the House of Representatives
once together in 2010.
Prior to becoming a Supreme Court justice, Steve Breyer had been a counsel to the Senate
(16:46):
Judiciary Committee at the time, I don't think it was at the time of the Bork hearings, but
he was very close to Senator Kennedy.
And prior to that, Breyer had worked at a now defunct agency called ACUS, the Administrative
Conference of the United States.
And in the early 70s, Scalia had been the chairman of ACUS.
The Administrative Conference of the United States was a quasi-public agency, which was
(17:11):
kind of a think tank.
And its objectives were to produce suggested reforms for federal agencies and regulatory
bodies so that they would be more efficient in their operations.
And in 2010, the Clinton administration revived ACUS and Scalia and Breyer made a joint appearance
very unusual for two justices of the Supreme Court before a House subcommittee to provide
(17:34):
their expertise on the revival of ACUS and what it would mean.
And as the very first question in the testimony, the chairman of that subcommittee said to
Justice Scalia, well, Justice Scalia, you previously were the chairman of ACUS.
The person who's going to be taking that job is seated only a few rows behind you.
What advice do you have for him?
And Scalia's answer was, do good and avoid evil.
(17:57):
Well, that's pithy.
Breyer and Scalia disagreed over many things, not just whether there was a living constitution
or whether the constitution should be interpreted according to its original meaning, but also
over such things as the value of justices turning to foreign countries and their laws
and their statutes and their case law for guidance such as it might provide in their
(18:23):
deliberations over cases here.
And Breyer felt that there was a place for justices to consider foreign law in their
rulings here.
And Scalia said, no, there really is no, unless you're talking about the English common law,
there is no reason for us to consider what France or the Supreme Court of France has
had to say about anything.
With respect to Breyer's new book, he has been making the rounds.
(18:46):
And he told Politico earlier this week that he used to say to Scalia, yes, but if we adopt
your method of originalism, your method of interpreting the constitution or the statutes,
we will have a constitution that no one wants.
And Scalia's answer to that, of course, was, I don't care about a constitution that the
people want.
(19:06):
I care about the constitution that we have.
That's what governs us.
And that's what the justices should be looking to.
The idea that originalism produces static, wooden or otherwise unsatisfactory approaches
to the law is false.
Scalia would say, yes, I don't believe in the living constitution, but that doesn't
(19:28):
mean I believe in a dead constitution.
I believe in an enduring constitution.
And words have no meaning, especially as legal documents.
If five minutes from now, 10 minutes from now, or 200 years from now, someone can come
along and say, well, I think due to modern exigencies, we need to interpret this legal
document more broadly or more narrowly or what have you, then you really you don't have
(19:55):
a Congress enacting laws with any meaning or presidents signing laws into existence
with any meaning because they are subject to judicial fiat down the line.
Well, this is a conundrum that you and I are not going to resolve today.
It is interesting.
We just resolved it, Jake.
Oh, yeah.
That's simply.
(20:16):
It is interesting that Justice Ken Tanji Brown is now invoking originalism in her writings
on the Supreme Court.
You know, when Scalia joined the court in 1986, not only were were none of the justices
employing an originalist approach to constitutional and statutory interpretation, which is the
(20:38):
central business of judging.
They were most of the lawyers before the court, most of the justices were employing totally
different means by which to go about interpreting the Constitution and statutes.
And one of the favorite preferred methods was the use of legislative history.
What was said in all of those House and Senate committee reports that were generated about
(21:00):
a given measure as it snaked its way through the process.
And Scalia made it his mission, in addition to advancing originalism and textualism, to
destroy the use of legislative history, because he would say not one member of Congress even
read, let alone voted on, a committee report or a floor speech.
He would say, don't bring to me, don't pluck out of the legislative history of a given
(21:25):
statute the language you like that isn't in the law that you want to now as a judge say
was in the law or as part of the intent.
The intent was the law, the text itself, what you voted up and down and what a person said
the president signed.
By the time Scalia died, no less a figure than Justice Kagan, who was appointed by President
(21:46):
Obama, who was the Dean of the Harvard Law School, had come to say that, in effect, thanks
to Scalia's revolution, we are all originalists now.
We're all textualists now.
And nowadays it's very uncommon for anyone to begin an argument before the justices in
any way other than looking at the text of the statute at issue or the constitutional
(22:09):
provision at issue.
Legislative history is not entirely abandoned, but it has fallen out of favor.
Scalia also had this impact at oral arguments where he was really the first justice to start
asking a lot of questions and peppering and cutting in.
And now all the justices do that.
So his impact is profound, not just in terms of specific areas of the law where his opinion
(22:33):
held sway, but in the very ways in which lawyers argue the law, in which judges and justices
interpret the law, even the ways in which members of Congress craft the law.
Scalia was famed for his rebarbative dissents.
Do you think there is anyone on the court today that matches his fervor?
(22:55):
I don't know that any justice today would seek to match Antonin Scalia's fervor.
There is no question that Justice Scalia's dissents in particular were sometimes written
so forcefully, so pointedly that they turned off his colleagues.
It's not clear that it cost him any majorities at any particular point, but I'm not sure
that it's the model that any justice would seek to emulate per se.
(23:19):
But I think Justice Alito is a pretty sharp writer.
I think his opinion in Dobbs, which owed more than a little to Justice Scalia's jurisprudence
in preceding decades, was very sharply written.
But it's not clear to me that anybody really wants to be the next Scalia because it's impossible
any more than anyone should aspire to be the next Beatles.
(23:41):
How much do you think Scalia was shaped for all his emphasis on originalism by his own
Catholic heritage and beliefs?
So Justice Scalia was adamant that he never tried to impose his Catholic belief system
on his jurisprudence.
He would say that there's no such thing as a Catholic hamburger.
(24:03):
The closest we could come to a Catholic hamburger, he would say, would be a hamburger that is
prepared perfectly.
When one of his friends, Jeffrey Stone of the University of Chicago Law School, wrote
in a 2007 op-ed that Scalia was in fact grafting his Catholicism onto his jurisprudence, it
caused such a rift between them that it wasn't healed for five years before they made up.
(24:28):
These are two guys who had known each other for decades at that point.
Scalia was proud of the fact that his approach of originalism and textualism often produced
judicial outcomes that he, from his own personal sociopolitical or religious belief system,
found abhorrent.
So, for example, one of his rulings on the Supreme Court served to overturn effectively
(24:53):
the conviction of a child molester because a screen had been placed between the complaining
witnesses in the case who were minor girls and the defendant's table where the accused
was sitting.
And Scalia found that a violation of the Sixth Amendment right to confront your accuser.
It means eyeball to eyeball, and even if that has the effect of traumatizing complaining
(25:17):
witnesses in sexual assault cases all over again, he said in essence that the Constitution
protects the child molester and the falsely accused child molester alike.
And that's part of the price we pay for having a constitution and having a bill of rights.
He came down in favor of the constitutional protection under the First Amendment for burning
(25:39):
the American flag.
And he would say, I'm a lower-in-order type.
I don't like the idea of scruffy, sandal wearing, bearded weirdos burning the US flag.
So he felt that if you're an honest judge, occasionally you will come to outcomes that
are starkly different from what you personally believe.
(25:59):
On the subject of abortion, it is true that his rulings in that area, his opinions in
that area were not opposite his Catholic belief system.
But that's not to say that his embrace of originalism or textualism was fraudulent.
James, I know that you as chief White House correspondent for Newsmax are an extremely
(26:20):
busy man.
So I will forbear to ask more than one question that I hope you do not find too benoscik,
which is, is this the Scalia Supreme Court that we see today?
I think Scalia himself, while not known for modesty per se, would would eschew any such
characterizations.
(26:41):
He would say, I had my time in promoting this book.
I was asked so often, what do you think Antonin Scalia would have said about current event
or personality or trend X, such as, for example, January 6th?
And in general, I sought to avoid placing any particular sentiments in the mouth of
(27:01):
a justice who, after all, left us in 2016, especially because he was so wedded to originalism
and so opposed to the idea of latter day judges or justices grafting their latter day preferences,
policy preferences onto legal texts from an earlier time.
So I certainly wouldn't want to do that where he is concerned.
I don't think he would seek to have any subsequent Supreme Court declared Scalia's court.
(27:28):
As far as I would take this is to say, I do think that he would have been dismayed by
the general coarseness of our discourse, our political discourse today.
That is a valuable observation.
And James, the attentive observer will note that your book ends in 1986.
The second volume is eagerly awaited by your fans.
(27:54):
You and my mom, right?
That's who you're talking about.
I am extremely grateful to you for coming on to this podcast.
And I look forward to discussing the next volume with you.
Thank you, my friend.
Pleasure to be in your company, even if only remotely.
Thank you, James.
Thank you.
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