It's A Saturday Morning Bonus Podcast For 12-28-24

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Episode Transcript

Speaker 1 (00:00):
The Michael Barry Show. In my bar at home, I
have a picture of antonin Scalia and myself talking in
his Supreme Court chambers. And it's a moment that I
will never forget, the moment I enjoy looking at, especially
after his passing. He does not seem annoyed, Ramon. He's

(00:21):
delighted to be there, delighted to be there. We'd had
cigars the night before at the University club where I
was staying in DC. He and me and Clarence Thomas,
and I was a law school student at the time.
I was working at a law firm in Washington, d C.
And he could tell I was a dork for his

(00:43):
writings and for the Supreme Court and the lore of
it all. At some point he said, well, you're really
into this. Yes, there I am, And he said would
you like to come to my chambers?

Speaker 2 (00:53):
Absolutely? And so rather than just.

Speaker 1 (00:57):
A high bye and then me going a window, I said,
I can come tomorrow. He said, okay, how does four
o'clocks out? I said fine, I said, awkward question. Can
I bring my wife? She had just graduated law school,
she's getting ready to start and she was visiting. He
said sure, and I said, second, awkward question, can I

(01:19):
bring a photographer? Well, he understood I wanted to save
this moment for history, and he did. Anyway, that picture hangs.

Speaker 2 (01:27):
To this day.

Speaker 1 (01:29):
This particular lecture that he gave back in twenty thirteen
is entitled is capitalism or socialism more conducive to Christian virtue?

Speaker 2 (01:43):
Just open your mind and.

Speaker 1 (01:45):
Give this good Catholic Supreme Court justice, great American, you're
ear I think you'll like it.

Speaker 3 (01:53):
Earlier I had the opportunity to ask Jesice Sclea how
we could pray for him tonight, and of course he
asked that we pray for a on the bench and influence,
and we are all in agreement with that. But additionally,
he said, pray for my family. He's a real guy.
He's a real person. He has nine children and thirty
three grandchildren with a thirty fourth on the way, if

(02:14):
my numbers are correct. So pray for Justice Scalia, the
father and the grandfather. So would you join me, Unlet's
ask God's blessing over the evening. Father, we thank you
for this wonderful privilege. We thank you for Mark and
Becky and their family were so honest and helping us
through so many things, and here tonight inviting us into
their homes. Yet again, we're so grateful for their hospitality,

(02:36):
their kindness to us. We thank you for the privilege
to learn something tonight, and we're grateful that Justice Scalia
is here. We do pray for his influence and for
his leadership and for favor on the bench and as
he makes decisions and leads others in the process of discussion,
that Lord, you will indeed allow truth to prevail and
right to win. Lord, we trust in you to lead

(02:56):
our country, to guide us, and we pray over those
in high positions with authority, becuse You've instructed us to
do so, and tonight it's an honor to pray for
this Justice, Justice Scalia. We pray over this evening and
his message to us tonight. I know it will challenge
us and encourage us. Lord, we want to find you
in all of this, and we want to hear a
word from you, so may all that's said and done
be pleasing to you. That's ultimately our goal. We want
your glory and your good. We pray in Jesus' name, Amen.

Speaker 4 (03:21):
This man is an icon in the legal world. This
man was appointed to the bench by President Reagan. But
the Good Lord gave this man gifts and abilities, and
Justice Clia.

Speaker 5 (03:33):
Used those long before he took the bench.

Speaker 4 (03:36):
Graduated number one in his class in high school, Georgetown University, Valedictorian,
Harvard Law School, Magna cum Lautie, professionally practiced law, taught law,
and has been a justice appointed to the bench by
Ronald Reagan. Is the longest serving just this current on

(04:00):
the bench. He has influenced the bench in profound ways.
He comes to this from a personal perspective of deep faith.
Born and raised in the Catholic Christian Church, he has
worked tirelessly to see that his children continue in that faith.

(04:24):
His son, Paul, is a Catholic priest.

Speaker 5 (04:28):
Justice Scalia is.

Speaker 4 (04:30):
Very genuine and deeply convicted in what he believes. As
a Supreme Court justice, he doesn't go around in lecture
all the time. He has a full time job that
is extremely time consuming. And that's before you take into
account his marvelous wife, Maureen, their nine children, and their
thirty three plus grandchildren, seven of which Michael's responsible for.

(04:57):
If I'm not mistaken, there are three books by Justice
Scalia in our library.

Speaker 5 (05:04):
You're welcome to get.

Speaker 4 (05:06):
I will tell you, as a last word before he
takes the pulpit that you have cards that you can
write questions on. We won't have a lot of questioning time,
but we will have about ten or fifteen minutes perhaps
of question and answer after he's through. I asked him today,
is there anything I should say is off limits? He
said no, If I don't want to answer it, I won't.

(05:31):
I'm a lawyer, and in legal tradition, when a justice
enters the room, we all rise.

Speaker 5 (05:36):
So would you rise for justice?

Speaker 2 (05:37):
Scalia? II, can please perceive it?

Speaker 6 (05:43):
My goodness, you may be a lawyer, but this is
not a courtroom. I don't think i've ever I've ever
spoken from a pulpit before, and it brings to mind
a story that I heard from, my goodness, a friend

(06:06):
I had many years ago when I was a practicing
lawyer in Cleveland. His name was Sherwood Sugden. He was
a Canadian and a Presbyterian.

Speaker 2 (06:17):
He used to.

Speaker 6 (06:20):
Bemoan the wishy washy current state of the Presbyterian Church. Esay,
when I grew up in Canada, out in the wilds
of Canada, we had a real Presbyterian church, and as
He described that the minister would get up, glare down
at the congregation and begin his sermon, Ah, so you're

(06:44):
back again, how are you are your worms?

Speaker 2 (06:46):
And it would and it would go from there, you.

Speaker 6 (06:49):
Know, good, good old Scott's Presbyterian hellfire and brimstone. Well,
I am not going to talk about hell fire and brimstone.
I am, however, speaking to a Christian group, and I'm
speaking as a Christian, not of course, as a federal judge.

(07:09):
Some years ago I was invited to give a lecture
at the Gregorianum, the famed Jesuit school of theology in Rome.
The topic I was asked to address was the following,
is the political philosophy of the left or of the
right more compatible with the public good? The Jesuits, I suspect,

(07:36):
believed the former. It was still the age of liberation
theology in South America. The remarks I gave were essentially
as follows, altered slightly to be more appropriate for an
American rather than a European audience.

Speaker 2 (07:58):
Is the political.

Speaker 6 (07:59):
Philosophy of the left or of the right more compatible
with the public good? If there was ever a topic
that cried out for a definition of.

Speaker 2 (08:08):
Terms, it is this one. Right and left.

Speaker 6 (08:13):
Right wing and left wing are terms that have virtually
no fixed meeting in American political discourse, except that they
all cannote a degree of extremism. Both categories of the
term are pejorative. Thus we have an American political commentary
that familiar villain, the right wing extremist, and in more

(08:38):
recent years, that ominous political force, the Christian right. The
terms left wing extremist and Christian left would have similar
overtones of foreboding if they were ever used by the
American media, but they are not, which is an interesting phenomenon.

(08:58):
Once one gets beyond on their pejorative content, it is
hard to pin down the meaning of right and left
in American political usage. Sometimes the terms are used to denote, respectively,
statists on the one hand, and libertarians on the other,
those who favor strong and authoritarian government versus those who

(09:23):
favor a high degree of individual freedom. In this sense,
Richard Nixon would be a man of the right and Eugene.

Speaker 2 (09:31):
McCarthy a man of the left.

Speaker 6 (09:34):
But if that were the only meaning of the terms,
both Augustus Pinochet and Fidel Castro would have to.

Speaker 2 (09:44):
Be referred to as right wingers.

Speaker 6 (09:48):
Thus, there is a second, quite different connotation of the terms,
which distinguish between laisse fair capitalists and socialists. This is
not only different from it is sometimes the opposite of
the first connotation, since those who favor a high degree

(10:10):
of individual freedom in other matters and would be identified
with the left under the first connotation often favor a
high degree of individual freedom and economic matters as well,
and hence would under this second connotation be called members
of the right. Thus, the American Libertarian Party is a

(10:30):
party of the left under the first connotation, and a
party of the right under the second. Yet a third
meaning of right and left is much more relativistic. It
draws a distinction between those who favor the status quo
and those who favor change, between conservatives and progressives. Since

(10:53):
over most of the past century, change has been moving
from a status quo of capitalism towards socialism, this third
connotation tends to produce the same.

Speaker 2 (11:04):
Results as the second.

Speaker 6 (11:06):
Castro can be called a man of the left in
both of these senses, But if and when the tide
of history moves in reverse, the equivalence between the two
connotations disappears. The old line communists in Russia who resist
the change towards democracy and capitalism are referred to in

(11:30):
the American press, believe it or not, as the right.
And finally, right and left may connote a distinction between
nationalism and one worldism. This may be merely one aspect
of the first connotation I mentioned, That is, those who
favor a strong authoritarian government tend to be nationalists. But

(11:54):
it really must be an entirely separate connotation, because otherwise
I can think of no other basis for calling the
Nazis a party of the right and Communists a.

Speaker 2 (12:07):
Party of the left.

Speaker 6 (12:09):
They're both authoritarian, they're both socialist, and they are both untraditional,
but the Communists are internationalists. For purposes of my remarks today,
I am assuming the second meaning of right and left,
the meaning that refers to the difference between capitalism and socialism.

(12:34):
I take that approach because that is the only one
of the dichotomies I have mentioned that is the subject.

Speaker 2 (12:40):
Of widespread current debate.

Speaker 6 (12:42):
In these early years of the twenty first century, few
have been urging a return to authoritarianism, vigorous nationalism, or traditionalism.
Whereas the debate between capitalism and socialism continues. I must
make a second clarification about the subject of my remarks.

(13:06):
In the title asks whether the right or the left
is more compatible with the common good. I have chosen
to interpret the common good to mean the Christian common good. Thus,
I take that system to be conducive to the common good,
which is conducive to virtue, as Christianity understands virtue and sanctification.

(13:32):
I assume that this is the meaning of the common
good that the organizers of this conference had in mind.
The Gregorianum, being, as I understand it, a school of theology,
not of government or economics. Having finally define my topic,
the first thing I wish to say about it is
that I do not believe it is terribly relevant. That

(14:00):
is to say, I do not believe that a Christian
ought to choose his form of government on the basis
of which will be most conducive to his faith, any
more than he ought to choose his tooth paste on
that basis. To be sure, there are certain prohibitions. A
Christian should not support a government that suppresses the faith

(14:24):
or one that sanctions the taking of innocent human life,
just as a Christian should not wear immodest clothes. But
the test of good government, like the test of well
tailored clothes, is assuredly not whether it helps you save
your soul. Government is not meant for saving souls, but

(14:48):
for protecting life and property and assuring the conditions for
physical prosperity. Its responsibility is the here, not the hereafter,
and the needs of the two sometimes diverge. It may
well be, for example, that a governmental system which keeps
its citizens in relative poverty will produce more saints the rich,

(15:14):
as Christ said, have a hearted time getting to heaven.
But that would be a bad government. Nonetheless, this recognition
of the separate spheres of church and state is not
just the teaching of the First Amendment to.

Speaker 2 (15:28):
The United States Constitution.

Speaker 6 (15:30):
It is also, I think, the teaching of Jesus Christ,
who spoke of rendering to Caesar the things that are Caesar's,
and who is not regarded as having indicated any preference
about government, except one he did not want the people
to make him king. If I were to engage in

(15:52):
the search for the form of government most conducive to Christianity, however,
I would certainly.

Speaker 2 (15:58):
Not settle upon the candidate that seems to have.

Speaker 6 (16:00):
Such a great attraction for modern Catholic thinkers, and I
think most modern Christians to wit socialism. It is hard
to understand that attraction. Surely it does not rest upon
the teachings of experience. I know of no country in
which the churches have grown fuller as the governments have

(16:24):
moved leftward. The churches of Europe are empty. The most
religious country in the West, by all standards, belief in God,
church membership, church attendance is that bastion of capitalism least
eluted by socialism the United States. When I say least
eluded by socialism, you must understand that I say it

(16:47):
in a modern context in which we are all socialists
in the United States. That battle was fought and decided
with a new deal. No one, even in the most
conservative court of American society, now denies that there should
be a so called safety net provided by the government
for our citizens. The only real argument is over how

(17:10):
many services that safety net should provide and how poor
must one be in order to qualify. Few of us
even understand anymore what a truly non socialist mentality was like.
I happened to encounter it by accident many years ago,
when I was a young law professor doing research for

(17:32):
an article on sovereign immunity, the legal doctrine which says
that a state cannot be sued without its consent. I
came across a debate in the Massachusetts legislature during the
seventeenth century concerning a proposed bill that would provide compensation

(17:53):
to a woman who had been seriously injured through the
negligence of one of the agents of.

Speaker 2 (17:58):
The state, a policeman or a fire or whatever.

Speaker 6 (18:02):
Those members of the Massachusetts legislature opposing the legislation argued
that they had no right, that it was morally wrong
to use public funds for private benefit for a purpose
that did not benefit the public at large, because of

(18:23):
the doctrine of sovereign immunity. They said, the Commonwealth of
Massachusetts owed this woman nothing in law, and to agree
to pay her out of public funds money that was
not legally owed was in effect, to use public funds
for a private gift. And this, I point out, was
a woman who had been injured by the commonwealth. You

(18:44):
can imagine what their attitude would have been towards dispensing
public funds to the poor.

Speaker 2 (18:51):
In the United States.

Speaker 6 (18:52):
A remnant of that non socialist attitude lasted into the
present century. Our federal count Institution, you may recall, gives
Congress not a general power to expend funds, but only
the power to expend funds quote for the general welfare
close quote. Until the triumph of the New Deal, there

(19:15):
were many who thought that that text prohibited the expenditure
of funds for any private assistance, neither to the rich
nor to the poor.

Speaker 2 (19:27):
But that fight, as I have said, is over.

Speaker 6 (19:29):
We now believe that any expenditure for any citizen is
an expenditure for the general welfare, whether to the poor
such as food staff recipients, or to the middle class,
or even to the fairly well to do, such as
the victims of a tornado in Florida, or even to
the downright rich, such as the shareholders of Chrysler. All

(19:53):
of these are now regarded as entirely proper objects of
the state's beneficence. The allure of socialism for the Christian,
I think, is that it means well, it is or
appears to be altruistic. It promises assistance from the state

(20:15):
for the poor and public provision of all the necessities
of life, from maternity care to geriatric care, and from
kindergarten through university. Capitalism, on the other hand, promises nothing
from the state except the opportunity to succeed or fail.

(20:36):
Adam Smith points unabashedly to the fact that the baker
does not provide bread out of the goodness of his art,
but to make a profit. How uninspiring. Yet if you
reflect upon it, you will see that the socialistic message

(20:57):
is not necessarily Christian, capitalist message not necessarily Unchristian. The
issue is not whether there should be provision for the poor,
but rather the degree to which that provision should be
made through the coercive power of the state. Christ said,

(21:17):
after all, that you should give your goods to the poor,
not that you should force someone else to give his.
Bear in mind that in this discussion I am not
arguing about whether socialism is good or bad as a
system of government. If private charity does not suffice to
meet the needs of the poor, or if we do

(21:38):
not want the poor to have to regard themselves as.

Speaker 2 (21:41):
The object of charity, or if we.

Speaker 6 (21:44):
Even wish to go beyond merely assisting the poor and
want to redistribute the wealth of the rich to the
middle class, socialism may be a better way to meet
those particular worldly needs, but that can be decided on
the economic and secular merits of the matter. The question
I am asking is whether Christian faith must incline us

(22:09):
towards that system, and the answer.

Speaker 2 (22:12):
I think is no.

Speaker 6 (22:14):
Christ did not preach a chicken in every pot or
the elimination of poverty in our time. Those are worldly
governmental goals. If they were his objectives, he certainly devoted
little of his time and talent to achieving them.

Speaker 2 (22:36):
Feeding the hungry multitudes.

Speaker 6 (22:38):
Only a couple of times, as I recall, and running
away from the crowds who wanted to put him on
the throne, whereas would have had an opportunity to engage
in some real redistribution of wealth. His message was not
the need to eliminate hunger, or misery or or misfortune,

(23:01):
but rather the need for each individual to love and
help the.

Speaker 2 (23:06):
Hungry, the miserable, and the unfortunate. To the extent that
state takes upon itself one of.

Speaker 6 (23:15):
The corporal works of mercy that could and would have
been undertaken privately, it deprives individuals of an opportunity for sanctification,
and deprives the body of Christ of an occasion for
the interchange.

Speaker 2 (23:30):
Of love among its members.

Speaker 6 (23:33):
I wonder to what extent the decimation of women's religious
orders throughout the West is attributable to the governmentalization of charity.
Consider how many orphanages, hospitals, schools, and homes for the
elderly used to be provided by orders of nuns. They

(23:54):
are almost all gone, as are the nuns who ran them.
The state now provides pays for these services through salaried
social workers. Even purely individual charity must surely have been affected.
What need for me to give a beggar a handout?
Do I not pay taxes for government food stamps and

(24:17):
municipally run shelters and soup kitchens. The man asking me
for a dollar probably wants it for liquor. There is,
of course, neither love nor merit in the taxes I
pay for those services. I pay them because I have to.

(24:39):
The Governmentalization of charity affects not just the donor, but
also the recipient. What was once asked as a favor
is now demanded as an entitlement. When I was young,
there used to be an expression applied to a lazy person.

Speaker 2 (25:00):
My parents used it a lot.

Speaker 6 (25:03):
He thinks the world owes him a living. But the
teaching of welfare socialism is that the world does indeed
owe everyone a living. This belief must affect the character
of welfare recipients, and not, I suggest for the better,
or at least not for the better. In the distinctively

(25:23):
Christian view of things, Christ's special love for the poor
was attributable to one quality that they possessed in abundance,
meekness and humility. It is humbling to be an objective charity,
which is why mendicant nuns and friars used to beg

(25:47):
The transformation of charity into legal entitlement has produced donors
without love and recipients without gratitude. It has also produced
a change in the product that is distributed. Most particularly
and most relevantly for purposes of the present discussion, social

(26:12):
services distributed by the state in this country at least
cannot be intermingled with Christian teaching or even increasingly with
Christian morality. They do not say the Angelus in public orfriages,
there are no crucifixes on the walls of public hospitals,
and the Ten Commandments are not posted in public schools.

(26:37):
The religiously driven and religiously funded social welfare movements of
the nineteenth century sought to achieve not merely the alleviation
of poverty and hardship, but also what was called moral uplift.
Of course, that is no part of the function of
state administered social welfare.

Speaker 2 (26:58):
Today.

Speaker 6 (27:00):
State paid social worker whose job is to see to
the distribution of welfare funds to those who are legally
entitled to them, is not cannot legally be concerned with
improving not only the diet but also the virtue of
her clients, which is the coldly commercial terminology that welfare

(27:21):
bureaucracies use. It is quite simply none of her business.
Perhaps the clearest effects of the expansion of the state
accompanied by the contraction of the church are to be
found in the field of primary and secondary education. A

(27:42):
relatively small proportion of Americans are nowadays educated in religious schools.
Catholic schools are much less numerous than they were in
mid century. As the costs of primary and secondary education
have risen, it has become very difficult for churches to
run a system competitive with the tax funded public schools. Simultaneously,

(28:06):
litigation has caused the public schools to eliminate all religiously
doctrinal materials from their curriculum that is good and proper
under our American system, which forbids the official establishment of
any sect but the non sectarian states increasing monopoly over
primary and secondary education can hardly be considered beneficial to Christianity,

(28:31):
whereas such overtly religious texts as The Pilgrim's Progress.

Speaker 2 (28:36):
Remember the Pilgrim's Progress.

Speaker 6 (28:39):
Were once the staple of the American school child's education.
Religious instruction nowadays, if received at all, is obtained in one.

Speaker 2 (28:50):
Evening a week.

Speaker 6 (28:52):
In confraternity classes are on Sunday. In more recent years,
as society has become more and more diverse in its
views of morality, not just religion, but morality, the state's
control of education deprives children not only of Christian doctrine,
but even of essentially Christian moral formation. Schools distribute condoms,

(29:16):
provide advice on birth control and abortion, and teach that
homosexual conduct must not.

Speaker 2 (29:21):
Be regarded as sinful or even abnormal.

Speaker 6 (29:25):
Again, it is not my place or my purpose to
criticize these developments, only to observe that they do not
suggest that expanding the role of government as socialism does,
is good for Christianity.

Speaker 2 (29:44):
Finally, I may mention that even.

Speaker 6 (29:48):
The seeming Christian virtue of socialism, that it means well
and seeks to help the poor, even that seeming Christian
virtue may be great exaggerated. It is true in the
United States, and I believe it is true in all
of the Western democracies, that the vast bulk of social

(30:10):
spending does not go to the poor, but rather to
the middle class, which also happens to be the class
most numerous.

Speaker 2 (30:18):
At the poles.

Speaker 6 (30:20):
The most expensive entitlement programs social security and medicare, for example,
overwhelmingly benefit those who are not in dire financial straits.
So one may plausibly argue that welfare democracy does not
really have even the Christian virtue of altruism. The majority

(30:41):
does not say to the rich, give your money to
the poor, but rather give your money to us. Just
as I believe the left is not necessarily endowed with
Christian virtue, so also I believe the right is not
necessarily bereft of it. Less a fair capitalism, like socialism,

(31:04):
speaks to the degree of involvement of the state in
the economic life of the society. Like socialism, also, it
does not speak to the nature of the human soul.
There have been greedy and avaricious capitalists, but there have
also been generous and considerate ones, just as there have

(31:25):
been altruistic and self deprecating socialists, but have also been brutal.

Speaker 2 (31:31):
And despotic ones.

Speaker 6 (31:33):
The cardinal sin of capitalism is greed, but the cardinal
sin of socialism is power. I'm not sure there is
a clear choice between those evils. While I would not
argue that capitalism as an economic system is inherently more

(31:55):
Christian than socialism, at least as long as we're talking
about a form of socialism that permits the acquisition and
ownership of property, it does seem to me that capitalism
is more dependent upon Christianity than socialism is. For in
order for capitalism to work, in order for it to

(32:17):
produce a good and a stable society, the traditional Christian
virtues are essential. Since in the capitalist system, each individual
has more freedom of action, each individual also has more
opportunity to do evil. Without widespread practice of such Christian
virtues as honesty, self denial, and charity towards others, a capitalist.

Speaker 2 (32:44):
System will be intolerable.

Speaker 6 (32:49):
Let me conclude, as I began with a disclaimer the
burden of my remarks is not that a government of
the right is more christ Like, only that there is
no reason to believe that government.

Speaker 2 (33:00):
Of the left is. To tell you the truth, I
do not think.

Speaker 6 (33:06):
Jesus Christ cares very much what sort of economic or
political system we live under.

Speaker 2 (33:14):
He certainly displayed little.

Speaker 6 (33:15):
Interest in that subject during his life among us, as
did his apostles. Accordingly, we should select our economic and
political systems on the basis of what seems to produce
the greatest material good for the society as all, or
if you wish for the most needy segment of society

(33:37):
and leave theology out of it.

Speaker 2 (33:40):
Raising the minimum.

Speaker 6 (33:41):
Wage, for example, which is a perennial political proposal in Washington,
is a good or a bad idea, depending upon whether
it is likely to produce good or bad economic consequences.
It has nothing to do with the Kingdom of God.

Speaker 2 (34:03):
Thank you, thank you.

Speaker 4 (34:14):
I want to tell you this is an incredibly rare
opportunity to have heard a gentleman of this stature, in
this position in American life and culture come speak on
a subject area outside of of what he does as
a judge is quite amazing. So these are coming in.

(34:34):
I've got to take these off to be able to
read them. And let's see, how is the recent Supreme
Court ruling on well, okay, he's got to be careful
how we answers some of these questions.

Speaker 5 (34:47):
There's at a there's not their rules. Well, you're a
big boy.

Speaker 4 (34:53):
How's the recent Supreme Court ruling on Doma going to
impact the church vis a v. Mandatory performance of wedding?

Speaker 6 (35:02):
Oh?

Speaker 2 (35:03):
I technically that.

Speaker 6 (35:04):
Ruling has nothing to do with uh with with the
issue of whether the states or or or the churches
have to uh honor uh single sex marriages. It has
nothing to do with that. It just it just deals with,
uh what when when federal statutes refer to marriage, what

(35:24):
does that refer to? Doma simply said that in federal
statute it refers only to a marriage between a man
and a woman, and Doma said, no, that's wrong.

Speaker 2 (35:36):
It now refers I I I.

Speaker 6 (35:38):
It refers to whatever unions were lawful under.

Speaker 2 (35:42):
The state that concluded them. It has nothing to do
with the.

Speaker 6 (35:48):
Whether the states must recognize uh same sex marriage. Although,
as I said in my descent, in the case that's
the shoe that next drop. I mean, I think it's
it's coming. But do Doma doesn't do it.

Speaker 4 (36:06):
Have you ever noticed that positions of justices on a
particular subject change or become more liberal the longer they're
on the bench? I will say, for this justice has been.

Speaker 2 (36:17):
On, are you It's demonstrably false.

Speaker 6 (36:22):
I've been there longer than anybody, and I'm I don't
think I'm any further left than I was.

Speaker 2 (36:28):
But no, but it is.

Speaker 6 (36:30):
It is a common phenomenon that when one arrives at
the Supreme Court, one tends to think that the court
or to decide more of the crucial issues for society
and not depends so much on the text of an

(36:52):
old constitution. It's natural enough, I suppose, but I think
it is. It is certainly a true phenomenon. John Paul Stevens,
for example, was you know, quite a what should I say,
non activist judge when he was when he was on
the Seventh Circuit and did not turn out that way

(37:17):
on the Supreme Court.

Speaker 4 (37:19):
We have so many phenomenal questions. I'm limiting these ones
that I'm interested in. I'm sorry about that. And he's
got no warning. Okay, so this is like not fair
to him. Of all the opinions you've written. Do any
come to mind that you're particularly proud of or that
are your favorites?

Speaker 2 (37:41):
Well, you know, my favorite dissent is probably.

Speaker 6 (37:47):
One pretty early on. I was the sole dissenter in
the case deciding whether the Independent Council was constitutional.

Speaker 2 (37:58):
I said that he she wasn't Alicia Morrison.

Speaker 6 (38:05):
Seven justices thought the opposite. A few years later, the
Court did one hundred and eighty degree turn on the
crucial issue in that case, whether an independent Council is
an inferior officer or not. You don't have to know

(38:26):
why that's important. So I think I was sort of vindicated.
I wrote that later opinion, by the way, but the
author of Marsen versus Olsen joined it. Don't ask me
how bang you know? For majority opinions, I guess the one, well,
they're too I'm proud of. One is the Heller opinion,

(38:49):
which was Second Amendment, the first opinion of the Supreme
Court that really decided whether the Second Amendment.

Speaker 2 (38:57):
Conferred a private right to keeping bare arms.

Speaker 6 (39:00):
And also a case whose name I always forget, that
restored the confrontation clause to its original meaning. It Well,
i'll talk about that because it says something about it.
Some people think that when you depart from the original

(39:20):
meaning of the Constitution, you're, oh, you're always creating greater freedom.
You know, there's no harm done. That's not true. I mean,
if you ignore the original meaning of the constitutions, sometimes
you'll create more freedom.

Speaker 2 (39:33):
Sometimes you'll eliminate prior ones.

Speaker 6 (39:35):
And what we had done with the confrontation clause, which
guarantees in all criminal prosecutions that the accused shall enjoy
the right to confront the witnesses against it.

Speaker 2 (39:46):
No doubt what that meant.

Speaker 6 (39:47):
It meant you had to bring the witnesses into court.
You could not use hearsay. You could not bring somebody
come in and say, well, I wasn't there, but Joe
was there, and he told me, no, you can't do it.
You have to have the opportunity to cross examine the
person who's sending you to prison.

Speaker 2 (40:07):
About what.

Speaker 6 (40:08):
Twenty five years ago we just kicked that aside and
said in a case called Nice States versus Roberts, that
all the confrontation clause means is that any hearsay you
introduce has to be reliable hearsay. Well, I wrote the

(40:29):
opinion that overruled that maybe it wasn't about eight years
ago or so, and so the confrontation clause now has
the meaning it had at the beginning.

Speaker 2 (40:39):
I'm very proud of that opinion.

Speaker 4 (40:41):
You are so persuasive and logical. Why aren't you able
to persuade your liberal colleagues.

Speaker 2 (40:57):
Well on most of these these issues on which we disagree.
It's fundamental stuff.

Speaker 6 (41:11):
I mean, it's about whether you think the Constitution bears
its original meaning or you think it changes. All My
colleagues have thought about this for years. I'm not going
to change their mind on those fundamental questions. If they
think it's a morphing constitution, that it means whatever they
think it ought to mean today, they're not going to

(41:32):
change that.

Speaker 5 (41:33):
What my god?

Speaker 6 (41:33):
They know, yes, originalism. Why didn't I think of that before?
We don't even talk.

Speaker 2 (41:43):
About the fundamental stuff like that? Don't even talk about it.

Speaker 6 (41:47):
These guys have had their philosophy for you know, thirty
years at least.

Speaker 2 (41:52):
I'm not about to change their basic philosophy.

Speaker 6 (41:56):
Now on you know, on most of the real law case,
you know, most of what we do believe it.

Speaker 2 (42:03):
Sometimes people don't say, Justice, Glee, why do you have
to be.

Speaker 6 (42:06):
A lawyer, to be on the Supreme Court. The Constitution
doesn't say so. It doesn't because they think. Most of
the time, you know, we're contemplating our navel.

Speaker 2 (42:17):
Should there be a right to die? Should there be
a right to abortion?

Speaker 6 (42:23):
You know, you know something that Joe Sixpack knows the
answer to as well as I do. It has nothing
to do with anything you learned at Harvard Law School,
nothing whatever. But in fact, most of the time we
are not doing that garbage. Most of the time we
are doing real law. We're figuring out the meaning of
the Bankruptcy Code, the Internal Revenue Code. That is hard

(42:46):
and really dull stuff, and only a lawyer can understand it. So,
you know, if people understood that, they would never ask
that question.

Speaker 5 (42:59):
Of course, Yeah, do you have a favorite opera?

Speaker 2 (43:05):
Oh, that's that's a very no.

Speaker 6 (43:06):
I can't say have a single favorite om like a
lot of different opera.

Speaker 5 (43:10):
Do you still sing in your church choir?

Speaker 2 (43:12):
I don't, uh.

Speaker 6 (43:18):
When I was a professor, I sang in a in
a chorus as late.

Speaker 2 (43:24):
As when I was on the Court of Appeals. Before
I got a pointed in the Supreme Court. It's called
the Wareham Corral.

Speaker 6 (43:29):
We sang at the National Cathedral, at the Smithsonian other
places it was, and I miss it when I was
When I was a professor at the University of Chicago,
my next door neighbor was the director of the Rockefeller
Chapel Choir. Those of you who know the University of Chicago,
Rockefeller Chapel.

Speaker 2 (43:49):
Is a cathedral.

Speaker 6 (43:50):
I mean it's around, you know, twenty times the size
of your little church here, and and it had an
endowed choir. Sometimes there were more people in the choir

(44:10):
than there were in the congregation, to tell you the truth,
but it was a wonderful choir. And I would go
there Sunday morning and sing Palestrina William Byrd motes like this,
magnificent choral religious music from fifteen hundred years after which
I would go down the street to Mass and hear

(44:33):
some clowns drum a guitar and sing God is Love
Kumbaya or something like that.

Speaker 2 (44:41):
It used to rip me up.

Speaker 4 (44:49):
And while you're on the subject, would you please evaluate
the condition of the Catholic Church of the US.

Speaker 2 (44:57):
Evaluate the condition it's doing. Okay, it's been around a
long time, you know.

Speaker 5 (45:13):
All right.

Speaker 4 (45:13):
I've got about four more that I'll run out here.
Too serious, too less a less serious? Are you a
Redskins fan?

Speaker 6 (45:25):
No, I'm not even much of a football fan to
the extent I am.

Speaker 2 (45:29):
I hate the Redskins. In fact, I always roote for Dallas.

Speaker 4 (45:42):
How and and this may be something you have don't
want to answer. How would you handle siria? Now I
shouldn't talk about Okay, now here's the education I.

Speaker 6 (45:54):
Have strong views on it.

Speaker 5 (45:58):
Fair enough, here is a legal education question.

Speaker 4 (46:05):
All right, what is the constitutional basis for the principle
of star a decisive? Does it play inherently to the socialists?

Speaker 6 (46:18):
Well, you know, the constitutional basis for it is that
it is impossible to run a judicial system without it.

Speaker 2 (46:27):
I mean, you can't reinvent the wheel with every case.

Speaker 6 (46:30):
I mean a lawyer gets up and says, your honor,
you know this statute is unconstitutional because.

Speaker 7 (46:35):
Wait, wait, wait, wait, wait, wait, counsel, you say the
statute enacted by Congress is unconstant. Do you think we
have the authority to declare a statute enacted by Congress unconstitutional?

Speaker 2 (46:50):
Marbarie versus Madison. You're on our eighteenth I know, I know,
But was it right? Yeah? You're going to go into
that all over again. You cannot possibly.

Speaker 6 (47:00):
UH revisit every every legal holding of of of of
past courts. And UH that's that's the basis for it.
The Constitution implicitly, UH expects the courts to function in
a manner that is not nuts okay, Uh. And that's

(47:31):
a very technical explanation, but.

Speaker 5 (47:35):
But it leads very well to our last question.

Speaker 4 (47:39):
What UH stands out in your mind as one of
the greatest miscarriages of constitutional justice.

Speaker 2 (47:45):
You've seen during your tenure?

Speaker 6 (47:47):
WHOA, WHOA?

Speaker 2 (47:49):
What's the worst?

Speaker 4 (47:52):
MH.

Speaker 2 (47:55):
I've never been asked that question. When is the worst?

Speaker 5 (47:58):
This may be a.

Speaker 2 (47:59):
Well many out of dates.

Speaker 6 (48:04):
Uh, oh, I I would I. I. I can tell
you an area in particular, the the area of law. I.
I wrote this before I became a judge, even I
I said that the most disreputable area.

Speaker 2 (48:20):
Of our law is the establishment clause.

Speaker 6 (48:23):
And it has remained that we are Our opinions just
in that field make no sense. They still don't make
any sense, and we don't seem to be able to
bring any any coherence out of them.

Speaker 4 (48:36):
But the non lawyers in the group the establishment.

Speaker 6 (48:38):
Clause, Congress shall make no law uh, respecting an establishment
of religion.

Speaker 2 (48:46):
It's it's the clause that that that's.

Speaker 6 (48:48):
Always invoked when uh uh people want to tear down
a cross that's been put up on public land, or
or remove a cresh that's in the in the city
square or whatever, or take down the Ten Commandments so forth.

Speaker 2 (49:03):
There are two religion clauses. One is that. The other
one is the free exercise clause. And there's no doubt
that when your free exercise has been.

Speaker 6 (49:10):
Affected, you should have standing to complain. But a violation
of the establishment clause that does not affect your free exercise.
There is no reason why you should have standing anymore
than you should have standing to complain about the federal
government acting in areas where it has no constitutional authority

(49:36):
to act. Unless it hurts you, you don't have standing.
But we have made one enormous exception to that, which
is the establishment clause. And that's how we get into
all these I think silly cases. I mean, why did
we not have these cases until the middle of the
twentieth century we have cases about it was because you know,

(49:57):
until then, we didn't give standing.

Speaker 2 (50:02):
Anyway, That's the area that is really the worst.

Speaker 4 (50:05):
Great answer you have had a privilege and an honor
to hear his honor tonight, and would you thank him
with applause?

Speaker 5 (50:13):
My good, good, God bless you all.

Speaker 1 (50:18):
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(50:39):
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(51:03):
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(51:26):
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(51:51):
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