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Posted at 6:33 PM ET, 01/ 4/2011

Scalia: 'I don't even have to read the briefs, for Pete's sake'

By Alexandra Petri

I do not pretend that originalism is perfect.... We don't have the answer to everything, but by God we have an answer to a lot of stuff... especially the most controversial: whether the death penalty is unconstitutional, whether there's a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff.... I don't even have to read the briefs, for Pete's sake.

--Justice Scalia, in an interview with California Lawyer.

"I don't even have to read the briefs, for Pete's sake."

This doesn't seem like something you should say if you're a Supreme Court justice.

This is like a judge at Miss America saying he doesn't have to wake up until the swimsuit portion. It may be true, but it's contrary to the whole spirit of the thing. Even people who say that they learned everything they needed to know in Kindergarten don't boast that they won't read books whose letters are not anthropomorphic.

I spend a lot of time not reading legal briefs and assuming that I know what the Constitution says on controversial points, because I once had a vivid dream about James Madison in which he explained everything. This is fine, because I am not a Supreme Court justice. But Scalia is.

In fact, I sleep better at night knowing that the "nine superannuated judges," as Scalia dismissively called them, are actually, to some extent, reading the legal briefs that are handed to them.

Of the current Supreme Court justices, Scalia has always been the one who seems to have a direct line to the wishes of the Founding Fathers. And on a court whose dominant metaphor has been the calling of balls and strikes, he has been one of a new coterie of "inactivist" judges -- often abdicating responsibility for interpreting the law in any way beyond a simple "yes" or "no." But this is binary jurisprudence in an analogue world. And although it may be appropriate in some cases, in others -- especially in the exceptionally complex cases that tend to reach the Supreme Court -- it's fallacious to say that the law will always boil down to a clear ball or strike.

Justice David Souter remarked at the 2010 Harvard commencement that:

the Constitution is no simple contract, not because it uses a certain amount of open-ended language that a contract draftsman would try to avoid, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once...The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.

Strict constructionism is based on this idea that the law is clear. But as Justice Souter points out, it seldom is. This is the problem with strict constructionism. That's why I like my constructionism like my men -- not too strict, but not embarrassingly loose either. The balls-and-strikes, leave-it-all-to-the-legislature notion that came to prominence under Justices Roberts and Scalia, is problematic. But it's not only that. This quote reveals a supposed umpire of balls and strikes simply admitting he's already decided where each pitch will fall.

Besides, what does he do with all the spare time that he's not reading briefs? Go flagpole-sitting?

By Alexandra Petri  | January 4, 2011; 6:33 PM ET
Categories:  Bad Advice, Petri, Seems Suspect  | Tags:  Constitution, reading, supreme court  
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Comments

Scalia and the other right-wing justices like him are not interested in "calling balls and strikes." In the Citizens United ruling, the justices decided that baseball should be played with footballs and jai alai sticks and the bases should be run clockwise, so to speak. These are far, far right-wing activist judges.

Posted by: rbmurals | January 4, 2011 9:06 PM | Report abuse

"I don't even have to read the Briefs" Scalia.

Of course, he isn't a judge - he is a mouthpiece for the extreme right, his mind is made up etc.

Wouldn't it be nice if he was asking some real questions - like why hasn't his church yet EXcommunciated Hitler, a Catholic who often spoke about christian "values".

Why did, and this is for all the good catholics to ponder: the pope in 2009 UNe3xcommunicated a Bishop Williamson, formerly Anglican, who is a holocaust denier.

And who appointed Scalia - Reagan.

Scalia should be only the second Supreme court Justice ever impeached.

Posted by: SJames6621 | January 4, 2011 10:12 PM | Report abuse

When right-wingers read the Constitution they understand it to give them the right to run the rest of us. You poor, foreign born, outside the Social Register, have no top-level corporate position? Then forget you. That which FDR gave Newt, Boehner and Company want to take away. Power to the upper class! Why they'll even crash the economy, if they have to, so as to ensure ordinary Americans become and stay powerless.

Posted by: BlueTwo1 | January 5, 2011 7:16 AM | Report abuse

Call me old-fashioned, but I have to agree with Justice Scalia's opinion that women have no rights.

Nothing in the Constitution contradicts the Biblical injunction that "the man is the head of a woman and a woman's voice ought never be heard."

Allowing women to attend law school just puts silly ideas in their heads and reduces their propects of marriage and quiet domesticity.

Posted by: motorfriend | January 5, 2011 9:02 AM | Report abuse

This sort of attitude isn't fit for law. Scalia should hang up his robe.

Posted by: glenglish | January 5, 2011 11:25 AM | Report abuse

The Constitution does not explicitly grant the Supreme Court the right to rule on Constitutional issues. That right was established by the first Chief Justice, John Marshall, who reasoned that the intent of the Constitution was to create 3 co-equal branches of government, and without this power the Court was not equal. Of course, no "strict constructionist" judge would ever bring this up.

But Scalia is not fooling anybody. We already know he is a right wingnut, who believes that a corporation is a person, despite the fact that the word isn't even in the Constitution. And that the Court has the right to determine state election law to aid of a member of the majority's political party, then rule that what it did is not to be a precedent for any future case. Or that the word "militia" does not appear in the 2nd Amendment (with a ruling that contains a reading of colonial history that would get a high school history text tossed into the rubbish bin).

Posted by: BuddyK | January 5, 2011 12:21 PM | Report abuse

The first words in the Constitution say: "We the People of the United States." I always made special note of the CAPITAL "P" in People.

I would have thought that a true "strict constructionist" like Scalia would require the Constitution to say "Corporations" for it to mean that a right was intended for "Corporations." But as we know, the Constitution does not say Corporations ... it says People.

I am by no means a Constitutional scholar, but I can see hypocrisy when it is as glaring as this.

According to Scalia's opinion in Citizens: "The [First] Amendment is written in terms of 'speech,' not speakers." He takes special care to point out that the text in the First Amendment is "speech," not "speakers." How did he miss the word "People" in the first sentence?

Somehow Scalia's logic extends, or bends, the Founders "intent" to mean Corporations when they actually wrote People but he refused to read the word speech as speakers.

It appears that applying literal meaning to "selective" word choice is a frequent tactic of Scalia.

I recently heard a con-man explain why he thought the Yankees used to win so many World Series. He claimed it had nothing to do with the players. Instead, the Yankees won by focusing everyone's attention on the pinstripes in their uniforms. In other words, the won by distraction.

I think the same is true here. Scalia keeps everyone focused on "speech not speakers" so they will forget to look at the first sentence of the Constitution.

According to Scalia's interview in California Lawyer, anyone who is not a heterosexual male should lobby their Congressman for protection and not look to the Constitution. Scalia would have us believe that the Constitution only applies to the heterosexual men who wrote it because, as Scalia contends, these men could only have been thinking of themselves when they wrote the Constitution and did not have the ability to look beyond their present time and contemplate the long term implications of the historic document they were creating. This shallow and demeaning vision of our Founders fails to give credit to some of the greatest minds our country has even seen.

In the end, Scalia, with the support of Roberts, Thomas, Alito and sometimes Kennedy, will work to strip any and all Constituional protection from anyone who is not a heterosexual male or, a wealthy Coporation.

Posted by: stewartpb | January 5, 2011 12:29 PM | Report abuse

stewartpb wrote: The best comment I've read in a long time. Thanks! I hope to read more from you.
===
This is great satire, Alexandra. Of course, Scalia played the perfect "straight" man by saying something almost as irrational as a Sarah Palin tweet. I'm reminded of one of my favorite quotes:

"So convenient a thing it is to be a reasonable creature, since it enables one to find or make a reason for everything one has a mind to do."
─Ben Franklin

Posted by: divtune | January 5, 2011 1:47 PM | Report abuse

Scalia cannot reconcile anything he says he believes with Bush v. Gore - he is, simply, a hypocritical reactionary, whose only real contribution to American jurisprudence is an attempt at correcting the balance between the ever-loosening hearsay rule and the confrontation clause.

Posted by: larryoinpdx | January 6, 2011 12:30 AM | Report abuse

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