Scalia: ‘I Am Not a Nut’

U.S. Supreme Court

Posted Apr 8, 2008, 09:09 am CDT
By Molly McDonough

If he was nominated to the high court today, U.S. Supreme Court Justice Antonin Scalia says he may not win confirmation because the public expects judges to rewrite the Constitution rather than interpret it narrowly based on original intent.

Scalia, who was confirmed 98-0 in 1986, made the remarks while speaking to students at Roger Williams University law school, the Associated Press reports.

"The most important thing is whether this person will write the new Constitution that you like," Scalia is quoted saying about the current confirmation process. "If the court's rewriting the Constitution, it's an enormously powerful political body -- and its selection will be done in a political fashion."

In a Q&A with students, Scalia said it was dangerous for interpretations to evolve according to a judge's opinion.

"I am a textualist, I am an originalist. I am not a nut," Scalia said to laughter.

The Wall Street Journal Law Blog noted that Scalia was to continue his road show Wednesday with a C-SPAN appearance. He was featured in the network's Students and Leaders series.

The justice hosted suburban Washington, D.C.'s Thomas Jefferson High School for Science and Technology at the Supreme Court and C-SPAN covered the event.

More on Scalia's Road Tour:

Scalia Disturbed About Church-State Separation 'Lie'

Scalia Continues Media Blitz, Tells Students ‘I am not a Moralist-in-Chief’

Scalia's 'Nixon-Goes-to-China Moment'

Comments

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Posted by Firsty Firsterson Erst McUno, I - 6 months, 1 hour, 5 minutes ago

Of course, “progressive” nut jobs will submit that textualism is a political agenda. Disregard the fact that the “meeting of the minds” and “original intent” of the parties are hallmarks of contract law that every student learns in the fall of their 1L year. If you view the Constitution as a written agreement for, by and among the People, then courts should not alter the meaning of its terms years later merely because the English language (or society’s morals) have changed. There is this process called “amendment.” Use it.
Posted by Reasonable Man - 6 months, 59 minutes ago

The editor’s headline takes the Justice’s comment out of context. Scalia’s comment clearly implies that those who judicially amend the constitution are the nuts. The eidtor tries to make Scalia sound Nixonian which he decidedly is not!
Posted by Ghostdog - 6 months, 56 minutes ago

"I am not a nut” is exactly what a nut would say!
Posted by Steve Perkins - 6 months, 49 minutes ago

Like Scalia or hate him, he is right about confirmations. SCOTUS Justice confirmation hearings ever since Bork have been 80% grandstanding on abortion, and 20% grandstanding on whatever is the current trendy issue (e.g. affirmative action, Guantanamo Bay, etc). The actual nominee themself is just there as a prop.

In an ideal country, we’d have an Executive and Legislative branch that actually made firm and transparent decisions on issues. However, as politics get more and more polarized… politicians have to pander to hardline views even though they know that it’s often nuts. So they rely on the Judicial branch to come along later and clean up the mess, while at the same time scapegoating them for being “activists”.

On all these hot-button confirmation issues, Congress could opt to trump the SCOTUS at any time (whether you’re pro-choice or pro-life, it’s ridiculous to see this issue tossed in the Judicial branch’s lap). The entire charade is fairly disgusting… I don’t understand why the media and political/legal scholars don’t state the obvious and point this out more often.
Posted by Oh come on... - 6 months, 41 minutes ago

Comment #2 is correct. This headline implies that Scalia engaged in Nixon-like defensiveness, as reinforced by the “See also, Scalia’s ‘Nixon-Goes-to-China Moment.’” link at the bottom. However, Scalia’s comment wasn’t made in that manner, it was made in the manner of calling “living constitution” supporters nuts.

Now, I’m not really sure if that’s overt “bias”, or just sloppy and hasty reading by an author looking for a catchy title. But it is taken out of context either way.
Posted by Law Student in Madison - 6 months, 30 minutes ago

Firsty,

You are correct that there is an amendment process, but I think Mr. Perkins (Post #4) is absolutely correct that the easier thing is to just pass a law to trump a court decision. However, both the Executive and the Legislature just pass it off and let SCOTUS deal with it.

As for the headline, get over it people. We all know not to make judgments based on headlines, don’t we?
Posted by no no no - 5 months, 4 weeks, 2 days, 9 hours, 51 minutes ago

Firsty First,

Your contract analogy is weak. Unlike contracts, which govern the responsiblities and rights of the parties signing and no one else, the Constitution was meant to govern an entire nation in perpetuity. Far from a “meeting of the minds” by the “people,” it was drawn up by a small group of wealthy white men not even purporting to represent the people.

You probably are still a first year law student if you can’t understand this.
Posted by NCLawyer - 5 months, 4 weeks, 2 days, 9 hours, 33 minutes ago

I’m sure this was taken out of context also, but I’m more disturbed by the comment that Scalia said it was “dangerous for interpretations to evolve according to a judge’s opinion.” This was either written by someone who doesn’t understand how common law works, or Scalia was saying that a judge’s interpretation of the Constitution should never evolve. Which DOES sound nutty.

But I have to agree that anyone who has to go around making speeches about not being a nut is protesting too much.
Posted by Jeremy D Sussman - 5 months, 4 weeks, 2 days, 8 hours, 48 minutes ago

Scalia is not a nut, but he is a phony. No one can pretend to know the “originalist” position because this is no longer the year 1789. Also, if it were possible to exactly re-create the 1789, women would be disenfranchised, slavery would still be here, and abortion would carry a high risk of death to the mother. Scalia uses this term in order to impose his sometimes inconsistent, sometimes unethical (the 2000 election), and always political positions on the court. He has politicized the court more than any of the other judges.
Posted by DLambert - 5 months, 4 weeks, 2 days, 8 hours, 32 minutes ago

Setting aside the issue of what it actually means to be an “originalist”, anyone who actually believes that Scalia is any more of an “originalist” than any other justice should read his opinion in Boyle v. United Technologies; which represents legislation by the judiciary in its purest form and in which Scalia completely disregards the principles of federalism he usually “finds” in the “original intent” of those who drafted our Constitution. He more or less repeated this performance in Gore v Bush. Scalia seems to cloak his disregard for certain precedents and stare decisis in the sheeps clothing of “original intent”.
Posted by LER - 5 months, 4 weeks, 2 days, 7 hours, 13 minutes ago

If the Senators who voted on Scalia’s confirmation in 1986 had known how he would turn out as a Juctice, I doubt that the vote would have been anywhere near 98-0. He might even have been “borked” before Bork.
Posted by David - 5 months, 4 weeks, 1 day, 18 hours, 47 minutes ago

nonono, according to your logic the Constitution itself is illegitimate. If we shouldn’t use our *best understanding* of the original intent, then what standard SHOULD we use to determine the meaning of an agreement amongst people? What other standard could POSSIBLY be more fair?
Posted by Everett - 5 months, 4 weeks, 1 day, 11 hours, 28 minutes ago

The amendment process works. I would rather have the Bill of Rights and the 14th Amendment than depend upon what five of nine people think at the moment, regardless of their qualifications.
Posted by Fernando Rivero - 5 months, 4 weeks, 10 hours, 6 minutes ago

Context is in the eye of the reader. Is it possible to imagine that Scalia himself would have thought that his audience would have considered his “original intent” ideas crazy - and thus him crazy - and therefore felt the need to pre-emptively defend himself by, of course, shunting the “nut” label onto “progressive nut jobs,” as one articulate reader calls them? If so, then the headline is not at all out of context. And if I can make this much interpretation hulabaloo out of a headline, imagine how much debate has taken place with the Constitution since its beginnings. So, while this headline controversy may settle soon, constitutional interpretation debates are likely to be with us for some years to come . . .
Posted by Trop - 5 months, 3 weeks, 6 days, 11 hours, 7 minutes ago

Scalia sounds like Bush.

Bush: We do not torture, therefore water boarding is not torture.

Scalia: I am not extremist or political, therefore likening gay people to those who practice beastiality or molest children is centrist and not political.

They both suffer from that most dangerous of vices, shared by religious extremists of every persuasion, an unwavering belief that they are always right and they can never be wrong. This belief is so strong that anyone who disagrees is not merely someone with a competing view deserving of equal consideration but rather a heretic.

-Trop

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