Howard Bashman has links to a video of Justice Breyer and Justice Scalia discussing constitutional interpretation at a Federalist Society gathering.
I love this Scalia quote at 29:30:
The issue is whether a judge can say “the Living Constitution” has morphed . . . that’s the Living Constitution I’m talking about, and it’s the one that I wish would die.
At another point, Justice Breyer discussed the need to analyze history in the context of using originalism. Discussing the Stogner decision on ex post facto application of laws extending statutes of limitations, Justice Breyer said: “And I had to go into the history. Which I don’t always do. But it was an issue and I went into it.”
To which Justice Scalia responded: “Try it! You’ll like it!”
Justice Scalia, with his typical good humor, made his usual compelling case for judging constitutional provisions according to the reasonable meaning of the provisions when they were enacted. He said that if we were going to have a Constitution judged by what the current society thinks, then it should be interpreted by Congress, a body composed of elected officials who are presumably more in touch with what current society thinks than unelected judges are. Justice Scalia got a laugh when he declared: “I don’t have any idea what the current society thinks. I don’t want to know what the current society thinks!”
Dahlia Lithwick has her account of the discussion here. She compares Justice Breyer to Sesame Street’s Grover, and Justice Scalia to Oscar, the lovable grouch. It’s not a bad piece, and it picks up most of the same lines I noticed. But her characterization of the Justices’ relative manner doesn’t square with the video I saw:
From the moment he takes the stage, Justice Breyer looks outward. He shifts in his seat constantly to catch the eye of the moderator, ABC’s Jan Crawford Greenburg, and then to make eye contact with individual audience members. When Scalia speaks, Breyer nods and bobs. Justice Scalia turns inward, folding up his arms and gazing raptly into the middle distance. As Breyer speaks, Scalia first smirks, then giggles, then sort of erupts with a rebuttal, usually aimed right at the tips of his shoes. Where Breyer is ever striving to connect to the world, Scalia is happiest in his head. Throughout the debate, Breyer continues to measure, aloud, whether he and Scalia are “making progress.” Scalia laughs that Breyer’s hopes for the evening are too high.
She does acknowledge that “Scalia is charming and—as ever—riotously funny.” But her description still makes Scalia sound nasty at times, with his “smirks” and alleged refusal to connect with the audience.
In truth, Breyer’s concerns about “making progress” are not serious; they are clearly a running joke. Breyer pretends to be on a mission to convert Scalia to his method of Constitutional interpretation during the course of the talk, but it’s clearly tongue in cheek. He knows there is no chance.
Lithwick captures this moment well:
The justices enter into a side skirmish over the high court’s religion jurisprudence—a skirmish that launches Scalia into a delicious impression of the Frenchman who described to him the difference between France and America: “Justice Scalia,” he minces, “France is a country with 300 cheeses and two religions. The United States is a country with two cheeses and 300 religions.”
Breyer cracks up: “But why does the Frenchman have an Italian accent?”
I’ll add that Scalia had a hearty laugh at that. Then he said wryly, with good humor: “Well, at least I tried.”
If you’re interested in such matters, watch the video. It’s nothing particular new if you’ve seen Scalia speak before — but if you have seen him speak, you know that it’s a treat, because he is so funny. And the video gives an interesting insight into Breyer’s thinking. It’s well worth your time.