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PIERS MORGAN TONIGHT
Interview with Antonin Scalia
Aired July 18, 2012 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PIERS MORGAN, CNN ANCHOR: Tonight, inside the Supreme Court, a rare and exclusive interview with the longest serving justice, Antonin Scalia.
ANTONIN SCALIA, SUPREME COURT JUSTICE: You have to read the Federalist Papers. I don't think anybody in the current Congress could write even one of those numbers.
MORGAN: Colorful and controversial, powerful and polarizing. Scalia's decisions have changed the nation.
(on camera): What you've now got are these super PACs funded by billionaires, effectively trying to buy elections. That cannot be what the founding fathers intended.
SCALIA: I think Thomas Jefferson would have said the more speech, the better.
MORGAN: Tonight, Justice Antonin Scalia on faith, family, the right to choose.
SCALIA: That was the theory used in Roe v. Wade, and it is a theory that is simply a lie.
MORGAN: A rare glimpse inside the highest court in the land. Where the issues that divide America are decided. My exclusive with Justice Antonin Scalia. This is PIERS MORGAN TONIGHT.
PIERS MORGAN, HOST: Good evening. It isn't often a Supreme Court justice invites a journalist to come and sit down with him inside the court itself. But I'm here today in Washington to interview the longest serving justice, Antonin Scalia. Justices never comment on cases they just ruled on or are pending, but that still left a lot of territory to cover, everything from his faith and family to his guiding judicial principles, his thoughts on campaign finance and politics, and his colleagues. It's all on the table tonight in my exclusive interview with Justice Antonin Scalia and Bryan Garner, co- author of their new book, "Reading Law: The Interpretation of Legal Texts."
(BEGIN VIDEOTAPE) MORGAN: Justice Scalia, welcome.
Bryan, welcome to you, too.
BRYAN GARNER, CO-AUTHOR, "READING LAW": Thank you.
MORGAN: The book is very much a template for the way that you've conducted your legal life. You are a man that believes fundamentally that the law in America should be based rigidly on the letter of the Constitution.
That's what you believe, isn't it, fundamentally?
SCALIA: Yes, give or take a little. Rigidly I would not say. But it should be based on the text of the Constitution, reasonably interpreted.
MORGAN: People that criticize you for this say a lot of the Constitution was phrased in a deliberately vague way, that they realized when they framed it that in generations to come, things may change, which may put a different impression on a particular piece of text.
MORGAN: Why are you not prepared to accept that that means you can move with the times, to evolve it?
SCALIA: Oh, I -- but I -- I do accept that, with -- with respect to those vague terms in the Constitution such as equal protection of the laws, due process of law, cruel and unusual punishments. I -- I fully accept that those things have to apply to new phenomena that didn't exist at the time.
What -- what I insist upon, however, is that as to the phenomenon that existed, their meaning then is the same as their meaning now.
For example, the death penalty. Some of my colleagues who -- who are not textualists, or not originalists, at least -- believe that it's -- it's somehow up to the court to decide whether the death penalty remains constitutional or not.
That -- that's not a question for me. It's absolutely clear that whatever cruel and unusual punishments may -- may mean with regard to future things, such as death by injection or the electric chair, it's clear that -- that the death penalty, in and of itself, is not considered cruel and unusual punishment.
MORGAN: But more and more Americans are coming around to think that the death penalty is an anachronistic thing. You know, 50 years ago, even when you began -- you're the longest serving Supreme Court justice. When you began, you know, the majority of Americans, a big majority, would have been in favor of the death penalty.
That is beginning to change. And you're seeing it, you know, for want of a better phrase, going out of fashion. One of the reasons being the introduction of DNA, establishing that a large number of people on death row didn't commit their crimes.
How do you equate that, as man of fairness and justice, how do you continue to be so pro something which is so obviously flawed?
SCALIA: I -- I'm not pro. People -- I don't insist that there be a death penalty. All I insist upon is that the American people never proscribed the death penalty, never adopted a Constitution which said that states cannot have the death penalty.
If you don't like the death penalty, fine. Some states have abolished it. You're quite wrong that it's a majority. It's a small minority of the states that have -- that have abolished it. The majority still -- still permit it.
But I'm not pro death penalty. I -- I'm just anti the notion that it is not a matter for democratic choice, that it has been taken away from the democratic choice of the people by a provision of the Constitution.
That's simply not true. The -- the American people never ratified a provision which they understood abolished the death penalty. When the cruel and unusual punishments clause was adopted, the death penalty was the only penalty for a felony.
GARNER: And all we'd have to do is amend the Constitution. I mean, it can be amended. So it is changeable, but it's changeable by a process, not by asking the judiciary to make up something that is not there in the text.
MORGAN: Right. But, for example, on the cruel and unusual, I wouldn't have cited the death penalty so much as torture. I was fascinated by your interview -- and I think it's to "60 Minutes" -- where you said that in your eyes, torture wasn't a cruel and unusual punishment, I think is what you said. Torture wasn't punishment.
And I thought, well, hang on a second. I mean it clearly can be a punishment, can't it?
If you're an innocent person, say in Guantanamo Bay -- and you've expressed views about this, too. Say you've been picked up off a battlefield and taken to Guantanamo, but you are genuinely innocent. You had nothing to do with anything and you get tortured.
That -- that becomes a punishment, doesn't it?
SCALIA: No, I don't think it becomes a punishment. It becomes torture. And -- and we have laws against torture. But I don't think the Constitution addressed torture. It addressed punishments, which means punishments for crimes.
MORGAN: But what about if you're an innocent person being waterboarded?
SCALIA: I'm not for it. But I don't think the Constitution says anything about it.
MORGAN: See, isn't that the problem, though, with the originalism...
SCALIA: No, it's...
MORGAN: -- you -- you...
SCALIA: -- it's not the problem. It -- it -- it's a problem of what -- what does the Constitution mean by cruel and unusual punishments?
Now, nobody can --
MORGAN: But isn't it down to...
MORGAN: -- isn't it down to the Supreme Court to effectively give a -- a more modern interpretation of the spirit of what that means, to adapt it to modern times?
SCALIA: Well, that's lovely.
MORGAN: Well, I know you don't think it is.
But why don't you think it is?
SCALIA: Well, I don't think it is, because, look, the -- the background principle of all of this is democracy. A self-governing people who decide the laws that will be applied to them. There are exceptions to that. Those exceptions are contained in the Constitution, mostly in the Bill of Rights. And you cannot read those exceptions as -- as broadly as -- as the current court desires to read them, thereby depriving Americans of legitimate choices that the American people have never decided to take away from them.
And that's what happens whenever you read punishments to mean torture.
If you are sentenced to torture for a crime, yes, that is a cruel punishment. But the mere fact that somebody is tortured is -- is unlawful under -- under our statutes, but the Constitution happens not to address it, just as it does not address a lot of other horrible things.
MORGAN: Bryan, when you did the book, what did you argue most with Justice Scalia about, because he's -- he's one of the real great arguers. I feel like we're just warming up here.
GARNER: Well, he's an intellectual giant. And we -- we had no debates in this book, where in the first book, we had four debates, where we had a pro and con. In this particular book, we had none. The biggest issue, in the end we almost had a debate about, but he -- he persuaded me -- we -- not to -- was whether a murderer can inherit?
Can a son, for example, murder his parents and -- and move up his inheritance and still take whatever the property is from his parents if the statute doesn't say anything about it?
And we all feel that that's wrong. And I was, at first, arguing that there should be an equitable exception and that we absolutely have to prevent a murderer from inheriting.
What did you say in response to that?
SCALIA: I said if you're going to be serious about textualism, if the statute does not make an exception, it does not make an exception. And those states that hadn't made an exception amended their statutes. That's what happened.
MORGAN: Let's take a short break.
And when we come back, I want to ask you why you think burning the American flag should be allowed, even though personally, you'd throw them all in jail.
MORGAN: Back with my special guests, Justice Antonin Scalia and Bryan Garner, who is the co-author of his book.
I left the viewers on a cliffhanger. Why you believe that people who burn the flag in America should be allowed to do so? And yet you personally, if you had the chance, would send them all in jail?
SCALIA: Yes, if I were king, I -- I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.
Burning the flag is a form of expression. Speech doesn't just mean written words or oral words. It could be semaphore. And burning a flag is a symbol that expresses an idea -- I hate the government, the government is unjust, whatever.
MORGAN: If you're not sure, then, in the end, doesn't -- no one knows the Constitution better than you do. Doesn't it come down to your personal interpretation of the Constitution? If it isn't clear- cut, which it clearly isn't, you, in the end, have to make...
SCALIA: No, no, don't...
MORGAN: -- an -- an opinion, don't you?
SCALIA: Well, don't forget this person has to be convicted by a jury of 12 people who unanimously have to find that he was inciting to riot. So, you know, it's not all up to me.
It would be up to me to say that there was not enough evidence for the jury to find that, perhaps. But ultimately, the -- the right of jury trial is -- is the protection...
MORGAN: Sorry. Go ahead.
GARNER: Well, don't you think this example of speech and reading speech and a fair reading as including symbolic speech -- there's a lot of case law about that, of course -- but it's a good example of why we think strict construction is a bad idea. A lot of people think that Justice Scalia is a strict constructionist, when, in fact, he and I both believe...
MORGAN: What does that mean?
GARNER: Well, it really means a narrow reading, a crabbed reading of statutory words or of constitutional words. And it's a kind of hyper-literalism, which we oppose. We like a fair reading of the statute, a fair reading of the words, and, in this case, speech.
MORGAN: Well, let me -- well, let me take up the issue of speech. Let's turn to political fundraising, which, at that moment, under your interpretation, I believe, of the Constitution, you should be allowed to raise money for a political party.
The problem, I -- as I see it and many critics see it, is that that -- it has no limitation to it. So what you've now got are these super PACS funded by billionaires effectively trying to buy elections. And that cannot be what the founding fathers intended.
Thomas Jefferson didn't sit there constructing something which was going to be abused in that kind of way.
And I -- I do think it's been abused, don't you?
SCALIA: No. I -- I think Thomas Jefferson would have said the more speech, the better. That's what the First Amendment is all about. So long as the people know where the speech is coming from.
MORGAN: But it's not speech when it's...
SCALIA: The first...
MORGAN: -- it's ultimately about money to back up the speech.
SCALIA: You can't separate speech from -- from -- from the money that -- that facilitates the speech.
MORGAN: Can't you?
SCALIA: It's -- it's -- it's utterly impossible.
Could you tell newspaper publishers you can only spend so much money in the -- in the publication of your newspaper? Would...
SCALIA: Would they not say this is abridging my speech?
MORGAN: Yes, but newspaper publishers aren't buying elections. I mean to -- you know, the election of a president, as you know better than anybody else, you've served under many of them...
MORGAN: -- is an incredibly important thing.
MORGAN: And it shouldn't be susceptible to the highest bidder, should it?
SCALIA: Newspapers endorse political candidates all the time. What do you mean -- they're...
SCALIA: They're almost in the business of doing that.
SCALIA: And are you going to limit the amount of money they can spend on it?
MORGAN: Do you think the...
SCALIA: Surely not.
MORGAN: Do you think, perhaps, they should be?
SCALIA: Oh, I certainly think not. I think, as I think the framers thought, that the more speech, the better. Now, you -- you are entitled to know where the speech is coming from, you know, information as -- as to who contributed what. That's something else.
But whether they -- whether they can speak is, I -- I -- I think, clear in -- in the First Amendment.
MORGAN: Is there any limit, in your eyes, to freedom of speech?
SCALIA: Oh, of course.
MORGAN: Is -- is there -- what are the limitations in -- to you?
SCALIA: I'm a textualist. And what the provision reads is, "Congress shall make no law abridging the freedom of speech." So they had in mind a particular freedom. What -- what freedom of speech? The freedom of speech that was the right of Englishmen at that time. And--
MORGAN: What is the difference speech about insurrection being unacceptable and speech as you're burning a flag? Isn't that a form of insurrection?
SCALIA: No. No.
MORGAN: Isn't it?
SCALIA: No. No. No. That -- that's -- that's just saying we -- we -- we dislike the government. It's not urging people to take up arms against the government. That's something quite different. That's what I mean by speech urging insurrection. Speech inciting to riot or inciting to...
GARNER: Or shouting "Fire!" in a theater. What about that?
MORGAN: One of the more complex things about you, just -- which I -- I think is -- has been admired and criticized in equal measure, the case I would put to you, where I think it's interesting where you dissented against something where I think common sense would have dictated the opposite, was "Maryland v. Craig," a young girl who had been abused by a child molester. And she gave evidence through closed-circuit television. She didn't appear in court.
And the abuser argued that this was unconstitutional, because, under the confrontation element of the Constitution, he should have been allowed to be face-to-face with his victim.
MORGAN: Now, what part of human decency or common sense says that he should have the right to be face-to-face with his young girl victim? Because you dissented against the--
SCALIA: I did.
MORGAN: -- Supreme Court. You decided he should be allowed to.
SCALIA: All legal rules do not come out with a perfect, sensible answer in every case. The confrontation clause, in some situations, does seem to be unnecessary. But there it is. And its meaning could not be clearer. You are entitled to be confronted with the witnesses against you.
And simply watching the witness on a closed-circuit television...
MORGAN: Even when the witness...
SCALIA: -- is not (INAUDIBLE).
MORGAN: -- is a young girl who's already been...
MORGAN: -- abused and is actually traumatized by what happened? SCALIA: What it says it what it says.
MORGAN: Do you go home at night, when you dissent in that particular case, do you have misgivings about it, person -- on a personal level, or are you always able to divorce that from your, as you would say, legal responsibility to uphold the letter of the Constitution?
SCALIA: No, I -- I sleep very well at night knowing that I'm doing what I suppose -- what I am supposed to do, which is to apply -- to apply the Constitution. I do not always like the result. Very often, I think the result is terrible.
But that's not my job. I'm not king. And I haven't been charged with making the Constitution come out right all the time. It's--
MORGAN: Let's -- let's take another break and come back and talk about one of the most contentious Supreme Court decisions of all, "Roe v. Wade," you had very strong opinions at the time. I suspect you have equally strong opinions today. And we'll find out.
MORGAN: I'm back with my special guest, Justice Antonin Scalia and his co-author, Bryan Garner.
Let's turn to "Roe v. Wade," because you, Justice Scalia, you had very strong opinions about this at the time. I know you do now.
Why were you so violently opposed to it?
SCALIA: I -- I wouldn't say violently. I'm a peaceful man.
SCALIA: You mean adamantly opposed.
Basically because the theory that was expounded to impose that decision was a theory that does not make any sense, and that is namely the theory of substantive due process. There's a due process clause in the Constitution, which says that no person shall be deprived of life, liberty or property without due process. That is obviously a guarantee not of -- not of life, not of liberty, not of property. You can be deprived of all of them. But not without due process.
My court, in recent years, has invented what is called substantive due process by simply saying some liberties are so important that no process would suffice to take them away.
And that was the theory used in "Roe v. Wade." And it -- it's a theory that is simply a lie. There -- there's -- the world is divided into substance and procedure. MORGAN: Should abortion be illegal, in your eyes?
SCALIA: Should it be illegal?
Well, I -- I don't -- I don't have public views on what should be illegal and what shouldn't. I have public views on what the Constitution prohibits and what it doesn't prohibit.
MORGAN: But I mean, the Constitution, when they framed it, they didn't even allow women to -- to have the right to vote. I mean, they gave women no rights.
SCALIA: Oh, come on, no rights?
MORGAN: Did they?
SCALIA: Of -- of course. They were entitled to due process of law.
GARNER: All kinds of rights.
SCALIA: You couldn't -- you couldn't send them to prison without the same kind of a trial that a man would get.
MORGAN: But the -- but, again, it comes back to changing times. The founding fathers were never going to have any reason, at that time, to consider a woman's right to keep her baby or to have an abortion.
It wouldn't have even entered their minds, would it?
SCALIA: What -- I -- I don't know why. Why wouldn't it?
MORGAN: Because at the time, it was...
SCALIA: They -- they didn't have wives and daughters that they cared about?
MORGAN: They did, but it was not an issue that they would ever consider framing in the Constitution.
SCALIA: Oh, I don't know that...
MORGAN: But when women began to take charge in the last century, of their lives and their rights and so on, and began to fight for these, everybody believed that was the right thing to do, didn't they? I mean, why would you be instinctively against that?
SCALIA: My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice.
Some states prohibited it, some states didn't. What Roe v. Wade -- Wade said was that no state can prohibit it. That is simply not in the Constitution. It was one of those many things -- most things in the world -- left to democratic choice. And -- and the court does -- does not do democracy a favor when it takes an issue out of democratic choice...
SCALIA: Simply because it thinks--
MORGAN: But how do...
SCALIA: -- it should not be there.
MORGAN: But how -- how do you, as a conservative Catholic, how do you not bring your personal sense of what is right and wrong to that kind of decision? Because clearly, as a conservative Catholic, you're going to be fundamentally against abortion.
SCALIA: Just as the pro-choice people say the Constitution prohibits the banning of abortion, so, also, the pro-life people say the opposite. They say that the Constitution requires the banning of abortion, because you're depriving someone of life without due process of law.
I reject that argument just as I reject the other one. The Constitution, in fact, says nothing at all about the subject. It is left to democratic choice.
Now, regardless of what my views as a Catholic are, the Constitution says nothing about it.
MORGAN: What has been your hardest decision, do you think?
SCALIA: My hardest?
SCALIA: You don't want to know.
MORGAN: I do want to know.
SCALIA: No, it's the dullest case imaginable. They -- there is -- there is no necessary correlation between the difficulty of a decision and its importance. Some of the most insignificant cases have been the hardest. And...
MORGAN: What has been the one that you...
SCALIA: It would probably be a patent case.
You want me to describe it really?
MORGAN: No, I don't.
SCALIA: No. Of course. (LAUGHTER)
MORGAN: All right, what has been, in your view, the most contentious? What's the one that most people ask you about?
SCALIA: Contentious? Well, I guess the one that, you know, created most -- most waves of disagreement was Bush v. Gore, OK?
That comes up all the time. And my usual response is get over it.
MORGAN: Get over the possible corrupting of the American presidential system?
MORGAN: Justice Scalia?
SCALIA: Look it, I -- my court didn't -- didn't bring the case into the court. It was brought into the courts by Al Gore. He is the one who wanted courts to decide the question which -- when Richard Nixon thought that he had lost the election because of chicanery in Chicago, he chose not to bring it into the courts. But Al Gore wanted the courts to decide it.
So the only question in Bush v. Gore was whether the presidency would be decided by the Florida Supreme Court or by the United States Supreme Court. That was the only question, and that's not a hard one.
MORGAN: No regrets?
SCALIA: Oh, no regrets at all, especially since it's clear that the thing would have ended up the same way anyway. The press did extensive research into what would have happened if what Al Gore wanted done had been done county by county, and he would have lost anyway.
MORGAN: When people say about you that you're this fantastic justice, no one disputes that, and incredibly charismatic, and you ask the most questions. Apparently you get--
SCALIA: I don't ask the most questions.
MORGAN: No, apparently you do.
SCALIA: I don't ask the most. No, that's not true.
MORGAN: Apparently somebody has counted it over the last 25 years...
SCALIA: No, no, no, no, no, no.
MORGAN: You are the guy that asks the most questions.
SCALIA: No, I used to be. I'm not--
MORGAN: But you ask more than Justice Thomas, right?
SCALIA: That's a low bar.
MORGAN: I mean, is it just me that thinks it's a bit weird that a guy can join the Supreme Court and literally not ask any questions?
SCALIA: Oh, that's not so unusual. Thurgood Marshall rarely asked a question. Bill Brennan rarely asked questions. No.
In fact, a lot of them didn't ask -- I was the first one who started asking a lot of questions. I appeared before the court once before -- before I -- I became a judge. I was serving in the Justice Department.
And I got two questions the whole time of my argument, and they both came from Byron White. It was not at all unusual for justices not to ask questions.
MORGAN: Let's -- let's take another break.
SCALIA: So we've...
MORGAN: I want to come back...
SCALIA: -- we've -- in fairness...
SCALIA: Leave Clarence alone.
GARNER: In fairness to Justice Thomas, he has a principled reason. I mean, he told me in his interview and this is all on the record, he does not ask questions because he thinks it's too cacophonous, there are too many questions as it is, and he doesn't want to add to the cacophony.
MORGAN: That's one way of looking at it.
Let's take another break and let's come back, and I want to get into you as a -- as a man. I want to know what makes -- what makes you tick, what rocks your boat.
SCALIA: That's scary.
MORGAN: That's what I wanted it to be.
SCALIA: All right.
MORGAN: I'm back with Justice Scalia and Bryan Garner, the co- author of his book.
(inaudible) the kind of man you are, now, are you a good colleague? How do you get on with your other Supreme Court justices, because you must all be all highly intelligent, very opinionated people? Are there clashes there?
SCALIA: There -- there are clashes on -- on legal questions, but not personally. The press likes to paint us as, you know, nine scorpions in a bottle we're all in. That's just not the case at all.
MORGAN: Well, the big buzz at the moment...
MORGAN: -- is that you and Justice Roberts have had a bit of a -- a bit of a parting of the ways. You've gone from being best buddies to warring enemies.
SCALIA: Who told you that?
MORGAN: I think I read it in some of the papers.
SCALIA: Well, you shouldn't believe what you--
MORGAN: Credible sources.
SCALIA: You shouldn't believe what you read about the court in the newspapers, because the information has either been made up or given to the newspapers by somebody who is violating a confidence, which means that person is not reliable.
MORGAN: So you've had no falling out with Justice Roberts?
SCALIA: I'm not going to talk about -- no, I haven't had a falling out with Justice Roberts.
MORGAN: Loud words exchanged?
MORGAN: Slamming of doors?
MORGAN: Nothing like that?
SCALIA: Nothing like that.
MORGAN: Best buddies?
SCALIA: My best buddy on the court is Ruth Bader Ginsburg, has always been.
MORGAN: Yes. And yet you disagree with her about almost everything, I'm told.
SCALIA: Just about everything.
MORGAN: What do you like to do when you're not presiding in the Supreme Court?
SCALIA: I like to play tennis. And in my later years, since I'm circuit justice for the Fifth Circuit, I have gotten into hunting. So I do a lot of hunting of various animals.
MORGAN: You've been hunting with Dick Cheney, haven't you?
SCALIA: I have, indeed.
MORGAN: What's that like? I mean, you've lived to tell the tale, which isn't always the case.
SCALIA: Dick Cheney is a very good wing shot.
MORGAN: Humans or animals?
MORGAN: You get into trouble over that, because they said there was a potential conflict in something that you were presiding over.
How -- how carefully do you think, before you accept an invitation to go hunting with Dick Cheney, how hard do you think about that as a potential conflict?
SCALIA: Well, in that case, I had accepted the invitation long before the case that was the alleged source of the conflict was before the court. But and -- and that -- that was nothing. Cheney was -- it -- Cheney was not personally the defendant. He was named because he was the head of the agency that was the defendant. And justices have never recused themselves because they are friends with the -- the named head of an agency.
And, in fact, justices are -- are friendly with a lot of heads of agencies and cabinet officers and whatnot. If we had to recuse ourselves every time one of our friends was named, even though his personal fortune was not at stake, we would not sit in a lot of cases. So that was a tempest in a teapot.
MORGAN: When -- when people say you are overtly political with some of your decisions -- I mean some people do. Some critics do.
How do you -- how do you feel about that? Does that annoy you?
SCALIA: No, I -- I usually don't read it. (LAUGHTER)
GARNER: Well, I think it's patently false. I mean, Justice Scalia has a record of deciding many cases that go against his personal predilections. The flag burning is just one example.
But a good judge does that. A good judge will decide cases based on a governing text that go against what the judge might think is wise policy, isn't that true?
SCALIA: Look it, I have ruled against the government when Republicans were in the administration and I've ruled for the government when Democrats were in the admin -- I couldn't care less who the president is or what the administration is.
MORGAN: Do you think any of your colleagues act in...
SCALIA: None of them.
MORGAN: -- from a politically motivated manner?
SCALIA: Not a single one of them.
MORGAN: I mean, I know you can't discuss anything in the last session, but a classic example...
SCALIA: I don't--
MORGAN: -- some would say, would be the health care thing.
SCALIA: I don't think any of my colleagues, on any cases, vote the way they do for political reasons. They vote the way they do because they have their -- their own -- their own judicial philosophy. And they may have been selected by the Democrats because they have that Demo -- that particular philosophy or they may have been selected by the Republicans because they have that particular judicial philosophy.
But that is only to say that they are who they are. And they vote on the basis of what their own view of the law brings them to believe, not at all because -- I mean to -- the court is not at all a -- a political institution. Not at all. I -- I -- not a single one of my colleagues...
MORGAN: When you see Justice Roberts -- Chief Justice Roberts getting criticized for being political, for being partisan--
SCALIA: I've been out of the country for most of that, I have to tell you. So I...
MORGAN: But when -- when you see that happening, do you...
MORGAN: -- does it offend you that his integrity would be questioned like that?
SCALIA: It -- it offends me that -- that -- that people point to the fact -- and they didn't used to be able to when -- when -- when David Souter and John Paul Stevens were still on the court. They -- they often voted with the appointees who were Democratic appointees, so that the 5-4 decisions was not always, you know, five Republican appointees versus four Democratic.
Now that they're off, it -- it often does turn that way.
But that had -- that is not because they are voting their politics, not because they are voting for the Republicans or voting for the Democrats. It's because they have been selected by the Republicans or selected by the Democrats precisely because of their judicial philosophy.
So it should be no surprise that the -- the -- the five appointed by the Republicans tend to have a certain judicial philosophy and the four appointed by the Democrats tend to have a different one. I mean, that's what elections have been about for a long time.
MORGAN: When you lose a case -- or a case goes against what you would like it to -- to go, then what do you do? Do you go and have a few drinks, chill out with (INAUDIBLE)...
MORGAN: How do you deal with failure like that?
MORGAN: Because these are big deals. You know, you're a Supreme Court judge.
SCALIA: Yes, I probably mutter something under my breath or something. But, no, I -- I mean, you know, that's -- you -- you play the hand you're dealt, that's all. And you can't take it personally.
MORGAN: Let's take a final break.
I want to come back and talk to you about family, because I know you're a huge family man. And you're married a very long time to a long-suffering woman, would you say?
SCALIA: I'd say so, yes.
MORGAN: I'll find out just how long-suffering in a moment.
(COMMERCIAL BREAK) MORGAN: We're back with Justice Scalia and Bryan Garner, co- author of an excellent book, "Reading Law: The Interpretation of Legal Texts."
Have you ever broken the law, Justice Scalia?
SCALIA: Have I ever broken the law?
SCALIA: I -- I have exceeded the speed limit on -- on occasion.
MORGAN: Have you ever been caught?
SCALIA: Oh, yes. I've gotten tickets. None -- none recently.
MORGAN: That's it? That's -- that's the only criminal act..
SCALIA: Yes. I...
MORGAN: -- in your life?
SCALIA: -- I am pretty much a law-abiding sort.
MORGAN: I like the phrase "pretty much." It gives me somewhere to go.
SCALIA: No I -- I'm a law-abiding citizen.
MORGAN: What is your guilty pleasure?
SCALIA: My guilty pleasure?
SCALIA: I don't have any guilty pleasure. How can -- how can it be pleasurable if it's guilty?
MORGAN: I've got lots of guilty pleasures.
SCALIA: No, you don't.
MORGAN: No, I do. Everyone does. That thing you get up to that you probably wouldn't want to read about.
SCALIA: That I think I shouldn't do? Smoking.
MORGAN: Now, you've been married for how long?
SCALIA: Fifty-two years.
MORGAN: An amazing marriage. Nine children. SCALIA: Yes.
MORGAN: How many grandchildren are there?
What has been the secret of -- of such a longstanding marriage, do you think?
SCALIA: Maureen made it very clear early on that if we split up, I would get the children.
MORGAN: We -- we said before the break that possibly she was a long-suffering wife.
Did you mean that?
SCALIA: She has -- she has worked very hard. I have not gone after the dollar for most of my life, so we didn't have a lot of money. And she didn't have a lot of help at home in raising that many kids without -- without a nanny or without, for many years, even any -- any people to help with the housework. It was -- it was hard. She worked very hard.
MORGAN: And I ask this of all my guests and I don't see why you should get away with not answering it.
SCALIA: All right.
MORGAN: How many times have you been properly in love in your life?
SCALIA: Prop -- properly in love?
SCALIA: Oh, I think Maureen is it.
MORGAN: You struck gold.
SCALIA: Oh, yes.
MORGAN: Will you ever retire?
SCALIA: Of course I'll retire. Certainly I'll retire when I -- when I think I'm -- I'm not doing as good a job as I used to. That -- that will make me feel very bad.
MORGAN: And as -- as we sit here now, what would you say your greatest achievement has been as a Supreme Court justice?
SCALIA: Wow! I think, despite the fact that not -- not everybody agrees with it, I -- I think the court pays more attention to text than -- than it used to when I first came on the court. And I like to think that I -- I've had something to do with that.
I think that the court uses much less legislative history than it used to in the past. In the '80s, two thirds of the opinion would be discussion of, you know, the -- the debates on the floor and the committee reports. And that doesn't happen anymore.
If you want to talk about individual--
MORGAN: I mean on that point, on the legislative history point, again, critics would say to you, well, hang on a second, because you're such a constitutionalist and always go back to the way they framed the Constitution and so on. They debated all that. I mean that is, in its way, legislative history, isn't it?
SCALIA: What is? What is? What is?
MORGAN: The framing of the Constitution.
SCALIA: The Federalist Papers.
MORGAN: The framing of amendments and so on. What's the difference, really?
SCALIA: No I -- I don't -- I don't use the -- Madison's notes as authoritative on the meaning of the Constitution. I -- I don't use that. I -- I use the Federalist Papers, but not because they were the -- the writers of the Federalist Papers were present. One of them wasn't. John Jay was not present at the framing.
I use them because they were intelligent people of the time, and therefore what they thought this language meant was likely what it meant.
MORGAN: Why do you have such faith in those politicians of that time? You know, I mean these days, if some -- if the current crop of politicians created some new constitution, people wouldn't have the faith, that young burning, unflinching faith that you have.
Why are you so convinced that these guys, over 200 years ago, were so right?
SCALIA: You have to read the Federalist Papers to answer that question. I don't think anybody in the -- in the -- in the current Congress could -- could write even one of those numbers. The -- these -- these men were very, very thoughtful.
I truly believe that there -- there are times in history when a genius bursts forth at -- at some part of the globe, you know, like 2000 BC in -- in -- in Athens or -- or Cinquecento Florence for art. And I think one of those places was 18th century America -- America for political science. You know, Madison said that -- he told the -- the people assembled at the convention, "Gentlemen, we are engaged in the new science of government."
Nobody had ever tried to design a government scientifically before. They were brilliant men. And...
MORGAN: Do you wish we had a few of them now?
SCALIA: I wish we had a few of them now. And I'm -- I certainly do not favor tinkering with -- with what they put together.
MORGAN: Justice Scalia, it's been fascinating.
SCALIA: Thank you.
I enjoyed talking with you.
MORGAN: Thank you very much for your time.
SCALIA: Thank you.
MORGAN: Bryan, congratulations.
It's an amazing book. Anyone that has listened to that will want to go and read it. It is a weighty tome. There's a lot of humor, as the interview has been. And I think it will give people, really, a much better understanding of what you're about. And I think you've helped bring that out, Bryan. And so I applaud you both. May you sell many books.
SCALIA: Thank you.
MORGAN: And continue to preside for a very long time.
SCALIA: Thank you, sir.
MORGAN: Because it would be a lot less colorful without you.
MORGAN: After the break, an only in America special. Justice Scalia takes me on a tour of the Supreme Court and names his favorite American president ever and his favorite Italian pasta dishes.
MORGAN: Tonight's "Only in America." Justice Scalia takes me on a walk-and-talk tour of the Supreme Court, and we talked presidents and pasta.
MORGAN: So we're now in the bowels of the Supreme Court.
SCALIA: Bowels? Do you have to --
MORGAN: Do you still get a little thrill when you come in?
SCALIA: No. I've gotten used to it by now. It's a nice place to work.
MORGAN: Who has been the most impressive president for you personally.
SCALIA: Most in history?
MORGAN: No, no, no --
SCALIA: In my lifetime?
MORGAN: In your lifetime, yeah.
SCALIA: I guess Ronald Reagan. I would be an ingrate if I didn't say Ronald Reagan.
MORGAN: What made him special?
SCALIA: He had a way of -- he was the great communicator. He had a way of making important and complex ideas comprehensible to the people.
MORGAN: Did he give you any advice when he put you forward?
MORGAN: Did he make any requests.
MORGAN: Did he say anything?
MORGAN: Would you tell me if he had?
SCALIA: He almost got my name right.
When we went out to the press room in the White House and one of Reagan's aides says to me, well, we think he'll get Scalia right, but we don't know about Antonin. And sure enough he messed up Antonin.
MORGAN: You were the first Italian -- I know you're Italian American. The first Italian to get to the Supreme Court.
SCALIA: It was a big deal for the Italians. I got an enormous amount of mail afterwards.
MORGAN: Do you ever have to pay for spaghetti bolognese in New York?
SCALIA: I have a lot of Italian friends.
MORGAN: When I put questions out on Twitter, of all the serious ones, one popped out, which is one is what is his favorite pasta dish.
SCALIA: My favorite pasta dish -- MORGAN: I'm told your wife does amazing macaroni.
SCALIA: She does. She has really learned to cook really well. But if I had to pick a favorite, there is a Sicilian dish with sardines and fennel. You can buy the yellow can. And it's very good.
MORGAN: What do you call it?
SCALIA: Pasta con sarde (ph) I think is the name of it. So I like that.
MORGAN: I would have pasta bolognese.
SCALIA: Spaghetti bolognese is good.
MORGAN: If you ever sentence me to death, that will be my last meal.
SCALIA: Not a bad way to go.