Last week I took eighteen N.C. Superior Court Judges to Washington, D.C. Among other things, we attended oral argument at the U.S. Supreme Court and were fortunate enough to have a meeting with Justice Scalia. He came to the meeting with no prepared comments and told us to ask questions. Our discussion was wide ranging and fascinating. I’ll share a few details here.
In response to a question about how the Court has changed over his tenure, he noted that it is taking fewer cases. Justice Scalia said he wasn’t entirely sure why the caseload has lightened but he noted that when he first came on the Court a number of major statutes had been enacted. As he put it, “It takes twenty years or so to get the bugs out of new statutes.” Aside from the Affordable Care Act, he suggested that we haven’t had seen a lot of sweeping legislation in recent years. Another change is that the quality of argument at the Court has improved. He attributed that, in part, to the development of Supreme Court practice areas in large firms.
On why he dissents, Justice Scalia explained, “I’m not going to lie.” He said that in order to join an opinion, he has to agree with everything in it. He noted that some of his colleagues take a more permissive view, reasoning that you shouldn’t dissent unless the point of disagreement is major. But as Justice Scalia explained, “You should hold me accountable not just for my opinions, but for the ones I’ve joined as well.”
I asked him whether he thinks about a legacy. He said he doesn’t. At the end of the day, he explained, “I’m either going to heaven or to hell,” and I just try to do the right thing in everything that comes before me.
Since I had a group of senior judges with me, I asked him about whether his judicial philosophy has changed, and if so, what influenced that. His response was short and sweet, basically: I don’t think I’ve changed all that much.
One of the judges “engaged” Justice Scalia about the role of judges in interpreting the Constitution. Scalia’s response was exactly as expected: It’s arrogant for judges to think that they know better than the elected representatives of the people and to think that they can disregard the will of the people and impose their own view of what the Constitution ought to mean.
We also talked about the Court’s decision making process. He told us he missed his days on the court of appeals when he would “sit down with two others and try to resolve [a case].” He explained that the Justices don’t talk about a case before it’s argued. He gets a short bench memo on the case from his clerks before oral argument. Oral argument serves as one of the main ways that the Justices talk to each other about their positions. I guess that explains why the lawyers at argument that morning nearly got whiplash responding to the Justices’ rapid-fire questions. He explained that the Justices have a conference a day or two after oral argument, but that’s not really used to convince others of your view. He said the conference is more of an opportunity to articulate your view and note the views of others in the event you get assigned the case. He said he used to go chamber to chamber, but didn’t find that very productive. The clerks of course are another means of communication for the Justices. That got me wondering—is this really the best way for nine men and women to resolve the most important issues affecting the entire nation? Why can’t they just sit down and talk about them? Isn’t it possible that a meaningful exchange of ideas might lead to better decisions? Justice Scalia’s nostalgia for his time on the intermediate appellate court suggests there might be something to this. Anyway, we were near the end of our time . . .
In what’s familiar ground in many of his talks, we ended with Justice Scalia’s thoughts on the real constitution. As he has done before, he articulated the view that it’s not the Bill of Rights that makes us free. “Every banana republic has a bill of rights,” he explained. That’s just paper. The real constitution, he emphasized—the real protection of our freedoms—is our constitutional structure that prevents the centralization of power, including an independent judiciary, a bicameral legislature, and a separately elected President.
It’s not every day you get to chat with one of the nine. I’m glad I got to do it and to bring eighteen members of the bench with me.