National Public Radio "Morning Edition"
MS. TOTENBERG: Antonin Scalia is a man of many contradictions: an only child, he's the father of nine children; tough-minded and thick-skinned in public, in private he suffers when attacked; often confrontational on the bench, and sarcastic -- even acidic -- in dissent, he's charming and funny in private.
Scalia has made his biggest mark, so far, in those famous biting dissents. His pen is an unsparing skewer. He's mocked Chief Justice John Roberts, a fellow conservative, accusing him of, quote, "faux judicial restraint." He's said Justice Sandra Day O'Connor's view on abortion, quote, "cannot be taken seriously." And just this month, he derided Justice John Paul Stevens' views on the death penalty, calling them, quote, "the purest form of rule by judicial fiat" -- even though Stevens agreed with Scalia on the end result.
So I asked Justice Scalia if using that kind of language in written opinions is wise -- whether in fact it might not alienate potential allies on the court.
JUSTICE SCALIA: When it is wrong, it should be destroyed.
MS. TOTENBERG: Destroyed!
JUSTICE SCALIA: I think all of the reasons it is wrong should be pointed out and pointed out forcefully. And I don't mind people doing that to my opinions. A good hard-hitting dissent keeps you honest.
MS. TOTENBERG: Scalia is famous as a so-called orginalist and textualist -- or as he puts it: "My Constitution is not living, it is dead. It means what the framers intended back at the founding of the Republic. So if capital punishment was constitutional in 1791, it still is today."
JUSTICE SCALIA: Whatever they understood then is, in my view, the meaning of the confrontation clause now. And it's not up to me to say, well, it really shouldn't mean that any more. It should mean something different.
Once you get into that boat, you have no criterion. It's up to the individual preferences of nine justices and that's just not the way it ought to work. MS. TOTENBERG: So if you put people in stocks in the public square, which was a common practice then?
JUSTICE SCALIA: I would say that may be very stupid, but it's not unconstitutional, if indeed it was a punishment that was at that time accepted.
Now, you know, the more ridiculous you make the example the less likely it is to occur. They used to notch ears too.
MS. TOTENBERG: Contrary to public perceptions, Scalia and fellow conservative, Clarence Thomas do march in lock step. Thomas is far less willing to abide by the court's past decisions, while Scalia says he generally does not believe in undoing most of what's become law until now.
JUSTICE SCALIA: I am a textualist. I am an orginalist. I am not a nut.
MS. TOTENBERG: His mantra is that states are free to do what they want about most of the controversial questions of the day. They can legalize abortion or not; legalize homosexual conduct or not; legalize assisted suicide or not.
But when Oregon did, in fact, legalize assisted suicide, Scalia assented on other grounds. He's accused his fellow justices of taking sides in the culture wars. His critics say that it is he who's taken sides by the tone of his dissents. For example, in the case where the court struck down a state law that made private homosexual conduct a crime.
JUSTICE SCALIA: I don't know why that's taking sides. The next step is for the court to say that same-sex marriage must be permitted. It's hard to distinguish the one from the other.
MS. TOTENBERG: It hasn't happened in this court, though, has it?
JUSTICE SCALIA: Well, it happened in Canada, didn't it? It is a living constitutional principle and Canada is a living Constitution court. MS. TOTENBERG: Scalia is no stranger to criticism from all quarters. When he provided the fifth vote to strike down a law making it a crime to burn the American flag, his own wife, Maureen, greeted him in the morning singing "It's a Grand Old Flag."
JUSTICE SCALIA: I got a lot of heat from that opinion, really serious biting criticism from the quarter I normally don't get criticism from that is to say from the right rather than the left.
And I just want to give credit to a wonderful gentleman, who was President Bush I. He wrote a handwritten note -- not to me; I think he would have thought that was improper -- but he wrote it to Maureen saying, I see your husband's been getting a lot of criticism for his flag burning decision. Tell him not to worry about it. He did the right thing.
What a nice thing for the president to do! I mean, gee, he had a lot of other things to worry about. I'm eternally grateful for that. It was such a nice gesture.
MS. TOTENBERG: With the addition of two new Bush appointees on the Supreme Court, Scalia's views are now on the verge of prevailing in most cases for the first time in his tenure.
JUSTICE SCALIA: In the big cases I may be not as much of a big loser as I used to be -- if you want to keep score. But you know, winning and losing, isn't it. That's never been my objective. And it's my hope that in the fullness of time, the majority of the court will come to see things -- at least for the future --
MS. TOTENBERG: He is so beloved by the political right that some conservatives dream of him as a vice presidential candidate with John McCain. Scalia reacts with a huge guffaw.
JUSTICE SCALIA: (Laughs.) For one thing, Senator McCain's -- one of the accomplishments he was proudest of was McCain-Feingold campaign financing reform. And I thought the whole thing was unconstitutional. The court approved it, but not with my blessing.
So you know, when someone -- what should I say -- disparages what you think is your life's principal achievement, you're not likely to want him to be on your presidential ticket. (Laughs.) Besides which, come on! Ask my wife, I'd be a lousy politician. I'd say what I thought.
MS. TOTENBERG: And?
JUSTICE SCALIA: And that's not what politicians should do.
MS. TOTENBERG: In recent years, Scalia has abandoned his one- time reticence about talking in public. He, like other justices before him, is giving a few select interviews to promote his book. And yet, he and other justices forbid cameras in the Supreme Court. Some question why the justices should be able to turn the spigot on and off at will.
JUSTICE SCALIA: You're darn right we can!
MS. TOTENBERG: Why?
JUSTICE SCALIA: Why? It's my voice. It's my face. I don't have to show it except where I want to. Why is that so extraordinary?
MS. TOTENBERG: Unlike some, Scalia does not speak only to friendly audiences. He's appeared in debates with fellow justices and with the head of the ACLU at an ACLU national meeting. He concedes that's a big change from the days when he followed the maxim that judges should not be seen or heard.
JUSTICE SCALIA: But the reality is that in modern times -- in what my father used to call the space age, where there's all this dead space to be filled on radio and television and in the press -- I'm going to be a public spectacle whether I like it or not. It's mostly whether the public is going to get a picture of me that's secondhand, or rather at least have some opportunities to hear firsthand what I have to say, and assess first hand what I'm like.
MS. TOTENBERG: Justice Antonin Scalia, his new book, written with Lexicologist Brian Garner, is "Making Your Case: The Art of Persuading Judges."
Nina Totenberg, NPR News, Washington.