Supreme Court Justice Antonin Scalia Was Known For His Dissents

Transcript

MARY LOUISE KELLY, HOST:

Even Atonin Scalia's ideological opponents - in fact, maybe especially his opponents - acknowledged that the late Supreme Court justice changed the nation's conversation about the Constitution.

DAVID GREENE, HOST:

Scalia championed what is called originalism, understanding the document in the context of the time it was written.

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ANTONIN SCALIA: The Constitution that I interpret and apply is not living, but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

GREENE: That's the late Justice Antonin Scalia. We're joined now by NPR legal affairs correspondent Nina Totenberg. Nina, good morning.

NINA TOTENBERG, BYLINE: Good morning.

GREENE: You know, they say in journalism that significant events happen whenever you decide to take a vacation. That's the - and thanks for coming. Where are you now?

TOTENBERG: I'm in Tortola on a nice weekend that turned into a working one, about to come home.

GREENE: I can imagine. Well - well, thanks for - thanks for all your due diligence and all your work. I've been listening to all weekend and this morning. Can you just talk about Scalia's influence and just hearing him talk about there, you know, this document that he believes is dead or, at most, enduring? What has that meant for the country and for the court?

TOTENBERG: Well, he brought into the mainstream of debate the idea of originalism or, as he preferred to call it, textualism, that the document meant what it said on the page and what it meant at the time that it was adopted. And although he didn't win all the time or anywhere near all the time, his interpretation, what we now call shorthand originalism, became the subject of this huge debate. He brought it into the sunlight. He became - he came on the court almost at the same time that the conservatives - conservative Federalist Society was formed on college campuses. He became an icon in academia among conservatives and an icon in the political world, as well - the conservative political world - because he was such an articulate advocate for this point of view, such a vivid writer.

GREENE: As you look back at some of his most important decisions, what comes to mind?

TOTENBERG: Well, probably his most important decision, I think, was the decision called Heller v. the District of Columbia, in which he, for the first time, said, on behalf of a five justice majority, that there is a Second Amendment constitutional right for an individual to bear arms and to have a gun in his home for self-defense. And it wasn't as far-reaching as it might have been, but there were only five justices. It was five to four. And it at least - and it seemed to reverse what had been a legal understanding for some 200 years that it was really - the right to bear arms was for the police, for the militia, not for individuals. And it really turned that around.

GREENE: And that really speaks to his belief that this document should be interpreted as it was written. He believed that the writers of the Constitution believed that every citizen had a right to have a gun in his or her possession or home.

TOTENBERG: That's correct. Now, he was not a consensus-builder, generally, so he often didn't win. But it - but he still articulated this world view, this Constitutional view that was so important for the court. And increasingly as the court grew more and more conservative, either he prevailed or some element of his belief prevailed.

GREENE: Nina, he was so well known for some of his dissents - so sharply written, so well written, so entertaining sometimes. What - is there a memorable one for you?

TOTENBERG: Oh, there are many memorable ones.

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TOTENBERG: And in some of them, he was incredibly wise. He was the lone dissenter when the Supreme Court upheld the independent counsel law. He said it was a violation of the separation of powers and would lead to prosecutors who were uncontrolled. And both the conservatives - both the Democrats and Republicans in Congress eventually came to agree with him and repealed the law, saw the wisdom of what he'd said. He was famous for his decisions on - his dissents in abortion, same-sex marriage. In abortion, he said, in one case involving protests at a clinic when there was a buffer zone created to protect patients, he said, is the deck stacked? You bet it is. And in same-sex marriage, he said that the decision last year was a judicial putsch and that it made so little sense that if he'd written it, he would have worn a bag over his head.

GREENE: Wow, he was known for those dissents. And really, really briefly, Nina, where do we go from here? I mean, this is going to be a big battle on the presidential campaign in the country.

TOTENBERG: Well, essentially, this event is going to create three things. First of all, it's going - there's going to be this battle royale that'll go on for perhaps as long as 18 months. Secondly, the court will now be ideologically divided as, I think, it perhaps has never been, with four liberals and four conservatives, and with many decisions on a tie vote, which will mean it's like kissing your sister - nothing happens. It has no precedential value. It makes no law for the country. It'll have to wait for a future time. And then, of course, the Supreme Court will be a central issue in the coming campaign.

GREENE: All right. NPR's Nina Totenberg, safe travels home. Thanks a lot.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.