Justice Scalia on the record
This segment was originally broadcast on April 27, 2008. It was updated on Sept. 12, 2008. Lesley Stahl is the correspondent. Ruth Streeter, producer.
Not many Supreme Court justices become famous, but Antonin Scalia is one of the few. Known as "Nino" to his friends and colleagues, he is one of the most brilliant and combative justices ever to sit on the court and one of the most prominent legal thinkers of his generation.
He first agreed to talk to 60 Minutes correspondent Lesley Stahl last spring about a new book he's written on how lawyers should address the court. But over the course of several conversations, our story grew into a full-fledged profile - his first major television interview - including discussions about abortion and Bush v. Gore.
At 72, Justice Scalia is still a maverick, championing a philosophy known as "orginalism," which means interpreting the Constitution based on what it originally meant to the people who ratified it over 200 years ago.
Scalia has no patience with so-called activist judges, who create rights not in the Constitution - like a right to abortion - by interpreting the Constitution as a "living document" that adapts to changing values.
Asked what's wrong with the living Constitution, Scalia tells Stahl, "What's wrong with it is, it's wonderful imagery and it puts me on the defensive as defending presumably a dead Constitution."
"It is an enduring Constitution that I want to defend," he says.
"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.
"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.
"As opposed to what people today think it means," Stahl asks.
"As opposed to what people today would like," Scalia says.
"But you do admit that values change? We do adapt. We move," Stahl asks.
"That's fine. And so do laws change. Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution," Scalia argues.
He's been on a mission as an evangelist for originalism, at home and around the world.
For example, he visited the Oxford Union in England.
"Sometimes people come up to me and inquire, 'Justice Scalia, when did you first become an originalist?' As though it's some weird affliction, you know, 'When did you start eating human flesh?'" Scalia told students, who replied with laughter.
They may be laughing, but in the U.S. Scalia is a polarizing figure who invites protestors and picketers. There haven't been many Supreme Court justices who become this much of a lightening rod.
"I'm surprised at how many people really, really hate you. These are some things we've been told: 'He's evil.' 'He's a Neanderthal.' 'He's going to drag us back to 1789.' They're threatened by what you represent and what you believe in," Stahl remarks.
"These are people that don't understand what my interpretive philosophy is. I'm not saying no progress. I'm saying we should progress democratically," Scalia says.
Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can...I was going to say it can split the baby! I should not use... A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."
But his critics argue that originalism is a cover for what they see as Scalia's real intention: to turn back some pivotal court decisions of the 1960s and 70s.
He's been labeled a "counterrevolutionary."
"A counterrevolutionary!" Scalia reacts. "Sounds exciting."
The critics say his aim is to undo Roe v. Wade and affirmative action, and to allow more religion in public life.
"The public sense of you is that [you] make your decisions based on your social beliefs," Stahl says, with Scalia shaking his head. "That is the perception."
"I'm a law-and-order guy. I mean, I confess I'm a social conservative, but it does not affect my views on cases," Scalia says."
His philosophy has occasionally led him to decisions he deplores, like his upholding the constitutionality of flag burning, as he told a group of students in Missouri.
"If it was up to me, I would have thrown this bearded, sandal-wearing flag burner into jail, but it was not up to me," Scalia told the students.
To Scalia, flag burning was protected by the founding fathers in the First Amendment, which is his only criterion, he says, under originalism.
"But do you respect that there is another way to look at this?" Stahl asks.
"You know the story of the Baptist preacher who was asked if he believed in total-immersion baptism? And he said, 'Believe in it? Why I've seen it done!' I have to say the same thing about your question. There must be other views because I've seen them," Scalia says.
"Yeah, but do you respect them? You don't, do you?" Stahl asks.
"I respect the people who have them, but I think those views are just flat out wrong," Scalia says.
He's talking about some of his fellow justices, like Ruth Bader Ginsburg, a liberal who is - and this never ceases to surprise people - one of Scalia's best friends, both on and off the court.
To Ginsburg, the Constitution evolves and should reflect changes in society; that going back to what was meant originally when they wrote, for instance, "We the People," makes little sense.
"Who were 'We the People' in 1787? You would not be among 'We the People.' African Americans would not be among the people," Ginsburg tells Stahl.
"Justice Ginsburg and you disagree...on lots of things. And yet you're such good friends," Stahl remarks.
"I attack ideas. I don't attack people. And some very good people have some very bad ideas," Scalia says. "And if you can't separate the two, you gotta get another day job. You don't want to be a judge. At least not a judge on a multi-member panel."
He's one of the best writers on the panel, known for a bold and colorful style. He told Stahl he has to work at it - that it doesn't come easy.
He some times quotes Cole Porter, and references Greek tragedies. Scalia says he does it because, "It makes the opinion interesting, which might induce somebody to read it."
But he can also use his pen as a sword to attack the writings of his colleagues. For instance, he once called a Breyer decision "sheer applesauce."
Ginsburg has also been the target of some of Scalia's zingers: he called one of her opinions "absurd," another "implausible speculation," and another "self-righteous."
"How about, 'This opinion is not to be taken seriously.' He wrote that about Justice O'Connor," Ginsburg points out. "He's rather mild I think in the adjectives that he uses for me. But you can take every one of those words, run his opinions and you'll see that he, all of us are implausible when we disagree with him."
Asked if she ever takes it personally, Ginsburg says, "No, I take it as a challenge. How am I going to answer this in a way that's a real put down?"
"I'm trying to figure out if there was ever real anger," Stahl says.
"I would say exasperation is the word," Ginsburg replies.
"As annoyed as you might be about his zinging dissent, he's so utterly charming, so amusing, so sometimes outrageous, you can't help but say 'I'm glad that he's my friend' or he's my colleague,'" she adds.
"What's interesting is the difference between how you appear in person and the image that you have. Because the writings are so often combative, and your friends say that you're charming and fun," Stahl tells Scalia.
"I can be charming and combative at the same time," Scalia replies. "What's contradictory between the two? I love to argue. I've always loved to argue. And I love to point out the weaknesses of the opposing arguments. It may well be that I'm something of a shin kicker. It may well be that I'm something of a contrarian."
Of all the cases that have come before him on the court, Bush v. Gore may have been the most controversial. It has been reported that he played a pivotal role in urging the other justices to end the Florida recount, thereby handing the 2000 election to George Bush. The subject came up at the Oxford Union.
"Supposing yourself as a Supreme Court justice were granted the power to appoint the next president of the United States. Who would you pick and why? And would he or she be better than your last choice?" a student asked Scalia.
"You wanna talk about Bush versus Gore. I perceive that," he replied. "I and my court owe no apology whatever for Bush versus Gore. We did the right thing. So there!"
"People say that that decision was not based on judicial philosophy but on politics," Stahl asks.
"I say nonsense," Scalia says.
Was it political?
"Gee, I really don't wanna get into - I mean this is - get over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two," Scalia says.
Moreover, he says it was not the court that made this a judicial question.
"It was Al Gore who made it a judicial question. It was he who brought it into the Florida courts. We didn't go looking for trouble. It was he who said, 'I want this to be decided by the courts.' What are we supposed to say? 'Oh, not important enough,'" Scalia jokes.
"It ended up being a political decision" Stahl points out.
"Well you say that. I don't say that," Scalia replies.
"You don't think it handed the election to George Bush?" Stahl asks.
"Well how does that make it a political decision?" Scalia asks.
"It decided the election," Stahl says.
"If that's all you mean by it, yes," Scalia says.
"That's all I mean by it," Stahl says.
"Oh, ok. I suppose it did. Although you should add to that that it would have come out the same way, no matter what," Scalia says.
The justice has been explaining his positions publicly more and more, and even delving into some thorny issues, like torture.
"I don't like torture," Scalia says. "Although defining it is going to be a nice trick. But who's in favor of it? Nobody. And we have a law against torture. But if the - everything that is hateful and odious is not covered by some provision of the Constitution," he says.
"If someone's in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression 'cruel and unusual punishment,' doesn't that apply?" Stahl asks.
"No, No," Scalia replies.
"Cruel and unusual punishment?" Stahl asks.
"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."
"Well, I think if you are in custody, and you have a policeman who's taken you into custody...," Stahl says.
"And you say he's punishing you?" Scalia asks.
"Sure," Stahl replies.
"What's he punishing you for? You punish somebody...," Scalia says.
"Well because he assumes you, one, either committed a crime...or that you know something that he wants to know," Stahl says.
"It's the latter. And when he's hurting you in order to get information from you...you don't say he's punishing you. What's he punishing you for? He's trying to extract...," Scalia says.
"Because he thinks you are a terrorist and he's going to beat the you-know-what out of you...," Stahl replies.
"Anyway, that's my view," Scalia says. "And it happens to be correct."
He's nothing if not certain and confident. How did he get that way?
Scalia's rise to Supreme Court justice is a distinctly American story. The son of an Italian immigrant, he earned his way into Harvard Law School through old-fashioned hard work and determination.
In spending time with him, we found something we hadn't expected: a person so unpretentious and down to earth, you could easily forget he sits on the Supreme Court.
But what stands out is his sharp intelligence, and his street-fighter personality which he developed growing up in New York City.
Scalia grew up in Elmhurst, Queens, in the late 1940s and early 50s, in a conservative, working-class neighborhood. "There was a lot of diversity in the backgrounds. There were, some were Germans. There were Irish. There were Puerto Ricans. There were English. It was a really mish-mosh, sort of a New York - New York cosmopolitan neighborhood," Scalia remembers.
Scalia and Stahl returned to the old neighborhood, seeing the house he grew up in.
"The one with the air conditioner. It did not have an air conditioner in those days, needless to say," Scalia recalls. "Oh, God, with the windows open and you'd listen to the trolley going by and just lie there and sweat in the heat."
"I'm surprised to hear you say that you have all that affection for New York, I didn't expect that," Stahl remarks.
"Oh yeah. I grew up here," Scalia replies.
Asked if he's a Yankees fan, Scalia says, "Absolutely, what else would I be?"
His being a real New Yorker is something he realized when his high school band went to march in a parade in Washington D.C.
"These people just stood there and looked at us. You know? In New York people say, 'Hey, play something for us!' You know? 'You bums, why don't you play something?' You know, they were alive. They were confrontational," Scalia remembers.
Scalia's father, who emigrated from Sicily as a teenager, became a professor of romance languages at Brooklyn College. His mother, a first generation Italian-American, was a schoolteacher until her son was born in 1936. Nino was an only child.
And amazingly, Scalia didn't have any cousins.
"You're the only - not only of your parents, but of the whole family," Stahl says. "I mean I cannot imagine the doting."
"Come on now, lay off. Yes, I was spoiled," Scalia admits.
"What do you think having all that attention focused on you?" Stahl asks.
"I had a very secure feeling. So many people who loved me, and who would look out for me," Scalia says.
Scalia and Stahl also went back with him to P.S. 13, his old elementary school in Elmhurst, where he stood out from the beginning.
Scalia says he never got in trouble and got straight A's, too.
Up in one of his old classrooms, in black and white, the proof can be found on his old report cards. "You missed very few days of school. You were never late. And you never got anything ever less than an 'A,'" Stahl remarks.
The same was true at Xavier in Manhattan, a military parochial high school run by the Jesuits. Scalia was a star: first in his class for all four years. He got A's in Greek, Latin and everything else.
"I was never cool," Scalia admits.
Asked if he was a bookworm, Scalia says, "I was a greasy grind. ...I worked really hard. My father, my mother put me to that. I enjoyed that. I don't like doing anything badly."
His years at Xavier, where he went to mass at the church of St. Francis Xavier next door, deepened his Catholic faith.
Scalia says he gave the priesthood some thought.
"And decided no?" Stahl asks.
"And decided he was not calling me," Scalia explains.
"What is the connection between your Catholicism, your Jesuit education, and your judicial philosophy?" Stahl asks.
"It has nothing to do with how I decide cases," Scalia replies. "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons,"
Appointed by Ronald Reagan, he was sworn in at age 50, the first Italian-American to ever serve on the Supreme Court.
He met his wife Maureen in Cambridge when she was a senior at Radcliffe and he was in his last year at Harvard Law School. They have been married for 48 years and rarely disagree, they say.
"She says she could have married so-and-so...," Scalia says.
"Oh, not really," his wife replies.
"You do. You say that. And of course the reason she didn't was that 'so-and-so [was] wishy-washy,'" Scalia says.
"This is absolutely true. He will say, 'You would have been bored.' I say, 'Oh, that's right!' I would have been bored," Maureen Scalia says. "I would have been bored."
But she says she hasn't been bored.
"Whatever my faults are, I am not wishy-washy," Antonin Scalia adds.
The marriage has flourished: they have 9 children and 28 grandchildren.
Why so many children?
"Well, as someone said, they're both overachievers, I guess," Maureen Scalia jokes, laughing.
"Well, we didn't set out to have nine children. We're just old-fashioned Catholics, you know? Playing what used to be known as 'Vatican roulette,'" Scalia jokes.
The Scalia children, ranging in age from 27 to 46, are all conservative, all successful, including two lawyers, a major in the Army, a poet, and a priest.
"If in an old-fashioned Catholic family with five sons you don't get one priest out of it, we're in big trouble, right?" Scalia jokes. "I will say that the other four were very happy when Paul announced that he was going to take one for the team. I don't know."
"The justice told us that he didn't go to the soccer games and the piano recitals and things," Stahl tells Maureen Scalia.
"You know, my parents never did it for me," Antonin Scalia interrupts. "And I didn't take it personally. 'Oh Daddy, come to my softball game.' No, I mean, it's my softball game. He has his work. I got my softball game. Of course, she was very loyal. She went to all the games."
"Most," Maureen Scalia adds. "I would get five minutes at each on a Saturday."
All their children are grown up now. And Scalia, after 22 years on the court is starting another career as an author. His new book, "Making Your Case, The Art Of Persuading Judges," is surprisingly breezy in that it's a primer for lawyers on how to win cases. His co-author is Bryan Garner, an expert on legal writing.
"You say things in it like, 'Be prepared. Look the judge in the eye.' You almost make it sound like lawyers are imbeciles," Stahl says.
"You would be surprised," Scalia replies, laughing.
They wrote the book together, occasionally sitting side by side, arguing. Surprisingly, Garner says, it was the justice who often showed humility by yielding.
"I thought you punched pretty hard. You threw me a hard punch. And then sometimes he'd just want to see: could I punch back on the counterpoint. But often he could be brought around. He could be persuaded," Garner explains.
"That doesn't show that I'm humble. It just shows that I'm not stupid," Scalia says.
"I thought you were very deferential, and surprisingly so. It was disarming to me." Garner adds.
Scalia deferential? That's something you never hear about him on the court, where he has been unable to persuade his fellow justices to come over to his way of thinking. The only other originalist on the court is Justice Clarence Thomas.
"A lot of people thought that when you joined the court you would use your charm to bring the other justices around to side with you. And it hasn't happened," Stahl says.
"I'm not going to change their basic philosophy. These people have been thinking about the law for years. They're not going to suddenly say, 'Oh God, Nino, explain it all to me.' I understand that's not going to happen," Scalia says.
That awareness has at times brought this man - usually so confident and charge ahead - to bouts of despair, and he was taken aback that we knew about it.
"You've apparently had some down times in your tenure on the court so far. And I'm pointing to the term of 1995-96 when you wrote to former Justice Blackmun at the time, and here's what you said: 'I am more discouraged than I have been at the end of any of my previous nine terms.' You also wrote that you were beginning to repeat yourself, and you did not see much 'use in it anymore,'" Stahl remarks.
"Gee, I hadn't remembered that I'd written it," Scalia says.
"It says, 'I am beginning to repeat myself,'" Stahl says.
"That's true. That is something that gives me some concern. I mean after a while, you know, I'm saying the same things in today's dissent that I said in a dissent 20 years ago," Scalia explains.
"Around that same time you wrote, 'The court must be living in another world. Day by day, case by case it is busy designing a Constitution for a country I don't recognize,'" Stahl says.
"Yeah. That's how I felt," Scalia says.
"Past?" Stahl asks.
"It's been less dire in more recent years," Scalia replies.
"In other words, you've had down times," Stahl asks.
"Yeah, I think so. I'm happier sometimes than at other times. And the end of a term, I don't care what term it is, it's usually a disappointment," Scalia says.
That's because - until recently - he was often on the losing side in cases he cared about most. Over the last several years Scalia has reached outside the court, speaking out publicly about his philosophy, in hopes of influencing the next generation. It's a role he relishes.
"Little kids come to the court, they're brought by their teachers. And they recite very proudly what they've been taught. I mean, this is how widespread the no-'The Constitution is a living document.' And I have to tell them 'It's a dead document,'" Scalia told the students at the Oxford Union.
He says the speeches energize him, but at 72, Stahl wondered if he ever thinks about retiring.
"When I first came on the court I thought I would for sure get off as soon as I could which would have been when I turned 65. Because you know, justices retire at full salary. So there's no reason not to leave and go off and do something else. So you know, essentially I've been working for free, which probably means I'm too stupid to be on the Supreme Court," Scalia says, laughing. "You should get somebody with more sense. But I cannot - what happened is, simply I cannot think of what I would do for an encore. I can't think of any other job that I would find as interesting and as satisfying."
