Associate Supreme Court Justice Antonin Scalia said the court has been hearing fewer cases in recent years in part because Congress is passing fewer major pieces of legislation than it did one and two generations ago. 

Speaking at the Washington Ideas Forum, Scalia, the longest-serving justice on the Supreme Court, said a main role of the court is "just figuring out" what a particular law means. But in recent years, "there are fewer major statues" to consider. "It takes about a decade to get all the kinks out of a new piece of legislation," he told the audience. Fewer major laws over the last decade or two means a lighter caseload. During the 1980s, the court would hear as many as 150 cases a year. In recent terms, the number has dropped to about half that.

Washington Ideas Forum - Full Coverage

In a 20-minute conversation with Jim Duff, the president of the Newseum who is a lawyer and the former chief administrative officer of the U.S. court system, Scalia talked about Washington gridlock, European legal systems, and the ongoing debate between originalists and "living constitutionalists."

Scalia dismissed concerns that Washington is broken in some fundamental way, as some analysts have suggested. "Gridlock is what our system is designed for," he said. But he agreed with the observation that the Supreme Court operates more smoothly than the other branches of government. "We have to act. We can't just say, 'We haven't decided about this case, so go away.' Sooner or later you gotta vote, so there it is. Congress doesn't have to do that...That's the principle reason people don't accuse us of gridlock. They accuse us of a lot of other stuff."

The justice disagreed with the proposition that political questions inevitably become judicial cases. "It's not true that we stick our noses into everything," he said. But the court has a job to provide judicial review of legislative action -- a job that France and other European countries now find appealing. "Other countries that used to mock our system of judicial review....they have now adopted our system." 

Scalia was most animated defending his position that the Constitution should be interpreted as its framers intended, not as society sees it today.

"The living constitutionalists will say: You know, what's a good idea today?" That's the wrong approach, he said. "If the Constitution means whatever we think it means today, why have a Constitution. Just have a legislature." Members of Congress, he said, are closer to the people than the nine justices are. "We don't know what's going on out there."

Full transcript of the Scalia session:




OCTOBER 6, 2011






DUFF:  Good Morning. 

SCALIA:  Saying good morning to me or these people?

DUFF:  Good morning to you, Justice Scalia.

SCALIA:  Good morning to you to, Jim. 

DUFF:  Thank you so much for being here.  I know it's a busy time for you at the beginning of the new court term.

SCALIA:  Right.

DUFF:  And we're most appreciative of you taking time to visit with us in this forum. 

I'll start with a question about the nature of the court system generally in the United States.  And it was about 175 years ago that Alexis de Tocqueville observed in "Democracy in America" that there is hardly a political question in the United States which does not sooner or later turn into a judicial one.  

Is that a fair observation?  Is it applicable still today?   

SCALIA:  Oh, it's a good line.  I don't think it's -- I don't think it's true, and I don't -- I don't even think Tocqueville thought it was true because he had a whole chapter on -- on the courts in America, which even at that time were a peculiar phenomenon, the degree of power that American courts had.  And he tried to explain how this was compatible with democracy.  

And one of the reasons he found why it was compatible is that there are some controversies that are not justiciable.  We have a doctrine of standing.  And he said there are just some things that will never get to the courts because the courts cannot deal with them.

And that has remained true today.  For example, certainly whether there should be federal expenditures for this or that is a political question, but unless you're harmed by the expenditure -- and you're not harmed if you're just a taxpayer, because, you know, the argument is, "I would have wasted the money some other way anyhow" -- you have no standing to challenge it. 

So it's a good line, but it's not true.  

It is true that we're probably more litigious than most societies.  And we have open courts, and you can always come in and try.  But it's not true that we stick our nose into everything.  

DUFF:  I think that's a -- that is a fair observation.  The courts don't seek out these cases, they come to the courts.  But we do find that many political questions and issues -- ranging from immigration to health care -- are finding their way into the court system.   

Is that a good thing?  Is it -- does it distinguish us from other forms of government?

SCALIA:  Well, it did up until the end of World War II.  Now -- now other countries that used to mock our system of judicial review -- the French used to call it, contemptuously, "le gouvernement des juges," government by the judges, they have now adopted our system.  

And most European constitutions provide for judicial review of legislative action to comply with human rights guarantees, the equivalent of our Bill of Rights.  So they're sort of in the same soup as we are.  

No, I don't think our framers thought it was a good thing, and we think it's a good thing.  If you -- if you have a constitution that is law and if the object of courts is to apply the law, you know it follows that the courts have to review the conformity of legislation with what the constitution requires.  And that's a good thing. 

And it usually isn't the entire legislation that is -- that is up for grabs, it's whether this particular provision comports with the constitution or what does this particular provision mean? 

DUFF:  Right.

SCALIA:  Is it -- is it proper for the executive to apply it in this fashion? I guess you could call that a political question, you know, whether the EPA can regulate this or that, but it's essentially whether the executive is complying with what the statute provides.  

DUFF:  Right.

SCALIA:  And that's good. 

DUFF:  Have you seen in your experience over the years on the bench a decline in the clarity of statutes that is coming out of Congress?  Has  there been a consistency there?  Is there a difference in the clarity these days? 

SCALIA:  I'd rather put it that I haven't seen any improvement. 


It's always been a problem and remains that.  

People are sometimes surprised at how our case -- case load has gone down over the last decade or so.  We're doing a little more than half of the cases that we used to do when I -- when I first came on the court -- which is not all bad.  I think we were doing too many.  I don't think we can do 150 well.  

But I think the main reason it went down is not that we decided to take fewer, but there are fewer major statutes.  I mean when I first came on the court there was the bankruptcy code, there was ERISA, there was a lot of major new legislation.  

And the main business of my court, believe it or not, you read about the pizzazzy constitutional cases in the newspapers, but most of it is just figuring out what legislation means.  And it takes about a decade to get all the kinks out of a new piece of major legislation.  So that's why we used to have a lot more cases. 

DUFF:  You've not been a particular fan of looking to legislative history to determine the meaning of a statute.  Why is that, and does it -- is there any conceivable way that legislative history could become more reliable?

SCALIA:  Well, first of all, let's be clear what you mean by legislative history.  I will take account of what you might call statutory history, that is the statute used to read this way, it was amended in 1994 to read this way.  And why did they make the change?  It seems that they meant something different.  Yeah, I will take account of that. 

What I won't take account of is statements on the floor, including statements by the bill's sponsor, committee reports by the committee that reported out the bill, statements in hearings before the committee that reported it out.  None of that is proper for me to consider, because the Constitution says that the manner in which legislation is enacted is it has to be approved by both houses of Congress and signed by the president or passed by two-thirds over his veto.  None of these statements pass that test. 

Congress cannot delegate to one of its committees the meaning of its statutes.  Congress says what it says, and my job is to, you know, figure out what the meaning of what it enacted is.  I don't care, I frankly don't care what they thought it meant.  


I mean, you know, even -- even if you believe that legislative history would tell you what they thought it meant, and it can't possibly, it can at most tell you what one committee thought.  Although, not even that.  I mean, you know, the committee reports are never voted on by the committee.  They're put together by staff.  A committee member can't object to this at a vote.

So the most it'll tell you is what that committee thought, what one individual member thought.  

I guess the theory is that, well, everybody else heard him say that on the floor and they must have voted with that -- with that in mind.  But you know that's fictional.  If you've ever been on the Hill there's nobody out there when he said that.  


In fact, he might have put it in afterwards, as you know, extended remarks or something.  

So it is a great fiction, just a great fiction.  Its major attraction is it's so tempting, you know, here is the answer to the very detailed question:  What is the meaning of Section 323b2i (ph)?  Nobody has thought about that.  But here's somebody who on the floor of Congress says what it meant.  

How tempting it is to, you know, say, "Oh, wow, you know, let's move on to the next case."  But in fact it does not display what the -- what the intent of Congress was.  And as I say, even if it did, we're a government of laws not of -- not of unexpressed intent.  

DUFF:  How do you differentiate between that and looking to the Constitution as written and the intent of the framers? You've been critical of the phrase "living Constitution," as recently I think as yesterday at a Senate hearing you expressed a desire to see the notion or the concept of a living Constitution die.  How do you differentiate between the meaning of the framers as to the meaning of the Constitution and the present day?

SCALIA:  Well, I don't because I don't look to the intent of the framers.  I don't care if they had some secret intent.  Once again I look to the words of the Constitution.  What I ask, "What did those words mean to the society that adopted them?"  

And so I will use -- I will use the Federalist Papers, the writings of Madison, Hamilton, and Jay but I won't use it because they were the drafters of the Constitution, Jay was not one of the drafters, but those papers do show what those words meant to the society that adopted them.  And that's the same thing I do with legislation, what do those words mean? What's the fair understanding of them?  And once I find that that's my answer and that understanding does not change. 

So, for example whether the death penalty is proscribed by the Eighth Amendment which prohibits cruel and unusual punishments.  Death penalty may be a very bad idea, but no -- no American ever voted to adopt a constitutional provision that eliminated it, that eliminated that as an option.   

So, you know, I -- now the living constitutionalists will say times have changed and it's up to me to decide what cruel and unusual punishment is.  That's a Constitution that has no bite.  If the Constitution means whatever we would like it to mean today, why have a Constitution?  You don't need one for that all you need is a legislature.  They'll express the -- in fact they will express the current attitude of society much better than my court will.  We don't know what's going on out there. 


DUFF:  When attempting to apply certain clauses of the Constitution to new technologies for example, the First Amendment's application to sound trucks, you've described it as following the trajectory of a right in the Constitution.  How do you differentiate that from a living Constitution, or one that is adaptable to modern issues in current times?

SCALIA:  Well, I'm a -- an enduring Constitution, which is what I favor, is not on that cannot be applied to new situations, of course it can.   You apply the First Amendment to radio, what you ask is, "What did the First Amendment mean as applied to these other phenomena?" 

And what I mean by following the trajectory is then -- then you say, "Well, what aught it mean given that as the base line, what aught it to mean as applied to radio?"  Whereas a living constitutionalist will say, "you know what's a good idea today? What the American people like today?" So, for example, oh gee I probably shouldn't use this example in this place, but New York Times versus Sullivan, okay, the famous Supreme Court case which -- which held that a -- a you can liable public figures without liability so long as you are relying on some statement from a reliable source, whether it's true or not.  Now the old liable law used to be you're responsible, you say something false that harms somebody's reputation, we don't care if it was told to you by nine bishops, you are liable.  

New York Times versus Sullivan just cast that aside because the court thought in modern society it'd be a good idea if the press could say a lot of stuff about public figures without having to worry.  And that maybe correct, that maybe right but if it was right it should have been adopted by the people.  It should have been debated in the New York legislature and the New York legislature could have said yes we're going to change our liable law.  

But the living constitutionalists on the Supreme Court, the Warren Court, simply decided on yes it used to be that, you know, that George Washington could sue somebody that libeled him, but we don't think that's a good idea any more.  

So, that's the difference between my approach and the living Constitution approach.  I will be guided as to what the Constitution means today by what it meant when it was adopted.  The living constitutionalist feels free to say, "Well you know it's a new it's a new day and we can have new rules. " 

DUFF:  We've heard in this forum in a couple of --

SCALIA:  I feel bad about using that I should have thought about it--


SCALIA: It's a fine example. 


DUFF:  We've heard over the past day and again this morning a phrase that has become popular I think among political observers that in the current political climate that Washington has become dysfunctional, and by that I think they are referring generally to the political -- the more political branches; the legislature and the executive.  In my experience within the judicial branch, I've really never heard the judiciary described as dysfunctional. 

It works well, there's certainly an abundance of cases in some courts are very much over worked and we need additional resources from Congress in that regard, but there's an underlining, I think, underlining civility in the court system.  How do your account for that and is it something -- do you agree with that observation and, if so, is there anything that could be taken from that by the other branches in perhaps lowering the temperature of the discourse in the country at the moment? 

SCALIA:  Well, I, you mentioned my remarks yesterday I -- Justice Breyer and I spoke to the Senate Judiciary Committee.  In my opening remarks one of the things I addressed was what it is precisely that makes America the freest country in the world, which it is.  And I pointed out that most people think it's the Bill of Rights, it's not the Bill of Rights, everybody has a bill of rights, every ten horn dictator has a Bill of Rights.  


SCALIA: That's not what does it, what does it is what I call the real Constitution, if you think about the word "constitution" it doesn't mean a Bill of Rights it means structure, structure.  And the reason the Bill of Rights of these other countries, the Soviet Union had a wonderful Bill of Rights, it was worthless because the real Constitution of the Soviet union -- did not-- did not permit -- did not forbid centralization of power in on person or in one party. 

Now, when you have that centralization the Bill of Rights can be disregarded, can be ignored it's just words on paper.  What makes us different is that we have a structure that decentralizes.  It pits, as our framers said, ambition against ambition.  Now one of the consequences of that is that sometimes they don't agree.  

You have different centers of power.  Most nations in the world don't have that; most nations do not have a genuine bi-cabinet legislature.  Most nations do not have a separately elected Chief Executive. 

When I go to Europe to talk about separation of powers, what I end up talking about is simply an independent judiciary, because the Europeans don't try to separate the two political powers; the legislature and the executive.  The Chief Executive is the creature of the legislature. 

Now when you have our system that disperses power, yeah, you have the two houses of Congress, they sometimes disagree and sometimes they're in the hands of different parties, you have a president with a veto power.  You know yeah it looks like gridlock and that's what the Europeans say it is grid -- it's what has saved us.  

It is precisely the difficulty of enacting legislation that the framers thought would be the principle protection for minorities.  If -- if --if this legislation is really going to come down on your minority, it doesn't take much to throw a monkey wrench into the system.  So, you know, yeah I guess there's such a thing as going too far, but I am not one of those who out of the box complains about gridlock.  Gridlock is what our system was designed for.  

Now, you say people don't complain about gridlock in the Supreme Court that maybe because we have to act.  I mean we can't just say, "Eh, you know, we haven't decided about this case so go away. "  No, I mean sooner -- sooner or later we got to vote and there -- and there it is.  

Congress doesn't have to do that.  So, I think that's the principle reason people don't accuse us of gridlock they accuse us of a lot of other stuff, but we decide cases. 

DUFF:  Well, Justice Scalia this has been a delightful morning with you.  I know your beginning the new term and I know how busy you are I regret we only have twenty minutes with you this morning.  It would be great to continue this but I'm being told in this little ear phone --

SCALIA: I see somebody waving at you back there.  


DUFF:  But this, we are most appreciative of your time and thank you for participating. 

SCALIA: I'm glad to be here.  



View the full session at

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