[Senate Hearing 112-137]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-137

  CONSIDERING THE ROLE OF JUDGES UNDER THE CONSTITUTION OF THE UNITED 
                                 STATES

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 5, 2011

                               __________

                          Serial No. J-112-46

                               __________

         Printed for the use of the Committee on the Judiciary










                                _____

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director













                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    42

                               WITNESSES

Breyer, Hon. Stephen, Associate Justice, The Supreme Court of the 
  United States, Washington, DC..................................     4
Scalia, Hon. Antonin, Associate Justice, The Supreme Court of the 
  United States, Washington, DC..................................     6

                       SUBMISSIONS FOR THE RECORD

Roberts, Hon. John, Chief Justice, The Supreme Court of the 
  United States, Washington, DC, September 28, 2011, letter......    44

 
  CONSIDERING THE ROLE OF JUDGES UNDER THE CONSTITUTION OF THE UNITED 
                                 STATES

                              ----------                              


                       WEDNESDAY, OCTOBER 5, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:34 p.m., in 
room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Feinstein, Durbin, 
Whitehouse, Coons, Blumenthal, Grassley, Sessions, Hatch, 
Graham, Cornyn, Lee, and Coburn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good afternoon. First, I just want to 
express my appreciation to both Justice Scalia and Justice 
Breyer for being back here in the Senate Judiciary Committee. 
Having been there for both your confirmation hearings, we did 
not have this great room at that time. I also want to thank all 
the students who are here. I know when I was at Georgetown Law 
School, I would have loved to have done something like this.
    We have scores of students and we have other Americans who 
are attending this hearing and following the proceedings over 
the Internet and on television who are interested in hearing 
what I hope is going to be a civic-minded conversation about 
the role of judges under our Constitution.
    I actually believe that such public discussions serve our 
democracy. As public officials, we owe it to all Americans to 
be transparent about what we do in our official capacities. We 
justify their trust by demonstrating how our Government works 
to uphold our common values, how we are guided by the 
Constitution, and how that Constitution has served over the 
years to make our great Nation more inclusive and more 
protective of individual rights in our continuing effort to 
become that ``more perfect union.''
    As the great Chief Justice John Marshall acknowledged many 
years ago, our Constitution is ``intended to endure for ages . 
. . and consequently, to be adapted to the various crises of 
human affairs.''
    In recent months, there has been renewed focus on our 
Constitution. Almost every week, I open the newspaper or see an 
electronic posting that involves some radical invocation of the 
Constitution that certainly differs from what I was taught at 
Georgetown Law Center many years ago. It could be someone 
suggesting that Congress should just get rid of dozens of 
judges if that strikes our fancy, or it might be the assertion 
that the three branches of our Federal Government are not of 
equal importance under the Constitution; or even the assertion 
that our fundamental charter was drafted solely to limit the 
Federal Government's ability to solve national problems. These 
comments show the need for more opportunities to increase 
understanding of our democracy. That is what gave me the idea 
to invite two of the Nation's leading jurists to speak with us 
today about the role that judges play under our Constitution.
    I know in the Court both Chief Justice Roberts and Justice 
Scalia have remarked that the fundamental genius of the 
Constitution is its separation of powers. The legislative, the 
executive, and the judicial branches each have different powers 
and are limited or checked by the other branches, and the three 
branches interact frequently. We recently observed the 222nd 
anniversary of Congressional enactment of the first Judiciary 
Act, which established both the Supreme Court and the Federal 
judiciary. We in the Senate have an obligation to provide our 
advice and consent to the President to fill a growing number of 
judicial vacancies. And on this committee, we are working 
diligently to address the serious judicial vacancy crisis that 
the Chief Justice highlighted in his most recent annual report. 
And I thank the Senator from Iowa for his help in that regard.
    We have also worked to pass legislation recommended by the 
Judicial Conference of the United States in order to help the 
third branch operate fairly and efficiently. We also 
appropriated resources to fund the important work of our 
independent judiciary.
    The judicial branch, including the Supreme Court, decides 
cases to resolve controversies in accordance with the rule of 
law. It is called upon to interpret and apply statutes passed 
by Congress to specific disputes and to review acts of the 
other branches to determine whether those acts violate the 
Constitution. On rare occasions, court decisions can be 
overturned with legislation or with an amendment to the 
Constitution.
    Now, many of you remember that 4 years ago I invited 
Justice Anthony Kennedy to appear before this committee to 
discuss judicial security and judicial independence. It was a 
great day. That appearance renewed a tradition of Justices 
testifying before Congress on matters other than their 
appropriation requests, a tradition which included appearances 
by Chief Justice Taft and Chief Justice Hughes in the 1920s and 
1930s, as well as by Justice Jackson in 1941, among others.
    I would note that one of my friends said, ``Well, you 
probably remember those,'' and I assure you I do not. But, 
fortunately, the staff found it.
    Justice Kennedy recognized that the Supreme Court's rulings 
would be debated and criticized but noted ``that is the 
democratic dialog that makes democracy work.''
    In furtherance of that democratic dialog, the committee has 
held several hearings highlighting the significant impact of 
recent Supreme Court hearings on hard-working Americans. This 
has been an effort to raise awareness about the relevance of 
the Court's interpretations of laws that Congress enacted with 
the intent of protecting American workers, retirees, consumers, 
and small business owners.
    Today's hearing is designed to have a different focus. 
Rather than examining recent or upcoming decisions of the 
Supreme Court, which we will not, we will discuss the proper 
role that judges play in our democracy. In a time of increasing 
political rancor, some like to emphasize divisions as though 
they were between warring factions. Although the witnesses 
before us approach decisionmaking in many cases in different 
ways, I know as a personal matter they demonstrate a profound 
respect for each other. That is also the example that the 
ranking member and I have tried to achieve in our work together 
on this committee. The American people expect their Government 
to work for them, and that requires us to uphold our National 
values. We all need to work together to uphold the predictable 
rule of law where liberty and prosperity can thrive.
    Let me conclude with what Judge Learned Hand said: ``The 
spirit of liberty is the spirit which is not too sure that it 
is right; the spirit of liberty is the spirit which seeks to 
understand the minds of other men and women.'' That is this 
spirit that we open this with today, and again, I cannot tell 
you how much I appreciate both Justices for being here.
    I will yield to Senator Grassley, and then we can yield to 
the witnesses.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. Thank you, Mr. Chairman, for holding this 
very important hearing. I appreciate your efforts to secure the 
testimony of our distinguished witnesses. This hearing will be 
an enlightening experience in which we will discuss the role of 
judges in our constitutional system. And, of course, this is a 
question as old as the Constitution itself, and it will always 
be debated.
    I welcome each of our witnesses, and for you, Justice 
Breyer, you ought to feel right at home here since you served a 
long time as Chief Counsel of this committee. I remind you of 
your statement in your recent book, ``Criticism of judges and 
judicial systems''--no, let me start over again.
    Chairman Leahy. Yes, you have to get it right.
    Senator Grassley. ``Criticism of judges and judicial 
decisions traces back to our founding. It is a healthy thing in 
a democracy.'' I hope you will feel that way at the end of the 
hearing.
    Senator Grassley. Justice Scalia, I am also glad to see you 
here today. As Judge Posner recently remarked, you have ``a 
real flair for judging.'' That is an understatement, as I see 
it. You as much as anyone have strongly advanced the 
traditional views that a judge's role under the Constitution is 
to interpret the law according to the text.
    For my own part, I believe that the role of judges under 
the Constitution is an important but limited one. Unless the 
Constitution provides otherwise, the people through their 
elected representatives govern themselves.
    In determining the meaning of the Constitution, judges are 
to apply the intent of the Framers since that is the extent of 
the limitation on self-government that the people have agreed 
to impose on themselves.
    When judges change the meaning of the Constitution and 
create new rights or grant Government powers that it was not 
intended to have, they reduce the right of people to govern 
themselves through the representative government process. 
Historically, these are the circumstances in which judges and 
their decisions have been fairly criticized.
    It is rare for sitting Supreme Court Justices to appear 
before the Senate Judiciary Committee, so I thank both of you 
for sharing with us.
    Thank you very much.
    Chairman Leahy. Thank you. You know, these two 
distinguished jurists have a lot in common. Both received their 
law degrees from Harvard. Both serve as Associate Justices of 
the Supreme Court. Prior to their confirmation by the Senate, 
both were well-respected administrative law scholars. They are 
both elevated from positions on the Federal appellate bench. 
Justice Breyer served in the First Circuit; Justice Scalia, on 
the D.C. Circuit. Actually, I am probably one of the few here 
who had a chance--I voted for both of you on the circuit court 
and both of you on the Supreme Court, and I was there for the 
hearings both times.
    Now, despite their different perspectives on constitutional 
interpretation, they were confirmed by a whopping margin. In 
the past, they have agreed on the importance of precedent, 
judicial independence, and respect for democratic 
decisionmaking. Justice Breyer has been on the Supreme Court 
for 17 years; Justice Scalia, a quarter of a century. And I 
understand--we left it up to you who you wanted to go first, 
and I just got the word from Justice Scalia, and in case I ever 
have to practice law again, I am listening. So Justice Breyer 
goes first. Is your microphone on?

   STATEMENT OF HON. STEPHEN BREYER, ASSOCIATE JUSTICE, THE 
       SUPREME COURT OF THE UNITED STATES, WASHINGTON, DC

    Justice Breyer. We both agreed I would go first to 
introduce the question as we see it. And we are both very glad 
to be here; I particularly because I did work here, which I 
loved, but also because you have invited high school students, 
college students, law school students, and we both talk to 
those groups of students a lot, and we want to do that. And the 
reason we do in special part is because there is a lot of 
skepticism and cynicism about Government in the United States. 
And I will say to the students, I understand that, and probably 
some of that is justified. But if there is too much of it, 
well, the Government just will not work, because you are part 
of the Government, and if you are not going to be part, we do 
not have a Government. That is what I want to tell them.
    Now, how can I tell them that, how can I do my bit on this? 
I am a judge. You know, I do not run for office. It is hard to 
get people's attention on a general question like that. But my 
bit consists of trying to explain my institution. What is it I 
do? What is it that Justice Scalia does? What do we do every 
day? What do we do that affects those students and that they 
will have to understand and explain to their parents and to 
others?
    The way I put the question--and this is really all I am 
going to say first, is how I think of the question. And I think 
from my institutional point of view; I want to tell people why 
maybe they would give our institution support.
    Suppose I have the attention of a man or a woman who is 
going into a supermarket. Now, it is tough to get their 
attention. That woman stays pretty busy. They may have two 
jobs. They may have a growing family. They have bills coming in 
every month. And they do not have too much time to listen to 
judges.
    But suppose I get their attention on this question for just 
a few minutes. What would I say? The first thing I would say is 
the question. I would say I have tell you what the question is. 
The question is this: The nine of us are not elected, but we 
live in a democracy, and we do decide matters that will affect 
you. So why should nine people who are not elected have that 
authority?
    And it is worse than that, because if you look at why 
Hamilton gave us the power and why the Founders gave us the 
power to set aside a law of Congress as contrary to the 
document, the Constitution--read Federalist 78. Well, you know, 
she may be asleep by this time, but I have to get her 
attention. In Federalist 78, here is what he says.
    He says, first, look at the document. It is a great 
document, and it is. But if nobody is going to say when anybody 
else goes beyond its boundaries, let us hang it up in a museum. 
Let us put it in the National Gallery. He actually did not say 
the National Gallery because it was not built at that time, 
but, nonetheless, you understand the point. He said somebody 
should have that power. Who? The President? Since the President 
has an awful lot of power, he could become a tyrant with that 
as well.
    Well, what about Congress? Congress is elected. He said, 
yes, that is the advantage, but that is also the problem, 
because Congress will have just passed a law because it is 
popular. This document gives the least popular person in the 
United States the same rights as the most popular. Are you sure 
Congress, having just passed that law, will turn around and say 
it is unconstitutional when it is very unpopular to do so?
    But here we have some judges. They are sort of bureaucrats. 
Nobody knows who they are. Fabulous. This has something to do 
with law, doesn't it? And they do not have the power of the 
purse, and they do not have the power of the sword. Wonderful. 
They do not have much power. And, in addition, they are sort of 
judges, and it is not Congress and not the President. And he 
stops there.
    So I say, ma'am or sir, we are not elected. We are supposed 
to decide things that are unpopular on some occasion. And you 
know what? Do not tell anyone. We are human beings, and we may 
be wrong. Indeed, when I am in dissent, I do think the majority 
is wrong, and so does Justice Scalia. And we cannot both be 
right if we are on opposite sides.
    So there we are--unelected, doing unpopular things, and 
quite possibly wrong. Why should you ever give us your support? 
And that is the question. And I get that question not just from 
people in supermarkets, not just from students or their 
teachers. I get that question from people all over the world. 
They are judges at our Court that come to visit. They are Latin 
American judges or Asian judges. There was a woman who was 
Chief Justice of Ghana, and she posed that very question. She 
said, ``Why do people do what you say? ''
    You know, they have Henry IV over here. It is sort of 
Hotspur's question. Hotspur says, ``I can call spirits from the 
vasty deep.'' Or Glendower says that. And Hotspur says, ``Why, 
so can I, or so can any man; But will they come when you do 
call for them? '' And to answer that question, I have to give a 
little synopsis of history. But all I was doing in these 4 
minutes was sketching out the question, and then I will turn to 
my colleague who can address that or anything else he would 
like.
    Chairman Leahy. Justice Scalia.

   STATEMENT OF HON. ANTONIN SCALIA, ASSOCIATE JUSTICE, THE 
       SUPREME COURT OF THE UNITED STATES, WASHINGTON, DC

    Justice Scalia. Thank you, Mr. Chairman, members of the 
committee. I am happy to be back in front of the Judiciary 
Committee where I started this pilgrimage.
    I am going to get even more fundamental than my good friend 
and colleague. Like him, I speak to students, especially law 
students but also college students and even high school 
students, quite frequently about the Constitution because I 
feel that we are not teaching it very well. I speak to law 
students from the best law schools, people presumably 
especially interested in the law, and I ask them: how many of 
you have read the Federalist papers? Well, a lot of hands will 
go up. No, not just No. 48 and the big ones. How many of you 
have read the Federalist Papers cover to cover? Never more than 
about 5 percent. And that is very sad, especially if you are 
interested in the Constitution.
    Here is a document that says what the Framers of the 
Constitution thought they were doing. It is such a profound 
exposition of political science that it is studied in political 
science courses in Europe. And yet we have raised a generation 
of Americans who are not familiar with it.
    So when I speak to these groups, the first point I make--
and I think it is even a little more fundamental than the one 
that Stephen has just put forward--I ask them, what do you 
think is the reason that America is such a free country? What 
is it in our Constitution that makes us what we are? And the 
response I get--and you will get this from almost any American, 
including the woman that Stephen was talking to at the 
supermarket--is freedom of speech, freedom of the press, no 
unreasonable searches and seizures, no quartering of troops in 
homes, etc.--the marvelous provisions of the Bill of Rights.
    But then I tell them, if you think that the Bill of Rights 
is what sets us apart, you are crazy. Every banana republic has 
a bill of rights. Every president for life has a bill of 
rights. The bill of rights of the former evil empire, the Union 
of Soviet Socialist Republics, was much better than ours. I 
mean that literally. It was much better. We guarantee freedom 
of speech and of the press. Big deal. They guaranteed freedom 
of speech, of the press, of street demonstrations and protests, 
and anyone who is caught trying to suppress criticism of the 
government will be called to account. Whoa, that is wonderful 
stuff.
    Of course, they were just words on paper, what our Framers 
would have called ``a parchment guarantee.'' And the reason is 
that the real constitution of the Soviet Union--think of the 
word ``constitution;'' it does not mean a bill of rights, it 
means structure. When you say a person has a sound 
constitution, you mean he has a sound structure. Structure is 
what our Framers debated that whole summer in Philadelphia, in 
1787. They did not talk about a Bill of Rights; that was an 
afterthought, wasn't it? The real constitution of the Soviet 
Union did not prevent the centralization of power in one person 
or in one party. And when that happens, the game is over. The 
bill of rights becomes what our Framers would call ``a 
parchment guarantee.''
    So the real key to the distinctiveness of America is the 
structure of our Government. One part of it, of course, is the 
independence of the judiciary, but there is a lot more. There 
are very few countries in the world, for example, that have a 
bicameral legislature. England has a House of Lords for the 
time being, but the House of Lords has no substantial power. It 
can just make the Commons pass a bill a second time. France has 
a senate; it is honorific. Italy has a senate; it is honorific. 
Very few countries have two separate bodies in the legislature 
equally powerful. It is a lot of trouble, as you gentlemen 
doubtless know, to get the same language through two different 
bodies elected in a different fashion.
    Very few countries in the world have a separately elected 
chief executive. Sometimes I go to Europe to speak in a seminar 
on separation of powers, and when I get there, I find that all 
we are talking about is independence of the judiciary. Because 
the Europeans do not even try to divide the two political 
powers, the two political branches--the legislature and the 
chief executive. In all of the parliamentary countries, the 
chief executive is the creature of the legislature. There is 
never any disagreement between the majority in the legislature 
and the prime minister, as there is sometimes between you and 
the President. When there is a disagreement, they just kick him 
out. They have a no-confidence vote, a new election, and they 
get a prime minister who agrees with the legislature.
    You know, the Europeans look at our system and they say, 
well, the bill passes one House, it does not pass the other 
House (sometimes the other House is in the control of a 
different party). It passes both Houses, and then this 
President, who has a veto power, vetoes it. They look at this 
and they say, ``It is gridlock.''
    And I hear Americans saying this nowadays, and there is a 
lot of that going around. They talk about a dysfunctional 
Government because there is disagreement. And the Framers would 
have said, ``Yes, that is exactly the way we set it up. We 
wanted this to be power contradicting power because the main 
ill that besets us,'' as Hamilton said in the Federalist paper 
when he justified the inconvenice of a separate Senate, is an 
excess of legislation.'' This is 1787. They did not know what 
an excess of legislation was.
    So unless Americans should appreciate that and learn to 
love the separation of powers, which means learning to love the 
gridlock that it sometimes produces. The Framers believed that 
would be the main protection of minorities--the main 
protection. If a bill is about to pass that really comes down 
hard on some minority, so that they think it terribly unfair, 
it does not take much to throw a monkey wrench into this 
complex system.
    So Americans should appreciate that, and they should learn 
to love the gridlock. It is there for a reason: so that the 
legislation that gets out will be good legislation.
    And thus I conclude my opening remarks.
    Chairman Leahy. You may not get total unanimity on the 
issue of gridlock, but I found listening to both of you to be 
fascinating. I made a little note to myself. Everything that 
might go wrong this week, and all of this makes up for it, just 
having both of you here. So I do appreciate that.
    Justice Scalia, the Court, of course, often reviews laws 
passed by Congress--and I apologize for the voice. It is an 
allergy. But when the Court reviews a law passed by Congress 
and you want to find out whether it comports with the 
Constitution, do you have a different standard if it was a law 
that passed by the slimmest of margins or if it is a law that 
passes overwhelmingly? And I will ask that question of both of 
you.
    Justice Scalia. No, sir. A law is a law. If it meets the 
requirements of the Constitution, having passed both Houses, 
and either being signed by the President or having been passed 
by two-thirds over his veto, it is a law. And what we do is 
law.
    Chairman Leahy. Justice Breyer.
    Justice Breyer. Yes. Yes, sir, I agree.
    Chairman Leahy. And, Justice Scalia, under our Constitution 
what is the role, if any, that the judges play in making 
budgetary choices or determining what is the best allocation of 
taxpayer resources? Is that within their proper role or is that 
somewhere else in the----
    Justice Scalia. You know it is not within our proper roles, 
Mr. Chairman. Of course it is not. Of course it is not.
    Justice Breyer. It is a worthwhile question for this 
reason: When we try to talk about this document in general, 
what I say--and he will have some version of it--is: What does 
this document do, the Constitution? I cannot tell you in one 
word, but I can tell you in about five. It creates a structure 
for democracy. That is the first part. That is the whole seven 
articles. It is a structure so people can make their own 
decisions through their representatives and decide what kind of 
cities, towns, States, and Nation they want. But it is a 
special kind of democracy. It guarantees basic and fundamental 
rights. It assures a degree of equality. It does, as Justice 
Scalia has emphasized, separate power, both vertically, state, 
federal, and horizontally, three branches, so no group of 
government officials can become too powerful. And it insists 
upon a rule of law. So now we have five basic things, and I 
tend to think the rest of it elaborates those five basic 
points, and I think probably Justice Scalia and the others, we 
are not in disagreement at that level. Very rarely.
    So what people do not understand very often are given those 
broad boundaries in this democratic process, we are the 
boundary patrol. There used to be some kind of radio program 
called ``Sky King of the Mounties'' or something. It was 
something like that.
    Chairman Leahy. I think it was before my time.
    Justice Breyer. But, look, it said----
    Justice Scalia. It was Sky King, and Sergeant Preston of 
the Mounties.
    Justice Breyer. Sergeant Preston of the Yukon, that is it. 
The Yukon. It was cold. It is on the boundary. It is very cold. 
Life on the boundary is tough. And we are in a sense the 
boundary patrol, and those issues are very tough. Is the choice 
inside, outside? What about prayer in schools? What about this 
or that? There are two sides to these questions. They are tough 
ones. And what people forget is just what you were emphasizing 
with the budget question, that inside those boundaries there is 
a vast democratic space where it is up to the average American 
to decide what kind of cities, towns, State, and Nation he or 
she want. And those decisions are not ours. All we can say, 
with a forum like this, is please participate in that 
democratic decisionmaking, which is not our institutional job.
    Chairman Leahy. With the smile on Justice Scalia's face 
when I asked the question, I think he was probably anticipating 
some of the next questions, and so I will start first with you, 
Justice Breyer. In your book, ``Making Democracy Work,'' you 
describe how the court system relies on public confidence 
because it has neither the power of the purse nor the sword, as 
you both alluded to earlier. And so then people ask, well, is 
the rule of law predictable? Because Americans rely on certain 
programs and so forth. Do you feel the public's confidence is 
affected when judges overturn longstanding precedent when there 
is settled expectation if they have something that people 
relied on for generations and then suddenly it is overturned? 
What does that do with public confidence? And what does that 
for the rule of law? You have neither the purse nor the sword. 
You have, however, a question of what confidence the American 
public has. So, Justice Breyer, do you want to try that first?
    Justice Breyer. On that I think there is no definite 
answer. You want to say never--what you give is reasons against 
overturning something or strong reasons. But Plessy v. 
Ferguson, which said separate but equal, should have been 
overturned, and Brown v. Board of Education, which said no more 
racial discrimination, was absolutely right to overturn it. So 
I think your advice is good. It means that the judge has to 
remember not too much, not too fast, not too often, be careful, 
people have relied on formal law. But you cannot say never.
    Chairman Leahy. Justice Scalia.
    Justice Scalia. Yes, I think part of the jurisprudence of 
my Court and all Federal courts is stare decisis. It is not an 
absolute rule, but it is a subject that should be given careful 
attention. And all Federal courts have given stare decisis very 
much more weight in statutory questions. It is very rare that 
my Court would overrule a prior decision on a statutory point, 
the reason being if we got that wrong, you can fix it. You can 
amend the statute. But when we get something wrong with respect 
to the Constitution, there is nobody that can fix it unless you 
are going to go through the huge trouble of enacting a 
constitutional amendment.
    So throughout our history, there has been a rule of stare 
decisis, but beginning with the Marshall Court, it has been 
less strict in constitutional questions than it is in statutory 
questions, and I think that is as it should be.
    Chairman Leahy. Well, and, of course, it is easier for the 
lower courts if there is a binding--the district courts, if 
there is a binding circuit court opinion, and for the circuit 
courts, if there is a binding Supreme Court opinion. But the 
buck really stops with you, with you nine.
    Now, you talk about amending the Constitution. We have 
obviously amended it. The 13th Amendment got rid of the stain 
of slavery. Nobody could think of that, having now a 15th, 
racial discrimination; the 19th, giving women the right to 
vote; the 24th, young adults and so on.
    Justice Scalia, I have read some of your works, and I hope 
I am paraphrasing you correctly. We should not mess with the 
Constitution by amending it. Since I have been here in the 
Senate, I have seen probably 1,500 to 2,000 constitutional 
amendments that have been proposed. It is probably even more 
than that. You get them from things that I think a board of 
aldermen in a small town would not have thought of doing 
because it was so ridiculous. And some have serious issues. But 
is it in our country's interest to be tampering with the 
Constitution if that can be avoided?
    Justice Scalia. Well, no. This is another respect, by the 
way, in which we differ from most of the countries of the 
world. Many foreigners cannot understand our affection for the 
Constitution. It is no big deal to amend the constitution in 
most of the countries of the world. In most of them, all you 
need is to have the legislature, a unicameral legislature, pass 
the amendment. Then there has to be an intervening election. 
And then they have to pass the amendment again.
    Chairman Leahy. But their constitution is almost like a 
statute.
    Justice Scalia. It is almost like a statute except that it 
has to be passed twice with an intervening election.
    Chairman Leahy. Sure.
    Justice Scalia. Ours is very much more difficult to amend. 
And you are right, I have said that that is a good thing. 
Indeed, I have said that the only provision I am sure I would 
think about amending is the amendment provision because that 
sets a very, very high bar. But that is not going to happen, so 
I am not worried about it.
    Chairman Leahy. Justice Breyer, my time has run out, but 
would you like to respond on that, too?
    Justice Breyer. I tend to agree with that.
    Chairman Leahy. It is going to surprise the rest of the 
Court to find out how much you two----
    Justice Breyer. Look, we are unanimous in our Court 40 
percent of the time. Our 5-4's are about 20 to 25 percent and, 
surprisingly enough, it is not always the same 5 and the same 
4.
    Justice Scalia. And you should be suspicious if we do not 
have a lot of 5-4 decisions, because the main reason we take a 
case is that there is a circuit conflict below--that is, very 
good Federal judges who have been appointed the same way 
Justice Breyer and I were appointed have disagreed. So you 
would smell something wrong if there are these disagreements 
below and the Supreme Court always comes out 9-0 one way or the 
other. You should expect a lot of 5-4 decisions.
    Chairman Leahy. Thank you.
    Senator Grassley.
    Senator Grassley. I will start with Justice Breyer, a 
couple questions based upon a recent C-SPAN interview that you 
had. You remarked that although judging is not entirely about 
politics, you would ``not say zero politics never.''
    Justice Breyer. That is one of the hardest things to 
explain, and that is part of what I have written about in this 
book. I think there are two great questions that I want to get 
across to the audience, if it is high school, college, law 
school particularly.
    First is the one we mentioned. When you call them, will 
they come? Why is it that Americans over the course of 200 
years have begun to have responded to the Supreme Court? And 
there are some good stories on that, but I put that to the 
side.
    The other thing I put this way: I say I know you are being 
very polite, but I also know a lot of you are thinking this. 
You are thinking in those tough 5-4 cases that we really are 
junior league politicians. And I say that would be ridiculous. 
For one thing that is not the job. Didn't Hamilton give us the 
job because he thought we would not be politicians?
    And, second, read a case like Dred Scott, one of the worst, 
probably the worst ever. There the most you can think of why 
they were doing this is they were trying to act like 
politicians. But judges are terrible politicians. If you wanted 
to give this job to politicians, give it to Congress. I mean, 
we know nothing of--we are not--all right, in any case.
    So how do I explain it? I explain it this way. I say in the 
17 years since I have been a judge, do I see a decision turn on 
political considerations? I did work in this Committee. I have 
an instinct that politics consists of who has got the votes. Is 
it the Democrats or the Republicans? Who is popular? Who is 
going to win the election? And in that sense, I have to say my 
answer is never. And I know you will think of this case or that 
case where you think that is wrong. I'd need an hour to explain 
it to you, but I think I could bring you around.
    What about ideology? Ideology. Are you, you know, an Adam 
Smith free enterpriser? Are you a Marxist, Maoist troublemaker? 
You know, what is good in general for the world? I say if I am 
thinking of it that way, I know I am doing the wrong thing. But 
I can tell you, there is a third thing. I was born in San 
Francisco. I went to Lowell High School, a public high school. 
I went to the university out there. I have lived the life I 
have led. And by the time you have 40 or 50 years in any 
profession, you begin to formulate very, very general views. 
What is America about? What are the people of America about? 
How in this country does law related to the average human 
being? How should it?
    At that level of generality, people may have somewhat 
different outlooks, and there is no way that those different 
outlooks can fail to influence them some. And is that a bad 
thing? No. I think it is a good thing. This is a very big 
country. We have 309 million people, 308 million of whom, to 
everyone's surprise, are not lawyers. And they have many 
different views, and it is a good thing, not a bad thing, that 
people's outlook on that Court is not always the same. And by 
outlook, I mean those very, very basic ideas of judicial 
philosophy, if you like, or about the country and its people 
and about the law and how judges are there to act and what they 
are to do and what not. So that is what I meant by that word 
there.
    Senator Grassley. Okay. And I will start with Justice 
Scalia on my second question. Why would it ever be appropriate 
for American judges to consider foreign law in interpreting the 
meaning of the United States Constitution? And Justice Breyer 
can respond as well.
    Justice Scalia. Senator, I am afraid we are getting beyond 
what I had planned to discuss with you gentlemen, the role of 
the courts, and we are getting into the manner in which the 
courts go about deciding their cases. And I have a view on 
that, and Justice Breyer probably has a different view. But I 
have not prepared any testimony on that, and I would rather 
pass. Of course, it is an issue, and I think my views on that 
issue are known. But that is not the level of--what should I 
say?
    Senator Grassley. Let us move on then.
    Justice Scalia. Okay.
    Senator Grassley. To both of you, discussing the Supreme 
Court, Justice Brandeis stated, ``The most important thing that 
we do is doing nothing.'' To what extent do each of you agree 
with that?
    Justice Breyer. It depends on the case. It is important, 
yes. I do not know if it is the most important. I am not sure 
what he was thinking of.
    What do you think?
    Justice Scalia. Well, yes, I think the normal state of 
things is rest. Leave things alone unless there is reason to 
change.
    I served in the executive branch for a while, and when I 
was there, there was something that came to be known as the 
``Moscow option,'' which sounded, you know, like CIA stuff. It 
was named after a fellow named Mike Moscow, who was one of the 
President's assistants, and he observed that whenever action 
memos went in to the President, they always gave the President 
three options: number one: Do X; number two: Do the opposite of 
X; and, number three: Do what whoever wrote the memo wanted, 
which is somewhere between X and the opposite of X. And Moscow 
noted that you will never see among the options number four: Do 
Nothing. And that that very often is the right answer.
    But it is certainly the case for courts. Do not make waves 
unless there is a reason for a change. Unless what the Congress 
has done or what an agency has done is wrong, you leave it 
alone.
    Justice Breyer. What your question brought to my mind was 
something in Tocqueville, which is really--you know, I like the 
students to read Tocqueville, too, because it is amazing in 
1840 what he is writing, and you think, My God, he wrote it 
yesterday, about this country. And one of the things he says 
which really stuck is he says, ``Whenever I come to the United 
States, the first thing that strikes me is the clamor.'' Well, 
what is he thinking of? Everybody is screaming at each other is 
what he meant? And what he really meant is they are debating. 
They are talking about things; they are disagreeing. And he 
thinks that is good, and I do, too, because that is--you have a 
really tough problem sometimes. Let us imagine when you are 
trying to figure out some bill and it has to do with privacy 
and it has to do with free expression, and there are all kinds 
of tensions right there with the Internet and the new methods 
of communication and Twitter and Facebook or whatever they are 
and people's privacy, and you are more familiar with all those 
than I. How do we decide those in this country?
    I think the general word I use to talk to about that is the 
word ``bubbling up.'' The first thing that happens, people 
start to talk. They talk in newspapers. They talk in 
classrooms. They talk in articles. They talk in small groups. 
They talk with the policemen. They talk with the firemen. They 
talk with the civil liberties groups. They talk to everybody 
under the sun, and they begin to debate, and they get into 
arguments. Eventually it gets to you. You have hearings. You 
eventually decide maybe an agency should do it. Maybe we should 
have a statute. Maybe we change our mind five times. And 
eventually things will settle down.
    And what I say about my Court, it is really wonderful if we 
do not get involved until it settles down, because our only job 
is going to be to decide if what you decide is within the 
boundaries. And it is going to be a subject where we will know 
less about it than those Americans who have gone into it in 
depth, so be careful of intervening before this big debate, 
this clamor that Tocqueville is talking about, has a chance to 
take over, take effect, scream, change, try it on, try it off. 
And I think that is really the wisdom that underlies this view 
of do not decide too much too fast.
    Justice Scalia. We do a lot of nothing.
    Justice Scalia. I told you that the main reason we take a 
case is because there is disagreement below. But if there is no 
disagreement below, we do not get involved. We do not go 
prowling around looking for Congressional statutes that are 
unconstitutional. It is only when there is disagreement below 
that we take a case, with rare exceptions. If a lower court has 
found one of your laws to be unconstitutional, we will take 
that case even though no other court has held the opposite. But 
except for rare situations like that, we let sleeping dogs lie, 
which is the way one should live his life, I think.
    Chairman Leahy. Thank you.
    Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Justice Scalia, in your opening remarks you talked about 
how brilliant our system is, our Constitution, and the kind of 
disagreement it provokes and how difficult it is to get things 
done. That is the greatness of the American Constitution in 
contrast to so many other countries. And yet we are described 
now by people all over the country as dysfunctional, as unable 
to get anything done, and the level of dissatisfaction is up to 
about 88 or 90 percent now among the American people because 
they say we cannot get anything done, that the system does not 
work. How do you respond to that?
    Justice Scalia. Well, I suppose there is a point at which 
you do reach unbearable, dysfunctional gridlock. However, I 
think the attitude of the American people--and this is the 
point I was making--is largely a product of the fact that they 
do not understand our Constitution, that its genius is 
precisely this power contradicting power, which makes it 
difficult to enact legislation.
    It is so much easier to enact legislation in France or in 
England, but, you know, the consequence of that is you have 
swings from one extreme to another as the legislature changes. 
That does not happen that much here, largely because of the 
fact that, as a general matter, only laws on which there is 
general agreement will get through.
    So, I think that this is one of the reasons why we have to 
educate the American people, as we have not been doing for 
decades, about what our Constitution produces and what it is 
designed to produce.
    Justice Breyer. It is same problem Sandra O'Connor is 
always talking about. I mean, we are limited in what we can do, 
and probably you are, but she is out there non-stop trying to 
get civics restored to the high school curriculum. I mean, what 
do most people think about taking a case which we were just 
discussing? I bet if you did a survey, those who know anything 
about it would say, ``Oh, they sit up in that big building, and 
they just decide, `This would be an interesting subject. Let us 
decide it.' '' And that is very far from the truth. We have a 
system, as you have heard described.
    So what we try to do is talk to people. Annenberg does 
that, the foundation. They are in 55,000 classrooms. And Sandra 
and I, and sometimes Nino, have discovered that it is very 
useful to get a film taken of a case or something, of something 
in the past, and have us come and try and get it in the high 
schools. Vartan Gregorian is trying to do that with Carnegie. 
You have a very different institution, but you do try to 
communicate with the public quite a lot, and all I can say is 
it is probably harder for you than it is for us. But to get 
across the idea that the student today has to know how 
Government works, they have to know something about their 
history, and they have to be willing to participate, it is very 
easy to say, and it is very hard to get across.
    Senator Kohl. Gentlemen, as you know, you have the power to 
decide cases themselves, but your power is also to decide which 
cases you are going to hear. And you have some 8,000 
opportunities to make decisions every year on the cases you are 
going to hear, and last year you decided to hear 77 cases, 
which is just 1 percent or less than 1 percent.
    So what goes through your minds collectively when you 
decide on which 1 percent you are going to hear? And what do 
you say to the 99 percent who do not get heard?
    Justice Scalia. To the latter, we say, ``Denied.''
    Justice Scalia. But for the former, you are quite right; 
there ought to be some rules. It should not be random. It 
should not be whatever tickles my fancy. And that is why we 
have a general rule that unless there is a circuit conflict, 
you are wasting your time and your client's money to file a 
petition for certiorari. It is overwhelmingly likely that we 
will not grant it.
    It is not the case, I assure you, that we prowl about 
looking for an issue that we want to get up to the Court. I do 
not know any of my colleagues who behaves that way. I think 
they all have standards. Is there a circuit conflict? Is there 
a significant issue on which the lower courts are divided? And 
for the other cases--I am surprised the number of petitions is 
only 8,000. I thought it was up to 9,000 by now. And, by the 
way, when I first joined the Court, it was only 4,000. That is 
how much that has increased. So it is now a fairly large part 
of our job just deciding what we are going to decide. Every one 
of us looks at at least summaries of all 9,000 of those 
petitions.
    Justice Breyer. There are 150 a week in memo form that come 
into the office, and the originals are back there on my shelf. 
Now, I bet if we sat down tomorrow, the two of us, even though 
it is not part of your job, I will make an initial cut, and 
maybe it will be like 140 and 10, and I bet if we were there 
together, the cut that you would make would not be much 
different from the one I would make. It is interesting. Why? 
Because they sort of speak out.
    And the only other thing I will add is in the Conference--I 
know there are groups of lawyers who particularly would like to 
see us take more cases, and the people who would like to take 
more cases in a sense is us. When Sandra was on the Court--and 
I think she has said this publicly, ``We have got to get more 
cases here.'' Nobody is making an effort to take fewer. That is 
not the attitude in the Conference. The attitude in the 
Conference is there is a split, let us take it, we have room, 
we have room to hear more. Nobody is thinking that there is not 
the room.
    Senator Kohl. Well, let me just respectfully disagree, and 
perhaps you can respond. When you came on the Court in 1987, 
you heard 277 cases that year. And when you came on the Court, 
Justice Breyer, that year you heard 105 cases. Last year you 
heard 77 cases. So I do not understand.
    Justice Scalia. Senator, we never heard 277. When I came on 
the Court, I think we were deciding about 150. And I will tell 
you, I do not think we can decide 150 well. If you go back and 
look at our opinions in those days, and you read an opinion in 
which the majority opinion and the dissent are like ships 
passing in the night--they never quite meet each other--you 
turn to the first page and will find that it is a June opinion. 
The month when we were rushing out opinions at the end of the 
term. I do not think we can do 150 well. I think we could do 
100 well. And, frankly, I am probably voting to take some cases 
that I would not have voted to take 10 or 15 years ago.
    But it is not as though we sit down at the end of the year 
and say, Okay, let us take 75 cases, let us pick the best 75. 
That is not what happens. They trickle in week by week, and we 
vote on the ones that week that seem worth taking. And at the 
end of the term, they have added up to whatever they have added 
up to.
    If my standards have changed, it is only because I am 
trying to take more rather than trying to take less. I suspect 
that the major reason for the decline is that when I first came 
on the Court, there was a lot of really breathtakingly 
important new legislation--a new bankruptcy code, Title VII, 
ERISA. In the last 10 years, there has been very little 
legislation of that magnitude. The major generator of circuit 
conflicts below is new legislation because it always has some 
ambiguities that have to be decided by the courts. So where 
there has not been a whole lot of major new legislation, you 
would expect our load to go down.
    Justice Breyer. I agree with that. But it is just a theory. 
We have not measured. But every word in a bill is an argument. 
Every word you pass, there are lawyers who can debate. And so 
if a lot of legislation is passed, then I think with a 5- or 
10-year lag, you will suddenly see a lot of cases in the 
Supreme Court. And if you go 5 or 10 years and there is less 
legislation passed, fewer words, you will discover a diminished 
number of conflicts among the circuits.
    When you passed the habeas law, then go back 2 or 3 years 
and suddenly you will see lots of habeas cases coming up to 
that. And the same is true with IIRIRA, the immigration thing. 
So you are now passing laws with thousands of pages, not 
budgetary laws but laws, you know, that are likely to come to 
us. My guess is with the lag that caseload will start going up.
    Senator Kohl. Thank you.
    Chairman Leahy. We are about to go to Senator Hatch, and I 
have been sitting here trying to resist temptation, and I will 
not. When you mentioned from Henry IV the discussion of 
Glendower, you have that in your book, and I noticed it earlier 
when I was going through your book. It is one of my all-time 
favorites quotes, usually to express exasperation somewhere.
    Senator Hatch.
    Senator Hatch. Well, thank you. I personally appreciate 
both of you being willing to do this. I think it is a very good 
thing. And I know that it is unusual for you, and so I am 
grateful to the Chairman for calling this particular meeting. 
And I am particularly grateful to both of you. You both have 
been great Justices. You have been on the Court for a long 
time, and you have decided a lot of important cases, and we now 
have this year, it looks like, a docket that is going to be 
pretty doggone important compared even to past years. Let me 
just say this----
    Justice Scalia. You sound happy about it, Senator. I am not 
sure I am.
    Senator Hatch. Well, I am very happy. I want you working 
really hard, Justice Scalia.
    Senator Hatch. And you, too, Justice Breyer. I have great 
hope for you. There is no question about that.
    Senator Hatch. No, I remember when you were here on the 
Committee. You were a terrific chief of staff for Senator 
Kennedy, and you meant a lot to us then, and you mean a lot to 
us now.
    Let me just say, when Federal judges construe our statutes, 
they try to figure out what we meant by what we said. 
Legislators on both sides of the aisle would object if judges 
changed the meaning of the statutes we enact. And as you know, 
we even differ on that. But who knows? We might even hold a 
hearing about it. You never know.
    But the point is that even if we do not express clearly 
what we mean, it is still our meaning that counts. Should the 
basic approach be any different when judges interpret the 
Constitution? In other words, if statutes do not mean 
whatsoever judges say they mean, how can the Constitution mean 
whatever judges say it means?
    Justice Breyer. In a sense the answer is it should not when 
I have a statute. I think all judges when they have a text and 
the text is not particularly clear or there are questions, they 
all have the same weapons. You read the text. You look at the 
history. You look to the traditions around the words. Say it is 
habeas corpus. A lot of tradition there. You look to the 
precedents. You look to what I would call the purposes or the 
values. And you look to the consequences read in terms of the 
purposes or values.
    So if I have a statute, the first thing I want to know is 
somebody wrote that statute. These words may be hard to figure 
out what they mean one way or the other, but somebody had 
something in mind in Congress, and I want to find out what that 
is and I want to stick to it.
    Now, when you are talking about the Constitution because 
there are words like ``liberty,'' or because there are words 
like ``freedom of speech,'' ``the freedom of speech,'' it is 
not so much purposes that I would use to describe that. I would 
describe that as basic values. And I think those basic values 
that were enacted in the 18th century have not changed, or at 
least not much. The values are virtually eternal, but the 
circumstances change.
    So I say, you know, sometimes when we discuss this, which 
Justice Scalia certainly knows and agrees with, George 
Washington did not know about the Internet, and a lot of our 
job is to apply the values that are there in the Constitution, 
which really do not change, or at least not much, to 
circumstances that change all the time, every 5 minutes. And 
that is not so easy to do.
    But put at the level you have put it at, which I think is a 
very good level, should we follow those purposes in terms of 
the values of the Framers? Absolutely yes. In terms of trying 
to apply it to situations that they did not foresee? Well, 
there I think you cannot do that. I think you have to figure 
out how those basic values apply to the world today, a world 
that is international and national in terms of commerce, in 
terms of the Internet, in terms of a thousand different things 
that face you every day. And then how much emphasis you give to 
what in trying to answer that question is a matter that 
sometimes divides judges. But the need to answer it I think is 
a matter that unites them.
    Justice Scalia. I do not agree with most of that.
    Justice Scalia. In fact, I hate to say this, but I am not 
sure I agree with the premise that our object is to figure out 
what Congress meant. I think our object is to figure out what 
the law says. If Congress meant one thing but enacted a law 
that says something else that is promulgated to the people, I 
am bound to apply the law. That is what it means to have a 
Government of laws, not of men. And that is why I do not use 
legislative history. (I am glad Senator Grassley is gone 
because I think this is one of his pet peeves.) That is why I 
do not use legislative history, but Justice Breyer does. I 
think we are governed by laws, and when I approach a statute or 
the Constitution, I ask myself, What do these words mean to the 
people to which they were promulgated? And once I figure that 
out, I can sleep at night.
    Senator Hatch. Well, I think it may take a few more years, 
but I am confident you will.
    Let me just say it is common today for people to evaluate 
judges and their decisions based on what people want judges to 
do or on whether they like a judge's decision. Both liberals 
and conservatives do that. I am looking for a more principled 
or objective job description for judges. You know, given the 
title of this hearing, does the Constitution itself offer 
anything to help define the role of judges? And is there some 
practical, concrete guidance we can draw from the Constitution 
itself as a way of defining what judges are supposed to do? 
Justice Scalia?
    Justice Scalia. Do you want me to start?
    Senator Hatch. Sure.
    Justice Scalia. Boy, that is a hard problem. Your intro 
suggests a point that I wanted to make to the Committee. One of 
the difficult things about the job that Steve and I have is 
that we are criticized in the press for our opinions, but 
cannot respond to press criticism. That is just the tradition. 
But usually the criticism in the press and the reaction of the 
public to the opinion has nothing to do with the law. If they 
like the result, it is a wonderful opinion and these are 
wonderful judges. And if they dislike the result, it is a 
terrible opinion. They do not look to see what the text of the 
statute is that was before us and whether this result is indeed 
a reasonable interpretation. None of that will appear in the 
press reports, which will just tell you who the plaintiff was, 
what the issue was, and who won. And if you like the result, it 
is a great opinion. If you do not like it, it is terrible.
    That is just one of the disabilities we operate under, and 
that is one of the reasons we are not supposed to advert to 
whether the public likes our opinions or not. We are supposed 
to just go down the middle and interpret the text as we think 
it ought to be interpreted.
    Now, you are quite right that those who do not like one of 
our opinions will call it ``judicial activism.'' Judicial 
activism always consists of the Court's doing what you do not 
like it to do. I suppose there is----
    Senator Hatch. We understand that.
    Justice Scalia. I know that. I do not know any solution for 
it, Senator.
    Justice Breyer. There is not a solution. I mean, we are 
both judges. We have been judges for a while. We have a rough 
idea of what it is to be a judge, and we both know that what we 
are trying to do is apply the law and interpret the law. No one 
at that level disagrees.
    All right. But you say, well, how do you do that? And I 
think I can get a little more specific before I will find 
disagreement, and that is why I mentioned those things of 
reading the text. You know, if the text says fish, that does 
not mean carrot. A carrot is not a fish no matter what your 
intent. You have to follow those words, and it rules out a lot 
of things. So the words are there. And the history is there. 
And the tradition is there, and the precedent is there. And the 
purpose--it may be hard to find sometimes, but sometimes it is 
not. And the consequences, you do not know all of them, but you 
know some of them, and you said some evaluation in terms of 
those purposes, so we will try to do that.
    And Justice Scalia may place more weight on some of those 
things, and I will place more weight on purposes and 
consequences, but that is putting different weight on different 
parts of tools that we all have. And then when we get into the 
constitutional area, I might say, look, I am looking to values 
and how they apply today. And he might think he can find more 
in history. But I can see that. I am not going to say history 
is irrelevant. And I do not think he will say that sometimes 
you just do not find that much there. At least sometimes.
    And so it is a question of degree and so forth, but the 
bottom line for an appeals court judge--and it is a very useful 
bottom line--is you have to write an opinion, and that opinion 
is going to be based on reason. You cannot prove it. It is not 
logic. We are not computers. But I can honestly set forth my 
reasons for saying it is this way rather than that way. And he 
does the same. And one of the great things about dissenting 
opinions, if he writes a dissent or I write a dissent, he will 
read it, and I will read it, and I will respond, because I am 
not going to let him, put in quotes, ``get away with that,'' or 
I am not going to let him--he has pointed out something, I do 
not know how that got in my opinion, I better change it. And so 
this strengthens the opinions, and ultimately they can be read 
by the public, and they are read by some of the public. And the 
strength there is in its reasoning tied back to the documents 
and tied back to this country and tied back to a lot of things. 
But there is the basis there for criticizing and for valid 
criticism and valid praise or blame of a particular judge. And, 
of course, we love it if people take the opinion at that level 
rather than responding simply to a press report. But I think 
pretty much that is what we see as the job.
    Chairman Leahy. You know, in some ways I feel like I am 
back in my favorite seminars in law school, which is a lot more 
fun than sometimes being in the Appropriations Committee or 
some of the other things doing this. But I do want to move this 
along--I have tried to give extra time to everybody--just 
because of the Justices' time.
    I will go now to Senator Feinstein. Just so we will know 
what the order is, I have received this from Senator Grassley 
on the Republican side. It will be Senators Graham, Cornyn, 
Lee, Coburn, and Sessions. On our side it is Senators 
Feinstein, Blumenthal, Durbin, Whitehouse, and Coons.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman, and 
thank you for holding this hearing, and, Justices, thank you 
very much for being here.
    I was looking at the faces in the audience, most of them 
young, all of them listening and interested. And I think really 
what it says is the respect that we have for the rule of law in 
this country and that that highest order of the rule of law 
rests with the authority that you have. And I for one am very, 
very proud of it and am always proud when I travel that America 
is represented by the distinction of this great Court.
    Now, I want to ask you something about the 14th Amendment, 
and if both of you could respond to it. It is simple. ``No 
State shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States; nor 
shall any State deprive any person of life, liberty, or 
property, without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the law.''
    Is a woman included within that definition?
    Justice Breyer. Yes. A woman is a person. I think that is 
well established.
    Justice Scalia. Yes, the issue is not whether a woman is a 
person. The issue is----
    Senator Feinstein. You know where I am going.
    Justice Scalia. The issue is what constitutes equal 
protection.
    Senator Feinstein. Yes, all right. Are women included?
    Justice Scalia. Yes, of course, they are included.
    Justice Breyer. Yes.
    Senator Feinstein. Well, let me ask you----
    Justice Scalia. But does equal protection mean that you 
have to have unisex toilets? I mean, that is the kind of 
question you have to get into.
    Senator Feinstein. Your quote, Mr. Justice, in California, 
``Certainly the Constitution does not require discrimination on 
the basis of sex. The only issue is whether it prohibits it. It 
doesn't. Nobody ever thought that is what it meant. Nobody ever 
voted for that. If the current society wants to outlaw 
discrimination by sex, hey, we have things called legislatures, 
and they enact things called laws.''
    So why doesn't the 14th Amendment then cover women in this 
respect?
    Justice Scalia. The 14th Amendment, Senator, does not apply 
to private discrimination. I was speaking of Title VII and laws 
that prohibit private discrimination. The 14th Amendment says 
nothing about private discrimination, only discrimination by 
Government.
    Justice Breyer. Yes.
    Senator Feinstein. Oh, I see. I see what you meant.
    Justice Scalia. Yes.
    Senator Feinstein. Okay. All right. If I can, let us go 
to--Justice Scalia, I think in the past you have advocated a 
constitutional interpretation called ``originalism'' in which 
the meaning of a constitutional provision is determined based 
on the provision's meaning in 1789. You have also said that 
Government, even at the Supreme Court level, is a practical 
exercise, and that--well, let me just say what I am trying to 
think. In other words, that the Constitution should be 
interpreted for its meaning at its origin. And, Justice Breyer, 
you have taken the position that the Constitution is a living 
document and, therefore, it adjusts to times and changes within 
the time period.
    Could each of you give us your legal interpretation of that 
and how you approach it?
    Justice Scalia. You start. I started last time.
    Justice Breyer. It is not quite as starkly different as it 
is sometimes painted.
    Justice Scalia. It is pretty different.
    Justice Breyer. It is pretty different. All right. I tend 
to think that the values, as I say, in the Constitution--you 
have to go back and find out those values. They have not 
changed a lot. The fact that freedom of expression was 
important in the enlightenment, it was. So was freedom of 
religion. So were a lot of those things. And those are the 
values that underlie the word ``liberty,'' et cetera.
    But in my own view, to use sort of a slightly rhetorical 
example, which I did, George Washington was not aware of the 
Internet. I think we agree on that. And so most of our job is 
applying those values which do not change very much to a world 
that changes a lot. And ``the freedom of speech,'' those words 
do not explain themselves. They do not tell you how they are 
going to apply to a really tough case where the Internet wants 
to communicate something that is private information about an 
individual. Which is it? The right of privacy or is it the 
right of expression that predominates there? Very hard.
    And so if I had to incorporate four words, I would go back 
to a judge who was in the 18th century--I found it in Gordon 
Woods' book--in Connecticut, near Rhode Island, but in 
Connecticut, who said--Root, I think his name was, and he said, 
``The American tradition of judging involves prudence and 
pragmatism, reasonableness and utility.'' Well, I think those 
are elements of an effort by a judge in a difficult case to 
work out how those ancient values apply to modern 
circumstances.
    Justice Scalia. I have no problem with applying ancient 
values as they were understood at the time to new modern 
circumstances. Originalism does not mean that the radio is not 
covered by the First Amendment. Of course, you have to apply 
the text of the Constitution to new phenomena. But what 
originalism suggests is that as to those phenomena that existed 
at the time, the understanding of the society as to what the 
Constitution prohibited at that time subsists. Take for 
example, the death penalty. Now, there are good arguments for 
and against the death penalty. Is it prohibited by the Eighth 
Amendment? For an originalist the answer is easy: Of course it 
is not because it was the only penalty for a felony when the 
Eighth Amendment was adopted. Nobody thought that the death 
penalty was prohibited. It continued to be used in all the 
States. Nonetheless, I have sat with four colleagues, all off 
the Court now, who thought the death penalty is 
unconstitutional. That is the difference, essentially, between 
a living Constitution approach and an originalist approach. 
When I apply the text of the Eighth Amendment, I apply it as it 
was understood by the people who adopted it. What they thought 
was prohibited is still prohibited, and forms the basis for 
assessing the Amendment's appliction to new phenomena. Since 
hanging was not considered cruel, for example, execution by 
lethal injection it surely not.
    That is the basic difference between originalism and the 
living Constitution. I do not trust myself to be a good--what 
should I say? A good interpreter of what modern American values 
are. You people are much better at that than I am. I have very 
little contact with the American people, I am sorry to say. You 
do, and the Members of the House probably even more. So if you 
want to keep the Constitution up to date with current American 
values, you ought to decide what it means and you could, you 
know, kiss us goodbye.
    Senator Feinstein. Thank you.
    Justice Breyer. I would add one thing, that we have this 
discussion from time to time in public. We have had it before. 
It is very interesting, I think. I do not know if the audience 
thinks so. And I have a lot of good arguments and 
counterarguments. But I cannot resist asking him to make what I 
think is one of his best arguments, because it is so funny.
    Justice Breyer. When I produce really, really very good 
arguments, I think, he responds with a joke.
    Justice Scalia. Not the bear?
    Justice Breyer. Yes, the bear.
    Justice Scalia. What bear?
    Justice Breyer. He cannot remember his joke. This is what 
his joke is.
    Justice Breyer. Every time I think I have really got very 
good arguments here, what he says, ``Well, it is like the two 
hunters,'' his view about what I say.
    Justice Scalia. Oh, Okay. I will tell it.
    Justice Scalia. There are those people who are always 
criticizing originalism because it is not perfect. You know, 
you have to figure out history and whatnot, and that is so 
difficult. And my point is I do not have to show that 
originalism is perfect. I just have to show that it is better 
than anything else. And the story to exemplify that point is 
about the two hunters who are out in the woods in their tent, 
and there is growling in the brush near them. And they open the 
tent flap, and there is a huge grizzly bear, and they start 
running. And the guy who is a little heavier and is running 
behind, says, ``It's no use. We are never going to outrun that 
bear.'' And the guy who is running in front says, ``I do not 
have to outrun the bear. I just have to outrun you.''
    Justice Scalia. It is the same thing with originalism. I 
just have to show it is better than his theory.
    Chairman Leahy. Justice Scalia, you remember my son, Mark, 
who used to play, when he was 8 or 9 years old, soccer with 
your son. We used to stand sometimes on rainy Saturday mornings 
watching these games. Then he went into the Marine Corps. One 
of his Marine buddies ran a marathon through a game park in 
South Africa with lions roaming around. He remembered that. He 
used your line.
    Chairman Leahy. And I must admit, in 35 years on this 
Committee, this is the most unique discussion we have had in 
the Committee.
    Senator Graham.
    Senator Graham. Thank you, Mr. Chairman. Yes, this is 
unique, and fun, too.
    Let us talk a little bit--there are some high school 
students out in the audience. How do you become a judge at the 
Federal level?
    Justice Breyer. Be appointed by the President of the United 
States.
    Senator Graham. Okay.
    Justice Scalia. There is an Irish saying, Senator: ``Good 
luck beats early rising.''
    Justice Breyer. Often on a recommendation of a Senator.
    Senator Graham. And from a politician's point of view, when 
you pick a judge, you make one ingrate and ten people mad at 
you. So it is a political decision under our Constitution? Is 
it fair, Justice Scalia, for a President to look at the 
philosophy of a person they would like to nominate to the 
judiciary?
    Justice Scalia. You know, I----
    Senator Graham. Who appointed you?
    Justice Scalia. Ronald Reagan appointed me.
    Senator Graham. Do you think it was an accident Ronald 
Reagan picked you?
    Senator Graham. Do you think he went through the phone book 
and said, ``Hey, this looks like a good guy''?
    Justice Scalia. The Europeans sometimes criticize our 
system because of the political appointment of judges. When you 
place the appointment in the President and in the Senate--
anything the President or the Senate touches becomes political. 
It should be political.
    Senator Graham. And to any high school student out there, I 
think it should be. And we are going to have an election in 
2012, and one of the issues will be what kind of judges will 
you pick if you get to be President of the United States.
    Justice Scalia. There is nothing wrong with that.
    Senator Graham. As a matter of fact, I think it is healthy 
for the public to say, ``When I vote, the Supreme Court does 
matter''--the lady at the supermarket--''I really should think 
about who I am voting for because the Court does have a lot of 
power, and I am going to consider that.'' Is that Okay, Justice 
Breyer?
    Justice Breyer. Yes, but you have to keep a couple of 
things into account, and one is when you put on the robes, you 
take off the politics. And that is over and over. But that is 
not your--I am not going to disagree----
    Senator Graham. That is not where I am going, if you would 
just hang in there with me. Okay. So the whole idea that a 
Republican conservative would campaign on picking conservative 
judges is not only Okay, I think that is to be expected. Do you 
both agree with that? And a liberal Democrat----
    Justice Breyer. Well, here are my caveats. One, very often 
at any level of detail, Presidents have been disappointed. 
Teddy Roosevelt said of Oliver Wendell Holmes who in 3 months 
decided the opposite way on an antitrust case, he said, ``I can 
carve a judge with more backbone out of a banana.'' And 
Presidents are sometimes disappointed even at the level of 
general philosophy.
    Senator Graham. Absolutely.
    Justice Breyer. And that can happen. But as far as asking 
me in a way about the rest of it is I have said--I say this a 
lot, so I might as well repeat this joke because it has some 
point to it. When I am asked about the confirmation process and 
the nomination process, I remind people that I was the person 
who was nominated. I was not the nominating person. I was the 
person who was confirmed. I was not the confirming person. And 
to ask me about those processes is slightly like asking the 
recipe for chicken a la king from the point of view of the 
chicken.
    Senator Graham. Okay. Fair enough.
    Senator Graham. But that does not mean I cannot keep 
asking.
    Justice Breyer. No, no.
    Justice Scalia. Senator, can I? I agree that politics is a 
check on the Court. When the Court gets too big for its 
britches, the one check is the political confirmation process 
and appointment process.
    However, in my view, when the Court is operating properly, 
when it is not applying its own view of what the Constitution 
ought to be but is interpreting the legal text, as lawyers do, 
understanding the meaning of those words and the history behind 
those words, there is a lot less need for politics to intervene 
I mean, there is no such thing as a Republican good lawyer and 
a Democrat good lawyer. You are either a good lawyer or you are 
a bad lawyer.
    Senator Graham. I could not agree more, but the point I am 
trying to make is that we do have a political person appointing 
judges and political people confirm the judges. That is the way 
it works.
    From a Federalist point of view, Justice Scalia, since I 
have not read all the Federalist Papers and do not expect to--
and that probably says bad things about me, but at least I am 
being honest--should a Senator say no to an appointment because 
it is of a different philosophy than the Senator himself or 
herself would have chosen?
    Justice Scalia. Senator, I have views on that, but I do not 
think it is appropriate for me to express them.
    Senator Graham. Okay.
    Justice Scalia. I leave you alone, and you generally leave 
me alone.
    Senator Graham. Okay. Well, let us talk about the 
confirmation process. You both have been through it. How many 
votes did you get, Justice Scalia?
    Justice Scalia. 98, Senator.
    Senator Graham. How many did you get, Justice Breyer?
    Justice Breyer. I think I only got 88, but who is counting?
    Senator Graham. Okay. I bet you remember the 12, too, don't 
you?
    Senator Graham. The point I am making is that since I have 
been here, it is getting more and more difficult to get someone 
through the process. Do you worry at all that the confirmation 
process, if it gets too out of hand, will have a chilling 
effect on recruiting the best and the brightest? Is that a 
concern at all to members of the Court?
    Justice Scalia. Oh, I think it has had that effect already 
at the court of appeals level.
    Senator Graham. What is the biggest threat to an 
independent judiciary as you see it in America right now?
    Justice Scalia. Well, this will surprise you. My view is 
that Federal judges ain't what they used to be. When I got out 
of law school, there were 67 court of appeals judges, two-
thirds as many as Senators. It was a big deal to be a Federal 
court of appeals judge.
    Senator Graham. Can I interrupt you?
    Justice Scalia. Yes.
    Senator Graham. And I hate to do this. Two-thirds of the 
people coming to the judiciary today come from the public 
sector. Thirty years ago, two-thirds came from the private 
sector.
    Justice Scalia. I was getting to that.
    Senator Graham. We are becoming a European model.
    Justice Scalia. That was my point.
    Senator Graham. Good.
    Senator Graham. I have only got 18 seconds, so we have got 
to get there.
    Justice Scalia. Okay. That is exactly my point. And the 
main difference in my mind between the common law system and 
the European system is the difference in the character of the 
judges. In the European system, a judge is a bureaucrat who has 
been a judge all his life----
    Senator Graham. And I would argue that we are creating--
because of pay problems, confirmation problems, we are going to 
gut our judiciary of the best and the brightest if we do not 
watch our politics and the way we take care of our judges. 
Would you please comment, Justice Breyer?
    Justice Breyer. I would think there is much truth to that. 
Much truth to that. The great thing, I think, in the Federal 
judge is that the Federal judge always was, and I would hope 
always will be--the Federal district judge is where it is 
important, too. You know, a Federal district judge is a local 
person, and he understands or she understands that community. 
And he or she will sit on the bench, and this is a fairly high 
level official, and that official will make it apparent to the 
community that he or she is willing to give up that personal 
time face to face with anyone in that community, rich or poor, 
who has a problem that calls for the work of the judge and that 
time is given. That is not a bureaucrat. That is not an 
administrator. It is not an elected official. It is a different 
job. But here in this country, this person who is supposed to 
be and is a pretty high level official gives you the time, Mr. 
or Mrs., that your problem calls for. And that is shown in the 
way the courthouse looks. It is shown in the attitude of the 
judge. It is shown in the way the community responds to the 
judge. And all of that is part of an institution, and 
institutions are not built overnight, and they can be hurt.
    And so the thrust of your question is how do we maintain 
the strength of what has really been a unique institution in 
the world, and it is not just the Supreme Court now. It is that 
entire Federal judiciary at all levels. And I am glad you are 
interested in that, and I think it is a problem. And I do not 
have a definite solution, but some of the things you have 
mentioned are certainly part of the mix.
    Justice Scalia. It is not just the pay. It is also the 
numerosity, and the numerosity goes back to the laws you pass. 
I think it was a great mistake to put routine drug offenses 
into the Federal courts. That is just routine stuff that used 
to be handled by State courts. If you want excellent Federal 
judges, you want an elite group, and it is not as elite as it 
used to be.
    Chairman Leahy. I would note that I agree with you on that. 
Having been a prosecutor in the State system, there are too 
many things going to the Federal system.
    I would also note Senator Graham raises some very good 
questions on this, and I know we have pending right now, 
waiting to be confirmed, stalled on the floor by objections I 
guess somewhere, judges that would represent over 100 million 
Americans who have vacancies today. The Chief Justice has said 
that we ought to--he has called it critically--he spoke of the 
critically overworked districts. Frankly, I think we have to do 
a better job of getting these people confirmed; I do not care 
who is President. But also, Justice Scalia, there are too many 
things before Federal courts that should be in the State 
courts. It is like the old days of J. Edgar Hoover. If you 
found a stolen car, they wanted to claim it so they could say 
how much money they had recovered. It is not the place.
    Senator Durbin, Senator Blumenthal has yielded to you to go 
first and he will go next. Senator Durbin?
    Senator Durbin. I want to thank my colleague from 
Connecticut. I am in his debt.
    Thank you both for being here for this historic meeting of 
the Senate Judiciary Committee. Most people are not aware of 
the fact that we have a rather unique dinner where the Senate 
visits the Supreme Court and we have a chance to break bread 
with our families and have an informal moment. And I will not 
give this Justice's name, but the last time we got together, I 
mentioned to one of your colleagues, who has been on the bench 
for some period of time, that I was Chair of the Subcommittee 
on the Constitution, Civil Rights, and Human Rights. And I 
asked your colleague, without attribution, if I could ask you: 
``What do you think I should be taking a look at in that 
Constitution Subcommittee, gauging the issues that come before 
your Court, the constitutional questions that present 
themselves to our generation, under the civil rights/human 
rights category? '' And it was interesting. That Justice's 
response was, ``You ought to take a look at the number of 
people who are in prison in the United States of America.''
    I am aware of it, and I am sure you are, too. Over 2 
million people incarcerated in our jails and prisons; more 
prisoners per capita than any other country in the world; 
obvious overcrowding; and terrible racial disparities in terms 
of those who end up in prison in our country. African-Americans 
six times the rate of Caucasians' incarceration. A 2009 study 
showed that one out of every 11 African-Americans is in prison, 
on parole, or on probation.
    Senator Sessions and I joined forces in a rare bipartisan 
show here and addressed the crack cocaine sentencing disparity. 
I think we could have done it differently, but we reached an 
agreement--and that is pretty historic when you consider the 
different philosophies that were part of that agreement--in an 
attempt to reduce some of this incarceration. I am not going to 
hold you to that particular issue but ask you if you would like 
to comment. Where do you think we should be making inquiry at 
the Congressional level when it comes to our Constitution and 
the challenges we face today?
    Justice Breyer. What would we think? I would think it is 
fine that you are going into that. Sentencing is part of that; 
mandatory minimums are part of that. There are a whole range of 
things. There have been articles in the newspapers about all 
kinds of elements which are not within our control necessarily, 
but, I mean, that are really within your control in the 
sentencing area, the prosecution area, the criminal area. That 
is a huge matter, and I am glad you are going into it.
    Senator Durbin. I do not want to confine you to that if 
there are other issues that you think are worthy of at least 
inquiry at this point.
    Justice Scalia. I am going to pass. This is within the 
category of, you know, I leave you alone, you leave me alone. 
It is your call. It is a policy question.
    Justice Breyer. It is a policy question.
    Justice Scalia. I do not really want to get into it.
    Senator Durbin. All right. I have another question, and 
this relates to the question of ethics, which it turns out is 
handled differently in our different branches of Government. As 
someone who has been involved in political campaigns and public 
service for a long time, I obviously know the need for us to 
not only be honest in our dealings, but to have the appearance 
of honesty in our work. Our major ethics laws accomplish this 
by imposing certain restrictions. For example, every other 
Member of Congress, our staffs, the entire executive branch of 
Government, and all Federal judges are restricted from 
receiving certain gifts and outside income under the Ethics 
Reform Act of 1989. The members of the Supreme Court and its 
employees are the only employees of the Federal Government who 
are exempt from these restrictions.
    Do you believe the Supreme Court should be required by law 
to follow the same financial restrictions as everyone else in 
Government?
    Justice Breyer. Oh, no, no. We are. I certainly have 
thought so. We file these long reports every year, quite 
expensive to prepare, where every penny that I take in, or my 
wife or my minor children, every asset has to be listed in 
depth, and it is all filed. And the amount of money that you 
can take from anyone outside is far more limited, I believe, 
under the codes of ethics than people who are not judges. 
Judges have special restrictions there. And so I do not think 
that the life of the judge in terms of ethics is less 
restricted than the life of any other member of the Government, 
to my knowledge.
    Senator Durbin. Incidentally, I should preface this by 
saying no reflection on either one of you.
    Justice Breyer. I understand.
    Senator Durbin. But I would just say I anticipated that 
answer, and I understand that the Court is bound by these 
restrictions by a Court resolution adopted 20 years ago in 
1991, and I wonder if you could tell me about that resolution. 
It is not public law like the Ethics Reform Act. Would you 
agree that this resolution should be more public?
    Justice Breyer. I think there are several different things. 
I think one is what money you can take, or cannot take for the 
most part, the reporting requirements, and some of the general 
ethics requirements that you cannot sit in cases. Those are 
statutory, and I think they bind us, period. I have always 
thought so. I mean, I have never heard to the--now, there are 
some that are just in this ethics volume. That is probably what 
you are thinking of. If you were to ask me which ones are they 
specifically, I could not answer. I do not know. But there are 
some that fall in that category.
    So probably like most of us, I have this whole--it used to 
be seven volumes. Before, if I had an ethical question, when I 
would recuse myself or something, I would go look and see what 
they say. And I did not distinguish in my own mind whether they 
are legally binding or whether they are something I just 
follow. And so I read them, and if I have a problem, I call an 
ethics professor. Everybody has some such system. You know, 
they have to figure out--there is no one who wants to violate 
any of those rules.
    Now, there is a big difference between the Supreme Court 
and the lower courts, and the difference is simply this: When I 
was on the court of appeals, if I had a close question, I would 
take myself out of the case. They will put someone else in. One 
judge is as good as another, frankly. But if I take myself out 
of the case in the Supreme Court, that could change the result 
because there is no one else to put in. And the parties, 
knowing that--I am not saying they would, but it is possible to 
try to choose your panel, which is undesirable in the Supreme 
Court.
    So what that means is that there is an obligation to sit 
where you are not recused as well as an obligation to recuse. 
And sometimes those questions are tough, and I really have to 
think them through, and I have to make up my own mind. Others 
cannot make it up for me. And that is a very important part, I 
think, of being an independent judge. We are given tough 
questions to answer.
    And so the answer is, A, there is a big set where we are 
bound by law; B, there is a set where we may not be bound by 
law, but we are bound in practice; and, C, in that set, whether 
it is law or practice, we, I think, have to think it through 
and try to work out which is the predominant force there.
    Senator Durbin. I do not have any more time left, and I do 
not want to disadvantage Senator Blumenthal, but my next line 
of questioning was how much of this should be known to the 
public.
    Justice Breyer. I have just made it known to the public.
    Senator Durbin. The question is whether--for example, we 
make disclosure as Members of Congress that would lead to 
conclusions as to whether we are in a conflict situation. I do 
not believe the same public disclosure is made at the Supreme 
Court level, is it?
    Justice Breyer. It is pretty much--I cannot say 100 
percent, but, I mean, if there is a difficult question, usually 
there is a press inquiry. And I know, you know, sometimes we 
write opinions about it, and usually the press gets an answer. 
So I am not sure that there are things that matter where--you 
know, like I have to take myself out of quite a few cases 
because my brother is a judge in San Francisco, and so if I 
recuse--or I take myself out because he was sitting on the 
case, I usually tell Kathy Arberg, our press officer. I say--
well, this is normally off the record because I do not want a 
long article, but I will say, ``Just tell them the reason I am 
not in that one is because my brother is in it, Okay? '' And so 
I do not think there is some kind of secret thing that goes on. 
I cannot prove it so in every case, but I cannot think of any 
case.
    Senator Durbin. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. I am going to go to Senator Lee, 
but at this point, if I might have your indulgence, and you can 
answer this one very quickly. You talked about if one of you 
has to step out, there is nobody else to step in. We have three 
retired Supreme Court Justices now. In all our courts of 
appeals and our district courts, those who have taken senior 
status can step in if there has been a recusal or a necessity. 
How would you feel about allowing former Supreme Court Justices 
to step in if there is a recusal?
    Justice Breyer. I have not thought that one through.
    Justice Scalia. Who is going to pick the former Supreme 
Court Justice to step in?
    Chairman Leahy. I would assume the Chief.
    Justice Scalia. Well, I do not think that would make 
anybody happy, to tell you the truth.
    Chairman Leahy. Well, then, how about the remaining eight?
    Justice Breyer. I do not know.
    Chairman Leahy. By a majority vote.
    Justice Scalia. I do not know that that would make anybody 
happy either. What if it is 4-4?
    Chairman Leahy. Then you do not have somebody.
    Justice Scalia. No, I think we can stumble along the way we 
are.
    Justice Breyer. You are getting the reaction, you know, do 
not change anything, but that is the--I have not really thought 
that one through. It sounds--there might be problems. I do not 
know.
    Chairman Leahy. I may chat with you more about this one.
    Senator Lee, thank you very much.
    Justice Scalia. I do not think it is much of a problem, 
Senator. There are very few cases where we affirm by an equally 
divided Court. How many the last term?
    Justice Breyer. Very few. There are some occasionally.
    Justice Scalia. It is very rare that that happens.
    Chairman Leahy. Thank you. Senator Lee?
    Senator Lee. Thank you, Justice Scalia and Justice Breyer, 
for joining us. It is an honor to have you here today.
    Justice Scalia, I wanted to follow up on some things you 
had said in your opening statement along the lines that it is, 
and properly should be, a difficult, cumbersome, time-consuming 
process in our constitutional republic to enact legislation. I 
think the courts can and should play a significant role in 
ensuring that that is always the case. The Court certainly has 
played a role in the past in cases like INS v. Chadha, in which 
the Court has stepped in and said, notwithstanding the fact 
that you, Congress, may have found something that makes the 
process of legislating easier or perhaps even more efficient, 
you have not dotted your I's and crossed your T's in the same 
way that we contemplated under Article I, Section 7, Clause 2, 
requiring bicameral passage and then presentment, and so this 
provision is invalid.
    So let me ask the question: Is there also a role for the 
courts, can you foresee a role for the courts in other 
situations in which Congress, some future hypothetical 
Congress, might do something different that would prove easier 
and more efficient, but perhaps in a way that is antithetical 
to the Constitution?
    For instance, let us suppose that Congress, when 
legislating on the delicate and pressing issue of maintaining 
the proper records in the dog-breeding industry, since we are 
talking about Federal legislation, these would, of course, be 
dogs either moving in commerce or taking advantage of some 
channel or instrumentality of interstate commerce, but a law in 
which Congress just passes a law saying we are outsourcing, we 
are delegating the authority to regulate dog breeding and 
recordkeeping for purebred dogs to the board of directors of 
the American Kennel Club. That passes both Houses of Congress. 
It goes to the President. It is signed into law, and we then 
have outsourced the regulation of this practice to the American 
Kennel Club. Is that a situation in which you can anticipate 
the Court might step in?
    Justice Scalia. Well, I would step in. I do not know if the 
Court would. I was the dissenting vote in the first case 
involving the constitutionality of the Sentencing Commission. I 
hate to mention this with my friend Stephen here since he was 
on the Sentencing Commission. When Congress created a 
Sentencing Commission with no other function than to decide how 
many years everybody should spend in jail because, presumably, 
Congress did not have the time to figure it out for themselves, 
I did not think that that was constitutional. So I am sure I 
would not like your dog-breeding body either. But I cannot 
speak for the Court. I do not know what the Court would allow.
    Senator Lee. But for you personally looking at it, 
notwithstanding the fact that it is more efficient, 
notwithstanding the fact that you do have bicameral passage and 
you have presentment of this hypothetical law, the problem is 
that you have delegated the lawmaking power.
    Justice Scalia. Exactly.
    Justice Breyer. You have to be careful because John Jay--I 
just read this in John Stevens' book. It is pretty good. In the 
first chapter, he says John Jay, first Chief Justice, and 
George Washington went to him and said, ``I have a lot of 
questions here. I do not want to do anything unconstitutional. 
Here are a bunch of them. Will you answer them? '' And John Jay 
said, ``No. No advisory opinions. I am not giving any''--but 
the real reason, of course, is he did not know the answer.
    Senator Lee. And he was right. And his tenure on the Court 
proved to be short-lived, in any event.
    Justice Scalia. Now, the situation you pose is quite 
different, of course, from your leaving it to an agency to----
    Senator Lee. How is it different then? How do those differ?
    Justice Scalia. Well, because when you leave it to an 
agency, you are giving it to the executive. The executive can 
make rules. You cannot run an executive operation without 
making rules. The doors open at 8 o'clock. If you are running 
the Interior Department, say that no fires are allowed on 
public land, or that private cattle can be grazed on it. It is 
up to the agency to make rules. But there is an obstacle that 
discourages you from giving too much power to the executive 
agency because you are increasing the power of the President--
your competitor, the President. You know, the separation of 
powers with different branches competing. And there is no such 
disincentive when you leave it to this private group that you 
are talking about. That is just a pure delegation of 
legislative power. You are not authorizing an executive to act 
like an executive, but you are delegating legislative power to 
a group that has no executive responsibilities.
    Senator Lee. So the difference, you would insist, is based 
on the fact that this is an executive branch agency, which at 
least in theory is subject to the disposition, subject to the 
control, to the direction of the Chief Executive?
    Justice Scalia. I think that is right. We are talking here 
about the doctrine of unconstitutional delegation of 
legislative authority, which is a bad name for it because there 
is no such thing as a constitutional delegation of legislative 
authority. You cannot delegate legislative authority.
    Now, when you give rulemaking to an agency, how far can you 
go? Can Congress just get together and say the President can do 
anything he wants and adjourn? Of course not. That has to be 
unconstitutional. But is it up to the courts to decide where 
the line is drawn between giving enough authority to the Chief 
Executive and too much authority? It is simply a non-
justiciable question, and I for one would not apply--would not 
let the courts apply the doctrine of unconstitutional 
delegation where the delegation is to the executive.
    Senator Lee. As long as it is to the executive branch 
agency, then even----
    Justice Scalia. I would not get into it. Some of my 
colleagues would, I suppose.
    Senator Lee. Even in the extreme situation where we passed 
a law saying, for example, we shall have good law, the power to 
make good law is hereby delegated to the Department of Good 
Law, which is hereby created?
    Justice Scalia. Oh, you got me. I would do that one. All 
right. But that is not going to happen.
    Justice Scalia. I am talking about any real situation. I 
cannot imagine my sticking my toe in that water.
    Senator Lee. Okay. Okay. And, Justice Breyer, I had a 
question for you. I have really enjoyed reading parts of your 
new book, ``Making Our Democracy Work.'' It is very well 
written and fascinating. I think it is good reading for any law 
student or lawyer or American who wants to learn more about the 
system.
    You suggest in your book at page 126 that there is rarely 
an easy answer to the question of what level of Government 
should be primarily responsible for helping to resolve the 
problems that potentially call for legislation and that the 
question usually turns on empirical information such that facts 
help determine the answers.
    You go on to explain on pages 125 and 126 that very often 
this means that the courts ought to step aside and, if I am 
understanding you correctly, have Congress more or less decide 
the precise contours of the boundaries of federalism. Am I 
understanding the book correctly in that regard?
    Justice Breyer. Yes, that is right. You go into the 
abstract, but if you start talking abstractly, the trouble is 
you can characterize any individual situation usually in 15 
different ways at different levels of abstraction. And 
depending on how you characterize it, it will seem appropriate 
for a Federal answer, or it will seem appropriate for a State 
answer or local answer. Is it a police department problem? You 
say, well, it is arresting somebody; yes, yes, but you are 
arresting him for having guns. Well, it is a State problem. 
Well, but the guns are torpedoes and they are only made 
internationally. You know, and so that is so complicated and 
difficult that it is hard for the courts to find a general 
principle there. That is my point there.
    Senator Lee. So if that is the case and if it is also the 
case that, as we are reading Federalist No. 45, the powers of 
the Federal Government are few and defined, whereas those of 
the States are numerous and indefinite and Members of Congress 
should read the Constitution, decide what those contours are, 
and restrain ourselves rather than waiting for the courts to 
step in and say, no, you have overstepped the bounds----
    Justice Breyer. My point that I was making there is you are 
elected by officials in a State, and so you will make such 
judgments on such matters as you believe are appropriate in 
light of how people--partly how they feel and partly what you 
are trying to represent, but a lot of that is your decision.
    Justice Scalia. Senator, of course you have to make those 
constitutional decisions. You take the very same oath that I 
take. The only reason I can look at a Federal statute and say I 
have to disregard this because it does not comport with the 
Constitution, the only reason is that I have taken an oath to 
uphold the Constitution. You take the same oath. And we give 
deference to legislation on the assumption that the Members of 
the Senate and of the House have tried to be faithful to their 
oath. And if indeed they are not even looking at or even 
thinking about the constitutionality of it, that presumption 
should not exist. So, yes, of course, you----
    Senator Lee. So in that respect and to that degree, our 
oath to uphold the Constitution, our commitment not to overstep 
the bounds of federalism means more than simply doing that 
which NLRB v. Jones and Laughlin Steel or Wickard v. Filburn 
might say that we can get away with in court.
    Justice Scalia. Well, I think you have to make your own 
decision about constitutionality. In normal times you follow 
what the Supreme Court law has said. But we do not strike down 
any of your laws. People sometimes say, ``It got struck down.'' 
We never strike down your laws, gentlemen. We just ignore them.
    Justice Scalia. Where your law does not comport with the 
Constitution, it seems to be a law but really is not, and so we 
ignore it and apply the rest of the law, the statute 
notwithstanding, as one of our early cases put it. But it is 
really you--you have the first cut, and the most important cut.
    Senator Lee. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Next we will go to Senator Blumenthal, and I thank you 
again for letting Senator Durbin go out of order.
    Senator Blumenthal. Thank you. Thank you, Mr. Chairman, and 
thank you for having this hearing. Thank you, Justice Breyer 
and Justice Scalia, for spending so much time with us and 
having so much patience with our questions.
    Before coming here--and as you may know, I am one of the 
more junior Senators--I was Attorney General of the State of 
Connecticut--I did not have the honor of knowing Mr. Root--for 
about 20 years, and the highlight of those 20 years was the 
cases that I argued before your Court, so I have been waiting 
for the day----
    Justice Scalia. This is payback?
    Senator Blumenthal [continuing]. When I could interrupt you 
as mercilessly and relentlessly as you did me.
    Senator Blumenthal. And give you as hard a time. But, 
fortunately, in those cases--I think there were four in all 
that I argued--you decided the right way, so I am going to 
avoid the temptation. But I was very impressed and moved by 
your explanation as to why you think it is so important for the 
public to understand and appreciate what judging is and what 
role it plays in our system. And I agree with you totally that 
not only is there the need, but there now is the lack, really, 
of that understanding.
    And so I guess I say as not only one who has argued but 
also as a former law clerk who sat through a year of arguments 
and learned so much about the system in that process, why not 
open it to video recordings? Why not in the Federal courts give 
the public the benefit of seeing it firsthand in your Court and 
other Federal courts and so appreciate really the quality as 
well as the diversity and the extraordinarily often 
excruciating difficulty of what you do?
    Justice Scalia. I will start. Senator, when I first came on 
the Court, I was in favor of--you are just talking about 
televising the arguments, right?
    Senator Blumenthal. Correct.
    Justice Scalia. Not the conference. You know, the Brazilian 
Supreme Court televises their conference.
    Senator Blumenthal. I would never presume or think of 
televising the conference.
    Justice Scalia. Thank you.
    Chairman Leahy. Nor would I.
    Justice Scalia. I was initially in favor of televising 
argument, but the longer I have been there, the less good an 
idea I think it is.
    The justification usually put forward is we want to educate 
the American people about what the Court is and does. Now, if I 
really thought the American people would get educated, I would 
be all for it. And if they sat through a day of our proceedings 
gavel to gavel, boy, would it teach them a lot. They would 
learn that we are not most of the time looking up at the sky 
and saying, ``Should there be a right to this or that? '' but 
that we are doing real law, the Bankruptcy Code, the Internal 
Revenue Code. People would never again come up to me and ask, 
as they sometimes do, ``Justice Scalia, why do you have to be a 
lawyer to be on the Supreme Court? The Constitution does not 
say so.'' No of course it does not. But 99 percent of what we 
do is law. It is stuff that only lawyers can do. And if the 
people would learn that, it would be a great piece of 
education.
    But for every ten people who sat through our proceedings 
gavel to gavel, there would be 10,000 who would see nothing but 
a 30-second outtake from one of the proceedings, which I 
guarantee you would not be representative of what we do. So 
they would, in effect, be given a misimpression of the Supreme 
Court. I am very sure that that would be the consequence, and, 
therefore, I am not in favor of televising.
    Senator Blumenthal. But it would for high school students 
or even middle school students and for the general public who 
were interested in an important and pertinent case provide a 
means for them to see what right now only a very limited 
audience can view because of the size of the Court.
    Justice Scalia. Yes, but for those who are interested in it 
for those intellectual reasons, surely the tapes are good 
enough.
    Senator Blumenthal. Well, the tapes, with all due respect--
and I understand your argument--do not convey in the same way 
with as much interest the kind of debate, the back-and-forth, 
the visual sense of the action in Court, and I know and you 
know really how dramatic it can be.
    Justice Scalia. Yes, well, we just sit there like nine 
sticks on chairs. I mean, there is not a whole lot of visual 
motion. There really is not. It is mostly intellectual motion. 
That is all I----
    Senator Blumenthal. Well, I can say it certainly is 
gripping if you are answering questions.
    Senator Blumenthal. Justice Breyer, do you have a different 
view.
    Justice Breyer. Sort of, a little, but it is that we are 
conservative. And you would be too, if you were there. The 
Court has lasted the country well and served the country well 
over a long period of time. We are there for a short time. We 
are trustees. And we do not want to make a decision that will 
be non-reversible and hurt the Court. So you start there. And 
then sometimes I think--you know, when we had the term limits 
case out of Arkansas, I just wish people could have seen that. 
It was such a good case. You had Jefferson and Story on one 
side and Madison and Hamilton on the other side, and it was the 
term limits. And what you saw is everything evenly balanced 
with the precedents and are the--I will not go into the case, 
but if they could have seen that across the country, people 
would have been able to see in that oral argument nine 
individuals struggling with a really difficult and important 
constitutional question. That would have been good for the 
Court and everybody.
    All right. So what is the problem? Well, one problem is 
that we are a symbol, and if it were us in our Court, you could 
probably be in every criminal case in the country, and you 
would get rid of what? What would we do with jurors? What about 
the criminal witnesses, et cetera? And you do not know what 
happens with symbols. Or would people come up with a 
misimpression, namely, the oral argument is 5 percent of the 
case, 3 percent of the case. It is really done in writing, and 
they do not see that. And, more importantly, people relate to 
people. You relate to people. I do. When you see them, they are 
your friends or not your friends, or whatever. But we are 
making decisions that are there to affect 309 million people 
who are not there. And in our minds, we have to take those 309 
million into account. And will that come across?
    And then there is the problem that Justice Scalia 
mentioned, which is, Nino says quite right, you know, you can 
make people look good or you can make them look bad, depending 
on what 30 seconds you take, and it is already cult and 
personality, and let us not make it worse. We wear black robes 
because we are speaking for the law, not for ourselves as 
individuals, and that is a good thing.
    So add those up, and you say I do not know. I would like to 
know more. I really would. There are places that have it and do 
not have it. There are courts that have it and others that do 
not have it. There is Canada that has it. There is California 
in some situations. You have a hundred different situations in 
respect to that. Why can't we get some real information, not 
paid for by anybody that has an interest in this, but Pew or 
some of the foundations, and see what happens to attitudes, to 
judicial attitudes, to others.
    So what you are getting, I think--and maybe eventually, you 
know, it is going to be there is no other way to see things but 
visually, and everybody is doing that, and then it will not 
even--it will just seem weird, what we do now, and it will all 
change. But before that time, I think--it is a little boring, 
but I think information is something that would make me easier. 
And until I become easy about it, until we become reasonably 
convinced that will not hurt the institution, you are going to 
get a conservative reaction. That is what I think is the truth 
of it.
    Justice Scalia. Senator, it may be unfair to put this 
question to you since you are such a youngster here, but do you 
really----
    Senator Blumenthal. That is the best thing that has been 
said about me in a long time.
    Justice Scalia. Do you really think the process in the 
Senate has been improved since the proceedings have been 
televised?
    Senator Blumenthal. Well, just as you took a pass earlier--
--
    Senator Blumenthal. I think that there are mixed views, but 
in general, I think that openness and transparency improves 
institutions. And for all the reasons that you have so 
eloquently talked about your role in educating the American 
public, I think that an audio and visual recording of Supreme 
Court proceedings would potentially do the same. And I think 
that whatever the result of televising Senate proceedings--and 
I was only facetious when I said I would take a pass--I do 
think that it has been a step in the right direction of 
providing more transparency and disclosure and understanding on 
the part of the public.
    Now, I will let you and the public be the judge of how it 
views us, but I think in general Americans should understand 
the challenges as well as the role that their institutions 
face. And since my time has expired, I want to thank you again 
for being here, and I am not at all dismissive of the points 
that you have made. On the contrary, I have great respect for 
them. But perhaps we can provide you with some more information 
that would be persuasive in the advantages and the positives in 
those kinds of greater availability or accessibility.
    So thank you for being here today, and I also want to thank 
you for raising the issue of State courts, because I am one who 
has spent a lot of time in State court. You often have to 
consider the results of State courts, and all too often, we in 
this body fail to understand how integral the State courts are 
to dispensing justice in this country.
    Thank you.
    Chairman Leahy. Thank you very much.
    Senator Sessions, you have been waiting patiently.
    Senator Sessions. Thank you, Mr. Chairman, and I thank both 
of you for attending and your good comments and insight. I hope 
the young people have appreciated this.
    I would say to the young people, having traveled around the 
world in this role for a number of years, we have the greatest 
legal system in the history of the world. We really do. It is a 
marvelous thing of inestimable value to this republic. People 
can rely on fair dealing in court. They can invest large 
amounts of money. They can place their liberty at risk and feel 
like consistently they are getting a fair day in court.
    I practiced virtually full-time before Federal judges as 
United States Attorney and Assistant United States Attorney for 
14 years, and when I had the law on my side, I almost always 
won. The rulings were for me. If the law was not with me, I 
lost. I think that happens in courts pretty much all over 
America, and judges try to do that.
    Justice Scalia, I do believe it is law, and it does take a 
lawyer some time to dig through these matters and understand 
the precedent. But I guess what I would say is the American 
people do care. They have a high opinion of the Court. They 
believe that you should follow the law. And the greatest threat 
to the Court, in my opinion, is if the American people believe 
that judges are consistently redefining the meaning of words to 
advance their agenda, their views, whether conservative or 
liberal, and that law is not the essence of what you do. And 
that is just my own observation from the political world and 
the legal world.
    With regard to Senator Graham's comment, I think there is 
an area which we can respect as to the more activist or the 
more living constitutional view of the Constitution. But if it 
goes beyond that, in my view the judge should not be confirmed. 
The nominee should not be confirmed. I have to know that when 
they say that they understand they will serve, as the oath 
does, under the Constitution and under the law, that they are 
willing to comply with that. So that is how we wrestle with 
these issues, and each Senator has a different standard.
    Justice Scalia. You do not scare me, Senator.
    Senator Sessions. No. Professor Van Alstyne made a speech 
to the 11th Circuit one time, and he said, the essence, what he 
called on the judges to do was, in his view, to enforce this 
Constitution. He concludes with, ``We established this 
Constitution for the United States.'' And he said, ``The good 
and bad parts, whether you like it or not, in the long run that 
document will be stronger and a greater bulwark if the courts 
enforce it as it is written, this Constitution.'' Would you 
agree with that? I will ask you both just to discuss that 
point.
    Justice Scalia. Yes, sir, I certainly do agree, and I 
think--I have said this in some talks--I think that the--what 
shall I say?--controversial nature of recent confirmation 
proceedings is attributable, to some extent, to the doctrine of 
the living Constitution. When you indeed have a Supreme Court 
that believes that the Constitution means what it ought to mean 
in today's times, it seems to me a very fair question for the 
Senate to ask or for the President to ask when he selects the 
nominee: What kind of new Constitution would you write? You 
know, do you believe this new right is there or this old right 
is not there? It seems to me it is much less important whether 
the person is a good lawyer, whether the person has a judicial 
temperament. What is most important is what kind of a new 
Constitution are you going to write? And that is crazy. I mean, 
that is like having a mini-constitutional convention every time 
you select a new judge.
    So, you know, I am hopeful that the living Constitution 
will die, and----
    Justice Breyer. I know what you said, of course I agree 
with that. It is this Constitution. I said ``Constitution'' 
because I want you to think of John Marshall's famous words. 
``It is a Constitution that we are expounding.'' And he is 
thinking that that document has to last us for 200 years. And 
as I say, that does not mean you change the words. But the 
hardest problem in real cases is that the words ``life, 
liberty, or property'' do not explain themselves, ``liberty,'' 
nor does ``the freedom of speech'' say specifically what counts 
as the freedom of speech. And, therefore, there is a job, and 
lower court judges come to different conclusions on the same 
difficult question of what happens when you are on the Internet 
and you reveal somebody's personal information and then it is 
picked up in a newspaper and how does the freedom of expression 
invade there? Does it extend to that invasion of something the 
person would like to keep personal? And does it depend on who 
he is, da, da, da? In other words, it is very complicated. And 
trying to apply this Constitution with those values underlying 
the words, to circumstances that are continuously changing, is 
not something that can be done by a computer. Neither of us 
thinks that. No one thinks that. And, therefore, it calls for 
human judgment, and as soon as human judgment enters the 
picture, fallibility is possible.
    And then some of us think that, oh, but by really reading 
that history carefully, we can get answers, and beware of the 
judge like me, all right, who tries to look to see what are 
circumstances now and how does it fit today, because there is a 
risk with me that unbeknownst to me myself, I will become too 
subjective and will tend to substitute what I think is good for 
the Constitution as it was written and intended to apply. And 
what I say is, yes, you are right about that, and all I can do 
is be on my guard, write my opinions, try to look to objective 
circumstances.
    And I see the opposite danger. The opposite danger is 
called rigidity. The opposite danger is interpreting those 
words in a way that they will not longer work for a country of 
308 million Americans who are living in the 21st century, work 
in the way those Framers would have wanted them to work had 
they been able to understand our society. And all that is in 
those words. It is a Constitution we are expounding.
    Senator Sessions. Well, do you do polling data or do you 
have a hearing to determine whether it will work or not like 
Congress does? Or do you just----
    Justice Breyer. What do you do? I mean, you have to look at 
the examples there. What is a good example where we did not 
agree? I mean, you know, there are cases when you say, ``Will 
it work? '' What you are doing is looking to what are the free 
speech consequences? We had a case where somebody took a tape 
recording of something that was in the public interest but it 
involved somebody's personal conversation, and then threw it 
over the transom into a newspaper. And they printed it, and 
there was a law saying you could not wiretap to get that 
information. And how did that all fit within the framework of 
free expression?
    And so what you try to do is try to see what are the risks 
to the expression, what are the expectations of the individual, 
and you have 42 briefs filed that are helping you on that. So I 
said that----
    Justice Scalia. Those are new phenomena, Stephen. We are 
not talking--you and I do not disagree very much on new 
phenomena.
    Justice Breyer. You see, he is right with me on that. I do 
not know why he did not join my opinion.
    Justice Scalia. On new phenomena you have to calculate the 
trajectory of the First--let us take as an example the First 
Amendment, the freedom of speech. It was absolutely clear when 
the people ratified the First Amendment that libel was not part 
of the freedom of speech, and that included libel of public 
figures such as you gentlemen. But the Supreme Court in a case 
called New York Times v. Sullivan, a marvelous example of the 
living Constitution, just decided it would be a good idea if 
there were no such thing as libeling a public figure so long as 
you have good reason to believe the lie you tell about him.
    Now, I think, Who authorized the Supreme Court to change 
the law? That may indeed be a very good rule, and the people 
are free to adopt that rule by legislation. New York could have 
amended its laws to eliminate libel for public figures. So do 
not charge the prior system with inflexibility. What is 
inflexible is the inability now to change the libel law that 
the Supreme Court has instituted throughout New York Times v. 
Sullivan. It may be a good law, it may be a bad law, but you 
cannot change. Nobody can change it. I guess we can change it.
    Senator Sessions. Mr. Chairman, could I just thank both of 
these witnesses for their great comments? I would note, Justice 
Breyer, that I voted for well over 90 percent of President 
Obama's nominees, but I do think we have a range in which if 
you believe they are too flexible about interpreting the 
Constitution, then I would conclude they are not faithful to 
the Constitution and, therefore, I could not support them, even 
though they may be wonderful, decent people, intellectually 
gifted in that regard. And one of my standards is a death 
penalty case. Any judge that says the U.S. Constitution calls 
for the elimination of the death penalty really should not be 
on the bench. At least they will not get my vote for the bench.
    But we all have individual standards, and we wrestle with 
that. But all in all, we have got a great judicial system. I 
congratulate you.
    Justice Scalia. Thank you, Senator.
    Justice Breyer. Thank you.
    Chairman Leahy. I am resisting a temptation.
    Senator Whitehouse will be our last person to question. I 
cannot thank the two of you enough for being here, and I will 
say something after he finished.
    Senator Whitehouse.
    Senator Whitehouse. Gentlemen, let me join the Chairman in 
thanking you for being here. As two individuals who have been 
here for the confirmation process, I am impressed that you are 
willing to return.
    Justice Scalia. It was not bad for either of us, I do not 
think.
    Senator Whitehouse. It has gotten livelier.
    We have talked a lot today about the role of the judiciary 
in the larger American system and architecture of Government, 
and I wish you would say a few words about the role of the jury 
within that architecture and whether or not you see the jury as 
just a little piece of fact-finding machinery for dispute 
resolution or whether the Founders and you saw and see a larger 
role for it as a political, small ``P,'' institution in our 
system of Government. Is it an important piece of our 
governmental architecture as well as opposed to our dispute 
resolution system? And if so, how?
    Justice Scalia. Absolutely is, which is why it is 
guaranteed in the Bill of Rights in criminal cases and, indeed, 
in all civil cases at common law involving more than $20. The 
jury is a check on us. It is a check on the judges. I think the 
Framers were not willing to trust the judges to find the facts.
    Indeed, you know, at the beginning, or when the 
Constitution was ratified, juries used to find not only the 
facts but the law. And this was a way of reducing the power of 
the judges to condemn somebody to prison. So it absolutely is a 
structural guarantee of the Constitution.
    Senator Whitehouse. Justice Breyer.
    Justice Breyer. Yes, I think it is very important. I have 
never been a district judge. I was an appeals court judge. But 
my brother is a trial court judge, and I was there a while ago 
in San Francisco, and he said, ``I want you to see me select a 
jury. You should not go through your''--I was on a jury in 
Massachusetts, actually. I got selected. But he said, ``You 
should not go through your life without seeing that.'' And he 
said, ``Congratulations,'' at the end. ``You and Justice 
Sotomayor now know how to select a jury. At least a little.''
    All right. I saw a morning pass which was just terrific. 
You take 12 people randomly from that community and two 
alternates, and by the time they are finished, they are 
thinking that the future of this individual who is the 
defendant is all likelihood in our hands, and they take that 
because of the instructions and the way the lawyer behaves as a 
very, very, very serious matter. And they are participating, 
they are part of the Government of the United States. And you 
begin to think, you know, it is really a wonderful thing that 
before you deprive a person of his or her liberty, you go 
through this process where the community is brought in as 
really judges of the facts.
    So they are not just a fact-finding machine. This is a way 
of saying to people in a community, it is all of you in this 
democratic system who will participate in this terribly 
important matter, a matter of depriving an individual of his 
freedom. And just listening to the instructions and noticing 
the jury's reaction, they take that in.
    And I saw the same thing in the courthouse in Boston where 
a room is set aside for that, and they have things for people 
to read in that room, and the judges talk to them in a way that 
when the person comes away from the jury--and I think most of 
them do--they are very proud to have participated as a citizen 
in this exercise of application of community power.
    So I find that partly fact-finding, partly showing people 
how they, too, are part of the Government of the United States 
in its most important processes, and a way of overcoming 
isolation and bringing an entire community into the legal 
process. A very good thing.
    Senator Whitehouse. At the time that the Constitution and 
Bill of Rights were adopted, my understanding is that the 
Founders also had a fairly skeptical view of Governors. The 
colonial Governors had shown considerable arrogance and high-
handedness. They were skeptical of assemblies. Thomas Jefferson 
had described the Virginia Assembly as, I think, 207 tyrants 
replacing one, and that was not a big improvement. I probably 
have the number wrong. And I wonder if the stature of the jury 
in the architecture of American Government could not just be as 
a check on judges, but also as sort of the last bastion where 
somebody who is put upon or set upon by political forces can 
get away from the political forces that most lend themselves to 
corruption, governors, assemblies, and get themselves before a 
random group of their peers if the case is right, and that it 
has a slightly larger significance than just as a check on you 
all, it is also a check on all of us and the rest of the system 
of Government?
    Justice Scalia. Well, I think that is probably right if you 
believe that jurors can ignore the law where they think that in 
this case the law is producing a terrible result--they do that 
sometimes, I am quite sure. And that makes them a check not 
just on the judges but, of course, on the legislature that 
enacted the law to apply in this particular situation.
    I am a big fan of the jury, and I think our Court is, too.
    Senator Whitehouse. Let me ask a final question about--you 
know, the jury has this fact-finding role. What is the role of 
a court of final appeal with respect to fact finding? And 
hypothesize that you have a case in front of you from a State 
Supreme Court, and the State Supreme Court has indulged in fact 
finding at the Supreme Court level. What standard of review or 
deference do you as the United States Supreme Court accord 
findings of fact that have been indulged in by a State Supreme 
Court that is before you--whose decision is before you on 
review?
    Justice Scalia. You mean the State Supreme Court has 
overruled the jury's finding of fact, or just----
    Senator Whitehouse. It has just made a finding of fact in 
the course of its discussion. It does not have a record to 
support it, so that is not the issue. Do you credential that at 
all or is that by the boards?
    Justice Scalia. I think if it is a criminal case that 
somehow is being appealed to us for a violation of a Federal 
constitutional provision, and if the State Supreme Court has 
made a finding of fact that is not supported in the record, and 
if that finding of fact is crucial to the conviction, we would 
set the conviction aside. Would we not set the----
    Justice Breyer. There is a rule that says if there are two 
lower courts that hold a particular finding of fact, we will 
not go into it further. It is an area that I sort of noticed 
over time, like finding facts we are particularly bad at. You 
have nine people and to try to get people to read this enormous 
record and come to a conclusion, we are just not very good at 
it. And so we have a lot of rules. So you can never say never. 
You never say never about anything. But, by and large, we stay 
away from the fact finding.
    Senator Whitehouse. Well, as the last Senator, I stand 
between you and the exits, and I will not trespass on your 
patience with us further. Again, I do appreciate very much that 
you have returned to this chamber and shared your thoughts with 
us this afternoon.
    Justice Scalia. Thank you, Senator. I think both my 
colleague and I have enjoyed it--to our surprise, I might add.
    Justice Breyer. Yes, we did enjoy it.
    Chairman Leahy. You know what? One, I appreciate you 
accepting the invitation, and I will put into the record the 
letter from the Chief Justice, what he was saying very 
approvingly of these hearings.
    [The letter appears as a submission for the record.]
    Chairman Leahy. I think I can speak for all the Senators 
here in both parties. This means a lot that you did this. What 
I hope it means, too--and I look at the students here, but I 
hope high schools will look at this, I hope colleges will look 
at this, not just law schools--that is why we have streamed it. 
We have made a copy and everything else. We are in a Nation 
where too many times people look for a bumper sticker solution 
to everything, I do not care on the right or the left. Things 
are a little bit more complex than that, and a sense of history 
never hurt anybody. The two of you have given us a sense of 
history. I applaud you both for that.
    If there is nothing further, we will standing in recess.
    Justice Scalia. Thank you, Mr. Chairman.
    Justice Breyer. Thank you.
    [Whereupon, at 4:54 p.m., the Committee was adjourned.]
    [Submissions for the record follow.]



    
                                 
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