Justices spar at USC over Constitution, the court, the law

Scalia, a leader in the “originalist” interpretation of the Constitution and often called the court’s “caustic conservative,” does not approach the law as a conservative or a liberal, he said. The 75-year-old Reagan appointee joked that he does not have “mean, nasty, conservative things he wants to do to society.”

Breyer argued that strict interpretations of the original language of the Constitution do not evolve with changes in the nation. They would allow flogging, for example. And until the court said so in 1954, the nation allowed separate schools for African-Americans.

“The document doesn’t tell you what to do,” the moderate-to-liberal justice said. “Its objective is to create a framework for a democratic government … to hold together 308 million people. It says,” Breyer continued, “that no single group of people will have too much power. It sets a certain level of equality. Those are the boundaries, the conditions. And we are the boundary police.

“Would you want a Constitution that’s frozen in the 18th century?” Breyer, a 73-year-old Clinton appointee, asked.

Scalia countered that Congress should write laws, not judges. “You don’t want flogging, pass a law.”

He poked fun at the 2002 court ruling that barred the execution of 16- and 17-year-olds using the phrase the “evolving standards of decency in a civilized society… I absolutely hate that phrase,” Scalia, in a mock scowl, said to laughter.

He argued that there are no legal baselines for the “non-originalists.” “What is his test?” Scalia asked Breyer. “If it’s not history it ….” His voice trailed off as he dropped his hand to the table, leaving no answer.

Scalia said abortion and homosexual sex cases are easy for originalists to argue should be kept out of courtrooms. Legal abortion did not exist in the law, Scalia said, until the 1973 Roe vs. Wade decision. “You agonize a lot,” he said to Breyer of complex legal and societal arguments. “I don’t agonize at all.”

“Easy,” Breyer retorted, citing cases that set new law that integrated society racially; that in 1942 allowed the president the power to put 120,000 Japanese Americans in camps over a fear they might sabotage the United States after Pearl Harbor; that more recently grapple with the tension between the First Amendment right of the press to publish a private conversation between a teachers’ union negotiator and the union president.

“If they are so easy, why are they in our court,” Breyer asked.

Scalia made a rare concession. “I acknowledge there is something to be said for the other side.”

Moderator William Traxler, the chief judge of the federal 4th Circuit Court of Appeals in Virginia, jumped in.

“We better quit on that,” the USC graduate said.