Revista forumul judecatorilor nr 2 201

My Pizza with Ninó In this short speech, Alex Kozinski gives us an insider view on Associate Justice to the Supreme Court, Antonin Scalia, focusing mainly on his originalist interpretation of statutes. The speech also highlights Justice Scalia's notoriety for writing blunt dissents but also how his strong opinions will shape the Supreme Court in the years În acest scurt discurs, Alex Kozinski ne oferã o imagine din interior asupra unui Judecãtor Asociat la Curtea Supremã de Justiþie, Antonin Scalia, concentrându-se în principal pe interpretarea sa originalã a reglementãrilor. Discursul subliniazã, de asemenea, notorietatea judecãtorului Scalia pentru scrierea opiniilor dizidente dure, dar ºi modul în care opiniile sale puternice vor modela Curtea Supremã de Justiþie în anii urmãtori. Keywords: Associate Justice, Antonin Scalia, judicial dissents, Supreme Court
When Professor Rudenstine Scalia have asked me to address you tonight, remarks delivered at the opening dinner for the Symposium on The Jurisprudence of Justice Antonin Scalia, Benjamin N. Cardozo School of Law, Sunday, October 28, 1990. I told him rather bluntly he could have done better.
What can I, a small cog in the great judicial done dinner.
machine, say about the giant flywheel that is Nino Scalia? Surely there are others -constitutional law scholars, Supreme Court observers, journalists - that could right down to it, there's only so much dirt you can get out of a guy when there's food "No," Professor Rudenstine said, "we on the table.
So I thought I'd talk to you about Jus- want you. As you know the Justice tice Scalia's approach to pizza. I mean, personally, you'll be able to tell us about anyone with a decent legal education can Scalia, the man." "Oh, a fluff speech," I said; read his opinions. But who among us here "no problem. Fluff is my middle name." can recite which toppings he likes? Well, But when I got down to writing the since I know I'm among friends and speech, I realized that there wasn't all that admirers of the Justice, I will let the cat much fluff I could come up with. The sad out of the bag on this most sensitive of truth is, most of my contacts with Justice 425 E-mail contact profesional: [email protected].
Judge, United States Court of Appeals for the Ninth Circuit.
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when it comes to pizza, so I cut myself a A body of law cannot be changed hefty slice and took a bite.
And you know what? It wasn't that overnight; doctrines established great. The cheese was thin, the tomato over decades of fuzzy thinking sauce a bit too tart, and the crust slightlyon the soggy side. The pinnacle of cannot be turned around through pizzadom it was not.
the stroke of a pen. It takes work, About a month later, I got a call from a dedication and single- friend of mine, Nina Totenberg, whocovers the Supreme Court for National Public Radio. She wanted to meet Scaliaand asked if I would intermediate. Sure, I It all started out when I was Chief said. I'll set up lunch in my office - pizza, Judge of the United States Claims Court of course. And I thought to myself, this and he was still a circuit judge. We agreed will be a chance for me to educate Scalia to have lunch and he said he'd come over as to what pizza is all about. So this time, to my office, so long as I'd provide the I sent the hapless extern down to DuPont circle, home of Vesuvio's, which regularly "One thing, though," Scalia said. "The gets the Washingtonian award for the best pizza has to come from AV Ristorante." pizza in town. To be candid, a side-by- Well, folks, I have eaten at AV side comparison of an AV Ristorante Ristorante and it's not exactly a culinary pizza and a Vesuvio's pizza would be like oasis. In fact, it's more of a pit. But who putting Peewee Herman into the ring with am I to contradict a guy called Nino on Mohammed Ali.
what's good Italian food? Some poor I should have known things were off extern got the job of trundling down to the to a bad start when I fumbled the combat zone where AV Ristorante is introductions. "Nino meet Nina." Now, it located to pick up the pizza.
takes a lot of talent to blow a line like that, When Nino arrived, no sooner had he but somehow I managed. I had hardly spotted the pizza than his eyes lighted recovered my composure when Nino up. He approached it the way a wine spotted the pizza.
connoisseur would approach a bottle of "It's not from AV Ristorante," he said.
1961 Lafite. He brought the slice up to His voice was grave.
his lips, but did not immediately taste it.
"No it's not. It's from Vesuvio's", I said, First, he took in the aroma, half closing a little unsure of myself. And then it sank his eyes. I almost expected him to ask for in - I had totally blown it. If there is one the cork. Finally, he bit into it and let out a thing near and dear to Scalia, it's plain language. He had said it must be from "Now, Alex, this is what I call pizza." AV Ristorante. He didn't say it must be Well, I happen to consider myself to from AV Ristorante this time, but next time be among the cognoscenti when it comes go ahead and surprise me; he didn't give to pizza. We have very similar food in me a green light to get something similar Romania, you know. It's usually made to or better than an AV Ristorante pizza.
with cardboard since there's no flour, and He had said it quite clearly. "It must be ground styrofoam because there's no from AV Ristorante." And this wasn't.
cheese. We call it a Domino's. In any So he applied the usual judicial event, while I consider myself an expert, remedy. Suppression. No, he didn't I am always willing to expand my horizons suppress the pizza. He suppressed his 76 Revista Forumul Judecãtorilor – Nr. 3/2012
appetite. He looked me straight in the eye He'll pull in 5 votes every time; and said: "It's not from AV Ristorante. I won't eat it." And he didn't.
Say it loud, And so Scalia taught me an important ‘cause for life he's staying Say it soft, lesson that day. From AV Ristorante And you'll hear lib'rals praying; means just that, from AV Ristorante. No Scalia, I'll never stop saying Scalia. Scalia more, no less. The question is whetherhe has managed to teach his colleagues We know for a fact that Reagan did on the Supreme Court any equally not and could not sing the same song significant lessons. No, I don't mean, are when he nominated Robert Bork. It just they ordering their pizza from the right doesn't work.
place - which I still think is Vesuvio's, not Boooooork, I just chose a judge AV - but are they listening to Justice Scalia when he tells them that what a You see, it is important to have a lyrical statute or the Constitution says is exactly name when seeking a major appointment.
And so when Scalia joined the court I think that this is a fair question to everyone expected a conservative ask, given all the fanfare that surrounded consensus to develop around him. Well, his appointment to the Supreme Court.
it's been four years now, and it just hasn't When Justice Scalia came on the Court happened. In major opinion after major in 1986 (foto), all the commentators said, opinion, Justice Scalia finds himself "This is the guy who, through his charm writing alone. The list is a long one - it's and intellect, will forge a conservative not a pretty sight. On separation of powers consensus." It is a little known fact that in Morrison v. Olson426, Scalia wrote Ronald Reagan had such high hopes for alone; again he was alone on the same Scalia that when he named him to the issue in Mistretta v. United States427; and Court, Reagan actually sang a little song yet again in Webster v. Doe428. He was about him. Now, it took me a long time to alone on whether to overrule Roe v. Wade get my hands on this song; I won't explain in Webster v. Reproductive Health the covert operations it took to get it. So if Services429. On the right to die in Cruzan you promise not to tell anyone, I'll sing it v. Director, Missouri Department of for you. If I remember it right, it went Health430 - alone. On the death penalty in something like this: Walton v. Arizona431 - alone. One kind of [To the tune of "Maria" from West Side expects that one of these days his dissents will start out «Hello!! Hello!! Isanybody listening?» Scalia, I just picked a judge named Scalia This might not seem significant if these And now the Court Supreme were isolated instances, if most of the time Won't cause Ed Meese to scream, at me; he were in the majority and only Scalia, I just picked a judge named Scalia occasionally writing alone. But when other His writing is so fine, Justices join him, very often he falls one 426 487 U.S. 654, 697 (1988) (Scalia, J., 429 109 S. Ct. 3040, 3064 (1989) (Scalia, J., 427 488 U.S. 361, 413 (1989) (Scalia, J., 430 110 S. Ct. 2841, 2859 (1990) (Scalia, J., 428 486 U.S. 592, 606 (1988) (Scalia, J., 431 110 S. Ct. 3047, 3058 (1990) (Scalia, J., Revista Forumul Judecãtorilor – Nr. 3/2012 77
or two votes short of a majority. For guarantee of the Constitution against the example, think about Maryland v. tide of prevailing current opinion."433 Well Craig432. There, the court examined a Nino, why not just go ahead and call them defendant's sixth amendment right to be a bunch of lily-livered, yellow-bellied confronted with the witnesses against him. At issue was a Maryland procedure And everyone knows about the barbed that allows child molestation victims to comments he directed at Justice testify via closed circuit TV so they don't O'Connor in Webster v. Reproductive come face to face with the accused.
Health Services. Certain parts of For Justice Scalia it was an easy, O'Connor's opinion, he wrote "cannot be although unfortunate case. Just as sure taken seriously;"434 other statements he as AV's pizza means AV's pizza, confront labeled «irrational.»435 All things means confront: "Look me in the eye and considered, one cannot accuse Justice say that" - it was good enough for John Scalia of trying to curry favor with his Wayne and it is good enough for Nino colleagues by resort to false flattery.
Scalia. If the country wants to limit that So what's going on? Has Justice right to protect children from trauma, it can Scalia alienated the rest of the Court? Is - by amending the Constitution.
he destined to be relegated to the position But Scalia found himself in dissent, of perpetual dissenter, a thorn in the side joined by Justices Brennan, Marshall, and of his colleagues, a Cassandra - Blackmun, not exactly the ones he was ever-destined to make unheeded sent there to lead, but okay. Except that prophecies of doom, but largely irrelevant he wasn't able to get the crucial fifth vote.
to the development of the law? Other Justices are listening. But not quite To any such suggestion, I have a as many or as often as might have been thoughtful and cogent answer.
So what's happening? Is it lack of To fault Scalia for having failed to energy or enthusiasm? Is he a boring garner a consensus on a lot of issues is writer? Does he threaten to put Sominex like blaming a farmer because he has not out of business as the antidote to yet collected a harvest while he's still busy sleeplessness? Hardly. Scalia's dissents sowing the seed. The fact is a body of have been labeled "verbal hand law cannot be changed overnight; grenades" and rightfully so. They are doctrines established over decades of explosive. And, like hand grenades, they fuzzy thinking cannot be turned around throw shrapnel at anyone near the blast through the stroke of a pen. It takes work, without attention to who they are - or how dedication and single-mindedness.
they might vote in the next case.
In Justice Scalia's office there is a Thus, in Craig, Scalia sided with the plaque on the wall; it says "Nothing is Court's liberals - Brennan, Marshall and easy. - Antonin Scalia, 1985." What does Blackmun - and accused the rest of the it mean? Apparently, his law clerks kept Court's conservatives of bending the complaining that it was hard to come up Constitution under public pressure: with some grand theory in which to fit "Seldom has this Court failed so every case; it was much easier, they conspicuously to sustain a categorical argued, to decide each case as it came - 432 110 S. Ct. 3157 (1990) 434 109 S. Ct. at 3064 (Scalia, J., dissenting).
433 Id. at 3171 (Scalia, J., dissenting) 435 Id. at 3066 n.' (Scalia, J., dissenting) 78 Revista Forumul Judecãtorilor – Nr. 3/2012
by the seat of the pants - like some other Now, has Scalia managed to persuade Justices. Scalia's answer to such his colleagues, or even most federal complaints was "Nothing is easy," which judges, to go cold turkey on legislative I suppose is shorthand for "Nothing history? Have lawyers stopped citing it? worthwhile is easy." Of course not. But the fact is, legislative And that, it seems to me, is the Scalia history just ain't worth what it was a few philosophy; and that will be the source of years ago. It used to be that you would his legacy. Whether one agrees with his get briefs and opinions that started and views in particular cases or not, one thing ended their analyses with legislative can't be denied: He has ideas, grand history, never once mentioning the text ideas, about how the law and its of the statutes they were purporting to institutions should operate, and he has a interpret. Such things are much rarer clear, crisp, and somewhat bemused way these days. Scalia's constant carping on of expressing them. He may not make it the matter has simply made it more entirely impossible for his colleagues to difficult for judges and lawyers to avoid be fuzzy-headed - after all, life tenure such annoying technicalities as the means never having to say you're sorry - statutory language.
but he makes it more difficult. In opinion Another example is Justice Scalia's after opinion, he sets the terms of the quest to eliminate balancing as the prime debate, forcing his colleagues, and form of resolving constitutional issues. I everyone else in the system, to deal with mean who isn't onto the shell game the force of his arguments.
involved in balancing? There is an easy Tonight is obviously not the time or trick to it: If you favor the interest, make it place for an exhaustive review of Justice sound big and glorious; if you disfavor it, Scalia's jurisprudence, but I will offer a make it sound narrow and trivial. If you few examples. Scalia has already had a want to permit cities to ban skateboards - major impact on the way courts look at excuse the example, but one does not sit legislative history. As we all know, and in California for five years and remain as we will discuss further tomorrow unaffected - you would describe them as morning, Scalia takes a rather extreme small wooden or fiberglass boards on view of the matter - he refuses to look at wheels which frequently cause serious it at all because he considers it irrelevant injuries on public streets and sidewalks.
and unreliable: It is irrelevant because If you want to strike down an Congress passes laws, not legislative anti-skateboarding ordinance, you talk histories - the law is what is written, not about a personal means of locomotion what some congressman said on the that is known to enhance the user's health stump; and it is unreliable because and welfare, and which materially congressmen knowingly litter the record implicates the right to travel.
with comments saying one thing or Justice Scalia has made it painfully another about the meaning of the bill in clear that as far as he's concerned, the hopes that some unwary Supreme balancing is out. Instead, decisions Court Justice will glom on to their should be based on or announce rules of viewpoint, whether or not it truly general applicability. As he pointed out in represents an issue Congress had "The Rule of Law as a Law of Rules"436 considered or decided.
rules have numerous advantages. They 436 Scalia, The Rule of Law as a Law of Rules, 56 U. Cm. L. REV. 1175 (1989).
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are predictable; they constrain future Today a petitioner before this Court decisionmakers so they cannot introduce says that a State sentencing court (1) had their own personal preferences into the unconstitutionally broad discretion to decision; they enhance the legitimacy of sentence him to death instead of decisions because they make it clear to imprisonment, and (2) had unconstitu- the litigants that their case was decided tionally narrow discretion to sentence him through neutral application of a rule rather to imprisonment instead of death. An than on the basis of a judge's personal observer unacquainted with our death preference; and lastly, they embolden the penalty jurisprudence (and in the habit of decisionmaker to resist the will of a hostile thinking logically) would probably say these positions cannot both be right.439 To fully appreciate the force of Scalia's He drives this last point home during reasoning, it's worth quoting the last the course of the concurrence: paragraph of his dissenting opinion in To acknowledge that "there perhaps Maryland v. Craig, the confrontation is an inherent tension" between this line clause case in which he accused the of cases and the line stemming from majority of yielding to public pressure: Furman . is rather like saying that there The Court today has applied "interest was perhaps an inherent tension between balancing" analysis where the text of the the Allies and the Axis Powers in World Constitution simply does not permit it. We War II. And to refer to the two lines as are not free to conduct a cost-benefit pursuing "twin objectives" . is rather like analysis of clear and explicit constitutionalguarantees, and then to adjust their referring to the twin objectives of good and meaning to comport with our findings. The evil. They cannot be reconciled.440 Court has convincingly proved that the How can one ignore arguments like Maryland procedure serves a valid interest, and gives the defendant virtually In politics, it has been said, you can't everything the Confrontation Clause beat somebody with nobody. In the law, guarantees (everything, that is, except you can't beat an idea with no idea. And confrontation). I am persuaded, therefore, what Scalia has plenty of are ideas. Is he that the Maryland procedure is virtually right every time? I don't think so; at least constitutional. Since it is not, however, he doesn't always persuade me. Will he actually constitutional I would affirm the eventually prevail as to his entire agenda? judgment of the Maryland Court of Probably not. But in the long run, he will Appeals reversing the judgment of win far more than his share of victories, because he has a coherent theory and Scalia has managed to spin equally he is able to express his views so clearly coherent theories in numerous other and persuasively. If, as I believe is true, areas of the law, and to set them forth in ideas have consequences, Scalia's an equally clear and persuasive way.
influence will grow and continue to be felt Take, for example, his concurring opinion for a very long time because of the sheer last term in Walton v. Arizona438 His volume and force of the ideas he puts out, opinion starts out: term in and term out.
437 110 S. Ct. 3157, 3176 (Scalia, J., dissenting) 439 Id. (emphasis in original) 440 Id. At 3063 (citations omitted).
438 110 S. Ct. 3047, 3058 (1990) (Scalia, J., 80 Revista Forumul Judecãtorilor – Nr. 3/2012
It is for that reason that it really doesn't Constitution, in the eye of the law, there matter very much that Scalia's ideas are is in this country no superior, dominant, frequently expressed in dissents or ruling class of citizens. There is no caste concurrences. These are seeds placed here. Our Constitution is color-blind, and in the intellectual soil of the law, and neither knows nor tolerates classes many, perhaps most of them, will take root among its citizens."443 I don't need to name the case; and I don't need to tell There is, after all, a time-honored you that it took fifty-eight years before the tradition in the Supreme Court of the Supreme Court listened to Justice powerful idea, expressed in an eloquent Harlan's sage dissent and ordered a dissent or concurrence, eventually being disgraceful system of apartheid vindicated, sometimes long after the departure of the author.
Will Scalia take his place with Justice Brandeis was in dissent when Brandeis, Holmes, and Harlan? Only time he referred to the "right to be let alone" as will tell, but my bet is that he will. He knows "the most comprehensive of rights and the what he wants to accomplish and how to right most valued by civilized men" in accomplish it. "When the dealin's done," Olmstead v. United States441. I cannot as Kenny Rogers would say, my guess is help but wonder whether Justice Brandeis that Scalia will take his place among theCourt's giants.
would have dreamed that those few words But there are issues on which Justice would be quoted so often, or that the right Scalia will never, ever prevail. There are to be left alone - the right to privacy - would some issues on which even I draw the someday form the basis of our line. Pizza is one of them. He may be jurisprudence regarding birth control and Antonin Scalia, and I may be Alex Kozinski from Romania, but Vesuvio's Justice Holmes was in dissent when was, is, and always will be a better pizza he wrote "the Fourteenth Amendment does not enact Mr. Herbert Spencer'sSocial Statics" in Lochner v. New York442.
Nota redacþiei: Articolul a fost publicat
I am not sure he would have contemplated iniþial în 12 Cardozo L. Rev. 1583 the extensive regulation that has followed (1990-1991), Revista Forumul Judecãtorilor the demise of economic due process.
primind permisiunea autorului ºi a revistei And Justice Harlan (the elder) was in americane în vederea republicãrii exclusive dissent when he wrote "in view of the a studiului în România.
441 277 U.S. 438, 478 (1928) (Brandeis, J., 443 Plessy v. Ferguson, 163 U.S. 535, 559 442 198 U.S. 45, 75 (1905) (Holmes„J„ (1896) (Harlan, J., dissenting).
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