Frontpage Interview's guest today is Kevin Ring, the author of Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice. C
overing Scalia's opinons on all the key issues before the Supreme Court, this new book provides a perfect introductory text to a conservative philosophy of law and society.
FP: Mr. Ring, welcome to Frontpage Interview. It is a pleasure to have you here.
Ring: Thank you. It is a pleasure for me to talk to Frontpage.
FP: What motivated you to write this book?
Ring: I have always believed that Justice Scalia was a brilliant and great Supreme Court Justice, and I thought that more Americans would share that view if they had the opportunity to read his compelling, passionate, and sometimes flat-out funny opinions.
Alas, I realize that most people have neither the time nor the inclination to follow the latest happenings around the Supreme Court. I wanted to put together a book that might help bring Scalia’s “greatest hits” to a wider audience. To help readers, especially non-lawyers, understand the opinions, I added a short primer on Justice Scalia’s general philosophy (which is the true conservative approach to the law) and some background on the various issues covered by the opinions, including race, abortion, separation of powers, free speech, etc.
Of course, when I set out to write Scalia Dissents, I had no idea its release would come at such a critical time. However, after watching President Bush win re-election and then learning of Chief Justice Rehnquist’s cancer, I believe the book has taken on a new importance. For starters, the President might nominate Scalia to fill the Chief Justice spot should Rehnquist have to retire. Since the Left is surely familiar with Scalia’s opinions – and are preparing to use them against him – conservatives must also be versed in his writings so that they can defend him. Whether Scalia is elevated or not, it is likely that President Bush will choose for any Court openings that occur during the next four years judges that follow the Scalia philosophy. This book will help all Americans to understand what that judicial philosophy entails and why it is best.
FP: And why is the Scalia philosophy “best”?
Ring: Justice Scalia’s philosophy is best because it honors the Constitution’s separation of powers by keeping judges out of policy-making roles; it promotes coherent, consistent and uniform rules, which is important for those that are and will be subject to the Court’s decisions; and it respects and defends the ability (if not the right) of ordinary citizens to have more input on important social and political issues.
Scalia’s philosophy, rooted in textualism and originalism, is best able to help our nation preserve the rule of law and avoid rule by lawyers. Former Supreme Court Justice Curtis warned in 1857 that the Constitution would be controlling only if judges interpret it as Scalia advocates. Curtis wrote:
“[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of what it ought to mean.”
Nearly 150 years after Justice Curtis’ warning, we are getting closer and closer to realizing his great fear. Yet, in poll after poll, a majority of the American people consistently says it wants judges to interpret the law as written, not make new law.
FP: Tell us why Antonin Scalia is the best-known and most controversial justice on the Supreme Court.
Ring: Quite simply, Justice Scalia is deemed controversial because he is the most Intelligent, articulate, and passionate opponent of extending constitutional protection to the Left’s most cherished activities and causes: abortion-on-demand, quotas and affirmative action, gay marriage, and elimination of faith from the public square.
FP: If one of the Left’s most cherished causes is the “elimination of faith from the public square,” why do you think Western progressives are so silent about and indifferent to Islamism’s combination of religion and state? The Left has clearly chosen the side of militant Islam in the War on Terror, and yet, in this context, the enemy violates what is supposedly one of the Left’s most sacred values.
Ring: Your question deserves a much longer answer, but suffice it to say that consistency is not a virtue of the Left. After all, the proponents of treating European views on sexuality as somehow relevant to the Supreme Court’s interpretation, the U.S. Constitution’s Due Process Clause would not for a nanosecond advocate reviewing Middle Eastern criminal justice practices in order to inform our Cruel and Unusual Punishment Clause jurisprudence.
FP: Give us 2 or 3 examples of some of Scalia's most colourful and courageous court rulings.
Ring: Justice Scalia has penned hundreds of memorable lines and dozens of courageous opinions. The following passage typifies Scalia’s wit and wisdom. Dismissing his High Court colleagues’ concerns about the reliability of witnesses that saw the face of the accused killer, Scalia wrote:
“Facial features are the primary means by which human beings recognize one another. That is why police departments distribute “mug” shots of wanted felons, rather than Ivy-League-type posture pictures; it is why bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking “You admit that you saw only the killer’s face?” will be laughed out of the courtroom.”
Vintage Scalia. As for courageous opinions, a good example is his solo dissent from the Supreme Court’s decision to abolish the Virginia Military Institute (known commonly as VMI) from admitting only men. His long and eloquent opinion included the following: “The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.”
FP: What is the judicial philosophy that moulds Scalia's decision-making?
Ring: Justice Scalia’s philosophy for deciding cases is straightforward and easy to understand. It incorporates two important –isms: textualism and originalism. As its name suggests, textualism directs judges to focus on the text of the law to decide disputes. This might seem obvious, but all too often judges seem willing to substitute their sense of the “fair” or “just” or “right” result for that which would otherwise flow from a proper interpretation of the actual law. Scalia is willing to apply the text even if the outcome it produces is not one he supports. As he once wrote, “I do not think…the avoidance of unhappy consequences is adequate basis for interpreting a text.”
As part of his textualist approach, Scalia argues that the words of a text should not be interpreted “strictly” (as some conservatives advocate) or “liberally.” Rather, they should be interpreted reasonably and given their ordinary meaning. When in doubt, Scalia believes words should be given the meaning that would have made the most sense to the Framers (if dealing with constitutional text), the Congress, or the state legislature that passed the law and to the people who would have been subjected to it. This adherence to original meaning is known as originalism.
The virtue of Scalia’s philosophy is that it helps to prevent judges from reading their values and policy preferences into the law. The judge remains in his proper role as neutral arbiter. The wild horse of activism is restrained, penned in by the text of the law.
FP: How do you think Bush's election victory will influence the future of the Supreme Court? How should it influence it?
Ring: President Bush’s re-election has given him an opportunity to fundamentally shift the direction of the Supreme Court. There are likely to be at least two vacancies during his second term and might be as many as four. These vacancies will allow the President to appoint Scalia-style constitutionalists that will return the Court to its rightful place in our constitutional system.
It is important to note that although conservatives have witnessed some successes during the Rehnquist Court years, they have not seen the degree of change they had hoped for after watching President Reagan make three appointments and the first President Bush make two.
Consider the fact that the Rehnquist Court not only preserved Roe v. Wade, it ruled unconstitutional state laws to prohibit partial-birth abortions. And remember that even before President Clinton added liberal Justices Ginsburg and Breyer to the Court, it held that the practice of including non-denominational prayers at high school graduation ceremonies violates the U.S. Constitution. Scalia’s dissenting opinions from both of those decisions are in my book. Conservatives have every reason to hope that by the time Bush is done appointing new Justices, Scalia’s reasoning will become the basis for Court majorities to reverse those decisions.
FP: Mr. Ring, thank you for joining Frontpage Interview, it was a pleasure to speak with you.
Ring: Thank you for having me. I am a fan of Frontpage and appreciate the opportunity to talk with you.
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