As reported by the Harvard Crimson, Justices Scalia and Breyer discussed the role of Judges with three Law Lords from the United Kingdom (Lords Arden, Roger and Scott), at Harvard Law School 9/28/2005. The HLS has posted a streaming webcast. Partially because this site is not "Breyerville" (although there perhaps should be such a site) or "Lawlordville", but mainly because there is only a video and no transcript available at this time, meaning that we're the ones doing the transcription, we will only be featuring Our Hero's remarks, and sufficient extraneous material as to place them into context.

Question: What is the judicial role? How do you conceive of what you do, and how do you think that it might differ from what your UK counterparts might do?

Justice Antonin Scalia: That's a pretty broad question! To some extent, the nature of the judicial role depends upon the rules that are applicable to a particular court. I suppose for most courts it's really fair to say that the judicial role is simply -- well, I wan't around for the recent testimony of our Chief Justice-designate, but I gather that he used the baseball analogy; just call the balls and strikes, just an umpire, these guys fight it out, and you say who has the right side of it. I think that's a fair description, certainly of most courts. The problem - I say problem, I guess the difference - in the case of my court is that we have this institution of certiorari. We don't really take a case in order to, quote-unquote, "do justice", to make sure the right person has won. In a number of cases that we decline to take, I suspect that the lower court may have got it wrong. But there has been at least one appeal, in most cases two, by the time it reaches us, and our job is not to correct mistakes. By reason of certiorari, our job is to resolve those issues of federal law on which there is disagreement below [i.e. in the lower Federal courts -Ed.]. Once you have that institution of certiorari, it really alters the nature of what the court is doing; it means that we're really not there to ensure that the good guy won and the bad guy lost.

Q: So do you think about the litigants at all when a case is presented to you, and if so, how do you think about the litigants?

AS: No; when I talk about appellate practise, one of the things I say is, first of all, "drive out of your mind the notion that I care about your client". The reason I ask hypothetical questions -- and some lawyers get offended at hypothetical questions, they come back with "that is not this case"; I know it's not this case, it's a hypothetical question, dummy! -- but the reason you ask the hypothetical question is, I am not about to do "justice", in the broad sense, to your client, at the expense of doing injustice to hundreds of others, because of the rule that I adopt in order to help your client. I am much less interested in your client as I am in the rule of law that is being adopted, which will be applied thousands of times by the lower courts without the benefit of my reviewing it any more. I think that's a distinctive feature of United States Supreme Court in certiorari practise.

AS: Although in one respect, the Law Lords seem less potent than the Supreme Court of the United States, in that they are not operating under a written constitution, so they can't just disregard an act of Parliament, but in another respect, they are MORE potent than the Supreme Court of the United States, because they are a common law court, which we are not. There is virtually no Federal common law, my court is always dealing with a text, either with a Federal statute, or with the text of the Constitution...By and large - with few, very minor exceptions - there is no federal common law, so we can't make it up. Or at least, we're not supposed to be making it up.

Q: So would you change jobs with Lord Roger? Who do you think has a better job?

AS: (laughs) No, no; I like a text, I feel more comfortable with a text.

AS: Let me say this, because our English friends would not say it, as modest as they are. The English system of picking members of the law lords is really a meritocracy; it is the bar that selects the best person for the job. [But] in our system, it is an avowedly political system. Now, there are good reasons for that, but the English would be shocked if they were told that any political consideration came into the appointment of someone to the law lords. From all I've heard, it functions that way, that the best lawyers in the country decide who's the best person to get the job.

Q: [Judges] Shouldn't have agendas, [and] don't have agendas. Any disagreement on that?

AS: What causes differences among justices on our court is not agendas, but differing philosophies of deciding - in particular, if you think the Constitution is changing or if the Constitution is static. that brings you to quite different conclusions, but it doesn't produce an agenda. Sometimes my philosophy will bring me out for the prosecution, sometimes for the defense.

Q: Can you give us an idea of the kind of pressures you're under while you're on the court deciding cases, especially in relation to the Bush v. Gore case. Even though you're insulated by lifetime appointments, what kind of pressures come out and how do they affect you?

AS: Really, there were two pressures in Bush v. Gore which are not present in most cases. The first was a time pressure. It is very unusual that we have to whip out an opinion in, uh...I remember that the briefs in the case were delivered on Sunday and the argument was on Monday! We had to come out with a decision very quickly, so law professors who study the issue for three months and then write a law review article - big deal. [laughter] The second pressure in that case, of a sort that doesn't exist in most cases, because of its political sensitivity, as in Brown v. Board of Education, there was some pressure to try to come up with a consensus position, to try to get a strong court rather than a 5-4 opinion. Those are the only two differences from the ordinary case. Certainly no -- I don't think on the part of anybody on the cout -- political considerations.

Q: I'm wondering if you see a solution to the politicization of the judiciary, and if not, whether you would support term limits on Justices of the Supreme Court?

AS: The reason the process has become politicized is not Bush v. Gore. A case in which the court decides an election is a rare phenomonon; that is not what has produced the politicization of the nomination and confirmation process. What has produced it is, quite simply, the emergence of a judicial philosophy that says, the Constitution is indeterminate; these phrases do not mean what they meant when they were adopted, and that it is up to us, nine justices, to decide what is due process of law? What liberties are important? Should there be a right to suicide? Should there be a right to abortion? There's no answer to it in the text of the Constitution, there's no answer to it in the prior history of the common law, it's just up to the nine justices. Well, my goodness, if you're operating in a system like that, it is VERY important who you put on the court. It is less important that this person be a very good lawyer than that this person agree with you as to which new liberties should be pronounced and which old ones should be eliminated.

So the answer to the question is that it will become unpoliticized -- as it relatively used to be -- as soon as we go back to saying that the constitution means what it says, and it means what it meant when it was adopted. But as long as you have the lovely quote-unquote 'living constitution', you are putting it in the hands of nine justices to decide how the constitution evolves. That is an enormous power, and any decent democracy, any democracy worth its salt, would WANT to have an input into the selection of those people.

Q: To what extent should judges sitting in the highest court of their respective countries look outside the law of their own countries?

Lord Scott: In my opinion, they would be neglecting a valuable tool to judicial decision-making if they didn't do that. The decisions of foreign courts and foreign jurisprudence are never binding, but if they are dealing with similar problems, then the way in which they deal with those problems, and the thoughts they have about those problems are valuable. It would be foolish to turn away from the valuable guides and examples which you can get from perousing the foreign jurisprudence. It's absurd not to do that.*

AS: Spoken as a good common law judge! [laughter] Were I common law judge, I would do the same. That is to say, if I was making up the law, I would go and see how other countries thought it was good to make it up. But if one is not a common-law judge, and one is always [as in the U.S.] dealing with a text, either the text of a Federal statute or the text of the constitution, what can a foreign decision possibly tell me about the meaning of a text adopted by an American legislature, or by the American people when they ratified the Constitution? What can it possibly say about that? the answer is nothing at all. I agree that, if you believe in the living constitution - which is sort of a constitution in which Judges are given common law powers to revise it - then, of course, consult foreign law. Why not? Consult a Ouiji Board. [laughter]

* Cf. remarks of Justice Breyer, American University 1/13/05.