THE SUPREME COURT
With a Book Coming Out, Scalia Is All Talk -- Even With the Media
Thursday, April 10, 2008; Page A04
Yesterday, it was high school students. Earlier this week, future lawyers. The Brits, whom Justice Antonin Scalia shocked with his laissez-faire attitudes toward torture, are behind him. Soon Scalia will sit down with "60 Minutes" to promote his new book about legal persuasion.
The Supreme Court's most outspoken justice is talking and talking, even to reporters. In the past, Scalia was more vigilant about keeping the media out of his speaking engagements than inviting them in. But in recent years he has been far more lenient, providing reporters greater access to his speeches to colleges, law schools and other groups, in which he is an evangelist for his "originalist" view of the Constitution.
It was the subject he continually turned to yesterday, in an hour-long question-and-answer session broadcast live on C-SPAN from one of the court's grand, ceremonial conference rooms. The questions came from 27 government students at Northern Virginia's selective public high school, Thomas Jefferson.
The first student up gave Scalia, 72, a chance to take a whack at the concept of the "living Constitution" and to expound on his own view that the only valid way to interpret the document is by determining what it was "understood by the American people to mean when they adopted it."
Scalia acknowledged that it is hardly the orthodox view of constitutional interpretation, but those who disagree with his view should at least be glad it can serve as a curb on what they perceive to be his political instincts, he told the students.
He gave the example of his deciding vote in declaring unconstitutional a law prohibiting burning the American flag.
"Now in my social views, which I don't apply from the bench, I'm a fairly conservative fella, to tell you the truth," Scalia said. "And I don't like people who burn the American flag, and if I were king, I would put them in jail. But I'm not king, and I'm bound by the First Amendment, and my understanding of it is that it gives you the right to criticize."
It was the "conservative fella" who told a BBC interviewer in February that torture -- "I don't know, stick something under the fingernail, smack him in the face" -- might be justified in the case of interrogating a terrorist who knew where a bomb was planted.
In a situation reminiscent of a "24" plot -- Scalia has mentioned the television show and its hero Jack Bauer in several speeches -- "I certainly know you can't come in smugly and with great self-satisfaction and say, 'Oh, it's torture, and therefore it's no good,' " Scalia said.
The use of torture is not an issue currently before the court, but Scalia is far more likely to comment about such issues than any of his colleagues. And he is more likely to be making the comments to a group than to a reporter.
Tony Mauro, a longtime Supreme Court reporter who broke the news of Scalia's deal with "60 Minutes" on his Legal Times blog, went on to describe it as a "Nixon-goes-to-China moment" because of Scalia's past criticisms of the media.
Even yesterday, he repeated his opposition to allowing cameras at the court's oral arguments, because he said the clips shown by the media would not accurately represent what happened there. "Why should I participate in the mis-education of the American people?" he replied to his student questioner.
But even Justice Clarence Thomas, far more reticent with the media than Scalia, went on "60 Minutes," "Nightline" and other shows last fall to plug his book "My Grandfather's Son." Former justice Sandra Day O'Connor and Justice Stephen G. Breyer have given similar television interviews.
Scalia's new book is about law rather than himself. Called "Making Your Case: The Art of Persuading Judges," it was written with legal writing expert Bryan A. Garner.
When asked what he likes about being a justice, Scalia told the students that he finds even the most insignificant legal question interesting, and while the process of writing opinions is painful, "I like having written."
But his agent might point out that he neglected to mention the book.