We should expect this level of compassionate debate from our politicians and news agents today. Our pivot to celebrity and entertainment has taken the people away of seeking knowledge, understanding, and objective facts to guide decision to extremes of emotions, personal attacks and propaganda We need to demand our politicians, news hold this standard for our collective health and wellbeing as a society
Great content. Thanks for posting this. Justice Breyer's articulation of his framework around 17:00 was helpfully responded to by Scalia in critiquing his last two points right afterward around 19:00. The rejoinder was also helpful around 20:00.
I'm used to the stupidity of fox news and the Daily Show. I'm getting overwhelmed by the intelligence and real debate. I actually understand the two approaches and can appreciate both sides of the argument.
No, I’m sure there are many. Not realistic to ask a judge to come up with a certain case where he felt this way or that way on the spot when he’s sat on thousands of cases, all of which have their own multitude of legal issues and facts, and controlling precedent. No human can remember all that, so he’s not going to just pull one out off the top of his head and say “This one,” and then find out later that some technical aspect of that case was actually the reason he ruled the way he did. Had he known ahead of time perhaps he would have come with some, as he said. The reason Scalia has one off the top of his head is because this is one of his main talking points and if you go watch his other talks you will hear about the Indian couple who couldn’t let someone adopt their baby a hundred times over.
@@tye829 It's because it's painful experience that it stuck with Scalia. Breyer's admits himself he goes with what outcome "feels right" and works backward from there.
@@seanadams6879He doesn't start with the outcome. Both justices are starting with the text. He explains how his philosophy works and Scalia fairly characterized it too. 8th Amendment is a perfect example, where it forbids "cruel and unusual punishment." Scalia looks at that and asks "What was considered cruel and unusual _then_ when the text was written?" Breyer asks, "What is considered cruel and unusual _now_ ?" Both justices are starting with the text, they aren't just deciding what they want to happen. It is a perfectly rational judicial philosophy to say "(A) The Constitution forbids cruel and unusual punishment. (B) The death penalty is considered cruel and unusual punishment. Therefore, (C) the Constitution forbids the death penalty." That is still a textual analysis. It's perfectly fine to disagree with that approach but it's not true to say it's a result-based approach. I myself find I side more often with Scalia, but not always. Because his philosophy leads to some absurd results because the authors of the constitution could not possibly have imagined every scenario that would have arisen in future centuries, and surely they meant for the constitution to be lasting and functional. Things like Brown v. Board of Education. Sticking rigidly to originalism, we should say segregated schools are constitutional. Because the authors of the 14th Amendment permitted segregated schools so it's obvious they did not intend the 14th Amendment's equal protection clause to forbid segregated schools. But Scalia never said that the 14th Amendment doesn't apply to segregation even though his philosophy inescapably leads to that conclusion. He himself has deviated from his philosophy on issues like this. It is not a practical philosophy if rigidly adhered to.
jaddison1112 Do you degenerates not realize that Scalia not ONCE woke up and said "I'm going to make a ruling that will piss off liberals?" What you all need to realize is that he didn't base his decisions off his own opinions. Basically, if something isn't EXPLICITLY stated in the Constitution, he was against it. Tell me where in the document they outlaw PACs or large donations. As much as I dislike those two things, that's a problem that the legislature needs to fix. Not the courts. Do some damn research for once, for as much as I disagreed with his rulings, you're as foolish as you think he is and then some.
jaddison1112 You're missing the point. If it was not explicitly mentioned in the Constitution, he was having none of it. That has consistently been the rule he followed through his entire career. Scalia said multiple times he doesn't mind campaign finance reform, gay marriage being legalized or any number of other liberal policies being enacted, but they're the job of the legislature. Not the courts.
+Afrovii, he sure did provoke thought. Thought about being an idiot and hypocrite. He was a running joke in law school because his "Reasoning" or lack thereof was so obscure and was totally inconsistent.
Tony Boy He does provoke thought and his was an important counterbalance to the justices who were polar opposites of his, such as Ginsburg. Having a wide diversity of voices on the court is incredibly important. It's vital to have people who interpret our laws differently on the court. The chances of one justice interpreting the law wrong are good, but with nine justices and nine very different interpretations, they will come to the correct conclusion much more often than not.
I like that Scalia used examples upon examples upon examples. He seemed exceedingly thorough. It's not just true of their talks together or separately, but also true of their books/writings. Scalia really seemed to have had a strong fidelity to his method, and his method was very detailed.
No. Scalia's points are simple. Breyer is describing nuance situations. Scalia's judicial interpretation is bland, simple, and inconsistent. Originalism does not work for new innovations of today's society. Scalia is just short and sweet with his points. Scalia did not introduce much nuance or philosophical thinking to the discussion. Breyer did. Only intellects can keep up with Breyer.
@@christianc5170 BREYER overthinks curtain things that are obvious in the reading of the constitution. He overcomplicates it by injecting his subjective desires.
@@ericbitzer5247Do you have any articles or anything specific that convinced you? Scalia has always been my favorite Justice and I was upset to learn of his death and the circumstances surrounding it, but I’ve never seen or really heard of specific things that point to murder. I’d be interested to look at anything though
@@jecko1834 It's been quite a few years now and I remember how there was no autopsy and was quickly buried. I would have to look it up. I remember the circumstances being more than just a little suspicious. I'm sure he was murdered.
I agree with you completely ... these men are complete GENTLEMEN. This is how our politicians used to handle our affairs, but those days are gone. It's very nice to see that these gentlemen take their jobs very seriously.
Scalia's approach to statutory and constitutional interpretation just makes so much more sense to me. He knows what he's looking for, and it has nothing to do with his own preferences; he's looking for the meaning of the text (not the subjective unwritten intent of the people who adopted it). And if the text is 200yrs old, he's trying to figure out the original meaning. Why would you assign a different meaning to the text? That's rewriting the law.
Regarding Justice Breyer's uncertainty about the meaning of "other" in a particular law: if he doesn't think the law is clear enough to be enforced he should strike it down, not pretend he knows what the legislature might or might not have wanted. He's giving himself too much power, the Supreme Court must not take on the role of backup-legislature. The Supreme Court must decide on what the law says, and let the legislature correct errors in the law.
+BobWidlefish What do you mean? He didn't say the law wasn't clear enough to be enforced; he said the Court had the task of deciding what was included in 'other' in context of the statute - which is the very purpose and reason the Court exists. The Constitution granted the Judiciary Power to the Supreme Court. Judiciary Power is the power to _Interpret the law_ and apply it to cases and disputes. In some other countries the legislature of that country holds this power and ultimately gets to decide such things, but here in the United States we made the specific choice to strip Congress of this responsibility and create a third branch of government to administer it - as a small but extremely important check on the power of Congress.
+BobWidlefish Incorrect. When a law has two meanings that are reasonable the correct course of interpretation is to interpret the law so that it affords greater protection and/or civil liberties for the threatened parties. That is a universal maxim of statutory interpretation.
jason S. *"the correct course of interpretation is to interpret the law"* If the result is less use of state coercion then sure, I agree. Though I'm sure you know that many court cases require coercion, such as affirmative action. And so defending affirmative action can be viewed by some as providing "greater protection" while it is at the same time clearly supporting more state coercion than not having affirmative action would. So it's far from clear what judgement to make even if we grant that maxim -- different judges will decide "greater protection" differently. And that's the problem with having the rule of men instead of the rule of law. Men decide differently depending on their values. The law should always be clear, and if it's not clear the law can and should be changed so it is clear. There is no middle ground where we rely on judges to "reinterpret" the law in a way that is contrary to what it actually meant when enacted. If a law is too ambiguous to provide a clear answer about its original meaning than it should be struck down as unenforceable so it can be revised by legislators to be sufficiently clear. Which is to say we should always err on the side of maximizing individual liberty / minimizing coercive state power when the law is unclear. Judges should act to incentivize better (less ambiguous) legislation, not rely on endless subjective "reinterpretation" by the 9 (now 8) unelected lawyers of the SCOTUS to change the meaning of law as they see fit. The SCOTUS today is essentially an unending constitutional convention attended by a handful of unelected lawyers that can ratify their own changes. That's pure lunacy. That's not the rule of law, that's the rule of men.
+BobWidlefish alright...First point, Laws are written by men for men so this dichotomy you're drawing is odd. Also, the constitution grants the SCOTUS the authority to interpret the constitution and the process for determining the size and members of candidates for SCOTUS justices is constitutionally determined. I don't know what you mean by State "coercion" with Affirmative Action. The question with Affirmative Action in public institutions is whether race is allowed to be a factor in the decision making process. You're free to agree or disagree with the current law. Finally, the question wasn't if a law was too unclear so as to make it unenforceable so much as are there two (or more) reasonable interpretations of the statuary language. If its too vague, obviously the statute should be voided for vagueness. However, there's also the rude that if there are two interpretations of a statute, one that would give meaning to the statute language and one that makes it ambiguous the judge should interpret the statute in a manner that gives a consistent meaning to all words in the statute. That wasn't even the issue, the issue is whether there were which reasonable interpretation of the word "other" the court would apply.
jason S. Written law that is voted on by elected representatives of the people is entirely different from judicial reinterpretation. One is the rule of the law, the other is merely the rule of (unelected) men. The constitution merely gives the court the power to interpret what the law means, not reinterpret it based on their whims which is de facto rewriting of the law from the bench rather than making such changes to the law via the legislature. Hopefully the difference is clear. State coercion is any situation where the state uses some form of violence (or the threat of violence) to achieve its goals. Making it illegal for private businesses to discriminate on whatever basis they want would be an example of the use of state coercion. Any ruling that reduces state coercion is a good one -- the default should be to err on the side of individual liberty: private property rights, free expression, free association, etc. *"That wasn't even the issue, the issue is"* That framing of the issue is almost begging the question. The core issue is what the constitution has to say about marriage. Short answer: nothing. Therefore it's a personal or at worst a state issue (9th, 10th amendment). There is no power expressly delegated to the federal government to define marriage, so it's not a constitutional issue -- as Scalia correctly recognized. The line of thinking you're going down implicitly assumes the federal government has authority on issues far beyond those powers expressly delegated.
Huge Movement Conservative here folks. Jan Crawford is AWESOME. It's why you don't see her much on CBS....she is WAY to conservative. Thomas is her principle source on the High Court, and her access and writings are brilliant. Her book Supreme Conflict, on the nominations and Confirmations of Roberts and Alito reads like a novel, and there is more substantive behind the scenes information in it than in all other SCOTUS books I've ever read. Cars.
Scalia nails it from 27:30 to the best line around 29:21! Breyer is a politician on the bench; Scalia was a true man of obedience to the Constitution, to the People.
+IndianClassical97 It absolutely means to interpret it strictly as the Founders had intended it; that was, is and forever shall be its purpose! Originalism is the ONLY valid form of interpretation. Natural, constitutionally guaranteed rights are very simple; they do not change. The "living Constitution" is malicious rhetorical subterfuge concocted by the Leftist propagandists.
Do you seem to forget that the situation and societies of 1791 is very different from 2016? If you talk about original-ism, should we still be looking at the Colonies of the Dutch, British,French? 'Cause that's what the US was originally?
+IndianClassical97 Human nature remains the same; our natural rights remain the same. For example, while all modern weaponry is certainly covered by the Second Amend., just as muskets, pistols, bayonets and cannons were in 1791, so too is electronic communication of today covered by the First Amend. So, while society changes, the inherent rights underlying advancing technology remain the same. The Thirteen Colonies were exclusively British; we handled that dispute officially on May 12, 1784. Since then (or July 4, 1776-whichever way one views it), the United States of America has belonged exclusively to Americans (including Native Americans). Your comment regarding the colonies of other foreign countries bears no relevance to the discussion at hand.
+champy1210 Clarification: originalism is a definition of interpreting the Constitution as the Founders intended-strictly as it was written. It has nothing to do with "original" claims to land etc.
Originalists will always deny it but it is 100% true. The most cherished Supreme Court decisions of our nation come from the Living Constitution, and the most hated ones come from Originalism.
@@gray5817 An originalist could come to the same decision in Brown. Scalia himself said that. But even hypothetically if that were not the case, so what? Why should we focus on our personal feelings when deciding cases? It should be objective, and if society wants to change, which it should in such a case, then the Congress should pass legislation.
i thought it interesting that Breyer deflected the question about him concurring with the majority in a case where he found the outcome as deplorable...since he probably can't. his philosophy is contradictory of this conundrum...he looks at the outcome (or at least his interpretation of the outcome) and decides if he likes it or not and votes based on this idea (similar to a legislator). its sad that Breyer's philosophy is mainstream now and anyone that understands this is more interested in who is nominated to the supreme court by the president than the president himself. i hope we can find more Scalia's for the bench!!!!
The point is that Breyer knows what his job is, while Scalia does not know what his job is. Scalia wants to keep all moral disapprovals of the time when the constitution was written. Instead of using rational thinking, he uses irrational moral disapproval to deprive gay people from equal rights. Scalia clearly should not be part of that powerful court. Scalia clearly does not belong into the 21st century.
+Haitian Refugee Breyer thinks the Constitution should mean what a consensus of the American people, legislators and judges take it to mean in the present day for practical purposes. Scalia thought it should mean for every American citizen what he personally presumes that its writers meant. Neither of these seem like ideal positions to me.
JWD1012 The Founders told us in the Federalist Papers, Constitutional Convention & many documents what the Constitution means & the law doesn't change because people want it to mean something else. It should change when it's Amended but now it changes when Breyer thinks it should mean something others & himself prefer.
Haitian Refugee The South was not voting for legislators to end segregation. Again, if Scalia's reasoning was followed, we would have separate but equal still. Hope you can live with that.
I generally consider myself to be a moderate Democrat. I have voted for the Democratic nominee in every Presidential election (though I really consider it as two votes against George W. Bush and two for Obama), but I mix it up more in lower ticket races. That being said, I have always had a great respect for Scalia as a legal intellectual. He makes a very persuasive argument for his point of view. This debate is a good example; I sympathize more with Breyer, but find Scalia more convincing.
Very stimulating for thought. I see where Breyer is trying to come from but Scalia delivered his message and his argument efficiently. Though I do not favor Scalia and ever thought he was a perfect judge, he makes interesting points. Thanks for sharing this video!
Interpreting the law is a very difficult issue, especially for Supreme Court justices. I'm more for Justice Scalia, he is better at elaborating his points. Sad he is not with us any more.
The issue as I see it is do you want judges to rule based on what they think is just or do you want a judge to rule based on what the rule of law (based on their best interpretation of original intent). Since the role of the courts is not to legislate, you have to go with the latter view. The role of the supreme court is to rule on whether a law violates the constitution or not. Their role is not to decide whether a law is just or not. People can get laws changed by voting in different representatives. Breyer's argument of interpreting words based on modern definitions and values is a broken empty bottle that does not hold water!
+Logic Time Not really. That's just your partisanship showing... only brilliant political and legal minds can appreciate the back and fourth between both of the justices. This is what debate looks like. But to your ordinary, run of the mill, hardliner right-winger, of course Breyer "is more of a politician". Because you can't separate yourself from your political bias.
+Y8R Well his opinion of legal theory is that judicial decisions should be made on the basis of political beliefs. Who is the one with a political bias exactly?
im tend toward the conservative side. But I must say both judges have a point. I find I prefer a more liberal judges and conservative politicians. Breyer is a great justice.
There's just no limiting principle to anything Breyer says. When you listen to him, it really is, "Whatever you want the result to be, interpret it to get that result." I'm not a huge Scalia fan, but there is at least some safety for the rest of us in his interpretation of the Constitution. With Breyer you just have to hope you are on the "right side of history."
The terms of service on your cell phone contract are longer than the constitution. I like to believe that was by design. The Constitution is beautifully brief, and leaves plenty of room for legislators to pass laws that fit within the framework of the constitution, and for SCOTUS to interpret those laws. To be of the opinion that SCOTUS can strike down laws that fit within the framework of the constitution is absurd. Equally absurd is the belief that when the constitution is not clear, the mandate is to interpret it the way the founders would have almost 250 years ago. I am appreciative for this debate. I feel I can better understand the two schools of thought now. I agree with most commenters that Scalia is a more compelling speaker, but on the content,
+mtoh At 2:24 the moderator references Justice Holmes from a much older Supreme Court, and then Bryer proceeds to answer based on the Holmes reference and then Scalia, at 3:51 says "Oh Holmes". Scalia as most know is very conservative, Holmes on the other hand was quite the opposite. Scalia is off handeldly saying Oh Holmes...
I couldn't disagree more. There's very little in the constitution that the American people object to, so why throw it out? As Scalia frequently explains, if people want progress (ore regress for that matter) you don't need the Constitution to do it. You persuade your fellow man and get Congress to pass a law. That's how a democratic republic works.
A strong constructionist vs a liberal and the truth is we need both on the court. Both have excellent points. In my opinion, Breyer is the more dangerous threat to our system because if he is left unchecked he will erode the constitution as the values of society erode. Together they check each other and hopefully this will slow the decline of society.
Well, i suppose it depends on how you look at it. I guess if you consider only what Article III says, then you could say that the framers had no intention of the Court acting in an interpretive manner. But if you read Federalist No 78, it discuses the role of the judiciary in interpreting the acts of the legislative branch, which it says cannot be trusted to interpret its own actions. So your point is well taken, but I think one could also argue for an interpretive intent for the Court.
The amendment process of the constitution is the method Scalia would like our country to use when a majority wants something to change. Historically, we interpreted the constitution literally up until recent decades.
6:00 I thought long and hard about the case Scalia is mentioning there. It is one most law students read today in Constitutional law. Mississippi Band of Choctaw Indians v. Holyfield (1989). I agree that the statute was on point, however, considering the length of time that it took these people to assert their claim, there were many creative solutions. Personally, I would choose estoppel by laches. That way, you admit that the law controls, but choose to ignore it because of the unjust result.
If you don't like what the law says: complain to the legislature and get it changed. The Supreme Court exists to give fair reading to the law and investigate it for constitutionality. If the SCOTUS tries to guess at legislative intent then it's functioning as a backup legislature, which is not their legitimate scope.
Scalia is the one who wants to consider the intent of legislators. That is the whole purpose of originalism: to consider the intent of the legislators who passed the law and in the historical context which the law was passed.
They both consider intent. The difference is that Scalia considers the intent that was originally put into a document at the time of it's passing and Breyer considers the intent of the public in the current context of the country. They both have advantages depending on what you desire the Constitution to be. If you desire the Constitution to be a limiting document then Scalia's approach would probably suit your best. However, if you consider the purpose of the Constitution to be a document that reflects the values of current American citizens and is a tool to manipulate current law to reflect those values, then Breyer's approach is probably more suited to you.
At 43:57 Scalia is complaining about how judges have found more expansive concepts of rights over time, and he says that no one thought the Bill of Rights gave a right to abortion, homosexuality, etc. This is a patently OBVIOUS legal error: those rights come from Substantive Due Process, a part of the 14th Amendment, which is a post-Civil War Amendment, not a founding era amendment. If Scalia is going to insist so hard that we MUST use history, and NOTHING ELSE, then he and other originalists could at the very least not mix up where we're supposed to be analyzing the history from. Originalist judges make this error all the time: They'll have a Due Process or Equal Protection question in front of them, and they'll start talking about the founding era, not the post-Civil War era, when the whole point of the 14th Amendment is that it expanded the nation's concept of rights to be far greater than what it was originally: many legal historians analogize the post-Civil War period as being like a second founding. This is something Scalia might understand if he had any actual understanding of History as a discipline. But nice that Scalia thinks that discarding our most important rights is a "piece of cake".
Breyer is so wrong when he says even when we yell we talk and exchange ideas.... no... when you yell you aren't listening. I have two questions 1) is this guy a politician or a judge? and 2) must you be that highly educated to be that misguided?
Interesting that Scalia stated SCOTUS are not political but rather, there are two judicial philosophies: Originalists (go back to original statute and determine the true meaning of the law) and "Living Constitutionalists", a new philosophy started 50 years ago under the Warren Supreme Court where the Constitution is loose, not exact, and "evolves".
Brown V Board wasnt Judicial Activism if the State Laws denied equal protection of State Laws to its citizens, because that is protected by our Constitution. However, If it were not a matter of State Law then it may have been. That could be why it is legal to discriminate in who you choose to marry, date, live with, socialize with etc.
Maybe I am missing something in your comment. Race based, gender based, and perhaps even age based segregation de jure (by law) would be virtually impossible in the United States today. The Equal Protection Clause of the 14th amendment, and the deluge of cases on point for each class; would absolutely make it impossible to accomplish by law.
I think those who rely too much on original intent and "what the founding fathers thought", miss the true nature of what a constitution is supposed to define. it defines a place and time. it defines applied intent of law and how it is used to address current issues at hand. I never believed the founders or framers of the constitution to have a crystal ball to see into the future and be able to pre determine issues and standards of the day, in future tense. the constitution should be a flexible document that is bound by certain principals applied to modern times.
Surely in a democratic society, the highest regard must be given to legislative intent, at least as a solid starting point in statutory and constitutional interpretation. Obviously, there is the concern that societal standards evolve over time, but what justification can be given for delegating the power to decide what has evolved, to 9 unelected officials? Especially given that the only mode through which that power can be exercised, is through interpreting the same words, differently? If there is an issue, or a changing society not adequately reflected by antiquated law, then Congress, or the Parliaments of the States would be in a far better position to redress those problems. If it is a Constitutional issue, then let it be democratically resolved through the Article V amendment process.
yifuj for right or wrong, the judgments of these nine individuals should and must be independent of influence. appointment for life, is a guarantee that their position is not in jeopardy if their decisions are viewed out of popular opinion. all that said, it is vital to elect a president that does not push the envelope too far in either direction, especially when appointing someone who leans to an extreme ideological view point. point in question: I believe justice SCALIA is at the far right as a justice can be. he along with THOMAS, who is actually just a yes man for the conservative point of view. he ask no questions in argument, and I am not sure, but I think he has never written an independent opinion on any cases, but on that I may be wrong. as for the liberals, Justices GINSBERG and BRYER are the most left. but in their defense, they are far more moderate in todays view of what liberal means than the court of EARL WARREN's liberal majority. in these opinions, it is fairer to view decision by justices as to what they are fighting for. is their opinion and fight to narrow a view and to restrict a right, or is it to broaden and expand individual rights. in my opinion, the conservatives like to narrow and limit rights, while the liberals like to expand and broaden rights. that to me is a telling issue when it comes to judicial points of view. for me, I rather a broader and open interpretation that can be used to adjust to a situation at hand, than to limit a view of law and to go as far as to interpret constitutional law as what the original framers "original intent" was some 200 plus years ago.
yifuj I made an argument with someone once, where I stated the most powerful branch of government was the judicial. I made this stating that the supreme court can nullify or uphold a point of legislation or a decision made by the president and congress and brand their will as unconstitutional. with that said, the legislature has the power to amend the constitution, but with that power comes the fact, that to amend the constitution is difficult and laborious. so the power exist to overrule a supreme court decision, but a very difficult one. the founders wanted it to be that way as not to have too much power and influence in one body. a good example id the 14th amendment as a counter to the DRED SCOTT ruling.
Surely that is an unsubstantiated assertion? All Constitutional understandings of the Western World was bred out of the attempt to limit the power of Executive arm of the government. The Magna Carta, the Bill of Rights in the UK and the US, the separation of power doctrine in every Western Democracy has only one purpose - the regulation of the executive. From the scathing remarks of President Andrew Jackon, 'Justice John Marshall has made his decision, now let him enforce it' (in Worcester v Georgia), to the symbolic stand off in Little Rock after the Executive refused to enforce the Brown v Board of Education directive, legal scholars and commentators have observed that whilst there is the Constitutional understanding that the Executive will enforce the Legislative's laws in line with the Judicature's interpretation of them, that understanding is a very weak one.
yifuj. the limitation of federal powers in western democracies is a wish to limit encroaching limits to people's rights and freedoms, not the power of government to correct societies ills or injustices. in my wish to see the constitutional rights to be viewed in broader opinions, is to broaden rights to all and not limiting their rights. it can be argued conservatives view government as interfering with individuals freedom when it comes to health insurance, or taxes, or regulations on corporations and putting a harder burden on them. the powers of the federal government have increased because of individual abuses by corporations or by people of power and influence. the regulations implemented in labor law, health care, retirement under social security, the EPA, the educational standards, etc. were all set in motion because of inequities and abuses. in wishing a broader interpretation of federal powers, it is in defense of individuals rights. corporations are not citizens. they are not empowered with a right to vote. businesses should not have political influence, because they are corporate entities, and even if you argue that the owners have rights, they do not have rights equal to that of an individual citizen. an individual citizen does not have the money or influence that a head of a corporation has, especially where they may have an easier access to those in power who make decisions that influence their will. with all that said, the supreme court has broadened, in the last 30 years, rights for corporations over needs of the individual citizen. money is now considered "free speech", and the money speaks louder than the individual's voice when it comes to influence. that should be a glaring overreach of a right, especially when it is granted to an entity instead of a citizen. a person's rights should be broadened when it comes to constitutional judgments. corporations are not people, but are more akin to the jurisdiction of commerce and trade.
It's funny. Breyer sounds so objective and reasonable here. But just read the dissent in the Citizens United case, which he concurred with. I don't think it could be any plainer that he and the other liberal justices think their role in the court is to unilaterally make law. What in the hell does this guy think his job is? Is it his job to decide what ought to be the law, or what the law is?! It's so juvenile. Scalia was a real principled man. The libs on the court are nothing but leftist activist lawyer oligarchical lawmakers disguised in robes.
You are quite right. Scalia was most likely offed in order to fill the court with more leftist shills. Judges wear black because they are mourning justice because justice is dead.
Its all you look at it. Both schools of thought acknowledge the constitution is a document with values. How far you think those values are interpreted show the kind of school of thought you come from. Scalia believes the values represent what the founders believed based off primary sources and Breyer believes values are subjective to the era
While I certainly reject Scalia's interpretative framework, he is undeniably a better communicator and a more forceful advocate for his approach than is Justice Breyer.
+Steven Hunter I'm with you. The way Justice Scalia speaks is more inviting than Justice Breyer. As for the 'rejection of his interpretation' absolutely. I don't hik it is possible to govern a society a hundred times larger and more diverse with same thought process as when it was framed.
+IndianClassical97 It's debatable of course, but I don't think the size of the country matters (elements of the constitution are proportional while others are not; it wouldn't be particulary useful to have multiple sitting presidents) when it comes to the processes by which it's governed. Politics is the organization of people and the way they act on one another, and the constitution is the best way yet discovered to regulate that human impulse and improve it over time (there are many constitutions longer and more complex than our measly 17 pages, including the People's Republic of China and the hereditary monarchy of Lesotho.) For example, though slavery was practiced at the time of its writing, the constitution was written with the mechanisms for slavery's abolition included, the major sticking points were the proportional elements (point loss for both Democrats and democrats.) People in the government and media who say that the constitution is inadequate are usually comparing it to a hypothetical; pure democracies tear themselves apart while state socialist countries stagnate, democratic socialist countries, (like us, Greece, and France) are a mixed bag as well that have neither solved inequality nor brought an end to violence. These things are empty promises used to deprive us of liberties and further enmesh us with the state, which to my mind is a devolution in governance.
01:05:30 Affirmative action hasn't brought people together. See this is a problem with judges trying to interpret the consequences of a law, it is difficult to do.
Breyers's assertion that justice is emotive, popular, and rooted in history and as a result a worthy endeavor is filacious. A notion that is old does not give it value. A notion that is popular is simple ad populum. Additionally, if it is emotive it carries its own problems. Law, along with justice, must be based on the transcendental by a competent authority. Especially US law. Very sketchy pontification.
scalias point of view seems to be that rather than possible or current interpretations of the constitution decisions should be based on what is perceived as the original intent of the populace who mandated the text (pretty much ad verbum 34:30) I would call that anything but transcendental. In fact Breyer's approach of basing decisions on a fair interpretation the letter of the law rather than a divination of the intent of those who wrote the letters hundreds of years ago seems far more objective.
how so? couldn't you remake the entire legal code of america using your interpretation? there's no check, there's no ground that you can base on rather than a popular congruence of the present day. Which would imply that in each change in public opinion could mean a different interpretation of the law and thus its application... you would have a convention on ALL laws each time opinion changes. no one would be able to accurately work in that legal system without being duplicitous on the application of the law and the separation of powers.
Andreas Andersen I would say that he is just rejecting conventionalism. If the original intent could be shown to be based on the transcendental then that point would stand. It's simple tacit prediction.
kwazooplayingguardsman good point. Once an objective point of reference in rejected anything goes. A few anecdotal references to ambiguity does not change that and I think that is one of Justice Breyer's biggest deficiencies.
anaximander66: No offense, but you seem like a rather confused person. Truth and rights are transcendental, so the text of the Constitution and the Bill of Rights must be adhered to according to the strict meaning of the language therein. There is nothing non-trascental in saying this. To suggest otherwise would mean that our rights are subject to changes in technology or, even worse, fleeting shifts in public opinion. The very purpose of the Bill of Rights is to put limits on government.
Watch at 46:15 how Breyer reverts into bumbling buffoonish Professor mode after Scalia fucking crushes his arguments, and Scalia mercifully withdraws from totally destroying him
That is why you're at best a mediocre person. The purposive interpretation, doesn't matter how you look at it. It is you playing God with other people's lives based on your subjective opinions, with little connection to reality. Who do you think you are to deserve such power? The framers divided the government into branches to preserve liberty, but now you are swooping in and take away all of the power and dictate your view upon others. Sickening.
hello yes i am doing an assignment on this! I am a freshman in college and barely anything is processing. I have to answer questions my professor provided.. I think i kinda get it but not really haha just big words.
I am appalled by what I hear here how Judges would decide a case at all.. that some would befit from a judgment and others would suffer from a judgment based solely upon the majority of people benefiting from the judgement they make.. not whether they make a right and just judgment, but whom they an please the most. Least the masses might not like a ruling.. as long as the majority likes it, then you can keep your job because the majority of the people will accept it, but its devastating to anyone whom it did not benefit even though the law being applied is not in keeping with truth and true justice at all.. I wonder if Roe vs Wade was such a decision?? I wonder, well if we make the women happy, then we can keep our jobs, it may be unpleasant to many people but the majority of people will accept it and so we will simply go by the majority rule.. forget the babies which will get murdered in the case.. after all, they will not have a voice in this, they will all be silenced.. as that is how we serve justice to those who would not like our decisions, we simply eliminate them.. You judges sicken me.. the day is coming you are going to meet the true judge and you will give account for what you do.. and most of you are simply enslaving all of man kind having stole their ID ENTITY via the birth certificate and creating legal fictional names and attaching the living man to the legal fiction so as to enslave them.. you are the most pathetic people this planet has ever known.. JOHN DOE the legal fiction is the name called but John of the Doe Family is the one you expect to take the rap.. you own JOHN DOE, and may enslave JOHN DOE being a dead legal fiction corporation trust no different then if you owned APPLE or MICROSOFT.. all legal fiction corporations.. but human beings, the living man or woman, you have no control over at all, as all men are created equal which means no man has any right whatsoever to make any law and bind it upon another man ever.. there is but one law maker and one only.. God.. and all authority resides in Jesus Christ which means no man has authority over another man save Jesus Christ.. all your statutes, codes regulations acts and what have you bind to nobody without their giving you their express consent with full disclosure and equal consideration going both ways.. but we all know that has never happened.. you have instead chosen slavery of the people.. but its all coming to an end!! The people will be free as God will free His people and he will not at all acquit the wicked.. and you folks are wicked!!
LOL I know!! I just get busy writing and forget to create paragraphs.. I have on occasion gone back after and just made some, not caring if there is a natural break or not.. LOL Funny because I just wrote two others I am looking at right now and they are the same.. no paragraphs, just one large writing..
Appellate courts can and do make decisions and those decisions either will stand or not stand in the interpretation of law.. they stand unless a higher court can be appealed unto.. or if another case is argued and won.. as not all judges are correct in their decisions.. We know that Row V Wade was settled by the supreme court a while back.. but why try and change the dynamics of the Supreme court by putting on judges which will favor the abortion issue if the previous ruling can not be over turned?? Hence even with the Supreme court having already made a ruling on abortion, that ruling can be over turned.. and so can all the lower court rulings as well.. but often many court rulings will stand in so much as their ruling was right and is born out to be right by the continued use of that judgement in other cases.. and in my opinion since the government is suppose to be by the people and for the people, then the people should also be electing the supreme court justices as well. I would like to see term limits for all government offices.. no matter what.. two terms tops.. that way corruption is kept to a very minimum..
Not necessarily.. Just because one judge set a precedent does not mean all judges must follow that precedent.. let me explain what happened with me when I was a young man and went to get a divorce.. The courts decided that the wife was going to get half of all I made because some judge in California said, one only needed $600.00 a month to live on.. he followed that precedent.. now ask yourself, do all judges follow that precedent?? Does everyone getting a divorce have to pay all they make but $600 a month because they can get by on $600?? NO of coarse not, precedent is simply a tool some cruel judges use to make an example out of someone they are not happy with.. and that is it..
I guarantee you, it would not even fly 2 feet... it would not get the time of day in court.. How many women in this world has filed for divorce and wanted to take every penny from the guy they are divorcing?? Tons.. again, it only gets applied to those whom they want to make an example out of..
Interesting, fascinating even. Is it just me or does one Justice speaks at the people the other to the people. One pontificates one communicates, what does this say about each persons psyche. Would you choose an authoritative figure that speaks at or to you. I think one man feels superior to the people the other feels one of the people.
First, this moderator is serving up softballs to Scalia. It's important to note that she didn't question him on any of his opinions where he struggled so hard to hit a hard problem with a soft tool. Scalia wrote plenty of tortured opinions. That aside, Scalia was extremely intelligent. I think that it is because of his personality that originalism/textualism gained momentum. The problem is that the judges succeeding him, that are lesser than him in intelligence and work ethic, using tools that don't work for every problem, botch up the approach. Breyer is a great counter because he matches Scalia on intelligence and is very funny. On the bench he brings laughter to the room as much as Scalia did. The key is to understand how both of these men's theories are forwarded by the process of having to exchange their ideas. If you have a court thinking only one way, they don't have to write the best opinions or find compromises. Roberts has done that during a very divisive time. We have 9 justices for a reason. It was a thoughtful way to ensure that the journey to the decision was thorough and vetted by the best of the best.
Well they all have to work together, in a room, alone, on sometimes very controversial and heated cases. To do this every year for many years, they have to get along or they'd all kill each other, so they usually become friends behind the scenes, though not all the time. Also age has a bit to do with it. Scalia, Ginsburgh and Breyer are all around the same age.
This was a great example of how conversations can be substantive and congenial at the same time.
We should expect this level of compassionate debate from our politicians and news agents today.
Our pivot to celebrity and entertainment has taken the people away of seeking knowledge, understanding, and objective facts to guide decision to extremes of emotions, personal attacks and propaganda
We need to demand our politicians, news hold this standard for our collective health and wellbeing as a society
Fabulous observation, and I agree with you.
Great content. Thanks for posting this. Justice Breyer's articulation of his framework around 17:00 was helpfully responded to by Scalia in critiquing his last two points right afterward around 19:00. The rejoinder was also helpful around 20:00.
Breyer and Scalia are both smart as hell. Scalia is just a damn good orator too.
@@dianeelder2641 Scalia says a lot of nonsense in general
Scalia is goat, but I also love the way Breyer talks. His speech pattern is like a father counseling his child.
@@AtomicMushroomz name one
i want more scalia footage. I've watched everything that's on youtube already
Record at The Bins with Mike Britt if you haven't yet, read his opinions. very stimulating. the man was an intellectual giant!
Read his books...they are as good or better than his public appearances! i hope we can find another Scalia for the bench!
I respect both of these men. Scalia is more aligned with democracy though.
I'm used to the stupidity of fox news and the Daily Show. I'm getting overwhelmed by the intelligence and real debate. I actually understand the two approaches and can appreciate both sides of the argument.
The moderator is absolutely fabulous. Interesting questions and totally respectful
Who here has homework from government
dude its 2021 and I have the summary hw lmao
Me
I loved this video, very interesting and very educational.
Justice Breyers incapable of naming one case where he reached a conclusion that he personally disagreed with. there are none!
Marxist judge
Correct. He always pushes his subjective beliefs.
No, I’m sure there are many. Not realistic to ask a judge to come up with a certain case where he felt this way or that way on the spot when he’s sat on thousands of cases, all of which have their own multitude of legal issues and facts, and controlling precedent. No human can remember all that, so he’s not going to just pull one out off the top of his head and say “This one,” and then find out later that some technical aspect of that case was actually the reason he ruled the way he did. Had he known ahead of time perhaps he would have come with some, as he said. The reason Scalia has one off the top of his head is because this is one of his main talking points and if you go watch his other talks you will hear about the Indian couple who couldn’t let someone adopt their baby a hundred times over.
@@tye829 It's because it's painful experience that it stuck with Scalia. Breyer's admits himself he goes with what outcome "feels right" and works backward from there.
@@seanadams6879He doesn't start with the outcome. Both justices are starting with the text. He explains how his philosophy works and Scalia fairly characterized it too. 8th Amendment is a perfect example, where it forbids "cruel and unusual punishment." Scalia looks at that and asks "What was considered cruel and unusual _then_ when the text was written?" Breyer asks, "What is considered cruel and unusual _now_ ?" Both justices are starting with the text, they aren't just deciding what they want to happen. It is a perfectly rational judicial philosophy to say "(A) The Constitution forbids cruel and unusual punishment. (B) The death penalty is considered cruel and unusual punishment. Therefore, (C) the Constitution forbids the death penalty." That is still a textual analysis. It's perfectly fine to disagree with that approach but it's not true to say it's a result-based approach.
I myself find I side more often with Scalia, but not always. Because his philosophy leads to some absurd results because the authors of the constitution could not possibly have imagined every scenario that would have arisen in future centuries, and surely they meant for the constitution to be lasting and functional. Things like Brown v. Board of Education. Sticking rigidly to originalism, we should say segregated schools are constitutional. Because the authors of the 14th Amendment permitted segregated schools so it's obvious they did not intend the 14th Amendment's equal protection clause to forbid segregated schools. But Scalia never said that the 14th Amendment doesn't apply to segregation even though his philosophy inescapably leads to that conclusion. He himself has deviated from his philosophy on issues like this. It is not a practical philosophy if rigidly adhered to.
Scalia gets along with Breyer pretty well. Scalia, Ginsburg, and Breyer are actually all good friends.
I think this debate articulates well the difference between the so-called liberal and conservative wings of the supreme court
Progressive verse conservative.
Rest in peace Justice Scalia. I never agreed with your positions but you provoked thought.
+Afrovii Finally, out of thousands of people arguing back and forth, another logical person. Rest in peace, indeed.
jaddison1112 Do you degenerates not realize that Scalia not ONCE woke up and said "I'm going to make a ruling that will piss off liberals?" What you all need to realize is that he didn't base his decisions off his own opinions. Basically, if something isn't EXPLICITLY stated in the Constitution, he was against it. Tell me where in the document they outlaw PACs or large donations. As much as I dislike those two things, that's a problem that the legislature needs to fix. Not the courts. Do some damn research for once, for as much as I disagreed with his rulings, you're as foolish as you think he is and then some.
jaddison1112 You're missing the point. If it was not explicitly mentioned in the Constitution, he was having none of it. That has consistently been the rule he followed through his entire career. Scalia said multiple times he doesn't mind campaign finance reform, gay marriage being legalized or any number of other liberal policies being enacted, but they're the job of the legislature. Not the courts.
+Afrovii, he sure did provoke thought. Thought about being an idiot and hypocrite. He was a running joke in law school because his "Reasoning" or lack thereof was so obscure and was totally inconsistent.
Tony Boy He does provoke thought and his was an important counterbalance to the justices who were polar opposites of his, such as Ginsburg. Having a wide diversity of voices on the court is incredibly important. It's vital to have people who interpret our laws differently on the court. The chances of one justice interpreting the law wrong are good, but with nine justices and nine very different interpretations, they will come to the correct conclusion much more often than not.
Scalia is 5 times better in getting his points across.
2323PinkFloyd Because Scalia actually has a point. Breyer is a buffoon.
+No One piece b
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I like that Scalia used examples upon examples upon examples. He seemed exceedingly thorough. It's not just true of their talks together or separately, but also true of their books/writings. Scalia really seemed to have had a strong fidelity to his method, and his method was very detailed.
No. Scalia's points are simple. Breyer is describing nuance situations. Scalia's judicial interpretation is bland, simple, and inconsistent. Originalism does not work for new innovations of today's society. Scalia is just short and sweet with his points. Scalia did not introduce much nuance or philosophical thinking to the discussion. Breyer did. Only intellects can keep up with Breyer.
@@christianc5170 BREYER overthinks curtain things that are obvious in the reading of the constitution. He overcomplicates it by injecting his subjective desires.
How did I go 18 years without knowing about Justice Scalia? This guy is so persuasive!
He was murdered. Look up the circumstances of his death.
Bastards killed him.
@@ericbitzer5247 Yeah Obama had him smothered with a pillow
@@ericbitzer5247Do you have any articles or anything specific that convinced you? Scalia has always been my favorite Justice and I was upset to learn of his death and the circumstances surrounding it, but I’ve never seen or really heard of specific things that point to murder. I’d be interested to look at anything though
@@jecko1834 It's been quite a few years now and I remember how there was no autopsy and was quickly buried. I would have to look it up. I remember the circumstances being more than just a little suspicious. I'm sure he was murdered.
@@ericbitzer5247 ok I’m gonna do a little googling myself too
I agree with you completely ... these men are complete GENTLEMEN. This is how our politicians used to handle our affairs, but those days are gone. It's very nice to see that these gentlemen take their jobs very seriously.
This was a brilliant man, the Supreme Court and the United States will miss him greatly!!
Scalia's approach to statutory and constitutional interpretation just makes so much more sense to me. He knows what he's looking for, and it has nothing to do with his own preferences; he's looking for the meaning of the text (not the subjective unwritten intent of the people who adopted it). And if the text is 200yrs old, he's trying to figure out the original meaning. Why would you assign a different meaning to the text? That's rewriting the law.
Regarding Justice Breyer's uncertainty about the meaning of "other" in a particular law: if he doesn't think the law is clear enough to be enforced he should strike it down, not pretend he knows what the legislature might or might not have wanted. He's giving himself too much power, the Supreme Court must not take on the role of backup-legislature. The Supreme Court must decide on what the law says, and let the legislature correct errors in the law.
+BobWidlefish What do you mean? He didn't say the law wasn't clear enough to be enforced; he said the Court had the task of deciding what was included in 'other' in context of the statute - which is the very purpose and reason the Court exists.
The Constitution granted the Judiciary Power to the Supreme Court. Judiciary Power is the power to _Interpret the law_ and apply it to cases and disputes. In some other countries the legislature of that country holds this power and ultimately gets to decide such things, but here in the United States we made the specific choice to strip Congress of this responsibility and create a third branch of government to administer it - as a small but extremely important check on the power of Congress.
+BobWidlefish Incorrect. When a law has two meanings that are reasonable the correct course of interpretation is to interpret the law so that it affords greater protection and/or civil liberties for the threatened parties. That is a universal maxim of statutory interpretation.
jason S. *"the correct course of interpretation is to interpret the law"* If the result is less use of state coercion then sure, I agree. Though I'm sure you know that many court cases require coercion, such as affirmative action. And so defending affirmative action can be viewed by some as providing "greater protection" while it is at the same time clearly supporting more state coercion than not having affirmative action would. So it's far from clear what judgement to make even if we grant that maxim -- different judges will decide "greater protection" differently. And that's the problem with having the rule of men instead of the rule of law. Men decide differently depending on their values. The law should always be clear, and if it's not clear the law can and should be changed so it is clear. There is no middle ground where we rely on judges to "reinterpret" the law in a way that is contrary to what it actually meant when enacted. If a law is too ambiguous to provide a clear answer about its original meaning than it should be struck down as unenforceable so it can be revised by legislators to be sufficiently clear. Which is to say we should always err on the side of maximizing individual liberty / minimizing coercive state power when the law is unclear. Judges should act to incentivize better (less ambiguous) legislation, not rely on endless subjective "reinterpretation" by the 9 (now 8) unelected lawyers of the SCOTUS to change the meaning of law as they see fit. The SCOTUS today is essentially an unending constitutional convention attended by a handful of unelected lawyers that can ratify their own changes. That's pure lunacy. That's not the rule of law, that's the rule of men.
+BobWidlefish alright...First point, Laws are written by men for men so this dichotomy you're drawing is odd. Also, the constitution grants the SCOTUS the authority to interpret the constitution and the process for determining the size and members of candidates for SCOTUS justices is constitutionally determined. I don't know what you mean by State "coercion" with Affirmative Action. The question with Affirmative Action in public institutions is whether race is allowed to be a factor in the decision making process. You're free to agree or disagree with the current law. Finally, the question wasn't if a law was too unclear so as to make it unenforceable so much as are there two (or more) reasonable interpretations of the statuary language. If its too vague, obviously the statute should be voided for vagueness. However, there's also the rude that if there are two interpretations of a statute, one that would give meaning to the statute language and one that makes it ambiguous the judge should interpret the statute in a manner that gives a consistent meaning to all words in the statute. That wasn't even the issue, the issue is whether there were which reasonable interpretation of the word "other" the court would apply.
jason S. Written law that is voted on by elected representatives of the people is entirely different from judicial reinterpretation. One is the rule of the law, the other is merely the rule of (unelected) men. The constitution merely gives the court the power to interpret what the law means, not reinterpret it based on their whims which is de facto rewriting of the law from the bench rather than making such changes to the law via the legislature. Hopefully the difference is clear.
State coercion is any situation where the state uses some form of violence (or the threat of violence) to achieve its goals. Making it illegal for private businesses to discriminate on whatever basis they want would be an example of the use of state coercion. Any ruling that reduces state coercion is a good one -- the default should be to err on the side of individual liberty: private property rights, free expression, free association, etc.
*"That wasn't even the issue, the issue is"* That framing of the issue is almost begging the question. The core issue is what the constitution has to say about marriage. Short answer: nothing. Therefore it's a personal or at worst a state issue (9th, 10th amendment). There is no power expressly delegated to the federal government to define marriage, so it's not a constitutional issue -- as Scalia correctly recognized. The line of thinking you're going down implicitly assumes the federal government has authority on issues far beyond those powers expressly delegated.
Mostly I agree with Justice Breyer. But I understand Justice Scalia's concern and his argument.
Huge Movement Conservative here folks. Jan Crawford is AWESOME. It's why you don't see her much on CBS....she is WAY to conservative. Thomas is her principle source on the High Court, and her access and writings are brilliant. Her book Supreme Conflict, on the nominations and Confirmations of Roberts and Alito reads like a novel, and there is more substantive behind the scenes information in it than in all other SCOTUS books I've ever read. Cars.
Absolutely brilliant performance from Justice Scalia.
Scalia nails it from 27:30 to the best line around 29:21! Breyer is a politician on the bench; Scalia was a true man of obedience to the Constitution, to the People.
+champy1210 Obedience to the constitution, doesn't mean to interpret it in the same way as in 1791, that was his ONLY drawback!
+IndianClassical97 It absolutely means to interpret it strictly as the Founders had intended it; that was, is and forever shall be its purpose! Originalism is the ONLY valid form of interpretation. Natural, constitutionally guaranteed rights are very simple; they do not change. The "living Constitution" is malicious rhetorical subterfuge concocted by the Leftist propagandists.
Do you seem to forget that the situation and societies of 1791 is very different from 2016? If you talk about original-ism, should we still be looking at the Colonies of the Dutch, British,French? 'Cause that's what the US was originally?
+IndianClassical97 Human nature remains the same; our natural rights remain the same. For example, while all modern weaponry is certainly covered by the Second Amend., just as muskets, pistols, bayonets and cannons were in 1791, so too is electronic communication of today covered by the First Amend. So, while society changes, the inherent rights underlying advancing technology remain the same. The Thirteen Colonies were exclusively British; we handled that dispute officially on May 12, 1784. Since then (or July 4, 1776-whichever way one views it), the United States of America has belonged exclusively to Americans (including Native Americans). Your comment regarding the colonies of other foreign countries bears no relevance to the discussion at hand.
+champy1210 Clarification: originalism is a definition of interpreting the Constitution as the Founders intended-strictly as it was written. It has nothing to do with "original" claims to land etc.
Somebody tell me what Scalia said at 3:51?
+mtoh I think he says "Ah, holmes" Or "not Holmes" but I could be wrong.
He said "I'm Holmes," in response to the original question of whether he was Holmes or Hand.
Brayden Anderson sharp.
mtoh No problem
Awesome to see the Justice's on camera. Both very respectful men from the government's highest respected branch.
Brown vs. Board of education is a perfect example of a "living constitution" while plessy vs. Ferguson is a perfect example of origionalism.
you're a perfect example
Originalists will always deny it but it is 100% true. The most cherished Supreme Court decisions of our nation come from the Living Constitution, and the most hated ones come from Originalism.
@@gray5817 An originalist could come to the same decision in Brown. Scalia himself said that. But even hypothetically if that were not the case, so what? Why should we focus on our personal feelings when deciding cases? It should be objective, and if society wants to change, which it should in such a case, then the Congress should pass legislation.
i thought it interesting that Breyer deflected the question about him concurring with the majority in a case where he found the outcome as deplorable...since he probably can't. his philosophy is contradictory of this conundrum...he looks at the outcome (or at least his interpretation of the outcome) and decides if he likes it or not and votes based on this idea (similar to a legislator). its sad that Breyer's philosophy is mainstream now and anyone that understands this is more interested in who is nominated to the supreme court by the president than the president himself. i hope we can find more Scalia's for the bench!!!!
Good one. It's reassuring when a sitting justice expresses opinions about the "living constitution" similar to what Scalia said at about 27:00.
How the hell did Scalia become a success? He is way to level headed to be as relevant as he is within our government.
Thank you Honorable 'Nino' Scalia; what you revived from the days of antiquity lives on and will grow into the 21st Century.
I find it interesting that two Justices would disagree about the role of the judiciary in such a fundamental way.
The point is that Breyer knows what his job is, while Scalia does not know what his job is. Scalia wants to keep all moral disapprovals of the time when the constitution was written. Instead of using rational thinking, he uses irrational moral disapproval to deprive gay people from equal rights. Scalia clearly should not be part of that powerful court. Scalia clearly does not belong into the 21st century.
+Stefan Kaiser No, he understood that the court may not create legislation. That is the role of the people's elected representatives.
Under Breyers interpretations the Constitution can say anything he thinks it says. Scalia will be missed.
+Haitian Refugee Breyer thinks the Constitution should mean what a consensus of the American people, legislators and judges take it to mean in the present day for practical purposes. Scalia thought it should mean for every American citizen what he personally presumes that its writers meant. Neither of these seem like ideal positions to me.
JWD1012 The Founders told us in the Federalist Papers, Constitutional Convention & many documents what the Constitution means & the law doesn't change because people want it to mean something else. It should change when it's Amended but now it changes when Breyer thinks it should mean something others & himself prefer.
+Haitian Refugee , Under Scalia's interpretations we would still have segregation. Would you prefer that?
Tony Boy How do you figure? If I preferred it I would vote for legislatures who espoused those intentions to pass those laws but I don't.
Haitian Refugee The South was not voting for legislators to end segregation. Again, if Scalia's reasoning was followed, we would have separate but equal still. Hope you can live with that.
I generally consider myself to be a moderate Democrat. I have voted for the Democratic nominee in every Presidential election (though I really consider it as two votes against George W. Bush and two for Obama), but I mix it up more in lower ticket races. That being said, I have always had a great respect for Scalia as a legal intellectual. He makes a very persuasive argument for his point of view. This debate is a good example; I sympathize more with Breyer, but find Scalia more convincing.
What is your politics now, early 2024?
Very stimulating for thought. I see where Breyer is trying to come from but Scalia delivered his message and his argument efficiently. Though I do not favor Scalia and ever thought he was a perfect judge, he makes interesting points. Thanks for sharing this video!
Interpreting the law is a very difficult issue, especially for Supreme Court justices. I'm more for Justice Scalia, he is better at elaborating his points. Sad he is not with us any more.
Dear God my professor is making me watch this 90 minute video in 240p.
Your professor knows what's up.
The issue as I see it is do you want judges to rule based on what they think is just or do you want a judge to rule based on what the rule of law (based on their best interpretation of original intent).
Since the role of the courts is not to legislate, you have to go with the latter view. The role of the supreme court is to rule on whether a law violates the constitution or not. Their role is not to decide whether a law is just or not. People can get laws changed by voting in different representatives.
Breyer's argument of interpreting words based on modern definitions and values is a broken empty bottle that does not hold water!
Man, Scalia is a real justice. Breyer is a more of a politician.
Hussein Toney funny - I got nearly the opposite feeling. Scalina the politician, Breyer the lecturer.
+Logic Time Not really. That's just your partisanship showing... only brilliant political and legal minds can appreciate the back and fourth between both of the justices. This is what debate looks like. But to your ordinary, run of the mill, hardliner right-winger, of course Breyer "is more of a politician". Because you can't separate yourself from your political bias.
+Y8R Well his opinion of legal theory is that judicial decisions should be made on the basis of political beliefs. Who is the one with a political bias exactly?
That's a great observation
im tend toward the conservative side. But I must say both judges have a point. I find I prefer a more liberal judges and conservative politicians. Breyer is a great justice.
I caught myself clapping at the end of this. Such an awesome conversation.
No, he's right. Scalia is one of the best justices in the Supreme Court's history.
There's just no limiting principle to anything Breyer says. When you listen to him, it really is, "Whatever you want the result to be, interpret it to get that result." I'm not a huge Scalia fan, but there is at least some safety for the rest of us in his interpretation of the Constitution. With Breyer you just have to hope you are on the "right side of history."
very insightful...his interpretations are the safest to prolong our nation. FDR and the 9 SCOTUS he appointed fucked the constitution
The terms of service on your cell phone contract are longer than the constitution. I like to believe that was by design. The Constitution is beautifully brief, and leaves plenty of room for legislators to pass laws that fit within the framework of the constitution, and for SCOTUS to interpret those laws.
To be of the opinion that SCOTUS can strike down laws that fit within the framework of the constitution is absurd.
Equally absurd is the belief that when the constitution is not clear, the mandate is to interpret it the way the founders would have almost 250 years ago. I am appreciative for this debate. I feel I can better understand the two schools of thought now. I agree with most commenters that Scalia is a more compelling speaker, but on the content,
But on the content, there is validity to both perspectives. At least that is my personal conclusion.
Do you guys know what case they were talking about?
What did Scalia say at 3:51?
+mtoh "i'm Holmes"
kretsdt Hahahahahaha. This guy.
+mtoh At 2:24 the moderator references Justice Holmes from a much older Supreme Court, and then Bryer proceeds to answer based on the Holmes reference and then Scalia, at 3:51 says "Oh Holmes". Scalia as most know is very conservative, Holmes on the other hand was quite the opposite. Scalia is off handeldly saying Oh Holmes...
I couldn't disagree more. There's very little in the constitution that the American people object to, so why throw it out? As Scalia frequently explains, if people want progress (ore regress for that matter) you don't need the Constitution to do it. You persuade your fellow man and get Congress to pass a law. That's how a democratic republic works.
Breyer looks like Jeffrey Tambor from Arrested Development and Transparent
Andrea Olivas oh come on.
Scalia's laugh makes me laugh more than his jocular statements.
Scalia is a true master
Fascinating. The X-factor however to this conversation is integrity. Democracy is 99% integrity and 1% law.
Two great debaters!
Thank you for posting this.
A strong constructionist vs a liberal and the truth is we need both on the court. Both have excellent points. In my opinion, Breyer is the more dangerous threat to our system because if he is left unchecked he will erode the constitution as the values of society erode. Together they check each other and hopefully this will slow the decline of society.
Rob there should be no living constitutionalists in the supreme court. There's no such thing as a moderate contract.
Where in the constitution does it mention a democracy? All I see is republic
A republic is a subtype of democracy. Also called a representative democracy.
@@fire_tower that really doesn’t answer the question
what is their definition of justice?
Well, i suppose it depends on how you look at it. I guess if you consider only what Article III says, then you could say that the framers had no intention of the Court acting in an interpretive manner. But if you read Federalist No 78, it discuses the role of the judiciary in interpreting the acts of the legislative branch, which it says cannot be trusted to interpret its own actions. So your point is well taken, but I think one could also argue for an interpretive intent for the Court.
Thank you for posting this. It has broaden my mind concerning the issues touched upon.
The amendment process of the constitution is the method Scalia would like our country to use when a majority wants something to change. Historically, we interpreted the constitution literally up until recent decades.
43:08-46:08: Scalia for the win.
6:00 I thought long and hard about the case Scalia is mentioning there. It is one most law students read today in Constitutional law. Mississippi Band of Choctaw Indians v. Holyfield (1989). I agree that the statute was on point, however, considering the length of time that it took these people to assert their claim, there were many creative solutions. Personally, I would choose estoppel by laches. That way, you admit that the law controls, but choose to ignore it because of the unjust result.
Breyer wants to consider intent of legislators; Scalia wants to argue over word choice.
If you don't like what the law says: complain to the legislature and get it changed. The Supreme Court exists to give fair reading to the law and investigate it for constitutionality. If the SCOTUS tries to guess at legislative intent then it's functioning as a backup legislature, which is not their legitimate scope.
Scalia is the one who wants to consider the intent of legislators. That is the whole purpose of originalism: to consider the intent of the legislators who passed the law and in the historical context which the law was passed.
They both consider intent. The difference is that Scalia considers the intent that was originally put into a document at the time of it's passing and Breyer considers the intent of the public in the current context of the country.
They both have advantages depending on what you desire the Constitution to be. If you desire the Constitution to be a limiting document then Scalia's approach would probably suit your best. However, if you consider the purpose of the Constitution to be a document that reflects the values of current American citizens and is a tool to manipulate current law to reflect those values, then Breyer's approach is probably more suited to you.
What is your idea of an effective Supreme Court Justice...?
Someone who correctly interprets the constitution regardless of their personal views or possible externalities.
Great video of two very interesting, intelligent, reasonable judges. I've liked both a lot, and both for a long time. Constitutional law, fu*k yea.
At 43:57 Scalia is complaining about how judges have found more expansive concepts of rights over time, and he says that no one thought the Bill of Rights gave a right to abortion, homosexuality, etc. This is a patently OBVIOUS legal error: those rights come from Substantive Due Process, a part of the 14th Amendment, which is a post-Civil War Amendment, not a founding era amendment. If Scalia is going to insist so hard that we MUST use history, and NOTHING ELSE, then he and other originalists could at the very least not mix up where we're supposed to be analyzing the history from. Originalist judges make this error all the time: They'll have a Due Process or Equal Protection question in front of them, and they'll start talking about the founding era, not the post-Civil War era, when the whole point of the 14th Amendment is that it expanded the nation's concept of rights to be far greater than what it was originally: many legal historians analogize the post-Civil War period as being like a second founding. This is something Scalia might understand if he had any actual understanding of History as a discipline. But nice that Scalia thinks that discarding our most important rights is a "piece of cake".
Breyer is so wrong when he says even when we yell we talk and exchange ideas.... no... when you yell you aren't listening. I have two questions 1) is this guy a politician or a judge? and 2) must you be that highly educated to be that misguided?
Justice Scalia knew his stuff. He was obviously very intelligent just hear him speak. He was prepared. It’s a shame he is dead. May he Rest In Peace.
Interesting that Scalia stated SCOTUS are not political but rather, there are two judicial philosophies: Originalists (go back to original statute and determine the true meaning of the law) and "Living Constitutionalists", a new philosophy started 50 years ago under the Warren Supreme Court where the Constitution is loose, not exact, and "evolves".
Brown V Board wasnt Judicial Activism if the State Laws denied equal protection of State Laws to its citizens, because that is protected by our Constitution.
However, If it were not a matter of State Law then it may have been.
That could be why it is legal to discriminate in who you choose to marry, date, live with, socialize with etc.
Can anyone tell me the case Justice Breyer was referring to when he was talking about the prisoners being denied habeus corpus??
I am guessing Rasul v Bush, but not positive (I am positive it would be one of the post 9/11 cases that dealt with such issues)
+Fernando Varela Hamdi v. Rumsfeld
between 2 ferns: supreme edition
Maybe I am missing something in your comment. Race based, gender based, and perhaps even age based segregation de jure (by law) would be virtually impossible in the United States today. The Equal Protection Clause of the 14th amendment, and the deluge of cases on point for each class; would absolutely make it impossible to accomplish by law.
I think those who rely too much on original intent and "what the founding fathers thought", miss the true nature of what a constitution is supposed to define. it defines a place and time. it defines applied intent of law and how it is used to address current issues at hand. I never believed the founders or framers of the constitution to have a crystal ball to see into the future and be able to pre determine issues and standards of the day, in future tense. the constitution should be a flexible document that is bound by certain principals applied to modern times.
Surely in a democratic society, the highest regard must be given to legislative intent, at least as a solid starting point in statutory and constitutional interpretation. Obviously, there is the concern that societal standards evolve over time, but what justification can be given for delegating the power to decide what has evolved, to 9 unelected officials? Especially given that the only mode through which that power can be exercised, is through interpreting the same words, differently?
If there is an issue, or a changing society not adequately reflected by antiquated law, then Congress, or the Parliaments of the States would be in a far better position to redress those problems. If it is a Constitutional issue, then let it be democratically resolved through the Article V amendment process.
yifuj for right or wrong, the judgments of these nine individuals should and must be independent of influence. appointment for life, is a guarantee that their position is not in jeopardy if their decisions are viewed out of popular opinion.
all that said, it is vital to elect a president that does not push the envelope too far in either direction, especially when appointing someone who leans to an extreme ideological view point.
point in question: I believe justice SCALIA is at the far right as a justice can be. he along with THOMAS, who is actually just a yes man for the conservative point of view. he ask no questions in argument, and I am not sure, but I think he has never written an independent opinion on any cases, but on that I may be wrong. as for the liberals, Justices GINSBERG and BRYER are the most left. but in their defense, they are far more moderate in todays view of what liberal means than the court of EARL WARREN's liberal majority.
in these opinions, it is fairer to view decision by justices as to what they are fighting for. is their opinion and fight to narrow a view and to restrict a right, or is it to broaden and expand individual rights. in my opinion, the conservatives like to narrow and limit rights, while the liberals like to expand and broaden rights. that to me is a telling issue when it comes to judicial points of view. for me, I rather a broader and open interpretation that can be used to adjust to a situation at hand, than to limit a view of law and to go as far as to interpret constitutional law as what the original framers "original intent" was some 200 plus years ago.
yifuj I made an argument with someone once, where I stated the most powerful branch of government was the judicial. I made this stating that the supreme court can nullify or uphold a point of legislation or a decision made by the president and congress and brand their will as unconstitutional. with that said, the legislature has the power to amend the constitution, but with that power comes the fact, that to amend the constitution is difficult and laborious.
so the power exist to overrule a supreme court decision, but a very difficult one. the founders wanted it to be that way as not to have too much power and influence in one body. a good example id the 14th amendment as a counter to the DRED SCOTT ruling.
Surely that is an unsubstantiated assertion? All Constitutional understandings of the Western World was bred out of the attempt to limit the power of Executive arm of the government. The Magna Carta, the Bill of Rights in the UK and the US, the separation of power doctrine in every Western Democracy has only one purpose - the regulation of the executive.
From the scathing remarks of President Andrew Jackon, 'Justice John Marshall has made his decision, now let him enforce it' (in Worcester v Georgia), to the symbolic stand off in Little Rock after the Executive refused to enforce the Brown v Board of Education directive, legal scholars and commentators have observed that whilst there is the Constitutional understanding that the Executive will enforce the Legislative's laws in line with the Judicature's interpretation of them, that understanding is a very weak one.
yifuj.
the limitation of federal powers in western democracies is a wish to limit encroaching limits to people's rights and freedoms, not the power of government to correct societies ills or injustices. in my wish to see the constitutional rights to be viewed in broader opinions, is to broaden rights to all and not limiting their rights. it can be argued conservatives view government as interfering with individuals freedom when it comes to health insurance, or taxes, or regulations on corporations and putting a harder burden on them.
the powers of the federal government have increased because of individual abuses by corporations or by people of power and influence. the regulations implemented in labor law, health care, retirement under social security, the EPA, the educational standards, etc. were all set in motion because of inequities and abuses.
in wishing a broader interpretation of federal powers, it is in defense of individuals rights. corporations are not citizens. they are not empowered with a right to vote. businesses should not have political influence, because they are corporate entities, and even if you argue that the owners have rights, they do not have rights equal to that of an individual citizen. an individual citizen does not have the money or influence that a head of a corporation has, especially where they may have an easier access to those in power who make decisions that influence their will. with all that said, the supreme court has broadened, in the last 30 years, rights for corporations over needs of the individual citizen. money is now considered "free speech", and the money speaks louder than the individual's voice when it comes to influence. that should be a glaring overreach of a right, especially when it is granted to an entity instead of a citizen.
a person's rights should be broadened when it comes to constitutional judgments. corporations are not people, but are more akin to the jurisdiction of commerce and trade.
Scalia owns Breyer - again!
21:00 judge discloses what he is doing
It's funny. Breyer sounds so objective and reasonable here. But just read the dissent in the Citizens United case, which he concurred with. I don't think it could be any plainer that he and the other liberal justices think their role in the court is to unilaterally make law. What in the hell does this guy think his job is? Is it his job to decide what ought to be the law, or what the law is?! It's so juvenile.
Scalia was a real principled man. The libs on the court are nothing but leftist activist lawyer oligarchical lawmakers disguised in robes.
You are quite right. Scalia was most likely offed in order to fill the court with more leftist shills. Judges wear black because they are mourning justice because justice is dead.
Its all you look at it. Both schools of thought acknowledge the constitution is a document with values. How far you think those values are interpreted show the kind of school of thought you come from. Scalia believes the values represent what the founders believed based off primary sources and Breyer believes values are subjective to the era
While I certainly reject Scalia's interpretative framework, he is undeniably a better communicator and a more forceful advocate for his approach than is Justice Breyer.
Why do you reject his interpretation?
+Steven Hunter I'm with you. The way Justice Scalia speaks is more inviting than Justice Breyer. As for the 'rejection of his interpretation' absolutely. I don't hik it is possible to govern a society a hundred times larger and more diverse with same thought process as when it was framed.
+IndianClassical97 It's debatable of course, but I don't think the size of the country matters (elements of the constitution are proportional while others are not; it wouldn't be particulary useful to have multiple sitting presidents) when it comes to the processes by which it's governed. Politics is the organization of people and the way they act on one another, and the constitution is the best way yet discovered to regulate that human impulse and improve it over time (there are many constitutions longer and more complex than our measly 17 pages, including the People's Republic of China and the hereditary monarchy of Lesotho.) For example, though slavery was practiced at the time of its writing, the constitution was written with the mechanisms for slavery's abolition included, the major sticking points were the proportional elements (point loss for both Democrats and democrats.) People in the government and media who say that the constitution is inadequate are usually comparing it to a hypothetical; pure democracies tear themselves apart while state socialist countries stagnate, democratic socialist countries, (like us, Greece, and France) are a mixed bag as well that have neither solved inequality nor brought an end to violence. These things are empty promises used to deprive us of liberties and further enmesh us with the state, which to my mind is a devolution in governance.
so who exactly gets punished if it makes illegitimate statements?
Jim Jordan, Lauren Boebert, Chuck Grassley, Todd Cotton, MTG, Antonin Scalia.
01:05:30 Affirmative action hasn't brought people together. See this is a problem with judges trying to interpret the consequences of a law, it is difficult to do.
Regretfully, I can't listen to what must be interesting. The changing volume levels are much too distracting for me.
Ignoring the law because of the unjust result?? What point is there in having law if we can just ignore it?!
55:15 does he mean Abraham Lincoln?
Mrs Rummell likes "adam's sound system" enthusiastic
Breyers's assertion that justice is emotive, popular, and rooted in history and as a result a worthy endeavor is filacious. A notion that is old does not give it value. A notion that is popular is simple ad populum. Additionally, if it is emotive it carries its own problems. Law, along with justice, must be based on the transcendental by a competent authority. Especially US law. Very sketchy pontification.
scalias point of view seems to be that rather than possible or current interpretations of the constitution decisions should be based on what is perceived as the original intent of the populace who mandated the text (pretty much ad verbum 34:30) I would call that anything but transcendental. In fact Breyer's approach of basing decisions on a fair interpretation the letter of the law rather than a divination of the intent of those who wrote the letters hundreds of years ago seems far more objective.
how so? couldn't you remake the entire legal code of america using your interpretation? there's no check, there's no ground that you can base on rather than a popular congruence of the present day. Which would imply that in each change in public opinion could mean a different interpretation of the law and thus its application...
you would have a convention on ALL laws each time opinion changes. no one would be able to accurately work in that legal system without being duplicitous on the application of the law and the separation of powers.
Andreas Andersen I would say that he is just rejecting conventionalism. If the original intent could be shown to be based on the transcendental then that point would stand. It's simple tacit prediction.
kwazooplayingguardsman good point. Once an objective point of reference in rejected anything goes. A few anecdotal references to ambiguity does not change that and I think that is one of Justice Breyer's biggest deficiencies.
anaximander66: No offense, but you seem like a rather confused person. Truth and rights are transcendental, so the text of the Constitution and the Bill of Rights must be adhered to according to the strict meaning of the language therein. There is nothing non-trascental in saying this. To suggest otherwise would mean that our rights are subject to changes in technology or, even worse, fleeting shifts in public opinion. The very purpose of the Bill of Rights is to put limits on government.
Actually, they very rarely discuss cases among themselves. They simply vote and assign the writing of opinions based on that vote.
Got to love Justice Scalia
Watch at 46:15 how Breyer reverts into bumbling buffoonish Professor mode after Scalia fucking crushes his arguments, and Scalia mercifully withdraws from totally destroying him
44:06 “nobody thought the bill of rights criminalized sodomy” well good thing lawrence was a 14A case, not a bill of rights case lmao
I love the way Justice Breyer replies, to the "Living Constitution". I definitely agree to what he says.
I am more aligned to Breyer's purposive interpretation rather than Scalia's originalism.
That is why you're at best a mediocre person.
The purposive interpretation, doesn't matter how you look at it. It is you playing God with other people's lives based on your subjective opinions, with little connection to reality.
Who do you think you are to deserve such power?
The framers divided the government into branches to preserve liberty, but now you are swooping in and take away all of the power and dictate your view upon others. Sickening.
I have been doing assignments regarding this video over and over again. If your professsor has assigned an assignment on the same, kindly contact me.
hello yes i am doing an assignment on this! I am a freshman in college and barely anything is processing. I have to answer questions my professor provided.. I think i kinda get it but not really haha just big words.
I did not watch one second of this video (ads) but I just want to say I admire just how cordial these two men are, regardless of disagreements.
But that isn't what a corporation is; at least not unless you're talking about a cooperative.
I am appalled by what I hear here how Judges would decide a case at all.. that some would befit from a judgment and others would suffer from a judgment based solely upon the majority of people benefiting from the judgement they make.. not whether they make a right and just judgment, but whom they an please the most. Least the masses might not like a ruling.. as long as the majority likes it, then you can keep your job because the majority of the people will accept it, but its devastating to anyone whom it did not benefit even though the law being applied is not in keeping with truth and true justice at all.. I wonder if Roe vs Wade was such a decision?? I wonder, well if we make the women happy, then we can keep our jobs, it may be unpleasant to many people but the majority of people will accept it and so we will simply go by the majority rule.. forget the babies which will get murdered in the case.. after all, they will not have a voice in this, they will all be silenced.. as that is how we serve justice to those who would not like our decisions, we simply eliminate them.. You judges sicken me.. the day is coming you are going to meet the true judge and you will give account for what you do.. and most of you are simply enslaving all of man kind having stole their ID ENTITY via the birth certificate and creating legal fictional names and attaching the living man to the legal fiction so as to enslave them.. you are the most pathetic people this planet has ever known.. JOHN DOE the legal fiction is the name called but John of the Doe Family is the one you expect to take the rap.. you own JOHN DOE, and may enslave JOHN DOE being a dead legal fiction corporation trust no different then if you owned APPLE or MICROSOFT.. all legal fiction corporations.. but human beings, the living man or woman, you have no control over at all, as all men are created equal which means no man has any right whatsoever to make any law and bind it upon another man ever.. there is but one law maker and one only.. God.. and all authority resides in Jesus Christ which means no man has authority over another man save Jesus Christ.. all your statutes, codes regulations acts and what have you bind to nobody without their giving you their express consent with full disclosure and equal consideration going both ways.. but we all know that has never happened.. you have instead chosen slavery of the people.. but its all coming to an end!! The people will be free as God will free His people and he will not at all acquit the wicked.. and you folks are wicked!!
+LivelysReport Please use paragraphs.
LOL I know!! I just get busy writing and forget to create paragraphs.. I have on occasion gone back after and just made some, not caring if there is a natural break or not.. LOL Funny because I just wrote two others I am looking at right now and they are the same.. no paragraphs, just one large writing..
Appellate courts can and do make decisions and those decisions either will stand or not stand in the interpretation of law.. they stand unless a higher court can be appealed unto.. or if another case is argued and won.. as not all judges are correct in their decisions.. We know that Row V Wade was settled by the supreme court a while back.. but why try and change the dynamics of the Supreme court by putting on judges which will favor the abortion issue if the previous ruling can not be over turned?? Hence even with the Supreme court having already made a ruling on abortion, that ruling can be over turned.. and so can all the lower court rulings as well.. but often many court rulings will stand in so much as their ruling was right and is born out to be right by the continued use of that judgement in other cases.. and in my opinion since the government is suppose to be by the people and for the people, then the people should also be electing the supreme court justices as well. I would like to see term limits for all government offices.. no matter what.. two terms tops.. that way corruption is kept to a very minimum..
Not necessarily.. Just because one judge set a precedent does not mean all judges must follow that precedent.. let me explain what happened with me when I was a young man and went to get a divorce.. The courts decided that the wife was going to get half of all I made because some judge in California said, one only needed $600.00 a month to live on.. he followed that precedent.. now ask yourself, do all judges follow that precedent?? Does everyone getting a divorce have to pay all they make but $600 a month because they can get by on $600?? NO of coarse not, precedent is simply a tool some cruel judges use to make an example out of someone they are not happy with.. and that is it..
I guarantee you, it would not even fly 2 feet... it would not get the time of day in court.. How many women in this world has filed for divorce and wanted to take every penny from the guy they are divorcing?? Tons.. again, it only gets applied to those whom they want to make an example out of..
Interesting, fascinating even. Is it just me or does one Justice speaks at the people the other to the people. One pontificates one communicates, what does this say about each persons psyche. Would you choose an authoritative figure that speaks at or to you. I think one man feels superior to the people the other feels one of the people.
First, this moderator is serving up softballs to Scalia. It's important to note that she didn't question him on any of his opinions where he struggled so hard to hit a hard problem with a soft tool. Scalia wrote plenty of tortured opinions. That aside, Scalia was extremely intelligent. I think that it is because of his personality that originalism/textualism gained momentum. The problem is that the judges succeeding him, that are lesser than him in intelligence and work ethic, using tools that don't work for every problem, botch up the approach. Breyer is a great counter because he matches Scalia on intelligence and is very funny. On the bench he brings laughter to the room as much as Scalia did. The key is to understand how both of these men's theories are forwarded by the process of having to exchange their ideas. If you have a court thinking only one way, they don't have to write the best opinions or find compromises. Roberts has done that during a very divisive time. We have 9 justices for a reason. It was a thoughtful way to ensure that the journey to the decision was thorough and vetted by the best of the best.
Justice Bryer, the perpetual, hawker of his own books.
59:45
Called Sarcasm.
Well they all have to work together, in a room, alone, on sometimes very controversial and heated cases. To do this every year for many years, they have to get along or they'd all kill each other, so they usually become friends behind the scenes, though not all the time. Also age has a bit to do with it. Scalia, Ginsburgh and Breyer are all around the same age.
I love Justice Breyer