Those who watch oral arguments at the U.S. Supreme Court regularly know that Justices Antonin Scalia and Stephen Breyer are not afraid to openly disagree – and that they often do it in a lively way. But on Monday, the two justices gave a Tucson audience the opportunity to see them spar away from the bench.

The topic of the justices’ discussion was constitutional interpretation, and the justices wasted no time explaining the differences in their philosophies, and gently needling each other a bit in the process.

NBC News legal correspondent Pete Williams, who moderated the event sponsored by the Rehnquist Center at the James E. Rogers College of Law, asked about the 2005 case Roper v. Simmons, in which the Court ruled the death penalty for juveniles unconstitutional in a split vote. Scalia and Breyer talked of how they came down on opposite sides.

Scalia, one of the four dissenters in the case, explained his strict construction approach of considering only the framers’ intent.

“The death penalty is not unconstitutional because the framers said it wasn’t unconstitutional,” Scalia said, adding:  “For this Court, my Court, to just say: ‘[Executing juveniles] does not seem to us a good idea and therefore it’s unconstitutional,’ I just don’t under stand that.”

Scalia pointed to Breyer. “He’ll explain it, though,” Scalia said, drawing laughter from the audience.

Breyer said the Constitution’s phrase “cruel and unusual punishment” doesn’t explain itself, and therefore justices have the difficult task of defining it based on the values espoused by the Constitution.

“The question is, where do we draw the line to day, not where we drew it in the 18^th century,” Breyer said. “Where do we draw the line today in terms of the values enact in the constitution?”

Scalia, as expected, disagreed completely.

” I mean what circumstances have changed?” Scalia said. “Death was death then. Death is death now. [Audience laughs] Eighteen was 18 then. Eighteen is 18 now. You’re talking about applying different values.

“It is a difficult job,” Scalia continued. “Steve, I don’t know how you do it. I’m just glad I don’t play that game. I would lie awake at night, you know-” Scalia looked at the ceiling, fretfully twiddling his fingers.

As the audience laughed again, Breyer jumped in.

“Are you going to execute people for embezzlement?” Breyer asked Scalia. “I know you won’t for parking tickets. What about speeding?” More laughs.

“I would not execute someone for embezzlement, but it’s not unconstitutional,” Scalia said, leaning forward.

Williams asked about other archaic forms of punishment meted out at the time the Constitution was written, such as ear notching or the pillory.

“If cases like that arose, would you find they were constitutional?” Williams asked.

“I’d find they were constitutional and stupid,” Scalia said.

Watch the full video of the justices’ Conversation On The Constitution: Principles of Constitutional and Statutory Interpretation.

When it comes to Supreme Court oral argument, nothing spices up what would otherwise be a fairly dry discussion of a statute like the Federal Arbitration Act like displays of judicial disagreement from the bench

Today the Court heard oral argument in the case of Hall Street Associates v. Mattel, which asks whether an arbitration agreement can specify a standard of review broader than that established under the Federal Arbitration Act. The Court’s decision could significantly impact how lawyers draft arbitration agreements, and how courts treat arbitration agreements they are presented with.

But, perhaps looking for a way to avoid creating such a heavy precedent, Chief Justice John Roberts was more interested in whether the petitioner in the case had another remedy – based on good ol’ contract law.

“If this is not enforceable under the Federal Arbitration Act, which gives you kind of a shortcut . . . I assume you have a normally enforceable contract that the district court can enforce just like it enforces any other contract,” Roberts said to attorney Carter Phillips, who argued on behalf of Hall Street that arbitration contracts can modify the standard of review. “So you don’t need the Federal Arbitration Act, so why should we fly in the face of its plain language to accommodate your interests?” Roberts asked.

Phillips argued that Congress did not intend for the statute to be ignored in favor of the common law fallback, but Roberts pressed on, prompting Justice Antonin Scalia to chime in.

“Excuse me,” Scalia said, clearly not liking the Chief Justice’s point. “I’m just not following this discussion. Does it assume that you can bring an action on the contract and just bypass the provision of the contract which says there will be arbitration? How can you do that? You — you don’t assert you can do that?”

“No,” Phillips said. “We clearly can’t do that.”

“You clearly can’t do that,” Scalia reiterated.

“Right,” Phillips said.

“So somebody has to decide on this arbitration provision,” Scalia said, for good measure.

“Right,” Phillips repeated.

Issue settled, right? Not so fast. . .

More after the jump…

Read the rest of this entry »