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.
“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 18th 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.