In a speech before more than 1,000 law students and attorneys at Baltimore's Lyric Opera House yesterday, U.S. Supreme Court Justice Antonin Scalia set out to dispel the notion that his judicial philosophy always leads him to ultra-conservative opinions.
He pointed to an instance where he agreed that flag burning was a form of protected and legal speech. Scalia said the morning after the court's opinion was announced, his "very conservative" wife began humming You're a Grand Old Flag over breakfast as a form of protest. The audience burst into laughter.
During a nearly hourlong speech, sponsored the by University of Baltimore School of Law, Scalia defended his view on the Constitution. He said he rejected the notion of a "living Constitution," or one that changes as society changes. Instead, he said he believes that the court should interpret the meaning of the Constitution based on the intent of its original authors.
So abortion, for example. It's not covered in the Constitution. Leave it to the legislature, Scalia said. Same with the death penalty.
Hence, he said, his position on flag burning. If he had a personal choice, he said he would throw all flag burners "right in jail." But the Framers, he said, intended the First Amendment to allow people to express opposition - to protect them from tyranny. Protecting flag burning matches the Framers' intent, he said.
The problem with Scalia's approach is that "there have been times in history when the legislature hasn't acted to deal with what we think are injustices," said Judge Lynne A. Battaglia, a member of Maryland's highest court, who said it was her third time hearing the justice speak. "There is inaction when we have personal liberty at stake."
Battaglia also said she admires Scalia's consistency and clarity.
"He's totally genuine," she said. "What you see is what you get."
Always controversial, Scalia rarely appears before the press, but in the coming week, he will have heightened visibility during interviews with 60 Minutes airing Sunday and NPR on Monday advancing his new book, Making Your Case: The Art of Persuading Judges. No television cameras were allowed inside the Lyric, and photographers could snap pictures only during the first two minutes of his speech.
Scalia didn't mention the book. But he did try to persuade the audience, which included four members of Maryland's highest court, to join his camp. Many jurists believe that their positions can glide with "the evolving standards of decency that mark the progress of a maturing society," he said, quoting a 1958 Supreme Court opinion.
"What a Pollyanish notion," he said. "Why adopt a Bill of Rights if we're sure, every day, we get better and better."
Allowing the court such broad power to interpret a nation's "standards of decency" is "genuinely anti-democratic," he said. If the Supreme Court were to declare the death penalty unconstitutional, then "that's the end of the matter. It's forbidden coast to coast. And that's flexibility?"
And, he said, life inside Washington's Beltway - what he called "100 square miles surrounded by reality" - insulates him from the public at large.
But it does give him a keen understanding of politics. He said that the court's increasing power, which has grown since his nomination by President Reagan in 1986, has polarized the nomination process.
Scalia's nomination was approved 98-0.
"I doubt I could get 60 votes today," he said.