C-Span Excerpt
U.S. Supreme Court Justices Interview with Tim Russert
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Real Player audio beginning at 53:08
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Russert: Justice Breyer, are you concerned at all about the rising tide of anti-judicial rhetoric we have been hearing?
. . .
Russert: [interjects] But in terms of the three branches of government, lifetime appointees, isn’t it important for the institution that it be respected.
O’Connor and Breyer: [Yes it is. We all agree. ]
Russert: In some of the rhetoric lately, judges will answer for that, judiciary run amok. It is pretty harsh.
O’Connor and Breyer: [Acknowledge rhetoric. Cite historic instances of ill feeling toward the Court, high emotions, and disagreement are nothing new, but there is no talk of “needing the paratroopers” . . . ]
. . .
Breyer: [concluding] . . . I can criticize that Court all I want. But, I
will follow the rule of law. And, that is the treasure that I think this
country has.
Scalia: (interrupting
transition from Ginsburg to O’Connor)
I dissent on this point. I have to tell you. It is not a question of the country disobeying the decisions of the Court. That’s not what is going on. But, I think what is going on is unprecedented in the difficulty of getting judicial nominations confirmed.
I was nominated almost twenty years ago. I was known to be conservative in my policy views, But, I was known to be a good lawyer, an honest man, somebody who could be fair and write an intelligent opinion [Russert interrupts – you were confirmed 98-0] I was confirmed unanimously by the Senate . . .
Now, something something very fundamental has changed. What we originalists think has changed and we have been saying this for a long time. You cannot adopt a theory that the Constitution is evolving and the Supreme Court will tell you what it means from age to age. You cannot do that without causing the Supreme Court to become a very political institution. And when that happens, the people in a democracy will try to seize control of it. They will realize that it is nice to have good lawyers up there, but that is not the main object. Basically, we want people up there who will evolve the Constitution the way we want it evolved.
Now, you don’t have to worry about that for originalists. Our constitution doesn’t evolve. It means what it meant. But, if you have an evolving constitution somebody is going to have to decide. And I think what has happened is that after about fifty or sixty years of an evolving constitution, the people have come to realize what is going on . That the people they are selecting, not just for the Supreme Court but even for the courts of appeals, have enormous policy discretion. And, I think that is what is going on.
Judges have become political entities. Much more than they ever were. But look, this is an originalist view and my colleagues probably don’t agree with it. Certainly, don’t agree with it.
Russert: Justice O’Connor, one Congressman said you know we in Congress could reduce the Supreme Court to one person if we wanted to.
O’Connor: The number of Justices is fixed by Congress.
Russert: Article
O’Connor: Yes.
Russert: Do you have anything to add to what Justice Scalia said?
O’Connor: No. I
don’t think so. (laughter) I think it is very
unlikely.