I've gotten a lot of email about my interview with Justice Antonin Scalia on Tuesday. People seem to have liked the story because they could see the justice as a human being — combative, funny, engaging and charming.
That's why I and so many other folks always enjoy spending time with him.
So, take this exchange from our interview. Only part of it was in my piece on air, or even the longer piece on the Web.
I was asking him about the court's tradition of stare decisis, which means following precedent. Scalia readily conceded that he abides by decisions he disagrees with:
Totenberg: So you would let stand many decisions that you would not have reached?
Scalia: Many many, many. ... alas [chuckles].
Totenberg: One person, one vote, you wouldn't have reached that decision? Right?
Scalia: Certainly not.
Totenberg: And the wiretapping decision [requiring warrants to wiretap]?
Totenberg: Covering women under the 14th Amendment?
Scalia: Well, come on. Covering women under the 14th Amendment [laughs]. Women were always covered under the 14th Amendment. What are you talking about? Were they entitled to due process of law? Could you send them to jail without a trial? Without a jury? Come on, women were always covered by the 14th. ...
Totenberg: If they are tried by jury, [it] certainly [was] not a jury by their peers, not when women were not on the jury.
Scalia: Well, where does the Constitution talk about a jury of your peers?
Totenberg: It doesn't talk about it in the Sixth Amendment?
Scalia: It talks about a jury, right to trial by jury. Doesn't talk about peers.
Totenberg: No peers?
Scalia reached for his pocket copy of the Constitution at this point, finding it was not there. Neither of us was 100 percent sure. But I checked when I got back to the office, and he was right. The Sixth Amendment does not say anything about peers.
Eventually though, we got to my question, whether he thought the Supreme Court was wrong when it ruled that women were covered by the 14th Amendment's Equal Protection Clause.
In 1971 in a case called Reed v. Reed, then-professor Ruth Bader Ginsburg argued in a Supreme Court brief that the 14th Amendment covers women. The amendment, she noted, says that "no person" shall be denied equal protection of the law, and that since women are people, that means them, too. The Supreme Court bought the argument and subsequently has struck down a variety of federal laws and regulations that treat women differently from men. Scalia has never agreed with that.
He tried to dodge my question about this at first, but I held his feet to the fire, and he eventually conceded that, in his view, "If you think it's a good idea [to guarantee women equal protection of the law], amend the Constitution! Which is what they did to give women the vote."
Whether you agree with him or not (and on this point, I don't), it is really fun to engage in a verbal wrestling match with a master who enjoys the match, too.
Scalia didn't mention it, but of course, discrimination against women in employment and other spheres is now banned under federal law, a ban that Scalia has consistently enforced.