Sutton, an honor to have him down. He flew in last night, right through the storm, and so were grateful that his flight made it here safely and that we are able to have this event today. Judge sutton is a judge of the u. S. Court of appeals for see six inch circuit where he has served since 2003. Nominate i by george w. Bush, former solicitor general of ohio, been in private practice, has clerked for several judges, including Justice Scalia, the subject of his new book. So, the occasion for todays event is the essential scalia. That is the new book that the judge suton edited with ed whelan, another friend of us who has been here some spoken to this chapter about another scalia book. So were all but scalia in this chapter. Jut sutton evidence his law degree from the ohio state university. He has served as chair of the federal judicial and Conference Committee on the rules of practice and procedures. The was appointed to that position by chief justice john roberts. He has taught constitutional law and other legal subjects at a number of universities and in fact was teaching at several universities right now. One benefit to the pandemic is we have zoom and other forms of Online Education so opportunities are able to have judge sutton as a professor without him having to be there present in person. So, that is a tremendous benefit to the Legal Academy at large. Judge sutton, thank you for being here today and thank you for talking to us about your new book. Ill start by something we talked about in the car on the way over, which is just in in, Justice Scalias influence on you individually and philosophically. Yes, first of all thank you for inviting me. Its great to be here. Live, not on zoom. So im really glad were here and being cautious and so forth. Its really i have a lot of fond memories coming to movement it feels as if my career got started here soon after i left the ohio solicitor generals office, then attorney general bill pryor hired me to handle cases in u. S. Supreme court, and happily he did not yet have a solicitor general so that was my window of opportunity. That position had been filled any earlier im not sure what would have happened in my career put it was fortunate to get to know bill and so many fine people in the Alabama Attorney generals office. So its a lot of fun do come here and fun to come back. So ive been think bought this a lot. We have been talk about the boom with other people, and talking to someone the other day and they said im starting to think Justice School ya has become more influential since he died than he was while he was living. Thats an odd thing. How could that be . What might explain the impact he is having and why he is so essential part of the conversation but the courts, originalism and textualism, and i feel like my own path to getting to know Justice Scalia offers a little bit of an explanation. So, i theres a lot autobiographical but i came from a pretty progressive family, new england. My first president ial election, 1980, i voted for jimmy carter to give you a skins of things. Learned about the u. S. Supreme court through Linda Greenhouse and the new york times, by the time i went to law school in 1987s was mainly apolitical. But i had leaping they would have been in a pore progressive direction could not have told you what originalism or textuality. When i started or by the time i grad baited. Did read robert borks book, the tempting of america and i was fortunate enough to get a clerkship at the Supreme Court, the author was from Justice Powell who was then a retired justice. Im retired justice the court gets one law clerk. Was his one law clerk for that year, 1899192 and get to decide to work with another chamber, an active justices chamber and i defend wanted would bork wore Justice Scalia and if you know my past that wouldnt havent been your first guess. So why is it that in 1991 i wanted to work for Justice Scalia . Well, this is the thing think most law students, understand. Reading judicial opinion is usually not a lot of fun i. Think this is where lawyers acquire the habit of drinking more coffee than is good for them. These innovator Charles Dickens novels. Caffeine gets through you, how refreshing when youre doing this to come across a Justice Scalia majority opinion, dissent or concurrence, and it they stood out for the lively unless of the writing, the honesty, the quest for truth. I could have cared less whether Justice School where was a textualist, i a living constitutional list or originalist. Wanted to get to know him. Seemed like a lot of fun. But then he really wanted to learn to write like him which thats unrealistic but so be it. Trying learn to write as close to him also you could that is how i got to know him. That is why i started working with him. And then of course it was really easy to fall under his influence because if passion for getting it right, hid his dedication to finding the right answer and make sureow youre being honest, not being afraid to secondguess yourself and even evolve on occasion and then his passion for the writing. No way you could finish a year with him and not want to be a better writer. So much of becoming a belter writer is wanting to be a better writer and could couldnt come out of the experience without it. Its interesting since the clerkship, 1992, been am 30 years, that year in many times since he would do something. Id hear him say something, wed talked but a case and id have a reaction, Justice Scalia, cant cant be right and heed say so force film. I suppose im a little contrarian and to have member sake something forcefully makes me want to push back and i cant tell you the number of timed that happened and as i thought about of a couple years would go by and a id go thats really good point. And enough in wry this introduction to this book, it wasnt hard to embrace textualism and originalism. I think its right. The only answer to avoid destroying the federal courts and he has been right all along but i think going back to point, why this influence . I think it has something to do with the power of his ideas and his remarkable capacity to express them so well, and thats not a bad thing to know, that if you can have some good ideas and learn thank you express them you might have some influence. Justice kagan wrote a kind forward to the book and reminds me the importance of maintaining friendships among people of differing viewpoints and i wonder how scalia squared his competitiveness which his collegiality on the court and as his friend. Do good to say competitiveness on the clerk. One Motor Vehicle jobs was to play squash with him once or twice a week and on the court he was very competitive. And i still to this day was a little puzzled by it. I was not a very good lawyer at that point in my life, but forgive my pride i was a decent athlete, and i was also a lot younger, and trimmer, and he was so funny to me when we started playing squash he expected to win every time. I just couldnt get over it. Was just and then i would give him some gains because he didnt like to lose, and i boyfriend what i took from the storior, might be taking from that story why would a maybe mid50s think they can beat a 30yearold person in squash when the 50s person was just a very good lawyer and the 30yearold person was a pretty good athlete and okay lawyer. He thought he could do anything. I just loved that about him. He thought. I we decided the next day we would play golf, he did not play golf. Despite the casey martin decision which is an amazing decision. He he decided to take it on he would decide he would be the best at it and every time he would have thought he could do better. So when you read these opinions, where he did excel, plenty of timed had very serious disagreement is withjustice kagan and even more so Justice Ginsburg. They served longer together. Been on the d. C. Circuit together and then on the u. S. Supreme court all those years and can he you want to get a glimpse for it. Its quite headsnapping and jarring to read his dissent in the u. S. Versus georgia virginia case, the case where the debate was whether they had tougher cosexual education there at vmi and that whats fight under the 14th amendment. Justice ginsburg writes the majority. Its a landmark decision, saying you get rigorous scrutiny when it comes to gender classifications. Justice scalia writing the lead dissent. If all you had to look at were those two things, it would stun you that these were friends. Those are very hardhitting opinions, and ill must say when i heards they were freshes i was a little suspicious, maybe this is my slightly cynical side. I wondered if it was a friendship of convenience, something of a d. C. Relationship where it wouldnt hurt to have friends across the aisle, you scratch my book ill scratch yours, but i was wrong. They celebrated new years ever year together. Thats not a friendship of convenience. Thats a good way to ruin new years. And they were not ruining new years. They were having a really good time. So what is going on . Why such a sincere frontship . I think there are some things they had in common that might be easy to overlook. They both born in the 30s. One is a jewish woman, both by the way in new york city, rose in new york city. The other catholic Italian American, if youre bon in the 1930s you and you decide you whatnot to good into law you probably are thinking the best you can do is maybe, maybe, get a job at one of the big firms. So they both had to break ceilings and i think that they had that in common and then the way Justice Ginsburg put the point once, it was a selfimprovement society was the way she put it. That they both had a lot of respect for each other as they should have and their legal abilities, and they knew that if Justice Scalia knew it Justice Ginsburg thought there was something wrong or would push back there was probably good point there a truth he had to come to grips with. So i think they really helped each other, but i really think at bottom the real point was it really came down to true affection. Know Justice Ginsburg is quite shy at aedine table set. It has hard to hear her voice. Shes not easy to get a laugh out oft and the murdered Justice School ya could get her to laugh, he cant get her to stop laughing. And so they had there was a kim the and Marty Ginsburg if you watch in the movie about Justice Ginsburg and relationship with her husband, its beautiful relationship. Was an extrovert so maybe something there so my last time this happened, this is maybe my second to last facetoface meeting with the justice so that would have been spring of 2015. Im in d. C. For a meeting go by the justice chambers to say hello and were done after 15 minutes and he opinions to two dozen roses on the table and says, i got to give these roses to ruth. Its her berth day and i go, wow, thats lot of roses. Ive been married more than 30 years and i dont think ive given a total of 24 roses to my wife, and he can be a bit of a wiles guy and he responded by saying, well, jeff, you ought to drive it sometime. I throughout that was obnoxious and i hated giving he hedge the last word so if said, quite on knocks shoesly myself, what good have all these roses done you . Youre buying her 24 roses a year. Guest find me one 54 case of any consequence where you got her vote and he said with a lot of sincerity, some things are more important than votes and i think he meant it. So that that would have been the last roses she got from him. Because that was before february he dies february 2016 and that is before her next birthday and i told her that story before the book came out, and she sent me a lovely note a few weeks before she died and said how much she millses the roses. So that was misses the roses. That was a sincere friendship and they adored each. Other they adored each others spouses if the families loved each other and its not a bad lesson. You mentioned Justice Scalias writing style earlier. Justice kagan makes the point in her book that whenever a scalia opinion was circulated the first thing she did was just drop what she was doing and read that opinion. Scalias writing has been praises by friend and foe alike. What does it seem to important he had this ear for language and a knack for writing . Yeah. First of all, sheets quite right about that phenomenon. I have been doing i was doing it even after i left the court. I would be truth be told i read all the Court Opinions but that would be the first place id go you want to see what hed say, pit clearly, felt like you knew what was going on. So where does this come from . I wondered this the year i was clerking for him, and i was the one thing wanted to get out of the year is what is the secret to his writing and any way to acquire it . And she did have some advantages. His father was professor of romance languages. He spoke several languages. That doesnt hurt. His mother was an educator. Maybe an ohm child of that family and the whole generation a lot of love into scalia. What he wanted he got. And maybe that helped. I dont know. I will say this. I was on a call with some friends the other day, and i found myself wondering, i wonder if one reason he became such a great writer is. That he started out as such a great speaker so heres where im going with that. He did a lot of acting in high school so he really loves theater and he loved theater, i think he loved the performance, the stage. Might even say he could be a bit of a ham. And i will say if you saw him speak and i had the chance to see him speak many times you realized how comfortable he was on a stage and how much he liked the energy of the room, drew on the energy of the room, and just had a real capacity for pacing and sound and how it sounded which wouldnt be surprising with his background in theater. I wonder in doing the worker in book i read a lot of his early speeches and i might even have said the early speeches were better written than the early articles so that might suggest it. Theres something there. The other thing i might say, which i think is niles for all of us to hear nice for all of to us hear given were in law and do a lot of writing. Never government easy for him. He used to say he hated writing but loved having written, and i think he said he hated it because he had a High Standard and knew what quality was and what it wasnt, and i also would say he first Italian American on the u. S. Supreme court. Didnt want to be the last. And i suspect he worked even harder at it once he was on the bench and if you compare his d. C. Circuit opinions to u. S. Supreme Court Opinions, high quality throughout, no surprise, but to me theres something but the opinions in this book that dont have any parallel to anything he had done so he and i rows to the occasion but he did work really hard on it. One other story which is consistent with your point about the ear for language as well as the eye for it on the written page. One year during one instance and one case during the year i was clerking for him with ed whalen, my coeditor, he id given him a draft opinion the night before. He did a lot of work at home, back then we had floppy disc and would take the floppy disc home and do some work in the innings and that die comes back the next day and the brought all the clerks in to talk put the case is what i thought was was going on. A little on edge, my case. And he he is in a good mood so that made me somewhat optimistic he dramatically takes the floppy disc, put disk, puts in the Computer Drive and prints the dissent and gives us a dramatic reading of it, and my first reaction i had two recollection. I would say pretty negative. The first was what happened to all the good stuff id done . And except for an i the and of there it was all gone help had taken any straw and turned it into gold. I was a little crest fallen on that and then perhaps connected to that initial reaction was pretty natural reaction of really who do you think you center we have things to do and we can read it. We dont to hear you deliver it allow, and you look as if you this will this is shakespeare soliloquy. Its not. This is law still. But the law real message from that experience wag seeing what joy he took in having written well, and then as he delivered it, you know, paying attention to the lines, and he was writing to speak. And i think his opinions often are written to be revved aloud, and so read aloud and theres a lot of different ways to think but that. Do you have a favorite opinion. One thing about Justice Scalia and you might enjoin in the book because i enjoyed this and doing the work for the book, thought i knew his opinions. Thought i was an expert on his opinions. And i would come across and id i thought, i know the key paragraph in this one, i snowy ill smile. That was there i did remember that. But then ill come across this other paragraph and realize, oh, thats so good. I never thought about that and that really anticipates the problem that has developed in this other line so in one sense my evasive answer to say what i is fun but his write is is eave encounters is new and has a freshness and theyre only 300 page book, you can read it in two sitting, and youll just find yourself coming across things you hadnt heard him say before or you had blown over before. I was ill tell you twomans. He had pride in, i think quite correctly so, were crawford, first of all. Thats the confrontation clause case where, you know, that crawford overrules a case called roberts which had used a balancing test to decide whether there was a confrontation clause violation. It was very pragmatic, very ahistorical and very nontextual. And suddenly crawfords in front of them, and he writes this 72 decision. Its very originalist. Hes got conservatives, liberals joining him. Hes, of course, proving its a criminal procedure case that originalism doesnt inherently favor the government, quite the opposite. In fact, this is one of many criminal procedure its so fascinating that he became one of the leading criminal procedure authors of opinions that helped criminal defendants, and here we have an alum of the nixon administration. I mean, thats not what you would expect. So i think he, he liked that opinion. I love that opinion. Its a nice opinion to illustrate that originalism is really designed to get to neutral outcomes and a rulebased approach. It isnt about policy or ones world views. You know, heller is another one. Again, majority, that ones 54, a lot closer. I think he took joy in the fact that all nine members of the court were engaged in the originalist inquiry. It wasnt a case where five member es were doing originalism, the other four constitutionalism. All nine were doing originalism. That meant something to him. And, of course, you know morrison v. Olson is a great the independent counsel case, its got all the great lines, just wonderful lines. I liked that case more for Something Else it tells you about him. It makes you realize his courage and backbone. This is the end of just his second year on the court. Its an 81 decision. Chief Justice Rehnquist probably his closest friend on the court at the time, writes the majority. Hes no slouch on separation of powers. You might have said he was the best conservative at that point, and Justice Scalia is writing this hardhitting dissent in an 81 case. You read that and you go, oh, my gosh, this is not a fellow whod go along to get along. This is somebody who thinks theres a truth, hes going to find the truth, and even if its a close friend like ginsburg or rehnquist, he saws to say he has so to say theyre totally wrong, hes going to say theyre totally wrong. You know, he applied the golden rule. Now, this can show you how the golden rule doesnt always work, but the idea is to do unto others as you would have them do unto you. For Justice Scalia, he wanted people to come back at him just as hard as he came at them. Of course or not everyone applies it in kuwait the saw same way concern. [laughter] this is not aer is mob, so well move on. Sermon. Youre talking about Justice Scalias majority opinions, but im curious about his dissenting opinions. Justice halls is known by the moniker of the great dissenter. Im curious whether scalia might steal that title from Justice Holmes and why was it important to Justice Scalia to register his opinion in a dissent . Nothing required him to do that. Yeah. Why was that important to him . Yeah. So, first of all, he was not someone who was going to just go along to get along. So if he thought something was wrong, that just wasnt his thing. He didnt think originalism and textualism were principles of interpretation that lent themself to compromise. He used to say how can, how grow come prosummarize . Compromise . If you have a right answer, the only compromise is denying the right answer, thus denying the truth. So he didnt think he could do that. Thats one reason he wasnt afraid to dissent or, for that matter, concur. He he would provide his own reasoning. You know, i dont think he liked it in one sense. I think it made him, i think he was very disappointed early on to be writing dissents. So i was there i dont know if it was his fifth or sixth year on the court, 91, the abortion case, lee v. Weissman, the graduation prayer case. Let me just tell you, one thing he was not happy to be writing those opinions. Those were devastating losses to him because not so much because competition, he wanted to win, but because he didnt think they were good. He he didnt think they were good for the country and, you know, he respects the point. Hes one person on a ninemember court, but so in this one sense i dont think be happy with the moniker, but this gets back to another way of thinking about it, which i think he would embrace, and i think he learned early on the court, probably starting around that term, he realized that he wasnt just writing for other lawyers, he wasnt just writing for his colleagues, for the lawyers in the case or the parties, he wasnt even writing, you know, for the Supreme Court bar. He realized pretty early on, i think this may have affected his writing style, that his audience once the law student. So back to me again. That was his audience, that he wanted to write so that when people, you know, they couldnt take this off the u. S. Reports, they were going to be there. If the professor wasnt teaching his dissent, it would be noted in the majority, and the student could read it, or they were teaching it, and theyd have to come to grips with it. And so i think for him that was a way to feel a little better about cases where he sometimes was really disappointed it had come out, you know, the wrong way. You know, i personally, having been a judge for quite a while, im such a fan of this feature of the Judicial Branch that we have to explain why were doing what were doing. It chemos us honest, it dis keeps us honest, it disciplines us, and when we have separate concurrences or dissents, we have to answer them. And i think Justice Ginsburg and Justice Scalia used to say this all the time, it sharpens them, it makes them better. And i think he did that for the court. It didnt make them good enough. Good enough would have meant joining his opinion, but they did make them better. But, yeah, no, he used to say hed have annual reunions at the court, hed bring all his clerks back, i think it was the first saturday in may every year, and that clerk class would present to him what had finally become the u. S. Reports volume just with his opinions. And each year hed tell you, oh, that was a good or bad year. What was a good year . A very thin volume because he wasnt writing a lot of defense or concurrence, bad year, very thick volume. [laughter] i happened to be there for a very thick year [laughter] so i was not a very good clerk and maybe and i clerked, i should point out, ed whalen, my coeditor, we clerked the same year. Thats where we got to know each other. And ed has really been at the center of this. So this is the third volume. Ed and Christopher Scalia edited the first two, scalia speaks and scalia on faith. The first one on speech was generic. Scalia on faith, understandably, on faith. And this one on law. So i only came in for this one. But ed has been Justice Scalia at one of those reunions came up to the two of us, we were sitting there, and he came up to the two of us and he said something at first i didnt quite understand. He goes, ah, its my knight errant. Spell that for you, errant. [laughter] not my knight who has erred, its my knight whos looked after me. And he was not referring to me. [laughter] he was referring to ed whalen. Now that i think about it, he just ignored me. [laughter] doesnt make me feel very good. But ed has been a defender of Justice Scalias work, just as much backbone, just as uncompromising and, you know, Everybody Needs a friend like that. Ed whalen has been that kind of friend to him. Ed has certainly done a lot of good work. Anyone who follows his bench memos for National Review knows how on top of things he is. I get my news from ed youre doing the same thing, youre complimenting him and not me. [laughter] have you not yet gotten a sense of how sensitive i am to that . [laughter] well, ed merits the compliment. Justice scalia finish. [laughter] its often as do you, as do you. [laughter] im making fun of myself. [laughter] justice and a scalias often called the founder of originalism, and that sort of suggests that originalism was not a mode of judging that existed before, and i dont think that was the way Justice Scalia would have thought of it. But im curious, are there particular legal minds or schools of thought that influenced him, people that he would refer back to that maybe were originalist before it had a name . Yeah, no, thats a great question. He, he would have agreed with you 100 . He did not invent originalism or textualism. In fact, anyone that would say that would be missing his point or his key point, and his key point is judges had always been using originalism and textualism to resolve disputes. It was only in the last 60, 70 years that he would call them avantgarde approaches to interpretation had developed. And for him, the whole goal was to get us back to what we were doing. And, you know, theres a lot of historical support for that point. If you go to the initial first judicial review decisions, no ones talking about a living constitution. That phrase doesnt come around for a very long time. Theyre assuming the document has a fixed meaning, why else put it in writing. Theyen didnt set it to music or paint it, they put it into language. Language has meaning, and its rare that that meaning isnt meant to be fixed. So youre quite right about that. You know, as to people that he admired, you know, i think he had he shared a lot with frankfurter in a lot of withdraws. Theyre very rigorous thinkers, very disciplined about what they were doing. Its so interesting that frankfurter was very much a progressive liberal, you know, helped found the aclu, the new republic. He comes on the court and resists this effort to be a living constitutionalist, even in a direction that would favor his world view. Just read his anguished dissent in barnett to get a sense for that. And is Justice Scalia, you know, nixon, ford administration, republican, conservative world view, tough on crime, comes in and hes coming to opposite places because, again, following the law where it takes you. So i think theres a lot of overhappen there. I dont have a sense of how much overlap there. He lied on frankfurter opinions a lot, so that says a lot. You know, he filled the same seat as justice jackson. So, and rehnquist was in that seat before he became chief. There was quite a bit of affinity. Justice jacksons such a lovely writer, and, of course, Justice Scalia really cared about his writing. And, you know, jackson you would call more of an originalist. Maybe not quite as disciplined as scalia. But, you know, if i were to guess, those would probably be the two key ones. You know, holmes for a few things and be pretty skeptical of some others. But, yeah, thatd be the answer. Well, as we sit here today, Justice Amy Coney barrett has just joined the United States Supreme Court, was confirmed on monday [applause] and im curious about your own nomination and confirmation process. Did you ever talk to Justice Scalia about that . I know he was, i believe unanimously, confirmed to the court. So a little bit different time. But im curious, what was your process like and what, did you ever get any advice from Justice Scalia, or did he have any comments about that . No, he was utterly unhelpful. [laughter] and he made it, you know, i think it was even worse. I mean, he got confirmed 980 to the u. S. Supreme court, thats the high one, and im on the Junior Varsity court, 5241. You know, 52 votes. I mean, thats like going for a d. [laughter] you miss a couple votes, you dont get any credit. You know, its so fascinating, i mean, Justice Ginsburg, she was 963 roughly. Thats, what, 93 or so. Boy, things have have changed. And i dont know what to say. I mean, i but i will tell you what Justice Scalia would say. You know, one of the opinions excerpted in the book is his dissent in casey, the 92 abortion case. Most of that opinion has nothing to do with abortion. Most of that opinion is saying, guys, if were going to embrace the idea that five members of a lifetenured court, of a ninemember lifetenured court gets to decide what rights that are not in the constitution ought to have constitutional protection, we are really asking for it when it comes to politicizing the court. And, you know, this is the crown jewel of american government, its the kind of thing that got us through brown v. Board of education, other important milestones, and there are going to be times when we need that court. We need people to think of that as an apolitical, neutral court. So that was the warning. That was a warning shot. The canary in the coal mine. And, you know, to me, you look at our last president ial election, you know, by too many accounts to deny it turned on enough americans treating a vote for president of the United States as a pox city to fill proxy to fill one seat on a ninemember court. And you could spend the rest of your life reading about 1776, and youre not going to find anybody the reason we break from england is so we can create a lifetenured, ninemember court that can make the key decisions in american society. Thats, that would have been laughable. We would have stayed with britain if that had been the planment and plan. And, you know, this isnt pointing fingers at anybody. These things happen over time, but we do have to wake up and realize that its really important for the court to be engaged in something that the American People can say is law, that its based on principles that are outside their own policy preferences, outside their own world views, are grounded in something, the principle the people did, and thats something the agents want. And thats why Justice Scalia pushed so hard for originalism e, that the people are the ones that ratify e the constitution. Ratify. The representatives are the ones that had these particular statutes written the way they were written. Judges are supposed to do the best they can to just honor the compromises and leave it at that. And people dont like it, you know, as he said in the vmi case, theyre free to change. And we usually do that democratically. Well, theres an old george Jones Country music song were in alabama, judge, so i wanted [laughter] its called whos gonna fill their shoes. You may know it. Forgive me. [laughter] well i actually like neil young, which is the worst thing to say im not going to say i like all of husband songs. [laughter] but whos going to fill Justice Scalias shoeses . Thats a different question than whos going to fill his seat, but is there anyone out there to fill those shoes . Its such a great question, and i think theres a really good answer. No one should try to be like Justice Scalia, and he he wouldnt want anyone to try to be like Justice Scalia. He and Justice Ginsburg, i think, would both say the same thing. Theyre not in control, they dont own these seats, they did the best they could with their time on the court. You cant deny they left their views of how to handle prior conflicts, give some insights on future conflict, and its time for somebody else. Thats really, really healthy. Frank easterbrook, a really terrific judge on the 7th circuit, gave a graduation speech a few years ago. I felt for these kids, i dont think all of them are going to law school, and here they got this graduation speech only about law. It was a great speech though, and one of the points he made was you could put nine clones on the u. S. Supreme court, nine supposed people just like Justice Scalia, and theyd still disagree. Lawyers are lawyers, and some of this stuffs hard stuff, and theyre going to find ways to separate em. I mean, look at the fda court. Fdr put eight members on that court. The only person he didnt put on was stone, and he was a fellow traveler. And, you know, thats called the scorpion court, all right . So you cant, you cant be too sure about, you know, the next jus that scalia, thats not going to happen. I think what is interesting is, you know, he did lay out some markers, and maybe this is the very best thing he did as a judge and maybe the thing i try to do the most in my capacity as a judge is he let the world know what his scorecard was, which is another another way of saying he let the world know how he should be judged. And thats what matters. In other words, he writes a dissent or a majority, you can look at it and say, oh, yeah, yeah, yeah, thats, thats following textualism. Finish thats following originalism. Or you look at it and you go, well, wait a second, that doesnt look as originalist as im used to seeing. And that becomes a fair part, point of criticism. And, you know, so, you know, were going to have, we have new justices, well always be having new justices, and they may or may not have scorecards. I hope they do. And if they do, Justice Barrett says shes an originalist and a textualist, and i strongly suspect she would have no problem with the American People judging her decisions on that scorecard. Not whether they like them. Thats the really misleading thing in american law, that what you like is always in the constitution. That, of course, is not how this works. Whats in the constitution is pretty easy to figure out. Just go read it and the 27 amendments, some things are there, some arent. And if what you likes not there, put it in statute or amend the constitution, but you cant just say i like something and, therefore, it must be in the constitution. You know, id like to think that the courts getting more and more focused on that, and thats really healthy. Yeah, theres not going to be another Justice Scalia, and i would strongly urge anyone who is trying to be another Justice Scalia that nows the time to stop. [laughter] unless, unless the goal is to become a better squash player. [laughter] because that would be doable. I think you could beat him in squash. Well, i do want to open this up to questions from the floor, so if you have some questions, please feel free to go to the microphone. But as youre doing that, i have one final question, and if you cant answer this question, thats okay, i understand. Its somewhat of a personal question. But im just curious, which is a better football conference, big ten or sec . Oh, oh youre in alabama. You know, its yeah, its really funny. Let me tell you the way some people this, i think, so we in the big ten so you said big ten sec, right . Okay. So we in the big ten think we need a little selfawareness here. People that are not from those conferences do not care for us, okay . And maybe i should not generalize. They do not care for us in the fall, maybe even that is too much. They do not care for us when we talk about college football. That im very confident of. So if someone outside of these conferences, if they get the question which do you prefer, the sec or the big ten, their answer will be Something Like this oh, this reminds me of world war ii and the battle of stalingrad. [laughter] who would you rather see lose, the nazis or the communists . [laughter] and thats a hard question. That is the Vantage Point of the rest of america. Now, im not the rest of america. This is an easy one. Of course the big ten. [laughter] i mean, the sec, you know, im trying to think of a polite way to say this, but im already past being polite [laughter] i dont want to say the secs johnny come lately, but the bug ten has been doing this for centuries. You guys have been doing this for decades, is the way i guess i would put it. Now, i would say you have been doing pretty well [laughter] i must acknowledge that. But we at ohio state, we can think of one game against an sec team that went pretty well. After [laughter] maybe the real way to put it, and you should remember im a guest [inaudible] [laughter] remember im the guest that i did hear a lot of ohio state coaches saying over the last couple im a very big ohio state football fan. I mean, this can be the difference between whether im happy or sad on a sunday. So im a very big football fan, one of these obnoxious fans. But i watched a lot of ohio state football coaches the last couple decades saying things that are all about modeling the program of after sec programs. That weve got to start doing some things theyre doing. So speed was an issue for a while, and, you know, they so thats a compliment. But thats the last nice thing im saying about the sec. [laughter] well, you signed the book for me once war eagle, and so ill make sure to show that to judge pryor. Oh, he wont enjoy that. He wont enjoy that. If there are questions, please come to the microphone, ask them to the microphone, and ill probably repeat them for the benefit of the camera. If there are no more questions, then we can go ahead and wrap up. Are there any, any questions . Well, ill ask myself one. [laughter] ive noticed a bunch of people here from the state court system and state government. That was my introduction to montgomery e and alabama, was working with the state Attorney Generals Office and getting to know the state courts. One question you might ask is whether justice and a loo e yea scalia had one of my hobby horses, state constitutions. Or we could ask a slightly different way, were there areas where Justice Scalia and Justice Brennan agreed e . Justice brennan, you know, kind of the leading liberal for decades at the court. And, of course, the flag burning case is one where Justice Brennan wrote and Justice Scalia joined, but one that might be surprising to people is justice e brennan, in 1977, wrote a landmark article about state constitutions, giving litigants a shot to win under the state constitution as opposed to the federal constitution. Something most people dont realize is that Justice Scalia supported that as well, and his last majority opinion for the court, a case called kansas v. Carr, he made the exact point that states are free to experiment with their state constitutions and often do. You know, when Justice Brennan and Justice Scalia agree on something, i mean, thats something where the venn diagrams dont overlap a lot. And, you know, when they overlap, you might be getting pretty close to a biblical truth. [laughter] i mean, thats, thats likely right on. And so, you know, to me, thats a good way of pointing out that astronaut constitutions are worth remembering, and i think people in alabama might feel thats true. Thank you for bringing that up. I think youve done a great job bringing state constitutionalism to the fore front of Legal Education and reminding people of how important the decentralization process is and how important these state constitutions are and the different remedies that can be sought under the state constitutions. I think thats important work, and i personally appreciate your work in that regard. So thank you. And i guess i will close us out by thanking all of you for coming today. We have a number of judges and Public Officials and our attorney general, solicitor general, so thank you all for coming. Im always encouraged by your presence here and your interest in the program, so thank you very much, and i look forward to seeing you soon. Judge sutton, thank you for coming down, thank you for doing this. A round of applause [applause] everybody, make sure you go online if you havent already and buy the essential scalia. I think youll find it compelling reading, and im sure you will enjoy it. Thank you very much. Thank you. Tonight on booktv in presume time, the new yorkers evan [inaudible] discusses the life and political career of president elect joe bide season and what a biden president is su might look like. Brian christian explores the challenges we may face as we become more dependent on artificial intelligence. A law professor examines the relationship between the law, epidemics and Public Health guidelines and historian Peter Cousins presents a biography of detecumseh saw and the role in championing native lands during the american settlement. That all starts tonight at 7 45 p. M. Eastern. Find more Schedule Information at booktv. Org or consult your program guide. Heres a look at some books being published this week. Former president barack obama reflects on his life and political career in a promised land. Attorney and legal scholar Alan Dershowitz offers his thoughts on free speech in cancel culture. And in a wolf at the schoolhouse door, education historian Jack Schneider argues that republicans are trying to dismantle public education. Also being published this week, in big white got toe, Kevin Williamson looks at poverty in america. A brian hook prevents topdown solutions are preventing people from succeeding, and dr. Paul farmer provides a firsthand account of the ebola epidemic in africa in 2014. Find these titles this coming week wherever books are sold, and watch for many of the authors in the near future on booktv on cspan2. And now a couple of programs from the virtual southern festival of books in nashville. Jordan ritter conn reports on two syrian brothers, one who immigrated to the United States and the other who remained in syria during the countrys civil war. Thats followed by a talk on the jim crow south. Greatings from the greetings. Inspired by tennessees role
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