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Words On Justice Scalia's Legacy From SCOTUS Blog


We are remembering the life of Supreme Court Justice Antonin Scalia today on the program. He died this weekend in Texas at the age of 79. Scalia was a firebrand on the court and passionately defended his originalist interpretation of the Constitution. Tom Goldstein is an attorney and a blogger behind the definitive Supreme Court blog "SCOTUSblog." He joins me now.

Tom, thanks for being with us.

TOM GOLDSTEIN: Good morning, Rachel.

MARTIN: If you could start off by briefly reminding us what it means to be a constitutional originalist - and what were the most memorable examples of that in Scalia's tenure?

GOLDSTEIN: Certainly. So an originalist says the broad words of the Constitution don't get adapted to what's going on in the year 2016. Instead, you have to look at what the words meant when they were actually enacted because that's when the country agreed to them. And so it produces a reading of the Constitution that is much, much more traditional and isn't concerned with modern problems or adapting to modern social ideas like same-sex marriage. And that would be one big example where there would be a huge fight in the Supreme Court, which 5 to 4 held there's a constitutional right for same-sex marriage. But Justice Scalia found that ridiculous because back in the late 1700s and early 1800s, when the country was formed and the Constitution was adopted, there's no way in the world the Constitution was understood to mean that. And you know, he's certainly right about that. No one would have thought, at that time, that the Constitution guaranteed that right because the country's sensibilities hadn't changed.

MARTIN: Were different, yeah.

GOLDSTEIN: Yeah. It's just a sense of - hey, you know, do we adapt to the times? Is that what the Constitution is about or not?

MARTIN: And he said no. You are someone who's watched the court for a long time. Were there times when he surprised you?

GOLDSTEIN: There were. Justice Scalia was very proud of his principles and where his originalist interpretation of the Constitution would take him. So he would often say - and he was right - that in a lot of cases, he was criminal defendant's greatest friend because he found a lot of power in, for example, the right of a criminal defendant to confront witnesses against him and was really responsible for remaking that right under the Constitution, as well as the right to a jury trial when you're a criminal, which changed federal criminal sentencing entirely. But beyond that, he generally was a very, very solid constitutional conservative and a reliable vote on that side.

MARTIN: What was it like to argue before him on the bench, which you have done?

GOLDSTEIN: He was hilarious. He was as incisive and biting on the bench as he was in his defense. But in the same way, you knew that while he was very tough and quite cutting, he was hilarious. He was gregarious. He was open. And so he was just truly enormous fun to argue in front of.

MARTIN: Just briefly, is there one opinion that will define his legacy more than others?

GOLDSTEIN: Well, it depends on who you are. Certainly, one of the major ones for conservatives - and probably the whole country - is his opinion in the gun rights case. Recognizing a constitutional right to bear arms means that people have a right to have personal firearms in a lot of circumstances. And that's a right that had never been recognized before by the Supreme Court.

MARTIN: Tom Goldstein of the "SCOTUSblog," remembering Supreme Court Justice Antonin Scalia. Tom, thanks so much for talking with us.

GOLDSTEIN: Thank you. Transcript provided by NPR, Copyright NPR.

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