LUBBOCK, Texas — One of the most conservative justices on the U.S. Supreme Court and one of the most liberal ones sparred Friday over capital punishment, the direct election of senators and various other constitutional questions during a rare public debate that highlighted their philosophical differences.
Antonin Scalia, 74, the longest-serving current justice, appointed by Republican President Ronald Reagan, and Stephen Breyer, 72, appointed by Democrat Bill Clinton, shared the stage in front of a crowd of thousands during a West Texas event organized by Texas Tech University Law School.
They particularly clashed on the question of capital punishment.
Scalia argued that while there’s room for debate about whether the death penalty is a “good idea or a bad idea,” it is not cruel and unusual punishment.
“There’s not an ounceworth of room for debate as to whether it constitutes cruel and unusual punishment because, at the time the Eighth Amendment was adopted – the cruel and unusual punishments clause – it was the only punishment for a felony. It was the definition of a felony. It’s why we have Western movies because horse thieving was a felony.”
Breyer said 200 years ago, people thought flogging at a whipping post was not cruel and unusual.
“And indeed there were whipping posts where people were flogged virtually to death up until the middle of the 19th century,” he said. “If we had a case like that today I’d like to see how you’d vote.”
The two bandied about other issues, including Brown vs. The Board of Education, the landmark high court decision in the 1950s that outlawed school segregation case, cable television rulings, and how they view cases that come before them.
Later, Scalia returned to the issue of flogging, saying it’s “stupid” but “not unconstitutional, which is stupid. There’s a lot of stuff that stupid that’s not constitutional.”
Scalia said he has no interest in what legislators intended when making a particular law. Breyer countered, saying judges need to go back and find out the purpose legislators had when crafting a bill.
“I don’t at all look to what I think the legislature thought,” Scalia said. “I frankly don’t care what the legislature thought.”
Breyer responded quickly, saying, “That’s the problem,” which brought thunderous laughter from the crowd.
“You’ve got to go back to the purpose of the legislation, find out what’s there,” Breyer said. “That’s the democratic way, cause you can then hold that legislature responsible, rather than us, who you can’t control.”
At the end, the two were asked what they would change about the Constitution.
“Not much,” Breyer said. “It’s a miracle and we see that through” our work.
Scalia called the writing of the Constitution “providential,” and the birth of political science.
“There’s very little that I would change,” he said. “I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously.”
That amendment allowed for U.S. Senators to be elected by the people, rather than by individual state legislatures.
“We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.”
Breyer countered that change has sometimes been needed.
“There have been lots of ups and downs in the enforcement of this Constitution, and one of the things that’s been quite ugly – didn’t save us from the Civil War – is that there is a system of changing the Constitution through amendment. It’s possible to do but not too easy.”