you're watching c-span's in mem am 2016. >> associate justice anten scalia. associate justice antonin the simplest of terms, would you explain what the role and responsibilities of associate ourt justice are? >> whoa. haha, to try to come out the way on cases that the

court has agreed to hear. secondly -- and this is the only respect in which the ob differs from the job of a court of appeals judge, to ecide on what cases the court should agree to hear. so essentially two functions. latter is prior, i mean, first of all decide what to put on our docket. what is on our docket to try to get it right. >> what role do you see the playing in society today. and the second question is, has tenure? d over your the same role it has always played. i don't think it's changed. is in the role democracy, to give a fair and interpretation to the that thef dispositions people have have adopted, either statutes or the people when they ratified the

constitution. no more, no t, less. i don't think we're a leader of social causes. pushing the society ahead. e are supposed to be interpreting the laws that the people have made. about do you like best the job? >> what do i like best? i like figuring out the right legal questions, believe it or not. and not everybody does. who lust to people become an appellate judge find really quite unsatisfying when they get there. warpede to have a rather mind to want to spend your life the answer to legal questions. job.a very isolated the only time you see, in with your work, people from the outside is when

you're listening to arguments from counsel. that, it's very disembodied and intellectual work. probably, most closely resembles the work of a law professor, which is what i was before i was i'm no more unhappy than i was before. >> and after two decades of is there any aspect of the job that if you had a choice, you would prefer to pass or o somebody else to do avoid? ly, to think undoubted -- what shouldst i say -- onerous, and for the part an interesting part of the job is ruling on all the ser come to tions that court and they've increased enormously since i've arrived i e and when i first arrived think it was something about

5,000 a year, and now it's approaching 10,000. one of them, we have consider. if not by reading the actual petitions -- we rarely do by read iing summaries of the petitions that law clerks prepared. so, you know, 10,000 of those a year, that's not a lot of fun. ofwith the increasing number petitions, why only 80-100 cases a year? less than that even. we've been averaging about 75 recently. hat number, by the way, is not out of line with what other supreme courts and other jurisdictions do. i think we could do more than 75. we can do 100 well. do what we k we can were doing when i first came on the court, 150. 150 n't think we can do well. why? guess is as good as mine.

my rtainly have not changed standards for deciding what cases we should take, and i colleagues have. if i had to guess, i would say has happened is, in my early years on the court 20 ago, there was a lot of major new legislation enacted, recently been arisa.nkruptcy code, there's not been that much major new legislation in recent years. and new legislation is the generator of serruptitiions because it takes 10 years to get ambiguities in a statute resolved, and that's our main job, of course. because we e cases think they were decided wrong. take a ely would we case -- a death case we would.

ut usually, we take cases because the analysis of the ourt's below reflect a disagreement on the meaning of federal law and you can't have two different federal laws in parts of the country, so we will take one or both of those cases. those i say, disagreements have been simply on significant questions, have recent ply more rare in years. i mean, it's not as though we sit down at the end of the term how many ay, guys, cases you want to take? let's take 120. that's not what happens. trickle in week by week, and we vote on those that we worthy of our consideration. and the last few years, they've been -- at the end of the term, up to about adding 75 or so. those you make aware at the you time which one of those will be the blockbuster cases? >> usually. usually tell n which ones pertain to a major

piece of legislation and, you know, a legislation that is a on the society, sure. does it affect the decision process? no, not mine. i could talk to other people's, does.don't think it i put in as much blood, sweat tears on the little cases as i do on the big ones, and if somebody asked me, you know, hardest case you've ever decided while you've been on the bench, you wouldn't want know, because it is a relatively insignificant case. ut it was very hard to figure out. there's no relationship, whatever, between how important hard it is.w so can you tell me now that you've described it? to know. don't want >> okay. we have heard so much in talking justices about clerks, but i'd like to ask you about you do, and what you've had many of them over the years. them stay in touch with after they work for you?

>> oh, i do indeed. we have an annual clerks reunion every year. and it's good to see them. actually one of the most enjoyable parts of the job. with four ry closely young people every year. there are new ones every year. they're full of vim and vigor. they're not jaded, you know, them, and their enthusiasm rubs off on you, and you work closely with them during the year. really become very close, and then they go off. acquiring four new nieces and nephews every year, will be a failure. they all go off to do very things.ant and it's fun to follow their later careers. fact. you do, in >> oh, sure, sure. >> and what jobs -- how do you your job? well, i can say what i do. what i do is not necessarily

what others do. they -- i let them pick the that they want to work on. ort of like, you know, an nfl draft. they have first pick, second pick, third pick. i figure they're likely to do work on the cases they're most interested in, so they divy up the cases, and then i usually discuss the case very briefly with the law clerk who chosen it before oral argument. argument, i sit down with that clerk and with the other three who know about the case, although not as much as the clerk who really is responsible it. and we kick it around for as long as it takes, you know, two be an hour, could be hours. nd then if i happen to be assigned the opinion or the descent, that clerk will normally do the first draft of it, you know, i'll tell them in it, upposed to be he'll write it out and i'll put

it up on my screen and i'll take put it back together. so i kid you not -- and i tell reunions, i am indebted to my law clerks for a quality of the work that comes out of my chambers. i couldn't do as well without of really nce brilliant young people. >> and the week when the court is in session, how many hours do in this building in a particular week? >> oh, i have no idea. 40-hour week job? 60-hour a week job? >> well, how much you spend one of the nice things about the job or one of the not nice things about the job is you on't have to be here to be working. i could -- and i think some courts of appeals do -- only come into court when there's oral argument. from home.this job the main thing it would deprive my f is consultation with law clerks.

them of my prive company too. so i do like to come in, but that has no relationship to how in. hours i'm putting i've never counted the hours in the week but i almost always weekends, you know, not all some d every weekend but of the weekend every weekend. >> and is there ever really a break in the summertime? the summertime is a break. plate before we leave at the end of june, so it is really a summer without guilt. the only work we have to do over on top of is stay petitions, because there's a monster conference at the end to vote on all the ser upititions. manageable job. for the rest of it, we have continued to function all three

branches of the federal government used to function in july and august. here.was nobody and now, we are generally not around in july and august and back in september to get ready for the arguments in october. during the summer, you have time to do some of the reading that you didn't have time to do term, and to urt sort of regenerate your batteries. >> you mentioned that the court retained some of the tradition that the other branches used to have in the summer here, but the courts also quite well known for many of its other traditions, and i just that came down a few to mind, including in the courtroom itself, the quill in formal olicitors dress. with institutions in the ourtroom, i wonder why they matter to the process and why 2009? retained in

traditions in a way define an institution. an institution is respected when venerable with tradition. and certainly, one of the remarkable things about the here is that it's been doing this job for what, 220 years. i think traditions remind people that fact. you know, i guess bus station in a and not wear robes, but just even tank its or tops, but i don't think that image that kind of you want for the supreme court of your country. road, just looking at a little bit of history before you came in, the earlier chief depicted here really didn't wear them. >> didn't wear robes? >> that's right. began around 1800 according to

the supreme court site. your right over shoulder was the first chief justice, and that was before 1800, and in that portrait, he not aring a glorious robe, just a black, but a black and red. what you just told me is news to me. well, i'll go with the john jay. it is now ay that 2009, and tank tops aside, why oes robes -- what's the symbolism behind the robe and why is it important for members of the judiciary to continue to our society? -- i'm i think it's sure we could do our work without the robes. we could do our work without building that you're deciding to have this conversation in. what the robes, like the to the people rt ho come here, is the

significance, the important of what goes on here. that's nothing new. public buildings always don't look like bus stations. and they shouldn't. justicebuilding itself, briar yesterday called it the symbol of the american judicial process, internationally. work here, are you conscious of that as you drive up here after doing it for such a long time? of? nscious >> it being a symbol of the american judicial process. >> i can't say it's in the of my mind. i'm usually thinking about i'm going to be working on that day. you get used to it, i mean, you get to take stuff for granted maybe you shouldn't take for granted, but i take for gloriousorking in this building. i take for granted wearing a robe when i go out on the bench. when you have the opportunity when it's quiet around here, are places in this building you might go to reflect on the history of the court and predecessors? >> not really. i hang out in my chambers most

of the time. know, the center of the building, what is really the is here is uilding where we ce chamber are all at. s the nature of that chamber suggests, i mean, it has a ceiling so high you can hardly see it from the ground. court, he center of the of course. >> let's talk about what goes on process of in the oral argument. can you talk about how you use why, in fact, nd when there's so much paper before hand on making all of the cases, oral argument is even needed? yeah, a lot of people have the impression that it's just a show.d pony in fact, i read a 60-page brief y the petitioner, a 60-page brief by the respondent, a very e reply brief, and

often an amicus brief by the solicitor general. sometimes, dozens of other amicus briefs, not all of which read, i have underlined significant passages, i have best, nonsense in the margin. what can somebody tell me in half an hour that's going to difference? and the answer is that it is -- although e rare not unheard of -- that oral argument will change my mind. but it is quite common that i go ow not made up. a lot of these are close and you on a nice edge. persuasive counsel can make a difference. things you can do in an oral argument you can't do in a brief. convey the relative importance of your brief. say you have four points and one them is very complicated.

it's not your most important one. it takes a brief. a week ago,ur brief i may have a misperception of your case. you can set that right in oral argument. often, that third point, a difficult point, may be you address in your brief because that's the logical order. don't put jurisdiction last. it has to go first. in fact, that's not your strongest point. even though you discuss it first in your brief and even though it akes more in your brief than anything else because it's the most complicated so you get up your l argument and say honors, we have five points in the brief we think are all worth your attention but really, what case comes down to is, and boom, you hit your big point and a difference. backhe brief cannot answer when i write nonsense in the ask counsel, can

counsel, is there a reason why this point is not nonsense? you.ometimes they can tell so i am a big proponent of oral argument. andink it's very important, ou'd be surprised how much probing can be done within a half an hour, an awful lot. >> what is the quality of before you, omes generally? two chiefs know, ago, chief justice berger used low mplain about the quality of counsel. opposite have just the reaction. disappointed that so many of the best minds in the country were being devoted to enterprise. there would be a public defender and, you know, this woman is really brilliant. why aren't you out inventing the or doing something

productive for the society? all, , lawyers, after don't produce anything. other people to produce and to go on with their and in an iently atmosphere of freedom. that's important. but it doesn't put food on the table. and there have to be other that.e who are doing and i worry that we are devoting too many of our very best minds this enterprise. and they appear here in the ones who will only argue here once and will never come again, i'm usually they sed with how good are. sometimes you get one who is not o good, but, you know, by and large, i don't have any complaints about the quality of counsel, except maybe we are our best minds, shouldn't -- how can i put it another way? law clerks, law firms spend

money to getnts of the very, very brightest, you amount of difference between that guy and the next one, but it's worth it, because the law is so complicated and so complex. system probably shouldn't brains. a premium on but it does, and our lawyers are really good. i think lawyers, generally, are pretty smart people. next stage, to the conference. can you talk about conference and how it works? >> well, i can't talk too much about it, but i can tell you hat we sit down together and there's nobody else in the room, nd we -- i am not giving away anything, because chief justice rehnquist wrote a book about the court in which he acknowledged that conference is probably a not an , it is really occasion on which we try to

persuade one another, very few changed at conference. if each justice states his or her view of the case and how he votes, you go right around the table. middle of he somebody's presentation, you disagree with something that person says, i mean, if speaking, ievens is say, wait, john, why do you say that? that would not happen. happen, the chief justice would say, nino, you'll have your turn. speaking. let him finish. when we get all around, yes, at the end, you can speak a second and, you know, raise some of these questions. but it is not really an exercise in persuading each other. stating yourise in views, and the rest of us take function.d that's its you take notes so that if you

get assigned the opinion, you way how to write it in a that will get at least four other votes besides your own, its principal function. >> with regard to being assigned the writing of opinions, the told us in our conversation that he works very fair about the distribution of the assignments. you said earlier with your clerks that you try to give them cases they're interested in do the best job. are you able to lobby if you're particularly interested in a case? >> i haven't done that. i could if i wanted to. very, very rare occasion have i said, you know, i'd like that case. you not more than three times the whole time i've been on the court. pretty much take what i'm given and both of the chiefs i've served under have tried to be fair, giving you and dogs. of course, sometimes what they think is a good opinion is not what you opinion. a good chief justice rehnquist used to

cases urth amendment involving searches and seizures. and i just hate fourth amendment cases. i think those things, it's almost a jury question, you whether this variation is an unreasonable search and 3,542, yeah, ation i'll write the opinion, but i consider it a plum, but bill rehnquist used to consider it a plum. he thought ou that, he was entitled to give you a og, and i didn't much like that. > you are a writer and you've written three books now, is that correct? >> oh, no, two. >> two? >> two. writing is something that it seems as though you enjoy. you don't want to be an appellate judge if you're not good at writing. >> my question is, at this part process, do you enjoy the writing of opinions and the exchange of the precise words to point? r >> as i have often put it, i do

not writing. enjoy having written. difficult ing a very process. i sweat over it. write. i rewrite. i rewrite again. before the opinion goes out, the law clerks say it's going out this afternoon, you want to read it one last time? it one last read time and i guarantee you, every time i read it, i will change something else. has to be it arrested from my grasp and sent down to the printer. writer, not a facile but i think writing is a job the time you spend on it. course echnology in the of your time here made the process easier? >> well, we had word processors arrived, so i can't say it's made it easier since i've been here. i had word processors when i was law professor.

that certainly makes the job of writing - especially when you're editing somebody enormouslyst draft -- more simple than it otherwise would be. to write little balloons, you know, and what not. you just highlight the part you bang, it's gone, and you put in the new part and it's in. it makes it a lot easier. >> when you strongly disagree ith someone's point of view, ow do you keep the opinion or defense from being personable? >> you just criticize the and not the person, that's all. an ad hominem argument is one addressed at the person, rather than the argument. justified in whacking the argument as hard as it deserves. that's not impugning the individual that made the argument. preference for writing the majority or the

dissent? course.of i always want to write a majority. do do you want to write a dissent? dissents are more fub to write. say that because hen you have the descent, it's yours. you say what you want. this is my disent. this is what i want to say. when you're yours. you writing the majority, you don't have that luxury. you have to craft it in a way people least four other can just on, and actually, you try to craft it in a way that as any people as possible will jump on which means accepting some suggestions, stylistic and that really you don't think are the best, but in order to get everybody on board, you take them. >> we have just a few minutes left. talking at a time when the court is about to say goodbye to a member and accept a one.

how does this institution change during that process? oh, the institution doesn't change at all. i think the relationships change. hopefully friend, and acquire another one. i'll miss david suter. him a lot. he has sat next to me for his whole time on this court. we go out on the bench, he is always -- depending upon i happene of the bench to be sitting on, he's to my left or right. rather trusted companion, and we chat back and forth sometimes during argument passing notes back and forth and i'll miss him. intelligent, so resting, good man, and changes, and i miss a lot of my former colleagues on the to bill m byron white

brennan, but that's the process. people come on. >> in fact, during your tenure, seven new he chief's arrivals, i'm wondering when you welcome new justices into the from , when they've come the appeals court, is there an even so here?cess >> not really. it's the same job. t's the same job as being an appellate judge on a lower court. you hear the briefs, hear the argument, and write the opinion. we have the added job of decide, which ao court of appeals judge does not have that burden or that luxury. bring youhatever they and you have to. except for that additional part same, with it's the maybe one other exception, and hat is on the lower courts, if there is a whole line of supreme court authority that you disagree with,

doesn't make it easy. you just say hey, you know, i it's stupid but that's what they say. you follow it. you don't have to worry about to be changed.t whereas, you know, on the court, if it is, indeed, a stupid line of cases, it's of cases, and e you have to decide, do you leave it alone? refuse to extend it any further, or do you indeed try to get rid of the whole thing. in other words, you don't have to worry about that on the court of appeals. you do up here. >> we are out of time at 30 minutes. of the big sort picture question again, for people for whom the supreme is just an item in the newspaper, i wonder what you would like to say to them about place, how it functions and what they really aught to know about the court? really not a point distinctive to this court. it's a more general point that and to allthis court

others. can't judge judges, unless you know the materials working with. you can't say, oh, this is a this was a n, and good court simply because you like the result. t seems to you that the person who deserved to win won. that's not the business judges are in. here to make the law, to decide who ought to win. wins under the law that the people have adopted. and very often, if you're a good judge, you don't really like the result you're reaching. you would rather that the other won. had it seems to you a foolish law. garbage is job, it's in, garbage out. if it's a foolish law, you are bound by oath to produce a because it's not your job to decide what is foolish and what isn't. job of the people across the street. so don't judge judges unless you take the trouble to read

the opinion and see what issue ons of law were at and what they were trying to reconcile and whether they did an honest job of reconciling them. and if interpreting the words of fashion, n a fair that's what counts. unless that's what you want your judges to do. you don't have a judiciary much.s not worth you have a judiciary that's just making the law instead of being faithful to what the people have decided. so that's my main advice, be low to why judges,

what it means for healthcare in the united states. be sure to watch c-span's "washington journal," live at 7:00 a.m. eastern friday morning. the discussion. what it means for healthcare in the united states. be supreme court justice samuel served hi