>> rose: >> rose: welcome.tonight an appreciation of justice scalia and remembering his time and ideas at the supreme court. >> in his view if they weren't thinking about abortion the constitution has nothing to say about abortion and if they weren't thinking of same-sex marriage the constitution had nothing to say. he would say it's not an evolving document's a dead document. like a contract, a will, a statute. you figure out what the people who put it together understood it to mean. >> anden joined by jeffery toobin of cardinal and new yorker magazine. >> he reoriented many people's

thinking about what the constitution means and changed the way statutes are i interpreted. >> >> rose: he appeared in 2008 and 2012. here's excerpts from the conversations. >> the key conversation with the question to contexts and the supreme court would the american people have ratified the document if it said the application of this document and what it means shall be what the supreme court says it means from age to age. nobody would have ratified that document. it's --

>> rose: it's a dead document to you? >> i like to say an enduring document. >> rose: but you don't say it's a living document. >> it is not living. it is not living. >> rose: justice scalia for the hour, next. >> rose: funding for "charlie rose" has been provided by: >> rose: additional funding provided by: >> and by bloomberg, a provider of multimedia news and information services worldwide. captioning sponsored by rose communications from our studios in new york city, this is charlie rose. >> rose: supreme court antonin scalia decide and he changed the

terms of legal debate in the country. justin elena kagan said he's the justice said he's that the me most influence on how we think and talk about law. ronald reagan put him on the court and he inspired a conservative movement and championed originalism and the approach seems to interpret the constitution as it was understood at the time it was written. he ridiculed the idea of a living constitution. the notion the founding document should evolve with the times. he was known for his witty, sarcastic dissent and wrote an issue of this sort will come before the court clad so to speak in sheep's clothing but this wolf comes as a wolf. always eager for debate he

relished jousting with advocates and his landmark 2008 decision in district of colombia versus keller upheld the second amendment gives individuals the right to own guns. justice scalia could be very provocative at times on social issues like same-sex marriage and abortion and was a passionate defender of the death penalty and his ruling under the sixth amendment often favored criminal defendants and enjoyed opera and hunting and singing at parties and was justice ruth bader ginsburg. speaking last year justice ginsburg said, quote, i disagreed with most of what he said but loved the way he said it. he grew up in queens, new york and was the valedictorian of his

high school and at the harvard he graduated magna cum laude and served on the circuit court of appeals before coming to the supreme court. his death adds fire to a heated election. republican lawmakers and presidential candidated said the next president should should but president obama has said he will appoint his replacement. the supreme court correspond ent for the new york times and here in new york david boies who has argued many cases before the supreme court. i'm pleased to have both on the program this evening and we'll later see some conversations i did with justice scalia. i begin with adam in washington as a man who's covered the supreme court. characterize justice scalia and

what he hent and was. >> he was a giant. he changed the culture of the supreme court and the way argument arguments conduct and was very influential in getting people to think about the constitution. constitutional interpretation differently and pressed the theory called originalism and looked at statutes differently focussing on the words and text of the statute not what different legislatures say it means he was terribly influential except maybe in one. he didn't write a ton of majority opinions. he did most his theoretical work in dissent and some of those have caused people to think differently about the >> rose: he's made us think in a different way about the law and constitution and interpretation of the constitution. >> quite right. he was probably the leading

intellectual in terms of thinking through cases from first principals. >> a formidable justice? >> a formidable justice. a good justice to appear before. >> rose: because? >> smart questions, tough questions but always delivered with a sense of humor. he enjoyed intellectual jousting. i think he liked to have somebody who disagreed with him and argue with. he was engaged in the process. >> rose: and in the combat of ideas because he believed so strongly in ideas. how would you prepare a case before the supreme court knowing that he would be one of the interrogators? >> well, he wanted to be prepared to answer his questions. for most the cases i had in front of him the haliburton case

and others were where you knew your chances of winning him over weren't great and what was most important is that you did not let him either side track you and get you off message or get you to concede something that might give trouble to justices that may be favorably inclined to you or not persuade somebody in the middle so you had to protect yourself so you didn't go down too far of an intellectual debate with justice scalia though you wanted to respond directly to his questions. >> when you think about him and what he had did on the court how woul you define originalism?

>> originalism asks the question what did the people who drafted and ratified the constitution mean by it and that means injustice scalia's view if they weren't thinking about abortion the constitution has nothing to say about abortion. if the weren't thinking about same-sex marriage the constitution has nothing to say about it. he would say it's not an evolving document but a dead document. it's like a contract, like a will, like a statute. you figure out what the people who put it together and ratified it understood it to mean. >> rose: in an interesting way he's constantly talk about that in appearances with me and what i meant and the idea of a living constitution would drive him crazy. >> there were many ways to get justice scalia's goat and that's one of them. >> there's no originalist.

no one's ever an originalist it's true they weren't thinking about abortion but they weren't thinking about radio or television either and no one would say the first amendment -- >> rose: what's the alternative to his view on the constitutional interpretation. >> you look at the words they used and try to give them meaning in the present context. when you talk about free dom -- pr freedom of press they were talking about the printed word but we apply it to electronic media though nobody conceived electronic media, television in the 1700s. take cruel and unusual punishment. what was cruel and unusual in the 1700s is very different from what we think of cruel and unusual today.

take the concepts that they articulate and try to apply that in the modern concept. justice scalia would recognize that with respectv& the press and recognize that with respect to something like cruel and unusual punishment to some extent but sort of walked away withjxr concepts of equal protection and due process. take the 14th amendment when they passed the 14th amendment nobody was thinking at that time it would be used to eliminate separate schools base on race yet i think everybody recognizes in the context against brown v. board of education it was the right of society.

>> rose: would he recognition that? >> he went proposed to against brown versus board of education. >> he said that's the hardest case for my theory basically say brown has to be right. it's hard to justify on originalist ground but my theory doesn't have to give you the best answer all the time just most the time. >> when you take that point of view what the best answer is you're now down the slippery slope. all you're doing is saying i'll be an originalist when i want to be and when it works out and not when it doesn't work out. >> he called himself a faint-hearted originalist. he said i'm not a nut so seemed to recognize his theory has limits. >> if you have a theory taken to it's logical conclusion means you're a nut i think that is a theory that's wrong. >> now, he would respond that

you do need some constraints. you can't let judges on the supreme court make up the constitution however they like and whatever they think are copacetic to them. one thing scalia used to say is that it's important judges feel bound by legal materials. >> i think most justices would agree with that and it's just a question of what kind of content you put into these words. the founders of this country people who draft the constitution as justice scalia said many times were extraordinary people, extraordinarily genius at the science of government and gave us a document that could last as long as it has because it contained concepts that could be adapted to new times. >> and they used broad language.

broad language that makes you think or makes a lot of people think they meant for succeeding generations to fill them with content appropriate to contemporary circumstances. >> rose: what was he like to cover as a reporter? >> he was a delight. oh, god we're going to miss him. he was so quotable. he easily wrote the most cutting and quotable phrases. he was a journalist's delight. >> rose: when it came to the reagan appointee was there an expectation he'd be what he became? >> i happen to look at some of his confirmation hearings where he was so meek and agreeable and when he shows up at the court which back then the justices didn't ask a lot of questions. scalia shows up a former law professor and very argumentive and sure of himself and witty and really transforms the

atmosphere in the room. >> rose: i think i read this i may not have remembered it as perfectly one of the justices said to the other during the first time which he was asking so many questions are we going to have time for our conversations. >> and when the justices have private discussions how little deliberation there was and it was business like and people vote and went back to chambers to write and he wanted to sit and argue. that was his nature and for the most part an appealing nature >> rose: what were his disappointments in life, adam? >> almost every liberal decision. the case he was a champion of same-sex marriage justbs crazy to think nine justices or

more strictly speaking five justices should decide the constitution contains such a right. that something he found disagreeable. >> rose: i thought you might say some speculated he wanted to be chief justice. >> i think that's more than speculation and a case david was involved in when he wrote one of the early decisions on a decision on a stay in bush v. gore and later told me privately he told me that was;ib the end his chances to be confirmed as chief justice. think he harbored some desire but by 2000 the chances had faded. >> how did he see himself? >> that's hard to say how do any of us know how we see your selves. i think he was a big hearted person with strongly held viewed. >> rose: can you imagine anyone on the scene if this was not the

political football it's become and let's assume it us a republican president to replace a successor who might it be like him? >> it's hard to imagine someone as larger than life as he became over 30 years on the court. but there are some republican lawyers and judges who might. once you have light tenure you start to express yourself more. >> rose: as certain presidents have found out about people they nominated. what happens now? >> we have the likelihood that a republican senate is not going to confirm though the president will nominate so what happens? >> if that happens we will end up with essentially two full years where the supreme court will not have a full complement.

you'll have eight justices. that will to some extent i think give what is popularly called the four liberals an advantage because if they can secure justice kennedy's vote they'll have a 5-3 and if they can't it will be 4-4 rand and the court always has the ability to put off a case for reargument but here because if you wait until the next president comes in that's not going to happen until this coming january. it will take a while to appoint. it will take a while to vet and take a while to confirm. by that time you're april or may or maybe june and the next term of the supreme court is over with so you may not get

decisions on important cases if republicans take that approach for a long time. i also think there's very substantial political costs and risks to republicans of doing that. >> rose: which are? >> depending on who the president nominates you can offend a substantial portion of the electoral but not treating that person fairly and giving them a vote. in addition there'll probably be some constraint on the president to appoint someone who is not too far towards the liberal side in order to get that person confirmed. if a democrat wins in this election that constraint may not exist and they may get somebody more liberal.

>> so the force of his arguments are they in the ascendancy or not? >> it looked like there was a second originalist but the two bush appointees are much more pragmatic and originalism may have reached it's peaked. i don't know we'll have an origstdshould a republican candidate win. >> rose: who was his principal political antagonist? >> justice breyer. he and breyer went back and forth so much in arguments occasionally they'd say jump in anytime you like. >> rose: that's good. how many times would he ask

questions when you were arguing? would he have a few questions and then come back. >> he'd jump in repeatedly. other justices were being very active too. you often -- it is often the case the questions are not so much directed at eliciting answers as much as making a point. >> people keep statistics on this stuff and justice scalia asked more questions than anyone else and got more laughs than anyone else and the temperature of the courtroom is going to be a less fun place without him. >> rose: i want you to see some things he said to me in the conversations we did. he said if he thought the language he'd used was a bit too much he would tone it down in terms of a criticism or go into

the heart of a fellow jurist. >> man, i'd hate to see the original. that would be interesting to read. particularly i think his rhetoric got more and more colorful as time went on. >> rose: he became more of a personality. >> more of a personality and to some extent cared more about some of the issues but i have a hard time thinking how much stronger the language could have been in his dissent of marriage equality. >> rose: you as a renowned lawyer in the courtroom as anybody in america today he was never a trial lawyer as far as i know. >> he wasn't but he was a law professor. >> rose: and decided he wanted to go teach. >> and i think anything could

have gotten him out of teaching other than being on the bench. he loved the intellectual back and forth you had in the class room and debating with like-minded people. >> rose: what's your favorite opinion, adam? >> oh, maybe morrison v. olson. i hope i paraphrase this closely he said of the independent counsel sometimes a wolf comes in sheep's clothing. this wolf comes as a wolf. >> rose: so there's also this much acknowledged friendship with justices across the spectrum especially kagan and ginsburg. he enjoyed that. it's a bit like buckley and galbraith for me. >> he was dear friends and close friends with justice ginsburg.

best buddies, opera lovers and celebrated new year's eve together and he went on hunting trips with her which is hard tù. i wonder if her enthusiasm for hunting -- >> rose: or did it exist before. last word, david.fá >> i think following up on what adam was saying. i don't think you can talk about justice scalia without talking about his warmth on a personal level. he loved people. he loved debating with people. he couldw37h believe that your s were wrong indefensible even but never in my experience mean-spirited or personally mean. his language would sometimes be over the top in opinions but in private when you were talking and debating he always maintained his sense of humor

and was a joy to be with. >> rose: joy of life too. thank you both very much. >> great to be here, charlie. >> rose: we'll right back. stay with us. we continue with jeffery toobin a staff writer for the new yorker and wrote books and with me is david boies as we talk more about justice scalia and open up the conversations i've done with him over the years. tell me how you saw him? >> there's been 115 supreme court justices but there's a very small handful whose influence is beyond the court itself. you're talking chief justice marshall and oliver enwendell holmes. he reoriented many people's

thinking about what the conversation means. he changed the way statutes are interpreted in the supreme court and he is a big big influence in american law more than just a handful of the other supreme courts. >> rose: but are his idea in descendanc descendancy or not? >> the court with five remembers appointees and four democrats before justice scalia's death sometimes he won and sometimes he lost. he lost on a lot of big cases especially about gay rates. he never succeeded in getting roe v. wade overturned. he lost on abortion rights most the time. so yes there is a lot of influence there certainly on the second amendment. that was his greatest triumph in the heller case in 2008 when he said there was a personal right

to bear firearms but it's an revolution he led. >> rose: you can argue as adam liptak just said he's best known through his ascents rather than personal opinion. >> his personal cost him at the supreme court. we talk about his friendship with justice ginsburg and respectfully that's been beaten into the ground and his relationship with o'connor was poisonous and ail en -- alienat him. >> i think he's right. he was a forceful passionate and brilliant advocate but wasn't good at bringing people along.

he wasn't good at changing people's minds on the court and i think part of that did have to do with his personality and i think part had to do with he was more comfortable with people who he wasn't going to change their mind. >> he acknowledged that in conversations with me i'm not very good at that. he understood that. >> and justice brennan was famous for asking law clerk what's the most important rule at the supreme court and they'd say due process of law and he'd hold up his hand and say five. the most important rule is five because with five you can do anything you want around here and justice scalia was not all that good at collecting five votes. >> rose: did he care that much about it? >> i spoke to him several times. he liked winning a lot of better

than losing and i think he had that in common with his colleagues. he just wasn't interested in doing the kinds of lobbying of his colleagues that is sometimes, not always but sometimes effective. >> rose: how will he be remembered? >> as the foremost continuational theorist but did not win in his -- constitutionaa theorist and if barack obama appoints another justice or hillary clinton appoints three more his place in history will be very different. >> rose: you're wired into the political as well as the judicial establishment. who do you think the front runner is for the job? >> a judge on the dc circuit, india-american confirmed 97-0 in

2013 and widely respected among part party lines. a judge from iowa on the a-circuit confirmed unanimously and been an alie of grassley and a former federal prosecutor former ginsburg clerk widely respect and confirmed with bipartisan support i think they're all front-runners to be nominated i don't think they'll be confirmed by the senate but you asked me about nominations. >> rose: thank you. we'll right back and we'll hear from the man himself. stay with us. i spoke with justice scalia at the supreme court in 2008 and 2012. here's a look back at those

conversations. what do you hope will be your legacy? how do you hope you will have changed this great institution? >> well, i don't think any one person is going to change it but if i make a contribution i hope it will be in recalling the court to the matter of constitutional interpretation which used to be orthodoxy and what did the constitution mean when it was adopted. that's fallen into disuse and replaced with the notion of a morphing constitution -- >> rose: some say a living constitution words you abhor. >> i do indeed. >> rose: why do you abhor the idea of those words? as well as that interpretation?

>> i don't mind the words as much but what they import is that it changes and how it changes, when it changes, if it changes is just up to the courts and that's just not democracy. the bill of rights which is what this terminology is applied to is basically an exception to democrat self-governance. >> rose: can you make an argument if you look at your background it's natural you come to the philosophical place you came about originalism. >> i don't think so. i really think that it is the non-originalist that have to explain. what a weird notion that a

document changes it's meaning from decade to decade and it's going to be up to the judges to decide what it means especially when this document makes an exception to democrat self-governance. when this document says no even if the people want to do certain things they can't do it. i think it's a strange notion what those things are will be decided from time to time by elected judges. it seems to me the normal way anybody reads a text is what does it mean. if it's an old text what did it mean when it was written or when it was adopted. that's why have you glossaries for pete's sake. >> rose: it is extraordinary, is it not, so many great minds see it so differently. the idea of originalism and a living constitution including why you and your great friend on the court, justice ginsburg.

>> well, i think it starts off differently. if i -- if you think of the court as institution of government then i suppose that's a natural approach but look, my approach was orthodoxy. it only begins with a war in court for the people who believe in an evolving constitution sweep the field. in fact the first opinion to use what has been the major instrument for updating the

constitution namely substancive due process the first opinion that did that is scott and looking at a portrait of chief justice as i said that. >> rose: what happened in the discussion? >> well, there you are but that's certainly not a happy ancestry of the doctrine. i think it shows you how it lends itself to abuse to recreating the constitution. >> rose: as you say it used to be the majority of opinion say. do you believe the kind of originalism and continuation to be interpreted in the language of it's time.

do you think you'll see a time in which your ideas about this become majority again? >> sort of wasting my time unless i don't have a forlorn hope in that direction. look, 20 years ago was not considered worth discussing by the law professors. they were so uniformly in the other camp and that's not the case any more. there's originalists in the a number of prominent law school faculties but the other view is understandable. the other view enormously attractive to judges because it empowers them to do good things. they're not wicked people. they have a view of what ought to be.

>> how could we have expected those founding fathers in writing that constitution to have seen all that would transpire and speak to the times and why should we expect them to create a document that was so broad and spoke to a generality that would be appropriate for all the changes to come. >> i don't disagree with that you're mistaking my philosophy if you don't think it allows for the addressing of new phenomenon. i wrote that inquired into the question of whether the fourth amendment the restriction against unreasonable searchs and seizures applied to a new

technology police departments have developed of infrared technologies. they can look into houses and see in this particular case it was a crude type of device. it could just tell whether there was heat being emitted. they found the roof of one house was warmer than roofs of other houses and figured this person was using lamps heat lamps to raise marijuana and they got a search warrant based on that and we threw the case out. i wrote the opinion because we said they didn't have infrared imaging but the new technology does precisely the thing the fourth amendment was to protect against namely intrusion into the home. the death penalty is the best example. is the death penalty

unconstitutional? that to me is an absurd question. the death penalty was the only penalty for a felony at the time of the bill of rights and now maybe it's a bad idea in some states have thought so and have eliminated it i don't take position on the merits of it. it's not constitutional. it may be stupid. >> rose: how often does your understanding of the constitution lead you to believe it's not write in some equity or fairness or philosophical point of view. >> not infrequently. some of my decisions in the political procedure field i'd be tougher.

>> rose: do you believe the defendant having certain rights though they're a bad person. >> that's the idea. it's not up to me. >> rose: and when you have to make those decisions you phrase your adherence to the constitution? >> that's the great attraction of the other philosophy. the living constitution judge is a happy fella. >> rose: how's the court changed since you came here? >> in the way it functions virtually not at all. i've only been here under two chief justices, one retired when i came on and i served under rehnquist and roberts and they pretty much run the show the same way. roberts lets people go on a little longer at conference than rehnquist did -- >> rose: a task master.

>> task master is the word. roberts will acquire that in time. >> rose: you think? but each chief justice has his own stamp or perhaps her stamp in the future. has a stamp on it. the warren court not only a philosophy but a stamp. then the berger court then the rehnquist court and now the roberts court. >> that's an interesting point. in a way it's ybeñcourt. that's my very point maybe you ought to name the courts on the basis of the last president who brought about a change in the court. the last president who made nominations to the court.

so that this court would be the bush ii court and before alito and roberts were appointed the court would have been the clinton court and so forth. that would make a lot more sense because what changes in the court i assure you is less than the character of the chief justice though it has some effect than the nature of the people appointed. so i say why blame rehnquist for the rehnquist court or roberts for this court. >> rose: what's the power of the chief justice. >> well, he has the same vote as a do and there's nothing he can do to my vote if i want to be stubborn. it's like being the dean of a law school there's not much you

can do with these unmanageable creatures. now, if he's very persuasive as roberts is us want to go with the chief justice because we are an institution and you want to make the institution work. >> rose: oral argument. is that what you value in the end to use a cliche where the rubber meets the ground? >> it's probably to the part of the whole job that i like the most because it is the point at which you read the briefs and you have in your mind the problems with the case and you probe. see if indeed counsel has an answer to the problems you think exist. it's really the moment of truth. the last chance counsel has to

satisfy the court on the problems after reading the briefs the court still retains. that's the best part of the job but frankly all the job is enjoyable, 60% of the time. >> rose: what is the 40%. >> drudgery. >> rose: how crucial is the oral argument? >> you know, the only surprise i had when i became a judge everything else was just what i had figured. the only surprise was how important an oral argument was. i thought it was just a dog and pony show. >> rose: tell me why that's not true. >> because if the 20 minutes or half an hour are used intelligently they're used to probe those who you narrowed down your problem with the case. >> rose: did you ever look at opinion and say it resonated at the time but in the aftermath of the morning --

>> oh, of course. i don't dash them off and circulate them immediately. you let them cool. >> rose: how often do you think i need to pull it. >> often. there's good stuff on the cutting room floor and there's good stuff sometimes because the attack was so forceful the majority pulled in it's horns. >> rose: do they ever come to you? >> yes, and if a colleague has any objection to what i said i'll take it out. >> rose: out of respect for the constitution? >> the colleague. if someone said it's over the top to say this will result in more battlefield deaths i probably would take it. >> rose: it's a group who like and admire and accept the

differences and looking for the common good as they see it. >> i consider every one of them a friend. some closer than others but the closer ones have nothing to do with which agree with my philosophy. >> rose: do you get mad? >> i get mad now and then. how can they do this. >> rose: you suggest it's left them? >> it's important matters. if you can't have passion for an opinion such as some, if you can't have passion there's something wrong with you. >> rose: your dad was a sicilian immigrant who taught at brooklyn college. >> tour court marshall was a student of his. >> rose: he taught romance

language. >> always had a book in front of his face. >> rose: just the three. >> a little german but not much. >> rose: singular influence on you? >> i would say i'm most conscious of his influence on me but the more i thought about it and looked at some of the things that my mother left behind it may we will have been my mother who was very -- >> rose: what left behind meaning? >> well, she was so careful about my associations and the activities she got me into and became a den mother and all this. she devoted a lot of attention to raising her son. probably more than my father did overall, certainly more than my father did overall. >> rose: did your father want

you to be a lawyer? >> no, not particularly. >> rose: professor? >> he did not want me to be a professor at an undergraduate level because he taught these romance languages in the day when you had to have a foreign language to graduate and he was quite exasperated to teach to a class that didn't really care. they didn't have intellectual curiosity -- most of them, any real desire to learn the language so he would teach to the few students there that really were interested and i remember his saying to me he wouldn't want me to be an undergraduate professor i was a graduate professor. >> rose: you taught at university program. did you think you were setting

out on an academic career. >> i don't recall having the ambition to be a federal judge. when i left law school i knew i wanted to teach and told people at jones i probably had that ambition and i would stay there longer because i was enjoying the practice a lot. >> rose: when you look at the justices on the court who do you admire the most? >> i like one of the predecessors in my seat on the court robert jackson who was -- >> rose: a former prosecutor. >>76o and also former attorney ó general. >> rose: what did you like about him. >> he's usually on the right side of the case which meant he was usually adhering to the text

and a magnificent stylist and the best writer in the 20th century if not forever he wrote beautifully. >> rose: you love language don't you? >> i do love language. and for that background i am a snoot. it stands for syntax nerds of our time. it refers to people who get upset when they hear infer used to mean imply. >> rose: does the court that you know read the paper? does it understand the political dynamic of the moment? >> i don't know. you'd -- i think so. >> rose: does it affect? you >> i hope not. >> it is possible you don't -- >> no, i wouldn't be as unpopular as i am.

>> rose: you think you're unpopular because of protests here and there? >> well, yeah. when you want to designate;e on the court i'm that. >> rose: why do you think that is? you're a charming personality. you're a nice fella. you have friends across all aisles you and ruth ginsburg and people say nice things about you but you are. you have the guy they look and say -- he want to stand in the way. >> that's right. >> rose: he want to thwart the forward march of history and justice and that's how they see you. >> i think it's simply because of the consistency -- >> rose: but do you take some

pride in that though? i bet you do. >> a man who hasn't made a few enemies probably isn't a good man. >> rose: you say that about bush and gore. it decided a presidential election. >> some court was going to decide it. >> rose: you blame gore because he brought the case in florida. he wanted judges to decide it so judges decide it. >> rose: you have no regret about that do you? >> about that case? oh, it was an easy case. >> rose: how was it so easy? >> on the principle -- >> rose: did you stop the florida courts on mid step. >> the vote was 7-2. it wasn't even close. the only issue that was 5-4 was whether we should put an end to this nonsense and immediately

decide the case or give them another couple of weeks while the whole world was laughing at us. >> rose: because the country couldn't decide who was president. >> and we couldn't have a transition. >> rose: had you had the impact you believed you would have liked to have. the answer has to be no. >> well, it depends on what you mean by the impact. >> rose: the impact is you'd like everybody to see it your way. >> that doesn't happen. when i came on the court the word was scalia will be a -- because i'm such a charming fellow. >> rose: is that what they said? >> they didn't say the charming part but they did expect i'd be a consensus guy and i can't be a consensus builder -- >> rose: because? >> i can't trade. bill brennan who was an evolutionist he could deal. he could go to his colleague i want to change the constitution this far and i'd

say, bill, i can't go that far. he can deal. i can't deal. if i'm doing the text what i say. >> rose: i'll give you a little here. >> halfway when what you want it to mean and what i think it means. >> rose: you can't do it. >> i'm not discouraged. bill brennan to my mind was the most influential justice of the 20th century and changed the court enormously not by being the most influential judge of the 20th century because he had a clear judicial philosophy, was always on the left of the court and always pulling the court to the left and many of his views were ultimately adopted. >> rose: justice scalia dead at 79 years old survived by his

nine children and 28 grandchildren. for more about this program visit us online. captioning sponsored by rose communications captioned by media access group at wgbh access.wgbh.org

this is "nightly business report" with tyler mathisen and sue herera. >> good evening and welcome to a special edition of "nightly business report." you know groundhog's day was a few weeks ago, sue. but every day in the stock market this year has felt like investors have been reliving a nightmare. seemingly day after day. >> it sure does. believe it or not, spring is coming. and that leads to thinking about your taxes or even the spring selling season for housing. it's an eventful time and it's only presidents' day. >> that's right, its presidents' day. but it also happens to be the year when we elect a new president. and as dom chew tells us the marks may have nothing