sleep train. ♪ your ticket to a better night's sleep ♪ >>> back, with my special guests justice antonin scaliaauthor bryan garner. let's turn to roe v. wade. you, justice scalia, had very strong opinions about this at the time. i know you do now. why are you so violently opposed to it? >> i wouldn't say violently. i'm a peaceful man. adamantly opposed. >> adamantly. >> adamantly. basically because the theory that was expounded to impose that decision is a theory that does not make any sense. namely, the theory of substantive due process. there's a due process clause in the constution, which says that no person shall be deprived of life, liberty or property without due process. that is obviously a guarantee, not of life, not of liberty, not of property. you can be deprived of all of them, but not without due process. my court in recent years has invented what is called substantive due process by simply saying some liberties are so important that no process would suffice to take them away. and that was the theory used in roe versus wade. and it's a theory that is simply a lie. the world is divid

inside the court itself, but i'm in washington today to interview the longest serving justice antonin scalia. justices don't report on cases they're covering. but that leaves his faith and thoughts on campaign finance and politics and his colleagues. it's all on the table tonight. my exclusive interview with justice anthoonin scalia and co-aweco co-author of their new book. justices scalia, welcome. brian, welcome to you, too. >> thank you. >> the book is very much a template for the way that you conducted your legal life. you are a man that believes, fundamentally, that the law in america should be based rigidly on the letter of the constitution. that's what you believe, isn't it? fundamentally. >> yes, give or take a little. rigidly i would not say, but it should be based on the text of the constitution reasonably interpreted. >> people that criticize you for this say, a lot of the constitution was phrased in a deliberately vague way. they realize, when they framed it, that in generations to come things may change, which may put a different impression on a particular piece of text. >> sure

woman's right to choose if mitt romney is elected we'll get justices like clarence thomas and antonin scalia who both believe all those progressive reforms just mentioned are unconstitutional and should be overturned immediately worse we'll get justices recommended by robert bork bork was reagan's nominee to the supreme court in one thousand nine hundred seventy but he was rejected by the senate because of his radical beliefs today bork is mitt romney's constitutional advisor his judicial nominees superstar adviser back in one thousand nine hundred seven at the time aborts nomination the late senator ted kennedy took to the floor of the united states senate to talk about robert bork's grim vision of america robert bork's america is a land in which women would be forced into back out of abortions blacks which sit at segregated lunch counters broken we break down citizens' doors at midnight raids and school children could not be taught about evolution right is an artist could be censured at the whim of government. robert bork and his ilk from which mitt romney will hand pick his supreme court

reagan elevated rehnquist from associate justice to chief justice, named antonin scalia to that seat. no question about it. conservative. the following year, a really key turning point in history of the supreme court. 1987, lewis powell step down. lewis powell was at that point the swing justice. justices don't like when the news media so that term but it's been a useful term for a long time in the supreme court because the court has been so evenly divided for so long. so it was very important. and in 1987, remember president reagan nominated? robert bork. robert bork, and something important had happened between the nominations of rehnquist and scalia in 86 and the nomination of bork in 1987. in a midterm election, the democrats had retaken controls of the united states, so the chairman of the judiciary committee was no longer strom thurmond, but was instead a young senator from delaware named joseph biden. and biden engineered a really meticulous examination of orcs record. and bork to his credit, perhaps to his regret, engaged the senators in discussion of how he felt about the iss

ruling he authored caused a personal rift with fellow conservative colleagues including justice antonin scaliaa claim scalia denied to cnn's piers morgan. >> no, i haven't had a falling-out with justice roberts. >> foul words exchanged? >> no. >> slamming a door? >> no. nothing like that. >> reporter: the other big question, will the chief justice take the court in an aggressive new direction? liberals fear a more hard-line, dogmatic shift to the right. >> a lot of progressives are concerned that this might mean that chief justice roberts has built up some capital, some goodwill, and will now push the conservative agenda. >> reporter: tom goldstein, who has argued before the court, thinks roberts wants a more conservative court but that he'll do it gradually. >> he's not trying to move the law radically quickly. i think, justice scalia, or justice thomas really want to get to the end answer as quickly as possible, and make the law conform to what they really understand. whereas the chief justice is more incrementallist. >> reporter: but conservative court watcher carrie severino doesn't believ

the author of that opinion was antonin scalia.s had that the free exercise clause will have the right to exercise their religious belief, cannot be used to challenge a law of general applicability. so if a life pass without regard to anybody's religion, but happens to affect a religion, which we didn't anticipate, it is not unconstitutional. to even continue further, there is a famous case involving the amish. they say we take care of our old. we don't need any government help. the court said too bad. government has a right to pass this legislation and has the right to ask you to follow it. and then bob jones university want a tax exempt status of the university and was denied by the irs because bob jones university would not allow african-americans into its campus or to african-americans to change that and then wouldn't let them date anybody but african-americans. and they said that is our religious beliefs and we should not be denied tax exemption because of a religious belief. the government should not be allowed to have that p

even though the court and her favorite, antonin scalia agreed with that, a few years later, the religious freedom restoration act was passed 97-2 to oppose the decision. >> i just wanted to add that justice scalia compared b-2 robbes-pierre. >> are you complaining or is that a compliment? we have been friends for a long time. it was jointly sponsored by the same but -- by in the most liberal, ted kennedy in of massachusetts, and awards -- and the most conservative, or and hatch of utah. -- orrin hatch of the top. i have been upset by people in this country and people in germany putting restrictions on the practice of male circumcision. i think that's atrocious. but there is a more extended conversation of religious liberty, refers not to the practices of the religion or the church for its own adherence, but to the church or religious organizations that have employees that do not belong to their religion. i will speak here from the roman catholic perspective and address this question with regard to catholic institutions such as hospitals and colleges in terms of providing contraceptive hea

the difference between ruth debate or ginsburg and antonin scalia is not that one is smart and one is dom. it is not that one is a good lawyer and the others a bad lawyer. it is not one it is ethical in the other is unethical. they are both intelligent, good lawyers and ethical. they just see the constitution in different ways. and that is inevitable. you cannot look atquestions like does constitution protect a woman's right to an abortion? may race be used in college admissions? those are as much political questions as they are legal questions and the justice you get from a republican president is going to be different from the justice you get in a democratic president and people should vote accordingly. yes. actually i -- why don't you decide because it's just too great a responsibility for me. [laughter] >> my question is, article iii caused the supreme court supreme and it's a premises that is very fragile. i am sure you have read justice jackson's book the struggle for regional supremacy. do you think that john roberts is mindful of his place in history not only to be the key fac

and and and scalia -- antonin scalia, an appointee of reagan, was confirmed by the senate 97 to nothing. ruth bader ginsburg -- ruth bader ginsburg who is as liberal or as scully is conservative, was confirmed by the senate 94-3. it was not so long ago that we voted on nonpartisan grounds, not on ideological polarization, but on the fact that they were great lawyers and great legal scholars, who deserve to be on the court because of their scholarship and their character. how did it get so wrong so fast? we talk about polarization. the three most important achievements of the bush administration, the most important changes -- the war, medicaid party, and no job left behind -- medicaid part d, no child left behind all receive significant support. on medicare, most of the democrats voted. and on no child left behind, ted kennedy sponsored the bill. that was seven or eight years ago. how did it go so bad so quickly? for a lot of reasons, but it went so bad so quickly. i believe that of men and women will get together and see what will work, i think we can cure it almost as quickly. and i ho

over the next four years, justices antonin scalia, anthony kennedy, ruth bader ginsburg, will pass theirays. court watchers expect one or more of them to retire during the course of the next presidency. which justices leave and whether the replacement is nominated by romney or obama could tip the balance of the court. i think back to the contentious health care decision, that 5-4 outcome, this may not be exciting stuff, but it is exciting if you're following it like we are. it is so, so important. wasn't to bri i want to bring in joe johns. president obama already put not just one but two justices on the current court. you know, reading into the supreme court tea leaves if you will, does that give us a pretty good idea as to who might be on the short list, if and when he's re-elected, and a vacancy perhaps pops open. >> well, i think so. you never know in these things, brooke, but if president obama were re-elected and got the opportunity to select a replacement, one of the names, interesting enough, that we have been hearing a lot is kamala harris, the california attorney general, also

the difference between ruth debate or ginsburg and antonin scalia is not that one is smart and one is dom. it is not that one is a good lawyer and the others a bad lawyer. it is not one it is ethical in the other is unethical. they are both intelligent, good lawyers and ethical. they just see the constitution in different ways. and that is inevitable. you cannot look at questions like does the constitution protect a woman's right to an abortion? may race be used in college admissions? those are as much political questions as they are legal questions and the justice you get from a republican president is going to be different from the justice you get in a democratic president and people should vote accordingly. yes. actually i -- why don't you decide because it's just too great a responsibility for me. [laughter] >> my question is, article iii caused the supreme court supreme and it's a premises that is very fragile. i am sure you have read justice jackson's book the struggle for regional supremacy. do you think that john roberts is mindful of his place in history not only to be the ke

supreme court justices antonin scalia, of course, clarence thomas, alito, they've all been there to their meetings of these corporate chieftains, and this one two days before the book came out, so just about a month or so ago, they raised $900 million in -- $100 million in one weekend to defeat barack obama this year for president. think about that. if you look at the super pacs for romney and santorum and ron paul and newt gingrich, up until super tuesday they had spent a total for all of the candidates of $53 million. and in that one weekend they raised $100 million. so they are huge, they went out there, and they will say, and they will do anything. of course, it's a lot easier for them now since citizens united. because you cannot only raise unlimited corporate money, but you don't have to report which corporations are paying which bills. um, but they also couldn't do it without the assistance of the nation's media, and that's what drives me >> you can watch this and other programs online at booktv.org. >> host: well now joining us on booktv is author diana furchtgott-roth, and she ha

court is if one of the more conservative justices, like swing vote anthony kennedy or justice antonin scalia who are both in their mid-70s, if they retired, then president obama could replace a conservative or a right leaning moderate. >> reporter: here's who could make the nominee list if president obama wins a second term. california attorney general harris is getting a lot of buzz. >> the california attorney general has political experience, which is really missing on the court right now. >> reporter: another name circulating is ja kwlen wen. if she's nominated, the california-based federal appeals judge would make history as the court's first asian-american justice. but that's no guarantee. and for example if ruth bader ginsburg is the only justice to retire, the liberal side of the court would not get any bigger. just a little younger. >> and as you know, there's been a lot of speculation about whom romney might nominate. >> right. among them paul clement is one name we've heard. dia diane sikes and kav gnaw, a judge here in d.c. >> love to speculate. >> fantastic. >> all the names we'v

supreme court justices antonin scalia, of course, clarence thomas, alito, they've all been there to their meetings of these corporate chieftains, and this one two days before the book came out, so just about a month or so ago, they raised $900 million in -- $100 million in one weekend to defeat barack obama this year for president. think about that. if you look at the super pacs for romney and santorum and ron paul and newt gingrich, up until super tuesday they had spent a total for all of the candidates of $53 million. and in that one weekend they raised $100 million. so they are huge, they went out there, and they will say, and they will do anything. of course, it's a lot easier for them now since citizens united. because you cannot only raise unlimited corporate money, but you don't have to report which corporations are paying which bills. um, but they also couldn't do it without the assistance of the nation's media, and that's what drives me crazy. >> you can watch this and other programs online at booktv.org. >> host: well, now joining us on booktv is author diana furchtgott-roth, an

the supreme court said no, the government was not calling it the author of that opinion was and antonin scalia said when the free exercise clause -- we all have the right to exercise our religious beliefs -- cannot be used to challenge a lot, then it happens to effect a world religion which we didn't anticipate. it's not unconstitutional. even continue that further, there is a famous case involving the ramesh. the amish tried to get out of the social security taxes saying we take care of our old. we don't need any government help. the government has a right to pass its regulation and has the right to ask you to follow it. and then a great case bob jones university a tax-exempt status as a university denied by a the irs because bob jones university wouldn't allow african-americans and to its campus or african-americans changed that and wouldn't let them date anybody but african-americans, and they said that as our religious beliefs and we shouldn't be denied tax exemption because of our religious beliefs. the government shouldn't be allowed to have that power over us and the supreme court said

the supreme court said no, the government was not coming into the author of that opinion was antonin scaliabeliefs cannot be used to challenge the law of general applicability so if it is passed without regard to anybody's religion, then it happens to affect a religion which we didn't anticipate. it's not unconstitutional. stephen continue that further, a famous case involving the ramesh committee try to get out of social security taxes saying we take care of our old. we don't need government help. of course the government has the right to pass its regulation and has the right to ask you to follow it and then a great case, bob jones university 18 tax-exempt status as a university and was denied by the irs because bob jones university would now allow african-americans into its campus or african-americans they changed that and then they wouldn't let them date anybody but african-americans and they said that is our religious beliefs and we shouldn't be denied tax exemption because of our religious beliefs, the government shouldn't be allowed that power over us and the supreme court said too ba