Scalia, Breyer weigh in on value of televised arguments

WASHINGTON -- In a rare and expansive session with senators Wednesday, Justices Antonin Scalia and Stephen Breyer talked about their work on the Supreme Court, including why they oppose televising oral arguments.

"I was initially in favor of televising," said Scalia, appointed by Ronald Reagan in 1986. "But the longer I've been there, the less good idea I think it is. … If I really thought the American people would get educated, I'd be all for it." But, Scalia insisted, people would see only brief, illusory exchanges. "For every 10 people who sat through our proceedings gavel to gavel, there would be 10,000 people who would see nothing but a 30-second takeout … which I guarantee you would not be representative of what we do."

When Sen. Richard Blumenthal, D-Conn., said televising proceedings would show "gripping" debate and a sense of the drama of a dispute, Scalia scoffed that it is not all that dramatic and the justices "sit there like nine sticks on chairs."

Breyer, appointed by Bill Clinton in 1994, said he worried that televising proceedings would hurt the court's institutional reputation.

The justices' appearance before the Senate Judiciary Committee, which focused on the role of judges under the Constitution, produced no bombshells. Scalia, 75, and Breyer, 73, were careful in what they said, and senators asked mostly friendly questions. Yet the two-and-a-half-hour hearing provided senators and a large student audience a rare opportunity to see two justices outside their usual marble confines and watch them interact.

Conservative Scalia and liberal Breyer differ on their constitutional approaches, yet they both like to talk about the law and fell easily into their usual banter and joking.

Scalia, as is his way, got off the sharpest lines. "I'm hopeful that the 'living' Constitution will die," he said, referring to Breyer's view that the Constitution should be interpreted to meet the needs of changing times. Scalia believes the Constitution should be interpreted in its 18th century context.

Both justices stressed that the justices generally do not intervene in a dispute unless lower courts are divided on the issue. "We don't go prowling around, looking for congressional statutes that are unconstitutional," Scalia said. "We let sleeping dogs lie, which is the way one should lead his life."

Scalia dismissed questions related to public complaints about "dysfunctional" Washington and legislative gridlock. He said it should be difficult to pass legislation that may not be embraced by a majority. "Americans should appreciate that," Scalia said. "They should learn to love the gridlock."