Justices Scalia and Breyer: Little in Common, Much to Debate

They deeply disagree on the most divisive issues of the day: abortion, affirmative action, gay rights, the death penalty. In a rare appearance Tuesday night, Justices Antonin Scalia and Stephen Breyer explained why in a lively debate over the role of the Supreme Court and interpretation of the Constitution.

The conservative Scalia and liberal Breyer spent much of the 90-minute debate defending their respective approaches, mixing humor with substantive discussion of the law. The two have served together on the bench for 12 years now, and they share the easy familiarity of old friends, playing off one another and poking fun to score points.

So does Scalia believe Breyer is an activist judge? "I would never call him that to his face," Scalia quipped slyly.

And when Scalia told a story about a French friend who was puzzled by the complications of religion in America -- and he used a European accent in the telling -- Breyer jabbed right back.

"My only question: Why did the Frenchman have an Italian accent?" Breyer asked.

But there were no hard feelings backstage afterward.

"Want to go grab a hamburger?" Scalia asked Breyer as they left Washington's Capital Hilton, where the debate took place.

"Sure," Breyer said. "Let's go."

The two have written and lectured extensively on their differing approaches to the Constitution, which can produce dramatically divergent results on the Court's most dramatic and controversial cases. They agreed to appear onstage together Tuesday night to hash it out at an event sponsored by two legal organizations with views as opposing as the justices' -- the conservative Federalist Society and the progressive American Constitution Society.

"We have our differences," said Breyer during the debate. Those differences stem "from an approach about how you go about interpreting the Constitution."

Said Scalia: "These are widely divergent views.

"Are we taking broad concepts such as equal protection and due process and asking, What should these concepts mean today? That's one view," Scalia said. "Or on the other hand, are we saying, "What do these concepts mean when they were adopted?"

Scalia takes the latter approach, looking at the Constitution's text and what it meant at the time of the nation's founding. He said his approach limits judges from imposing their personal preferences and setting policy.

"That is very easy to figure out," he said. "It's as easy as pie to figure out that the cruel and unusual punishments clause was not understood to prohibit the death penalty. That the due process clause was not understood to forbid laws against abortion."

And if people want to change things, Scalia said, they shouldn't look to the courts. "Use the legislature," Scalia said. "That's what we do in a democracy."

But Breyer views the Constitution more expansively, believing justices should consider the purpose of the document and what the framers were trying to accomplish.

The First Amendment, for example, prohibits the government from establishing a religion -- a provision that was designed to lessen religious strife. That's why Breyer said he opposes school vouchers, which allow parents to use government subsidies to send their children to religious schools.

"To allow the vouchers in this society would provoke too much religious dissension," Breyer said. "People feel religion so strongly."

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