>> the highest court in the land where the issues that decide america are decided. my exclusive on piers morgan tonight. good evening. it's not often a supreme court justice sits down outside the court itself. i am here in washington it interview the longest serving justice, ant 99 scalia. they never comment on cases that are pending. everything from his faith and family to his guiding judicial principals and thoughts on campaign finance and politics and his colleagues. it's all on the table and my interview with scalia and coauthor of their new book. reading law, the interpretation of legal texts. justice scalia, welcome. brian, welcome to you too. >> thank you. >> the book is very much a template for the way 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? >> yes. give or take a little. rigidly i should not say, but it should be based on the text of the constitution, reasonably interpreted. >> people criticize you for this and 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 that may put a different impression on a particular piece of text. >> right. >> why are you not prepared to accept that that means you can move with the times to evolve it? >> but i do accept that. with respect to those vague terms in the constitution such as equal protection of the laws, due process of law, cruel and unusual punishments. i fully accept that those things have to a play to new phenomena that didn't exist at the time. what i insist upon however is as to the phenomena that existed, their meaning then is the same as their meaning now. for example, the death penalty. some of my colleague who is are not originalists at least believe that it's somehow up to the court to decide whether the death penalty remains constitutional or not. that's not a question for me. it's absolutely clear that whatever cruel and unusual punishments may mean with regard to future things such as death by injection or the electric chair. it's clear that the death penalty in and of itself is not considered cruel and unusual punishment. >> more and more americans are thinking the death penalty -- 50 years ago when you were the longest serving justice when you began, the majority of americans, the big majority is beginning to change. you are seeing it as going out of fashion. one of the reasons being the introduction of dna and establishing a large number of people on death row. didn't commit their crimes. how do you equate that? as a man of fairness and justice, how do you continue to be so pro something that is flawed? >> i'm not pro. i don't insist there be a death penalty. all i insist is that the american people never proscribe the death penalty and never adopted a constitution that said the states cannot have the death penalty. if you don't like it, fine. some states have a polished it. it's a small minority of the states that abolished it. the majority still permit it. i am not pro death penalty. i am just anti-the notion that it is not a matter for democratic choice. it has been taken away from the democratic choice of the people by a provision of the constitution. that is simply not true. the american people never ratified a provision which they understood a polished the death penalty. when the cruel and unusual punishment clause was adopted, that was the only penalty for a felony. >> we have to amend the constitution. it is changeable, but changeable by a process and not by asking the judiciary to make up something that is not there in the text. >> in the crucial and unusual, i wouldn't say the death penalty so much as torture. i was fascinated by the 60 minutes interview where you said it wasn't a cruel and unusual punishment. torture was not punishment. it clearly can be a punishment. if you are an innocent person say in guantanamo bay. say you have been picked up off a battlefield and you are genuinely innocent and have nothing to do with anything and get tortured. that is a punishment, isn't it? >> no, it becomes torture and we have laws against it, but i don't think the constitution addressed torture. it addressed punishments that means for crimes. >> what are about if you are an innocent person being waterboarded? >> i'm not for it, but i don't think the constitution says anything about it. >> it's not the problem with the originalism? >> it's not the problem. it's a problem what does the constitution mean by cruel and unusual punishments? >> isn't that up to the supreme court to effectively give a more modern interpretation of the spirit of what that means? to adapt it to modern times. >> that's lovely. i don't think it is. look. the background principal of all of this is democracy. a self-governing people who decide the laws that will be applied to them. there exceptions to that. those exceptions are contained in the constitution mostly in the bill of rights. you cannot read those as broadly as the current court desires to read them. there by depriving americans of legitimate choice that is the american people have never decided to take away from them. that's what happens. whenever you read punishments to mean torture. if you are sentenced to torture for a crime, yes, that is a cruel punishment. the mere fact that someone is tortured is unlawful under our statutes, but the constitution happens not to address it just as it does not address a lot of other horrible things. >> what did you argue most with the justice. he is one of the world's great arguers. >> he's an intellectual giant and we have no debates in this book. in the first book we had four debate where is we had a pro and con. in it book we had none. the biggest issue in the end, we almost had a debate, but he persuaded me not to. that was weather a murderer can inherit. can a son murder his parents and move up his inheritance and still take whatever the property is from his parents if the statute doesn't say anything about it. we all feel that's wrong and i was the first to argue that there should be an exception and we absolutely have to prevent a murderer from inheriting -- what did you say? response to that? >> i said if you are going to be serious about textualism, it does not make an exception. those states that hadn't made an exception amended their statutes. >> when are we come back, i want to ask you why you think burning the american flag should be allowed even though personally you would throw them all in jail. ♪ [ acoustic guitar: upbeat ] [ dog ] we found it together. on a walk, walk, walk. love to walk. yeah, we found that wonderful thing. and you smiled. and threw it. and i decided i would never, ever leave it anywhere. because that wonderful, bouncy, roll-around thing... had made you play. and that... had made you smile. 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is it clear cut, you in the end-have to make an opinion? >> this person has to be convicted by a jury of 12 people who unanimously have to find he was inciting to riot. it's not all up to me. it would be up to me to say there was not enough evidence for the jury to find that perhaps, but ultimately, the right of jury trial is the protection. >> don't you think this example of speech and reading speech in a fair reading is including symbolic speech. there is a lot of case law about that of course. it's a good example of why we think strict construction is a bad idea. a lot of people think justice scalia say strict constructionist when he and i both believe -- >> what does that mean? >> a narrow reading. a crabbed reading of statutory words or of constitutional words. it's a hyper literalism which we oppose. we like a fair reading of the statute and the words. in this case, speech. >> let me take up the issue of speech and turn to political fund-raising. at the moment under your interpretation i believe of the constitution you should be allowed to raise money for political parties. the problem as i see it and critics see it that, has no limitation. what you have now got are the super pacs funded by billionaires effectively trying to buy elections. that cannot mean what the founding fathers intended. thomas jefferson didn't construct something which was going to be abused in that kind of way. i do think it is being abused, don't you? >> i think thomas jefferson would have said the more speech the better. that's what it's all about so long as they know where the speech is coming from. >> i'm talking about money. >> you can't separate speech from the money that facilitates the speech. >> can't you? >> it's utterly impossible. could tell and so much money to the publication of the newspaper? would they not say this is a bridging of my speech some. >> they are not buying elections. >> the election of a president is better than anybody else. they should be susceptible to the highest wid bidders. they are almost in the business of doing that. are you going to limit the amount of money they can spend? surely not. i think the framers thought that the more speech the better. now, you are entitled to know where the speech is coming from. as to who contributed what, that's something else. whether they can speak is i think clear in the first amend am. >> sorry there a limit in your eyes to freedom of speech? what are the limitations to you? >> i'm a textualist. what the profession reads is congress shall make no law a bridging the freedom of speech. they had in mind a particular freedom. what freedom of speech? the freedom of speech that was the right of english men at that time. those are exceptions. >> between speech and insurrection being unacceptable and speech as you are burning a flag. isn't that a form of insurrection? >> no, no. that's just saying we dislike the government. it's not urging people to take up arms against the government. that's something quite different. that's what i mean by speech urging insurrection. speech inciting to riot. >> or shouting fire in a theater. what about that? >> what are the more complex things about you and criticized in equal measure. the case i would put to you or it's interesting where you sent it against something where i think common sense would have dictated the opposite. a young girl who had been abused by a child molester and she gave evidence through closed circuit television and didn't appear in court. the abuser argued that this was unconstitutional because under the confrontation he should be allowed to be face-to-face with his victim. what part of human decency or common sense said he should have the right to be face-to-face with his young girl victim? you decided he should be allowed to. >> all legal rules do not come out with a perfect sensible answer. the confrontation clause in some situations does seem to be unnecessary. there it is. its meaning could not be clearer. you are entitled to be confronted with the witnesses against you. >> this is a young girl who has already been abuse and is traumatized by what happened. >> what are it says is what it says. >> do you go home at night when you descent on that case, do you have misgivings or are you always able to divorce that as you would say from your legal responsibility to uphold the lesser of the constitution. >> i sleep very well at night. i am doing what i am supposed to do which is to apply the constitution. i do not always like the result. very often i think the result is terrible, but that's not my job. i'm not king and i haven't done charged with making the constitution come out right all the time. >> let's take another break and come out with one of the most contentious supreme court decisions, row v wade. you had a strong opinion at the time and i suspect you have strong opinions today. 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[ all screaming ] watch the elbows ladies. my special guest, justice antonin scalia and his coauthor. let's turn to row v wade. you had ry strong opinions about this at the time. i know you do now. why were you so violently opposed to it? >> i wouldn't say violently. i'm a peaceful man. adamantly opposed. basically because the theory that was expounded to impose that decision was a theory that does not make any sense. that is namely the theory of substantive due process. there is a due process clause in the constitution that said no person shall be deprived of life, liberty or property without due process. that say guarantee not of life, liberty, 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 no process would suffice to take them away. that was the theory in roe vs. wade. a theory that is simply a lie. the world is divided. >> should abortion be illegal in your eyes? >> should it be illegal? i don't have public views on what should and shouldn't be illegal. i have public views on what the constitution prohibits and what it doesn't. >> the constitution when they framed it, they didn't allow women to have the right to vote. they had women with no rights? >> no rights? >> did they? >> of course. they were entitled to due process of law. you couldn't send them to prison without the same trial a man would have. >> for comes back to changing times. the founding fathers would never have any reason at that time to consider a woman's right to keep a baby or have an abortion. it wouldn't enter their mind. >> i don't know why. why wouldn't it? they didn't have wives and daughters? >> they did, but it was not an issue. women began to take charge in the last century of their lives and rights and so on and began to fight for these. everybody believed that was the right thing to do. why would you be against that? >> my view is regardless whether you think prohibiting abortion is good or bad, regardless of how you come out on that, my only point is the constitution does not say anything about it. it leaves it up to democratic choice. some states prohibited it and some didn't. what roe vs. wade said was that no state can prohibit it. that is simply not in the constitution. it was one of the many things, most things in the world left to democratic choice. the court does not do democracy a favor when it takes an issue oust democratic choice simply because it should not be there. >> how do you as a conservative catholic, how do you not bring your personal sense on what is right and wrong to that kind of decision? clearly as a conservative catholic you are going to be fundamentally against abortion. >> as the pro choice people say the constitution prohibits the banning of abortion, so also the pro life people say the opposite. they say the constitution requires the banning of abortion because you are debriefing someone of life without due process of law. i reject that argument just as i reject the other. the constitution in fact said nothing at all about the subject. it is left to democratic choice. regardless of what my views as a catholic are, the constitution says nothing about it. >> what has been your hardest decision? do you think? >> my hardest? you don't want to know. >> i do want to know. >> it's the dullest case imaginable. no necessary correlation between the difficulty of the decision and its importance. some of the more insignificant cases have been the hardest. >> what are has been the one -- >> the patent case. want me to describe it? >> what is the 1 that most people ask you about? >> contentious? i guess the one that created most waves of disagreement was bush versus gore. that comes up all the time and my usual response is get over it. >> get over the possible corruption of the american presidential system? justice scalia? >> my court didn't bring the case into the court. it was brought into the courts by al gore. he is the who wanted courts to decide the question. richard nixon thought that he had lost the election because chicago, he chose not to bring it into the cowers, but al gore want the courts to decide it. the only question in bush versus gore was weather the presidency would be decided by the florida supreme court or by the u.s. supreme court. that was the only question. that's not a hard one. >> no regrets? >> no regrets at all since it's clear that the thing would have ended up the same anyway. the press did extensive research into what would have happened if what al gore wanted done had been done county by county and he would have lost anyway. >> when are people say about you that you are fantastic justice, no one disputes that and charismatic and ask the most questions. >> i don't ask the most questions. that's not true. >> somebody counted. you are the guy that asks the most questions. >> i used to be. >> more than justice thomas, righ >> that's a low bar. >> a guy can join the supreme court and not ask any questions? >> that's not unusual. thurgood marshall rarely asked questions. income, a lot of them -- i was the first who started asking a lot of questions. i appeared before the court once before i became a judge. i was serving in the justice department. i got two questions the whole time with my argument. it was not at all unusual for justices not to ask questions. >> let's take another break. >> leave clarence alone. >> justice thomas has a principled reason. he told me in his interview and this is on the record, he does not ask questions because he thinks it's too ka kofinous. he doesn't want to add to the ka kof me in. >> i want to get into you as a man. what rocks your boat. >> that's scary. >> that's what i wanted it to be. so... 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[ male announcer ] fiber one. back with justice scalia and he coauthored his book. what kind of man are you. how do you get along with the other supreme court justices. you are all highly opinionated and intelligent. that clashes. >> there are clashes on legal questions, but not personally. the press likes to paint us as nine scorpions in a bottle. that's just not the case. >> is it you and justice roberts have had a parting of the ways gone from being best buddies to warring enemies. >> who told you that? >> credible sources. >> should you not believe what you read about the court in the newspapers. the information has been made up or given to the newspapers by someone who is violating a confidence which means that person is not reliable. >> you had no falling out with justice roberts? >> i am not going to talk about it. i haven't had a falling out. >> loud words exchange and slamming of doors? >> no, no. nothing like that. >> best buddies? >> my best buddy on the court is ruth bader ginsburg. i disagree with her on just about everything. >> what do you like to do when you are not presiding in the supreme court? >> i like to play tennis and in my later years since i was a justice for the fifth circuit, i have gotten into hunting. i do a lot of hunting for various animals? >> you have been hunting with dick chen he? >> i have indeed. >> you lived to tell the tale. >> dick cheney is a good shot. >> humans or animals? >> ducks. >> you got into trouble over that because there was a potential conflict and something you were presiding over. how carefully do you think before you accept an invitation before you go hunting, how hard do you think about that as a potential conflict. >> in that case i accepted before the alleged source of the conflict was before the court. and that was nothing. cheney was not personally the defendant. he was named because he was the head of the agency that was the defendant and justices never recused themselves because they are friends with the named head of an agency. in fact, justices are friendly with a lot of heads of agencies and cabinet officers. if we had to recuse ourselves and one of our friends was named and our personal fortune was not at stake, we would sit in a lot of cases. that was tempest in a tea pot. >> when people say you are overtly political, some do. how do you feel about that? does that annoy you? >> i usually don't read it. >> i think it's false. justice scalia has a record of deciding many cases that go against his personal predileks. the flag burning is one example. a good judge will decide cases based on a governing text that go against what the judge may think is wise policy. isn't that true? >> i have ruled against the government when republicans were in the administration and i ruled for the government when democrats were in the administration. i couldn't care less who the president is and what the administration is. >> are they from a politically motivated man. >> i know you can't discuss anything in the last session, but a classic example would be the health care thing. >> i don't think any of my colleagues on any cases vote the way they do for political reason they vote the way they do because they have their own judicial philosophy. they may have been selected by the democrats because they have that particular philosophy. or they may have been selected by the republicans because they have that particular judicial philosophy, but that is only to say that they are who they are. they vote on the basis of what their own view of the law brings them to believe. not at all because -- the court is not at all a political institution. not at all. not a single one of my colleagues. >> when you see justice roberts getting criticized for being political and partisan. >> i have been out of the country for most of that. i have to tell you. >> does it offend you that his integrity would be questioned like that? >> it offends me that people point to the fact and they didn't used to be able to. when david souter and john paul stevens were in court, they often voted with the appointees who were democratic a pointes so that the 5-4 decisions was not always five republican appointees versus four democratic. now that they are off, it often does turn that way. but that is not because they are voting their politics. not because they are voting for the republicans and voting for the democrats. they have been selected by the republicans or selected by the democrats precisely because of their judicial philosophy. it should be no surprise that the five appointed by the republicans tend to have a certain philosophy and the four appointed by the democrats tend to have a different one. that's what elections have been about for a long time. >> when the case goes against what you like it to go, do you have a few drinks and chill out. how do you deal with failure. these are big deals. you are a supreme court judge. >> probably mutter something under my breath or something. you play the hand you are dealt, that's all. you can't take it personally. >> we're will take a final break and talk about family. you were married a long time to a long-suffering woman. >> i would say so. >> i will find out how long suffering in a moment. ♪ [ male announcer ] we believe small things can make a big difference. like how a little oil from here can be such a big thing in an old friend's life. purina one discovered that by blending enhanced botanical oils into our food, we can help brighten an old dog's mind so he's up to his old tricks. with this kind of thinking going into our food, imagine all the goodness that can come out of it. just one way we're making the world a better place... one pet at a time. vibrant maturity. from purina one smartblend. you get a 50% annual bonus. and everyone likes 50% more cash -- well, except her. no! but, i'm about to change that. ♪ every little baby wants 50% more cash... ♪ phhht! fine, you try. 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[ male announcer ] with a variety of tastes and textures, only chex mix is a bag of interesting. who dreamed she could fly. there were the doubters... the non-believers, the "no-way you can do it'ers." ♪ but like others that braved the sky before her, it took a mighty machine, brilliant ingenuity... ♪ ...and plain old stubbornness to go where no fifth grader had gone before. ♪ ♪ and she flew and she soared above the school yard, and even over that eliza jones, and beyond. my name is annie and i'm the girl who dreamed she could fly. powered by intel core processors. ♪ back with justice scalia. coming up with an excellent book and the law of legal particulars. have you ever broken the law? >> have i broken the law? >> yeah. >> i have exceeded the speed limit on occasion. >> ever been caught? >> oh, yes. i have gotten tickets. none recently. >> that's it? that's the only criminal action in your life? >> yeah, i'm pretty much a law-abiding sort. >> i like the phrase pretty much. it gives me somewhere to go. >> i am law-abiding. >> what are is your guilty pleasure? >> i don't have any. how can it be pleasurable if it's guilty. >> i have lots. >> no, you don't. >> i do. everyone does. >> i think i shouldn't do? smoking? >> you have been married for how long? >> 52 years. >> an amazing marriage. nine children. how many grandchildren? >> 33. >> amazing. what has been the secret of such a long handing marriage do you think? >> maureen made it very clear early on that if we split up, i would get the children. >> we're said before the break that possibly she was a long suffering wife. did you mean that? >> she has worked very hard. i have not gone after the dollar for most of my life so we didn't have a lot of money and she didn't have a lot of help at home raising that many kids without a nanny or without for many years even any people to help with the house work. it was hard. she worked very hard. >> i ask this of all my guests. how many times have you been properly in love? >> properly in love? i think maureen is it. >> you struck gold. >> oh, yeah. >> will you ever retire? >> of course i will. certainly i will retire when i think i'm not doing as good of a job as i used to. that will make me feel very bad. >> as we sit here now, what would you say your greatest achievement has been as a supreme court justice? >> wow. i think despite the fact that not everybody agrees with it, i think the court pays more attention to text than used to when i first came on the court and i like to think i had something to do with that. i think the court uses much less history than it used to in the past. in the 80s, 2/3 of the opinion is discussion of the debates on the floor and the committee reports and that doesn't happen anymore. if you want to talk about -- >> on that point and the history point, they would say hang on a second. you are such a constitutionist. to go back to the way they debated all that, that is in its way, legislative history. >> what are is? >> the framing of the constitution and amendments and so on. >> i don't use the notes as authoritative on the meaning of the constitution. i use the federalist papers, but not because they were the writers or the federalist papers were present. one of them wasn't. john j was not present. they were intelligent people at the time and therefore what they thought this language meant was likely what it meant. >> why do you have such faith in those politicians of that time? these days if the current politicians created a new constitution, people wouldn't have the faith that young burning and unflinching faith. why are you convinced that these guys over 200 years ago were so right? >> you have to read the federalist papers to answer that question. i don't think anybody in the current congress could write even one of those numbers. these men were very, very thoughtful. i truly believe that there times in history when a genius bursts forth at some part of the globe. like 2,000 bc in athens or in florence for art. i think one of those places was 18th century america for political science. madison said that he told the people assembled at the convention, we are engaged in the new science of government. nobody had ever tried to design a government scientifically before. they were brilliant men. >> do you wish we had a few of them now? i do not favor tinkering with what they have put together. >> it's an amazing book. anyone will want to read it. it is a weighty term. full of humor as the interview has been. it will give people a better understanding of what you are about. i think you helped bring that out and i applaud you. i hope you continue to preside for a long time. it will be a lot less colorful without you. after the break an only in america special. justice scalia takes me on a tour and names his favorite american president ever and his favorite italian pasta dish. ♪ and it starts every morning with gillette fusion proglide. get your great start... with gillette fusion proglide. ♪ nature valley trail mix bars are made with real ingredients you can see. like whole roasted nuts, chewy granola, and real fruit. nature valley trail mix bars. 100% natural. 100% delicious. the wife. hey, babe. got the jetta. i wiped the floor with the guy! not really. i would've been fine with 0% for 36 months, but i demanded 60. no...i didn't do that. it was like taking candy from a baby. you're a grown man. alright, see you at home. 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[ male announcer ] at 0% apr for 60 months, no one needs to know how easy it was to get your new volkswagen. that's the power of german engineering. to get your new volkswagen. with two times the points onake lunch dining in restaurants,ch? you may find yourself asking why not, a lot. chase sapphire preferred. there's more to enjoy. ♪ you want to save money on car insurance? no problem. you want to save money on rv insurance? no problem. you want to save money on motorcycle insurance? no problem. you want to find a place to park all these things? fuggedaboud it. this is new york. hey little guy, wake up! aw, come off it mate! geico. saving people money on more than just car insurance. i tell mike what i can spend. i do my best to make that work. we're driving safely. and sue saved money on brakes. now that's personal pricing. tonight, justice scalia took me on a tour and we talk presidents and pasta. so in the bowels of the supreme court. >> bowels? do you have to say that? >> do you still get a little rill when you come in. >> no. i've gotten used to it by now. it's a nice place to work. >> who has been the most impressive president for you personally. >> most, what, in history? >> no. >> in my lifetime? >> in your lifetime, yeah. >> i guess ronald reagan. i would be an ingrate if i didn't say ronald reagan. >> what made him special? >> he was the great communicator. he had a real way of making important and complex ideas comprehensible to the people. >> did he make any requests? >> no. >> did he say anything? >> no. >> would you tell me if he had? >> he almost got my name right! >> when we went out to the press room in the white house and one of reagan's aides says to me, well, we think he'll get scalia right, but we don't know about antonin. and, sure enough, i think he messed up. >> you were the first italian in the supreme court. not only italian-america. >> it was a big deal for the italians. i got an enormous amount of mail afterwards. >> do you ever have to pay for the bowl of spaghetti in new york? >> i have a lot of italian friends. >> but i put questions out on twitter of all the serious ones, one popped out which is what is his favorite pasta dish? >> my smaegs amazing pasta dish? >> i hear your wife does amazing macaroni. >> she does. but if i had to pick a favorite. but there is a sicilian dish with sardines and fennel. you can buy the yellow can and it's very good. >> what do you call it? >> pasta con sarde.

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