Breyer and Scalia Worth Watching -UPDATED

This article in Slate was intriguing:

The bear joke is a Scalia classic…“The story is about the two hunters who are out in the woods in their tent and there’s growling in the brush near them,” Scalia told the committee. “And they open the tent flap and there is a huge grizzly bear and they start running. … And—and the guy who’s a little heavier and he’s running behind, he says, ‘It’s no use. We’re never going to outrun that bear.’ And the guy who’s running in front says, ‘I don’t have to outrun the bear. I just have to outrun you!’ ”

As the Senate chamber dissolved in laughter, Scalia sharpened his point, just in case no one got it. “It’s the same with originalism,” he said, referring to his preferred theory of constitutional interpretation. He doesn’t have to prove that it’s the best theory. Gesturing toward Breyer, Scalia said, “I just have to show it’s better than his.”

Nobody expected any less. But the two justices killed before the Judiciary Committee, raising the question anew: Why don’t they do this every week?

I wanted more! Fortunately, Hot Air has posted the entire hearing and it clocks in at a difficult-to-watch-in-one-sitting 2.5 hours, but I’ve been watching it a few minutes at a time — last night I watched about 20 minutes while on an exercise bike and it made the miles speed by — and I must say, this is a remarkably fine peek at the workings of the SCOTUS, the way the Justices think and work together. I take particular pleasure in watching two erudite men speak so fluently and instructively, and with depth, humility and humor, on the Constitution, the Bill of Rights, the Federalist papers and more.

As Karl says at Hot Air, you can skip through the thing and at almost any stop you’ll find something worth listening to. It’s great at the one-hour mark. It’s great again eight minutes later when Senator Dianne Feinstein makes a bit of a fool of herself, but both Justices gently let her off the hook. Frankly, the video is riveting, and I really urge everyone to try to watch it, even piecemeal, as I am.

Speaking of the SCOTUS — they heard an argument against distinctions in religious hiring practices the other day, and seemed mighty troubled by it, with so-called “liberal” and “conservative” justices expressing amazment at the government’s line:

President Obama’s Equal Employment Opportunity Commission claimed during oral arguments before the U.S. Supreme Court last week that it can order a church to restore a fired minister to a teaching position.

But that was a claim not even the president’s handpicked appointee, the very liberal Justice Elena Kagan, could accept as she and her colleagues considered Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. [...] The justices then rejected the argument of Leondra Kruger, Obama’s lawyer for the EEOC, who argued that there’s no ministerial exception in the Constitution, only the same rights that secular organizations possess to choose their own affiliations.

At this, Scalia exploded. “That’s extraordinary! There, black on white in the text of the Constitution, are special protections for religion. And you say it makes no difference?”

Kagan agreed with Scalia’s rejection of the argument that the First Amendment doesn’t protect churches from government ordering who they should hire as pastor or priest.

Justice Samuel Alito (a Catholic) made a critical point, asking if a Catholic priest married and the church removed him from ministry for violating Catholic doctrine, could the EEOC order him reinstated.

When Kruger answered no, Alito replied that EEOC was making a judgment that certain teachings — such as the Catholic belief that priests must be celibate — are more important than the Lutheran doctrine that ministers cannot sue the church.

Drip, Drip, Drip: This administration seems to really resent that it cannot yet control the churches. But they’ll keep trying. We’re “remaking” America, remember.

UPDATE: Jimmy Akin with more thoughts on that EEOC case and what it could mean for the churches.

HOT AIR:has more

About Elizabeth Scalia
  • Tom T

    I have not seen the hearing before the Senate however, I have followed
    and watched these two Justices spar over their fascinating interpretations of the Constitution, and have a pretty good grip on the differances between them. What I find in their perceptions of conservative view vs. the liberal view of Breyer in that Justice Scalia believes the Constitution means what it says it while Breyer, on the other hand, looks to world court settled cases to apply an opinion on a constitutional question, as he believes, that the constitution is fluid and should be interpreted to fit the question in view of today`s society. The
    remakable differances, in my view, are exactly the differances we see today in the Catholic Church between traditionalists,conservatives, who believe that Church teaching and dogmas do not change with time to fit society, whereas the liberal belief is that the Church must change to accomodate the changes in modern society. I think that might even be true as far as liturgical practices are concerned. It might also be noted that the Supreme Court, as reported yesterday, refused to hear on appeal a ruling from the ninth circuit court that ruled against those seeking to infiltrate Catholic Colleges from an organized labor perspective, thereby allowing the ninth circuit court`s decision to stand which was a blow to the Government. Carefully reading that case may give an indication as to which way the Supreme Court will most likely go in the current case before it. What is most scary is to think that we are only one election away from stacking the Supreme Court against us as Catholics and most people don`t even realize it. Pax.

  • Manny

    If it were up to the left, religion would have no rights, no special place in society, no respect for traditional beliefs. All you Catholics that feel wishy-washy on Republicans, remember it’s people like Obama that appointed Kagan. Democrats in office appoint anti-religious judges.

  • Greta

    Excellent post Anchoress. I have been privleged to hear Scalia on several occasions and each time, you leave a little more infomred and certainly entertained. I have also been privledged to belong to a Dominican Parish with first year novices and thus some excellent teachers of the faith. One of my favorites is just like Scalia only in regard to the Catholic Church. He kind of looks at the teaching and Magesterium as Scalia does the Constitution.

    Tom T. on your point about the liberal and traditional Catholic, the priest I mention above often quotes Pope JPII when asked about Vatican II. He said some say we should open the doors wide to let the world in: he said the intent was to open wide the doors of the Catholic Church so our truth could spread out onto the world as does a good bakery spread out the smell of fresh baked goods each morning to attract the hungry. You cannot change the truth God has revealed to the Church He has promised to be with to the end of time to try to accomodate a world that grows more distant from God each year. You must send out the truth, the good news, to drawn them into the wonder of His Church.

  • Tom T

    Greta, I agree with your point about opening the Church, and we see that happening. Just recently there was a story about a large group
    of Anglicans being recieved into the Church along with a Lutheran Church in Virginia somewhere, and of course I read many individual cases of prominant church leaders who have decided in other countries to bring whole congregations into Catholicism. All that being said, there is unfortunately a liberal mind set that exists in the Church that would have us completely change the Mass and other practices that have been
    in place for thousands of years and much of this thinking has been the result of misinterpretations of Post Consiliar Documents from Vat II and downright refusal to obey directives and encyclicals from the Holy Father and even outright disobedience to Moto Propio, Summorum Pontificum and yes even Universae Ecclesia regarding Tridentine Mass.
    Proof of all this can come from some of the abuses I personally have expierenced in the lack of respect for the Pashcal Mystery of the Novus Ordo Mass and which is currently being discussed as noted by the top ecumenist Card. Koch president of the Pontifical Council for promoting Christian Unity. In other words we have to be very careful in our zeal to open the Church to other beliefs, while respecting theirs, not to lose our
    core beliefs and practices. Secularization of society dose mean we have to give up our Dogmatic beliefs and practices to accomodate a progressive and left wing liberal, modernistic society that have other religions trending in that direction as warned by Pope St. Pius X in his Pascendi: Domenici Gregi encyclical in 1907 where he declared it a heresy and was recently put on Fr. Z`s blog which centered around the same discussion. By the way, I happen to admire the Dominicans although I don`t belong to the order, they are one of the older orders that are growing because they have maintained their traditional values.
    Of course they are not as old as ours. Benedictines. Pax