WEBVTT 00:00:00.000 --> 00:00:02.680 Welcome back to another Deep Dive. Today we are 00:00:02.680 --> 00:00:05.540 opening a file that, and I'm not exaggerating 00:00:05.540 --> 00:00:09.000 here, it feels a bit like looking at an artifact 00:00:09.000 --> 00:00:11.539 from a lost civilization. Yeah, that's a good 00:00:11.539 --> 00:00:13.119 way to put it. We're talking about a specific 00:00:13.119 --> 00:00:16.359 moment in American history and a specific man 00:00:16.359 --> 00:00:21.280 who completely rewired the way we think about 00:00:21.280 --> 00:00:24.300 the law, the Constitution, and really the role 00:00:24.300 --> 00:00:28.160 of a judge. We are talking about... Justice Antonin 00:00:28.160 --> 00:00:30.280 Scalia. Nino to his friends. And you're right 00:00:30.280 --> 00:00:32.960 about that lost civilization feel. When you look 00:00:32.960 --> 00:00:35.399 at the confirmed biographical records and just 00:00:35.399 --> 00:00:37.240 the political history surrounding his appointment, 00:00:37.439 --> 00:00:39.359 it honestly feels like we're talking about a 00:00:39.359 --> 00:00:41.340 different planet, not just a few decades ago. 00:00:41.500 --> 00:00:43.640 I want to start right there, actually, because 00:00:43.640 --> 00:00:45.299 I was digging through the numbers in our source 00:00:45.299 --> 00:00:48.420 stack and I found a statistic that completely 00:00:48.420 --> 00:00:50.920 stopped me in my tracks. It's a vote count, 98 00:00:50.920 --> 00:00:53.649 to 0. I have a feeling I know exactly which vote 00:00:53.649 --> 00:00:55.729 you're referring to. That was the Senate confirmation 00:00:55.729 --> 00:00:58.090 vote to put Antonin Scalia on the Supreme Court 00:00:58.090 --> 00:01:03.549 in 1986. Ninety eight to zero. Unanimous. It's 00:01:03.549 --> 00:01:06.920 staggering to think about now. In today's political 00:01:06.920 --> 00:01:10.040 climate, that sounds like absolute science fiction. 00:01:10.219 --> 00:01:12.019 I mean, we're used to confirmation hearings that 00:01:12.019 --> 00:01:14.420 look like gladiatorial combat. Right. But here 00:01:14.420 --> 00:01:16.959 you had everyone, Democrats and Republicans, 00:01:17.000 --> 00:01:19.120 saying yes. And we have to be clear about who 00:01:19.120 --> 00:01:21.340 everyone was. That wasn't just moderate Democrats 00:01:21.340 --> 00:01:23.519 or something. That was Joe Biden voting for him. 00:01:23.579 --> 00:01:25.780 That was Al Gore voting for him. That was Ted 00:01:25.780 --> 00:01:28.200 Kennedy voting for him. The political landscape 00:01:28.200 --> 00:01:31.590 was just. It was entirely different. And there's 00:01:31.590 --> 00:01:34.489 this fascinating quote from Joe Biden years later 00:01:34.489 --> 00:01:37.170 that really stuck with me. He said he regretted 00:01:37.170 --> 00:01:39.950 not opposing Scalia. But, and this is the key 00:01:39.950 --> 00:01:43.170 part, not because Scalia wasn't qualified. He 00:01:43.170 --> 00:01:45.810 said it was because Scalia was so effective. 00:01:46.650 --> 00:01:49.290 That word effective is doing a lot of heavy lifting 00:01:49.290 --> 00:01:51.969 there. A lot. Because Scalia wasn't just another 00:01:51.969 --> 00:01:53.810 conservative vote on the bench. He wasn't just 00:01:53.810 --> 00:01:56.090 a guy who would reliably vote for the Republican 00:01:56.090 --> 00:01:58.209 policy outcome of the day. He was an intellectual 00:01:58.209 --> 00:02:00.569 revolutionary. It really was. He installed a 00:02:00.569 --> 00:02:03.530 completely new operating system, to use a tech 00:02:03.530 --> 00:02:07.640 metaphor, into the American judiciary. And. That 00:02:07.640 --> 00:02:10.020 is our mission for this deep dive. We aren't 00:02:10.020 --> 00:02:13.360 just going to list his famous cases or read through 00:02:13.360 --> 00:02:16.259 his biography like a Wikipedia page. We want 00:02:16.259 --> 00:02:18.719 to understand that operating system. We want 00:02:18.719 --> 00:02:21.479 to get inside the logic of how the son of an 00:02:21.479 --> 00:02:24.120 Italian immigrant became the intellectual anchor 00:02:24.120 --> 00:02:27.479 of the Supreme Court for 30 years. Right. We 00:02:27.479 --> 00:02:30.219 need to break down these big kind of scary legal 00:02:30.219 --> 00:02:33.699 terms like originalism and textualism, which, 00:02:33.800 --> 00:02:35.259 you know, they get thrown around on cable news 00:02:35.259 --> 00:02:37.139 all the time without a lot of explanation and 00:02:37.139 --> 00:02:39.939 figure out what they actually mean. Because Scalia 00:02:39.939 --> 00:02:42.840 didn't just use these tools. He sharpened them. 00:02:42.919 --> 00:02:45.099 And in a way, he forced everyone else to use 00:02:45.099 --> 00:02:47.580 them, too. Plus, and this is the really interesting 00:02:47.580 --> 00:02:50.139 part for me, we have to reconcile this massive 00:02:50.139 --> 00:02:52.000 paradox that kept popping up in the research. 00:02:52.439 --> 00:02:54.840 Here you have a man who is a devout traditional 00:02:54.840 --> 00:02:57.430 Catholic. Someone who, by his own admission, 00:02:57.629 --> 00:02:59.990 believed the devil was a literal presence in 00:02:59.990 --> 00:03:02.509 the world. A very real person to him, yes. But 00:03:02.509 --> 00:03:05.229 the same man also wrote opinions defending flag 00:03:05.229 --> 00:03:07.930 burners, video game makers, and accused criminals 00:03:07.930 --> 00:03:10.669 against the police. It just doesn't compute at 00:03:10.669 --> 00:03:13.930 first glance. It's a complex picture. He isn't 00:03:13.930 --> 00:03:15.889 the cartoon villain that some people on the left 00:03:15.889 --> 00:03:18.449 think he is. And he certainly wasn't the obedient 00:03:18.449 --> 00:03:20.650 political soldier that some on the right might 00:03:20.650 --> 00:03:23.289 have wanted him to be. So let's rewind the tape 00:03:23.289 --> 00:03:26.199 to understand the judge. We have to understand 00:03:26.199 --> 00:03:27.939 where he came from. And looking at his origin 00:03:27.939 --> 00:03:30.560 story in the source material, it seems like the 00:03:30.560 --> 00:03:34.419 seed of his entire legal philosophy wasn't planted 00:03:34.419 --> 00:03:37.419 in law school. It was planted at the dinner table 00:03:37.419 --> 00:03:41.039 in Trenton, New Jersey, back in the 1930s. That's 00:03:41.039 --> 00:03:44.000 absolutely right. Anton Scalia was born in 1936. 00:03:44.439 --> 00:03:46.900 He was the only child of an Italian immigrant 00:03:46.900 --> 00:03:50.379 father, Salvatore, and an Italian -American mother, 00:03:50.560 --> 00:03:53.159 Catherine. And you really cannot overstate the 00:03:53.159 --> 00:03:55.699 influence of his father, Salvatore. This wasn't 00:03:55.699 --> 00:03:57.539 just a hardworking immigrant making his way in 00:03:57.539 --> 00:04:00.039 a new land. He was a professor of romance languages, 00:04:00.280 --> 00:04:02.520 a serious intellectual. This is where the research 00:04:02.520 --> 00:04:04.800 gets fascinating to me. His dad subscribed to 00:04:04.800 --> 00:04:07.819 a very specific literary theory called New Criticism. 00:04:07.900 --> 00:04:09.939 Now, I was not an English major, so when I saw 00:04:09.939 --> 00:04:11.819 that... term. I had to go look it up. Can you 00:04:11.819 --> 00:04:13.960 unpack that for us? What is new criticism? It 00:04:13.960 --> 00:04:16.160 was a huge movement in the mid -20th century, 00:04:16.279 --> 00:04:18.680 and it's actually pretty radical in its simplicity. 00:04:19.540 --> 00:04:22.220 New criticism argues that when you read a text, 00:04:22.360 --> 00:04:25.160 whether it's a poem, a novel, whatever, the only 00:04:25.160 --> 00:04:27.019 thing that matters is the words on the page. 00:04:27.240 --> 00:04:31.040 So nothing else. Not the author's life, not the 00:04:31.040 --> 00:04:33.550 history. Nothing else. You do not care about 00:04:33.550 --> 00:04:36.170 the author's biography. You do not care about 00:04:36.170 --> 00:04:38.550 the social context of the time it was written. 00:04:38.750 --> 00:04:41.850 And most importantly, this is the absolute key. 00:04:42.110 --> 00:04:46.050 You do not care about the author's intent. Okay, 00:04:46.110 --> 00:04:49.360 so if I'm reading a poem by, say, Robert Frost, 00:04:49.620 --> 00:04:52.199 and I'm confused. I shouldn't be asking what 00:04:52.199 --> 00:04:55.540 was Frost feeling when he wrote this or what 00:04:55.540 --> 00:04:57.060 was happening in his life that made him write 00:04:57.060 --> 00:04:59.339 this line. Exactly. A new critic would say, I 00:04:59.339 --> 00:05:00.819 don't care what he was feeling. I don't care 00:05:00.819 --> 00:05:02.860 if he was sad about a breakup or angry about 00:05:02.860 --> 00:05:05.379 politics. I care what he wrote. The meaning is 00:05:05.379 --> 00:05:07.680 locked inside the text itself. It's objective. 00:05:08.000 --> 00:05:10.160 If the author meant to say something else, well, 00:05:10.220 --> 00:05:11.740 they should have written different words. That 00:05:11.740 --> 00:05:15.220 is incredibly rigid. but I can see the light 00:05:15.220 --> 00:05:17.360 bulb turning on here. You can draw a perfectly 00:05:17.360 --> 00:05:20.100 straight line from that dinner table in New Jersey 00:05:20.100 --> 00:05:22.920 to the Supreme Court bench 30, 40 years later. 00:05:23.100 --> 00:05:26.300 It's a direct intellectual lineage. Young Nino 00:05:26.300 --> 00:05:28.740 grows up in this household where his father is 00:05:28.740 --> 00:05:30.759 essentially teaching him day in and day out, 00:05:30.839 --> 00:05:34.160 ignore the intent, look at the text. Fast forward 00:05:34.160 --> 00:05:36.920 a few decades, and Justice Scalia is standing 00:05:36.920 --> 00:05:39.639 in front of the entire legal world saying, ignore 00:05:39.639 --> 00:05:41.959 the legislative intent, look at the statute. 00:05:42.430 --> 00:05:44.790 It's the foundational block of his entire worldview. 00:05:44.970 --> 00:05:47.730 It really is. It is. He believed that words have 00:05:47.730 --> 00:05:50.050 fixed meanings. You can't just change them because 00:05:50.050 --> 00:05:52.110 society's feelings have changed or because it's 00:05:52.110 --> 00:05:55.110 convenient. And he carried that rigor through 00:05:55.110 --> 00:05:57.449 his education. He went to Xavier High School 00:05:57.449 --> 00:06:00.350 in Manhattan, which was a Jesuit military school, 00:06:00.389 --> 00:06:02.189 by the way. Wait, a military school in Manhattan? 00:06:02.410 --> 00:06:04.850 That sounds like a very specific kind of intent. 00:06:05.009 --> 00:06:07.129 It was incredibly rigorous. I mean, you're talking 00:06:07.129 --> 00:06:09.370 about a combination of Jesuit intellectual discipline 00:06:09.370 --> 00:06:13.910 and military order. Total str - And Scalia absolutely 00:06:13.910 --> 00:06:16.829 thrived there. He graduated first in his class. 00:06:17.089 --> 00:06:19.930 But the research shows he was also very self 00:06:19.930 --> 00:06:23.470 -aware about his social standing. Right. There's 00:06:23.470 --> 00:06:25.350 that quote from him where he says, I was never 00:06:25.350 --> 00:06:28.600 cool. He was very honest about it. At 17, while 00:06:28.600 --> 00:06:30.600 other kids are listening to early rock and roll 00:06:30.600 --> 00:06:33.279 or hanging out at diners, Scalia described himself 00:06:33.279 --> 00:06:36.100 as an arch conservative Catholic. He was doing 00:06:36.100 --> 00:06:38.680 Greek and Latin translations for fun. He was 00:06:38.680 --> 00:06:40.959 in the Glee Club. He was on the debate team. 00:06:41.060 --> 00:06:43.980 He was, in his own way, building this fortress 00:06:43.980 --> 00:06:46.199 of intellect. And that fortress just kept getting 00:06:46.199 --> 00:06:48.259 stronger. It took him to Georgetown, where he 00:06:48.259 --> 00:06:50.459 was a valedictorian, and then to Harvard Law, 00:06:50.660 --> 00:06:52.980 where he graduated magna cum laude. He really 00:06:52.980 --> 00:06:54.879 was always the smartest guy in the room, wasn't 00:06:54.879 --> 00:06:57.720 he? He was, and he knew it. He had a confidence 00:06:57.720 --> 00:06:59.959 in his own intellect that some people definitely 00:06:59.959 --> 00:07:03.100 found arrogant, but others found incredibly compelling 00:07:03.100 --> 00:07:06.240 and persuasive. So after law school, he does 00:07:06.240 --> 00:07:08.420 this stint in private practice at a big firm, 00:07:08.560 --> 00:07:10.819 Jones Day, and he taught law at the University 00:07:10.819 --> 00:07:14.019 of Virginia for a bit. But his trajectory really 00:07:14.019 --> 00:07:16.959 shifts when he gets into government service during 00:07:16.959 --> 00:07:19.579 the Nixon and Ford administrations. Yes, the 00:07:19.579 --> 00:07:22.660 early 70s, a pretty chaotic time in Washington. 00:07:22.800 --> 00:07:25.720 To say the least. He serves in the Office of 00:07:25.720 --> 00:07:28.329 Legal Counsel. And you have to remember the context 00:07:28.329 --> 00:07:30.129 here. This is right in the aftermath of Watergate. 00:07:30.529 --> 00:07:33.889 The executive branch is under siege. Congress 00:07:33.889 --> 00:07:36.430 is trying to claw back power from the presidency 00:07:36.430 --> 00:07:39.370 because they've just seen a president, Nixon. 00:07:40.009 --> 00:07:43.389 abuse that power in a massive way. So Scalia 00:07:43.389 --> 00:07:45.829 is basically the lawyer for the executive branch 00:07:45.829 --> 00:07:47.949 at the exact moment everyone in town is trying 00:07:47.949 --> 00:07:50.110 to dismantle it. Exactly. He's in the trenches. 00:07:50.350 --> 00:07:52.750 He's testifying before committees, writing memos, 00:07:52.750 --> 00:07:54.829 essentially telling Congress, no, you can't have 00:07:54.829 --> 00:07:56.750 these documents. No, you can't interview these 00:07:56.750 --> 00:07:59.089 aides. That's executive privilege. He develops 00:07:59.089 --> 00:08:01.730 this very, very protective view of the president's 00:08:01.730 --> 00:08:05.430 power. So he sees the executive not as the villain 00:08:05.430 --> 00:08:07.470 of the Watergate story, but as the branch that 00:08:07.470 --> 00:08:09.689 needs defending against an overreaching, angry 00:08:09.689 --> 00:08:12.970 Congress. Right. And that perspective, that framework 00:08:12.970 --> 00:08:16.129 explains so much about his later rulings on the 00:08:16.129 --> 00:08:18.329 separation of powers. It does. It cements his 00:08:18.329 --> 00:08:21.160 worldview. A little later, he ends up at the 00:08:21.160 --> 00:08:24.060 University of Chicago Law School. And here's 00:08:24.060 --> 00:08:26.279 a pivotal moment that I think flies under the 00:08:26.279 --> 00:08:28.639 radar for most people, but it's absolutely crucial 00:08:28.639 --> 00:08:31.459 for understanding modern America. He becomes 00:08:31.459 --> 00:08:35.139 the very first faculty advisor to a small, brand 00:08:35.139 --> 00:08:37.179 new student group called the Federalist Society. 00:08:37.519 --> 00:08:40.779 Oh, wow. I know that name. The Federalist Society 00:08:40.779 --> 00:08:43.570 is a juggernaut now. it's the titan of conservative 00:08:43.570 --> 00:08:46.490 legal thought today i mean if you want to be 00:08:46.490 --> 00:08:48.409 a republican judge you almost have to be a member 00:08:48.409 --> 00:08:50.610 or at least be friendly with them but back then 00:08:51.549 --> 00:08:53.789 It was nothing. It was just a fledgling group 00:08:53.789 --> 00:08:55.750 of conservative students who felt completely 00:08:55.750 --> 00:08:58.710 outnumbered and shouted down on a very liberal 00:08:58.710 --> 00:09:01.190 campus. And Scalia was their champion. He was 00:09:01.190 --> 00:09:03.409 their champion. He gave them a place to meet. 00:09:03.470 --> 00:09:05.649 He debated with them. He gave them intellectual 00:09:05.649 --> 00:09:08.590 credibility. He helped nurture this entire movement 00:09:08.590 --> 00:09:11.129 before it was even a movement. OK, so let's fast 00:09:11.129 --> 00:09:14.370 forward to 1986. Ronald Reagan is president. 00:09:14.629 --> 00:09:17.919 Chief Justice Warren Burger is retiring. Reagan 00:09:17.919 --> 00:09:20.279 decides to bump up the conservative justice William 00:09:20.279 --> 00:09:23.759 Rehnquist to chief justice, which leaves an empty 00:09:23.759 --> 00:09:25.980 associate justice seat on the court. And Reagan 00:09:25.980 --> 00:09:28.419 has a choice to make. The biographical records 00:09:28.419 --> 00:09:30.659 are really clear on this. He specifically wants 00:09:30.659 --> 00:09:33.080 to appoint the first Italian -American justice. 00:09:33.299 --> 00:09:36.080 That was a key demographic and political goal 00:09:36.080 --> 00:09:38.000 for the administration. So he's looking at two 00:09:38.000 --> 00:09:41.179 main guys, right? Antonin Scalia and Robert Bork. 00:09:41.440 --> 00:09:43.980 That's right. Bork, a name that is now famous 00:09:43.980 --> 00:09:46.299 for, well... for other reasons. For becoming 00:09:46.299 --> 00:09:48.779 a verb, yeah. Getting borked. Exactly. But at 00:09:48.779 --> 00:09:51.940 the time, Bork was older, very established, incredibly 00:09:51.940 --> 00:09:54.840 brilliant, but he had a long, long paper trail 00:09:54.840 --> 00:09:57.620 of controversial writings and speeches. He had 00:09:57.620 --> 00:09:59.700 written extensively about rights he didn't think 00:09:59.700 --> 00:10:02.539 existed in the Constitution. He was a known quantity 00:10:02.539 --> 00:10:05.500 and a polarizing one. Scalia, on the other hand, 00:10:05.519 --> 00:10:08.480 was younger, more energetic, and frankly, much 00:10:08.480 --> 00:10:11.259 more charming. There's that story from his confirmation 00:10:11.259 --> 00:10:13.820 hearing that really highlights the charm. He 00:10:13.820 --> 00:10:16.120 had apparently played tennis against Senator 00:10:16.120 --> 00:10:18.899 Howard Metzenbaum, who is a pretty liberal Democrat 00:10:18.899 --> 00:10:22.059 from Ohio. Yes. And apparently Scalia won the 00:10:22.059 --> 00:10:24.679 match. So at the hearing, with all the cameras 00:10:24.679 --> 00:10:27.460 rolling, Scalia jokes that beating the senator 00:10:27.460 --> 00:10:30.179 was a clear case of his integrity overcoming 00:10:30.179 --> 00:10:32.919 his judgment. That is a risky joke to make to 00:10:32.919 --> 00:10:34.659 one of the guys who holds your entire career 00:10:34.659 --> 00:10:37.299 in his hands. It was, but it worked perfectly. 00:10:37.500 --> 00:10:39.980 It got a huge laugh. It showed he wasn't just 00:10:39.980 --> 00:10:42.200 the stiff academic. He could be witty. He could 00:10:42.200 --> 00:10:45.019 disarm people. And as we noted at the top. 98 00:10:45.019 --> 00:10:48.940 to 0. He takes his seat in September 1986. And 00:10:48.940 --> 00:10:50.879 this is where he starts methodically installing 00:10:50.879 --> 00:10:53.980 that operating system we talked about. OK, let's 00:10:53.980 --> 00:10:55.740 get into the nuts and bolts of this operating 00:10:55.740 --> 00:10:58.539 system. Because if you listen to any legal podcast 00:10:58.539 --> 00:11:01.279 or read any Supreme Court news, you hear two 00:11:01.279 --> 00:11:04.899 words constantly associated with Scalia. Textualism. 00:11:05.720 --> 00:11:07.860 And originalism. Constantly. People often use 00:11:07.860 --> 00:11:09.360 them interchangeably, like they mean the exact 00:11:09.360 --> 00:11:11.820 same thing. But they don't, do they? No, they 00:11:11.820 --> 00:11:14.639 are distinct ideas. They're related. You could 00:11:14.639 --> 00:11:16.220 say they're cousins. They come from the same 00:11:16.220 --> 00:11:18.000 family of thought, but they apply to different 00:11:18.000 --> 00:11:20.440 things. It's really important to get this right. 00:11:20.779 --> 00:11:23.549 Let's start with textualism. This usually applies 00:11:23.549 --> 00:11:28.049 to statutory law. So laws passed by Congress. 00:11:28.230 --> 00:11:29.889 And reading through the source material, it seems 00:11:29.889 --> 00:11:32.570 like the big enemy for Scalia here, the thing 00:11:32.570 --> 00:11:34.029 he was fighting against, was something called 00:11:34.029 --> 00:11:37.629 legislative history. He absolutely, positively 00:11:37.629 --> 00:11:40.549 loathed legislative history. He thought it was 00:11:40.549 --> 00:11:42.690 a judicial fantasy. So paint the picture for 00:11:42.690 --> 00:11:46.370 us. How did judges do it before Scalia really 00:11:46.370 --> 00:11:49.080 came along and shook things up? OK, so before 00:11:49.080 --> 00:11:52.179 Scalia, if a case came before the court involving 00:11:52.179 --> 00:11:55.279 a law that was a little vague or ambiguous, judges 00:11:55.279 --> 00:11:57.639 would sort of act like detectives trying to solve 00:11:57.639 --> 00:11:59.679 a mystery. They'd say, all right, the words on 00:11:59.679 --> 00:12:01.320 the page aren't totally clear. Let's go look 00:12:01.320 --> 00:12:03.039 at the congressional record. And they would read 00:12:03.039 --> 00:12:05.019 the committee reports, the floor speeches, the 00:12:05.019 --> 00:12:06.700 transcripts of debates. They were trying to figure 00:12:06.700 --> 00:12:10.080 out what did Congress intend to do here? What 00:12:10.080 --> 00:12:12.720 was the spirit of the law? Which on the surface, 00:12:12.820 --> 00:12:14.399 that sounds like a totally reasonable thing to 00:12:14.399 --> 00:12:16.279 do. Right. You're trying to follow the will of 00:12:16.279 --> 00:12:18.870 the legislature. It sounds reasonable, but Scalia 00:12:18.870 --> 00:12:21.610 argued it was, and I'm quoting him here, illegitimate 00:12:21.610 --> 00:12:24.870 and ill -advised. He believed that we are a government 00:12:24.870 --> 00:12:28.929 of laws, not of men. Congress votes on the text 00:12:28.929 --> 00:12:31.289 of a bill. That is the only thing that becomes 00:12:31.289 --> 00:12:34.149 law. They do not vote on what Senator Smith said 00:12:34.149 --> 00:12:37.230 in a speech on a Tuesday afternoon or what some 00:12:37.230 --> 00:12:39.649 25 -year -old staffer wrote in a committee report 00:12:39.649 --> 00:12:42.409 that no one read. So his view was basically, 00:12:42.610 --> 00:12:45.750 read the contract, don't ask me what I was thinking 00:12:45.750 --> 00:12:48.340 when I signed it. The words are the words. That 00:12:48.340 --> 00:12:50.480 is a perfect analogy. He had this great line 00:12:50.480 --> 00:12:52.820 where he said, using legislative history is like 00:12:52.820 --> 00:12:54.620 looking over the heads of the cloud at a cocktail 00:12:54.620 --> 00:12:56.840 party to find your friends. I love that. You 00:12:56.840 --> 00:12:59.080 scan through thousands and thousands of pages 00:12:59.080 --> 00:13:01.019 of documents until you find the one quote from 00:13:01.019 --> 00:13:02.679 one congressman that supports the outcome you 00:13:02.679 --> 00:13:04.840 want, and you just conveniently ignore all the 00:13:04.840 --> 00:13:07.539 contradictory stuff. It's cherry picking, pure 00:13:07.539 --> 00:13:10.100 and simple. He felt it allowed judges to just 00:13:10.100 --> 00:13:12.879 rewrite the law to fit their own policy preferences. 00:13:13.340 --> 00:13:16.019 He famously suggested that other justices on 00:13:16.019 --> 00:13:18.639 the court stopped using legislative history in 00:13:18.639 --> 00:13:20.899 their opinions because, as he put it, Scalia 00:13:20.899 --> 00:13:23.419 was breathing down their necks. He effectively 00:13:23.419 --> 00:13:25.639 bullied the court into looking closer at the 00:13:25.639 --> 00:13:28.240 dictionary and less at the congressional record. 00:13:28.600 --> 00:13:31.320 Okay, so that's textualism. Words mean what they 00:13:31.320 --> 00:13:33.860 say in a statute. Now let's talk about its cousin, 00:13:34.039 --> 00:13:36.879 originalism. This applies specifically to the 00:13:36.879 --> 00:13:39.360 Constitution. Right. And it's a similar logic. 00:13:40.039 --> 00:13:41.919 Originalism is the belief that the Constitution 00:13:41.919 --> 00:13:45.019 means exactly what it meant to the public who 00:13:45.019 --> 00:13:47.879 ratified it. So if we are looking at the Constitution, 00:13:48.139 --> 00:13:50.759 we aren't asking. What would be a good policy 00:13:50.759 --> 00:13:53.419 today? We are asking, what did these words mean 00:13:53.419 --> 00:13:56.059 in 1791 when the Bill of Rights was ratified? 00:13:56.179 --> 00:13:59.039 Or what did they mean in 1868 when the 14th Amendment 00:13:59.039 --> 00:14:01.299 was ratified after the Civil War? This is the 00:14:01.299 --> 00:14:03.500 direct opposite of the Living Constitution Theory, 00:14:03.580 --> 00:14:05.080 which I think is what most of us were taught 00:14:05.080 --> 00:14:06.960 in high school civics class. Correct. The Living 00:14:06.960 --> 00:14:09.039 Constitution Theory says that our standards evolve, 00:14:09.279 --> 00:14:11.019 so the Constitution's meaning should evolve, 00:14:11.200 --> 00:14:14.610 too. What we considered cruel and unusual punishment 00:14:14.610 --> 00:14:18.070 in 1791, like, you know, branding someone with 00:14:18.070 --> 00:14:20.309 a hot iron or putting them in the stocks, is 00:14:20.309 --> 00:14:21.990 obviously different from what we consider cool 00:14:21.990 --> 00:14:24.769 today. The Living Constitution says the document 00:14:24.769 --> 00:14:27.809 should mature as society matures. And Scalia's 00:14:27.809 --> 00:14:30.830 response to that was? He said, Absolutely not. 00:14:31.049 --> 00:14:34.049 The Constitution is not a living organism. It 00:14:34.049 --> 00:14:36.870 is a legal document. It's a contract between 00:14:36.870 --> 00:14:39.110 the government and the people. And contracts 00:14:39.110 --> 00:14:41.029 don't just magically change their meaning because 00:14:41.029 --> 00:14:43.950 time passes. He famously said he preferred a 00:14:43.950 --> 00:14:47.110 dead Constitution. A dead Constitution. I mean, 00:14:47.129 --> 00:14:49.710 that is such a provocative, almost jarring phrase. 00:14:49.769 --> 00:14:52.509 He leaned into it. He loved it. His logic was 00:14:52.509 --> 00:14:55.340 this. If you have a living constitution, who 00:14:55.340 --> 00:14:57.580 gets to decide how it grows and changes? The 00:14:57.580 --> 00:15:01.700 judges. Unelected judges. And if judges can update 00:15:01.700 --> 00:15:04.299 the constitution to fit modern standards, they 00:15:04.299 --> 00:15:06.899 are no longer interpreting law. They are just 00:15:06.899 --> 00:15:09.100 writing their own moral preferences into the 00:15:09.100 --> 00:15:11.350 law. He argued that if you want to update the 00:15:11.350 --> 00:15:13.269 Constitution, there's a process for that. It's 00:15:13.269 --> 00:15:15.990 called an amendment. You pass a law. You do the 00:15:15.990 --> 00:15:18.309 hard work of democracy. You don't ask nine lawyers 00:15:18.309 --> 00:15:20.690 in robes to do it for you. This leads directly 00:15:20.690 --> 00:15:23.629 to what he called his broken clock defense, because 00:15:23.629 --> 00:15:26.830 his critics, and there are many, they always 00:15:26.830 --> 00:15:29.169 argue that originalism was just a fancy intellectual 00:15:29.169 --> 00:15:31.769 cover for conservative politics. That was the 00:15:31.769 --> 00:15:33.409 number one critique. They'd say, oh, isn't it 00:15:33.409 --> 00:15:34.889 convenient that what the founders thought in 00:15:34.889 --> 00:15:37.730 1791 always seems to agree with the modern Republican 00:15:37.730 --> 00:15:41.059 Party platform? Right. The critique is that it's 00:15:41.059 --> 00:15:43.080 impossible to truly know what everyone thought 00:15:43.080 --> 00:15:46.080 in 1791, so originalists just go on a historical 00:15:46.080 --> 00:15:48.639 scavenger hunt to find evidence that supports 00:15:48.639 --> 00:15:52.539 their own biases. But Scalia's defense was, if 00:15:52.539 --> 00:15:55.120 I was just voting for what I liked, I would be 00:15:55.120 --> 00:15:58.620 a politician. He argued that if you are a true 00:15:59.070 --> 00:16:01.830 honest originalist, you will sometimes vote for 00:16:01.830 --> 00:16:03.909 things that make you personally sick to your 00:16:03.909 --> 00:16:06.610 stomach simply because the Constitution's original 00:16:06.610 --> 00:16:09.049 meaning demands it. He essentially said, if you 00:16:09.049 --> 00:16:10.710 like all your own rulings, you're doing your 00:16:10.710 --> 00:16:13.830 job wrong. Exactly. And as we move through this 00:16:13.830 --> 00:16:16.330 deep dive, we're going to see some very, very 00:16:16.330 --> 00:16:19.490 clear examples where his method led him to results 00:16:19.490 --> 00:16:22.230 that he personally hated. He did not like the 00:16:22.230 --> 00:16:24.669 outcomes. We definitely will. But first, we have 00:16:24.669 --> 00:16:27.690 to talk about the wolf. The wolf, yes. one of 00:16:27.690 --> 00:16:30.289 his most famous and frankly most prophetic dissents. 00:16:30.389 --> 00:16:33.389 This is part three of our dive. His ideas on 00:16:33.389 --> 00:16:35.549 the separation of powers. We touched on this 00:16:35.549 --> 00:16:37.330 with his time in the Nixon administration, but 00:16:37.330 --> 00:16:39.610 Scalia was, I mean, truly obsessed with keeping 00:16:39.610 --> 00:16:41.330 the branches of government in their own lanes, 00:16:41.450 --> 00:16:43.710 wasn't he? Obsessed is exactly the right word. 00:16:43.870 --> 00:16:46.470 And for him, this wasn't some boring technical 00:16:46.470 --> 00:16:49.389 part of constitutional law. This was the whole 00:16:49.389 --> 00:16:52.250 thing. He believed that the Constitution's structure, 00:16:52.470 --> 00:16:55.269 the rigid separation of powers between the legislative, 00:16:55.590 --> 00:16:57.830 executive, and judicial branches, was actually 00:16:57.830 --> 00:17:00.330 more important for protecting your liberty than 00:17:00.330 --> 00:17:03.070 the Bill of Rights. Wait, really? More important 00:17:03.070 --> 00:17:05.269 than freedom of speech? More than religious freedom? 00:17:05.589 --> 00:17:07.650 That was his argument. He would point out that 00:17:07.650 --> 00:17:10.089 every tin pot dictator in the world has a Bill 00:17:10.089 --> 00:17:12.569 of Rights written down on paper somewhere. The 00:17:12.569 --> 00:17:14.690 Soviet Union had a Bill of Rights that guaranteed 00:17:14.690 --> 00:17:17.089 freedom of speech. But it didn't matter because 00:17:17.089 --> 00:17:19.269 all the power was concentrated in one place. 00:17:19.450 --> 00:17:22.329 For Scalia, the separation of powers is what 00:17:22.329 --> 00:17:24.769 actually prevents tyranny. The structure is the 00:17:24.769 --> 00:17:27.569 protection. Which brings us to this case, Morrison 00:17:27.569 --> 00:17:31.130 v. Olson in 1988. This was a really big deal 00:17:31.130 --> 00:17:33.789 at the time. It was. This was a challenge to 00:17:33.789 --> 00:17:36.339 the independent counsel law. After Watergate, 00:17:36.519 --> 00:17:39.019 Congress had passed this law to create a special 00:17:39.019 --> 00:17:41.720 prosecutor who could investigate high -level 00:17:41.720 --> 00:17:44.400 officials, including the president himself, without 00:17:44.400 --> 00:17:46.980 fear of being fired by that president. It was 00:17:46.980 --> 00:17:49.839 a direct response to Nixon firing the Watergate 00:17:49.839 --> 00:17:52.200 special prosecutor, the Saturday Night Massacre. 00:17:52.420 --> 00:17:54.740 So the Supreme Court majority looked at this 00:17:54.740 --> 00:17:57.740 law and said, this seems fine. It's a good anti 00:17:57.740 --> 00:17:59.720 -corruption measure. It helps with accountability. 00:18:00.240 --> 00:18:03.670 The vote was 7 to 1 to uphold the law. And seawing 00:18:03.670 --> 00:18:07.069 one was Antonin Scalia. He wrote a lone dissent 00:18:07.069 --> 00:18:10.549 that was so furious, so passionate that his colleague 00:18:10.549 --> 00:18:12.950 Justice Harry Blackmun later described it as 00:18:12.950 --> 00:18:15.970 screaming. What was his argument? He argued that 00:18:15.970 --> 00:18:18.109 the investigation and prosecution of crimes is 00:18:18.109 --> 00:18:20.990 a purely executive function, period. The president 00:18:20.990 --> 00:18:23.490 is the head of the executive branch. If Congress 00:18:23.490 --> 00:18:25.890 creates a powerful prosecutor that the president 00:18:25.890 --> 00:18:29.289 cannot fire or control, they are stealing executive 00:18:29.289 --> 00:18:32.089 power for themselves. They are creating, in his 00:18:32.089 --> 00:18:34.750 view, a fourth branch of government that is accountable 00:18:34.750 --> 00:18:37.289 to no one. And here comes the quote that everyone 00:18:37.289 --> 00:18:39.930 remembers from that dissent. He wrote that while 00:18:39.930 --> 00:18:42.829 some encroachments on power come in sheep's clothing. 00:18:43.400 --> 00:18:46.200 meaning they look harmless or obscure, he said, 00:18:46.339 --> 00:18:50.859 This wolf comes as a wolf. This wolf comes as 00:18:50.859 --> 00:18:53.759 a wolf. That still gives me chills. It's such 00:18:53.759 --> 00:18:56.539 powerful writing. It was a stark warning. He 00:18:56.539 --> 00:18:58.619 predicted that the independent counsel would 00:18:58.619 --> 00:19:01.740 inevitably become a political weapon. He said 00:19:01.740 --> 00:19:04.200 that because this prosecutor has no other job 00:19:04.200 --> 00:19:07.339 and basically unlimited resources and time, they 00:19:07.339 --> 00:19:09.680 would hound their target relentlessly until they 00:19:09.680 --> 00:19:11.960 found something, anything to charge them with. 00:19:12.099 --> 00:19:14.839 The incentive structure was all wrong. And if 00:19:14.839 --> 00:19:17.119 you look at the history of the 1990s, with the 00:19:17.119 --> 00:19:19.420 Ken Starr investigation into Bill Clinton over 00:19:19.420 --> 00:19:21.619 the Whitewater real estate deal that morphed 00:19:21.619 --> 00:19:23.859 into an investigation about an affair. A lot 00:19:23.859 --> 00:19:26.440 of scholars, even liberal scholars who hated 00:19:26.440 --> 00:19:28.759 Scalia's politics, started to say, you know what, 00:19:28.799 --> 00:19:30.700 he might have been right about this. The office 00:19:30.700 --> 00:19:33.019 became exactly what he predicted it would. He 00:19:33.019 --> 00:19:35.000 was playing the long game. He wasn't looking 00:19:35.000 --> 00:19:37.619 at, is this a good idea for this particular political 00:19:37.619 --> 00:19:40.700 moment? He was looking at, does this break the 00:19:40.700 --> 00:19:43.930 fundamental machinery of the Constitution? Precisely. 00:19:43.970 --> 00:19:46.390 And he felt the same way about the line item 00:19:46.390 --> 00:19:49.289 veto. Remember that? Congress tried to give the 00:19:49.289 --> 00:19:51.710 president the power to cross out specific lines 00:19:51.710 --> 00:19:54.009 of spending in a big bill without vetoing the 00:19:54.009 --> 00:19:56.910 whole thing. The court struck it down, but Scalia 00:19:56.910 --> 00:19:59.450 dissented there too. He argued that if Congress 00:19:59.450 --> 00:20:02.109 hands the president a big pot of money, the president 00:20:02.109 --> 00:20:04.470 has the discretion to spend it or not. He was, 00:20:04.569 --> 00:20:06.869 across the board, a fierce defender of executive 00:20:06.869 --> 00:20:09.140 power. Okay, so that's the structural stuff. 00:20:09.240 --> 00:20:11.519 It's incredibly important, but it's not exactly 00:20:11.519 --> 00:20:14.359 what made him a household name. Most people know 00:20:14.359 --> 00:20:17.299 Scalia because of the culture wars. This is part 00:20:17.299 --> 00:20:19.619 four of our outline. This is where he became 00:20:19.619 --> 00:20:23.529 a hero to the right. and an absolute villain 00:20:23.529 --> 00:20:25.630 to the left. This is where the friction between 00:20:25.630 --> 00:20:28.269 his operating system and modern American society 00:20:28.269 --> 00:20:30.809 really sparked. And again, to understand him, 00:20:30.890 --> 00:20:32.990 you have to realize his strategy was rarely to 00:20:32.990 --> 00:20:36.009 argue this liberal outcome is evil. His argument 00:20:36.009 --> 00:20:38.589 was almost always the Supreme Court has no power 00:20:38.589 --> 00:20:40.450 to decide this question. Let's start with the 00:20:40.450 --> 00:20:43.089 biggest one, abortion. Roe v. Wade and later 00:20:43.089 --> 00:20:46.339 Planned Parenthood v. Casey. Scalia was adamant. 00:20:46.359 --> 00:20:48.940 He was completely consistent on this for 30 years. 00:20:49.119 --> 00:20:52.180 He looked at the Constitution and said, I see 00:20:52.180 --> 00:20:54.599 protections for speech. I see protections against 00:20:54.599 --> 00:20:57.099 unreasonable searches. I do not see the word 00:20:57.099 --> 00:21:00.160 abortion or even a general right to privacy anywhere 00:21:00.160 --> 00:21:02.779 in this text. Therefore, under the 10th Amendment, 00:21:03.059 --> 00:21:05.799 this is an issue left to the states to decide. 00:21:06.019 --> 00:21:08.500 So it's crucial to understand he wasn't arguing 00:21:08.500 --> 00:21:11.220 that the Supreme Court must ban abortion nationwide. 00:21:11.930 --> 00:21:13.970 No, and that's a key distinction that often gets 00:21:13.970 --> 00:21:15.529 lost. He was saying the court needs to get out 00:21:15.529 --> 00:21:17.930 of the way. If the people of Ohio, through their 00:21:17.930 --> 00:21:19.710 elected representatives, want to ban it, they 00:21:19.710 --> 00:21:21.849 can. If the people of New York want to allow 00:21:21.849 --> 00:21:24.509 it, they can. Let the voters decide in each state. 00:21:24.670 --> 00:21:27.430 In his dissent in the Casey decision, he wrote 00:21:27.430 --> 00:21:29.750 about the carts full of mail. Yeah, that was 00:21:29.750 --> 00:21:32.549 a powerful image. He predicted that because the 00:21:32.549 --> 00:21:35.309 court had snatched this incredibly divisive moral 00:21:35.309 --> 00:21:38.150 issue away from the democratic process, they 00:21:38.150 --> 00:21:40.650 would be forever plagued by carts full of mail 00:21:40.650 --> 00:21:43.430 and streets full of demonstrators. He felt the 00:21:43.430 --> 00:21:46.109 court was inviting political chaos and undermining 00:21:46.109 --> 00:21:48.829 its own legitimacy by acting like a super legislature. 00:21:49.210 --> 00:21:51.450 He thought all the anger in the country was because 00:21:51.450 --> 00:21:53.250 the court had short circuited the democratic 00:21:53.250 --> 00:21:56.849 debate. But he also had some very visceral. very 00:21:56.849 --> 00:21:59.650 personal reactions. In the partial birth abortion 00:21:59.650 --> 00:22:02.910 case, Stenberg v. Carhart, he compared the court's 00:22:02.910 --> 00:22:05.829 decision to Dred Scott, the infamous slavery 00:22:05.829 --> 00:22:08.470 case. He did. That was one of his most aggressive 00:22:08.470 --> 00:22:11.089 and emotional dissents. He expressed genuine 00:22:11.089 --> 00:22:13.789 personal revulsion at the specific medical procedure 00:22:13.789 --> 00:22:16.609 involved. But even there, he framed his legal 00:22:16.609 --> 00:22:18.710 dissent around the idea that a democratic society 00:22:18.710 --> 00:22:21.049 should be allowed to draw moral lines and ban 00:22:21.049 --> 00:22:23.170 something that many of its citizens consider 00:22:23.170 --> 00:22:26.200 horrible. He was furious that the court was telling 00:22:26.200 --> 00:22:28.579 the people of Nebraska, your moral revulsion 00:22:28.579 --> 00:22:31.539 doesn't matter. Then we have gay rights. This 00:22:31.539 --> 00:22:34.579 is where the language got very, very heated and 00:22:34.579 --> 00:22:37.039 where his legacy is probably the most controversial 00:22:37.039 --> 00:22:39.960 today. Extremely controversial. In Lawrence v. 00:22:40.019 --> 00:22:43.400 Texas in 2003, the court struck down state laws 00:22:43.400 --> 00:22:47.049 that criminalized sodomy. Scalia wrote a scathing 00:22:47.049 --> 00:22:49.529 dissent. He was accused by Congressman Barney 00:22:49.529 --> 00:22:52.029 Frank of being a homophobe. And the columnist 00:22:52.029 --> 00:22:54.470 Maureen Dowd famously called him Archie Bunker 00:22:54.470 --> 00:22:56.569 in a high back chair because he was defending 00:22:56.569 --> 00:22:59.210 the right of states to ban private consensual 00:22:59.210 --> 00:23:02.490 sexual conduct between adults. Yes. But his argument 00:23:02.490 --> 00:23:05.549 again. was procedural and historical, he said. 00:23:05.630 --> 00:23:08.049 For 200 years, states have had these kinds of 00:23:08.049 --> 00:23:10.450 moral laws on the books. The Constitution hasn't 00:23:10.450 --> 00:23:13.150 changed. So why is the court suddenly, in 2003, 00:23:13.509 --> 00:23:16.450 discovering a new constitutional right that invalidates 00:23:16.450 --> 00:23:18.609 them? He claimed he wasn't attacking gay people. 00:23:18.730 --> 00:23:20.809 He was defending the state's traditional right 00:23:20.809 --> 00:23:22.869 to set moral standards through legislation. And 00:23:22.869 --> 00:23:25.240 then, of course, the big one. same -sex marriage, 00:23:25.380 --> 00:23:28.440 Obergefell v. Hodges in 2015, just a year before 00:23:28.440 --> 00:23:30.980 he died. This opinion is famous for its insults. 00:23:30.980 --> 00:23:33.019 He was absolutely furious with the majority. 00:23:33.279 --> 00:23:35.759 He called their reasoning mystical aphorisms 00:23:35.759 --> 00:23:38.680 of the fortune cookie. Mystical aphorisms of 00:23:38.680 --> 00:23:40.480 the fortune cookie. I mean, you have to admit, 00:23:40.640 --> 00:23:43.299 even if you completely disagree with him, the 00:23:43.299 --> 00:23:45.920 man could write a memorable insult. He was a 00:23:45.920 --> 00:23:48.220 master of it. He viewed this decision as the 00:23:48.220 --> 00:23:52.119 ultimate act of a judicial aristocracy. He essentially 00:23:52.119 --> 00:23:56.130 asked, Who are these nine lawyers, unelected, 00:23:56.130 --> 00:23:58.470 with life tenure, living inside the bubble of 00:23:58.470 --> 00:24:01.369 Washington, D .C., to tell 300 million Americans 00:24:01.369 --> 00:24:04.470 that their millennial -old definition of marriage 00:24:04.470 --> 00:24:07.650 is suddenly unconstitutional? He felt it was 00:24:07.650 --> 00:24:10.150 robbing the people of the freedom to govern themselves. 00:24:10.630 --> 00:24:13.269 And on affirmative action, he was just as rigid, 00:24:13.410 --> 00:24:32.089 just as absolute. He mocked the whole idea that 00:24:32.089 --> 00:24:33.990 law schools needed diversity for educational 00:24:33.990 --> 00:24:37.269 benefits, didn't he? Oh, he was merciless. He 00:24:37.269 --> 00:24:39.630 said that cross -racial understanding is something 00:24:39.630 --> 00:24:41.960 you're supposed to learn in kindergarten. not 00:24:41.960 --> 00:24:45.140 in a constitutional law class. For him, it was 00:24:45.140 --> 00:24:48.839 a simple, brutal textualism. The 14th Amendment 00:24:48.839 --> 00:24:51.779 promises equal protection, and that means equal, 00:24:52.000 --> 00:24:55.279 period. So if you stop the episode right there, 00:24:55.339 --> 00:24:58.859 if this is all you know about him, Scalia looks 00:24:58.859 --> 00:25:01.180 like a standard, down -the -line conservative. 00:25:01.420 --> 00:25:04.539 He opposes abortion rights, opposes gay rights, 00:25:04.720 --> 00:25:07.680 opposes affirmative action. But this is the deep 00:25:07.680 --> 00:25:10.450 dive. And we promised the surprising Scalia. 00:25:10.690 --> 00:25:13.150 This is part five. This is the unlikely ally 00:25:13.150 --> 00:25:15.630 segment, because if you were a criminal and there 00:25:15.630 --> 00:25:17.549 were certain times when you really wanted Antonin 00:25:17.549 --> 00:25:19.869 Scalia on your panel. And this is where the learner 00:25:19.869 --> 00:25:22.029 profile, the listener who thinks they have him 00:25:22.029 --> 00:25:25.119 figured out often gets that. Aha. Moment. Let's 00:25:25.119 --> 00:25:26.940 talk about the thermal imaging case. This one 00:25:26.940 --> 00:25:29.819 is wild. It's called Kylo v. United States. This 00:25:29.819 --> 00:25:32.240 is a fascinating Fourth Amendment case from 2001. 00:25:32.559 --> 00:25:34.539 The police suspected a man was growing marijuana 00:25:34.539 --> 00:25:36.960 in his garage using high intensity grow lamps. 00:25:37.119 --> 00:25:39.299 They couldn't get a warrant to go inside because 00:25:39.299 --> 00:25:41.400 they didn't have enough probable cause yet. So 00:25:41.400 --> 00:25:43.619 they got creative. They got very creative. They 00:25:43.619 --> 00:25:45.440 stood across the street with a high tech thermal 00:25:45.440 --> 00:25:48.640 imaging camera and pointed it at his house. They 00:25:48.640 --> 00:25:50.599 saw a bunch of heat radiating from the roof of 00:25:50.599 --> 00:25:53.549 the garage, which implied. grow lamps. They then 00:25:53.549 --> 00:25:56.289 used that thermal scan as their evidence to get 00:25:56.289 --> 00:25:58.509 a warrant. Usually you'd expect a conservative 00:25:58.509 --> 00:26:02.049 law and order judge to say, great police work. 00:26:02.109 --> 00:26:03.970 You caught the bad guys. What's the problem? 00:26:04.170 --> 00:26:06.970 Exactly. The government's argument was we didn't 00:26:06.970 --> 00:26:08.670 even touch the house. We just looked at the waste 00:26:08.670 --> 00:26:12.029 heat coming off of it. But not Scalia. He wrote 00:26:12.029 --> 00:26:14.549 the majority opinion against the police. He argued 00:26:14.549 --> 00:26:17.210 that the home is your castle. That is a core 00:26:17.210 --> 00:26:19.250 concept that goes back to English common law 00:26:19.250 --> 00:26:22.250 way before the Constitution. So he's going back 00:26:22.250 --> 00:26:24.150 to the original understanding. He's going back 00:26:24.150 --> 00:26:25.950 to the original understanding of what search 00:26:25.950 --> 00:26:28.670 meant. He said that using high -tech gear that 00:26:28.670 --> 00:26:31.390 isn't in general public use to peep inside the 00:26:31.390 --> 00:26:33.809 walls of a home to learn details you couldn't 00:26:33.809 --> 00:26:36.589 otherwise know without physically entering, that 00:26:36.589 --> 00:26:39.509 is a search. And it requires a warrant. That 00:26:39.509 --> 00:26:42.470 is originalism in action, right? Taking an 18th 00:26:42.470 --> 00:26:44.990 century concept of a castle and applying it to 00:26:44.990 --> 00:26:47.349 21st century thermal sensors. Yeah, precisely. 00:26:47.630 --> 00:26:50.769 He reasoned. The founders wanted to protect the 00:26:50.769 --> 00:26:53.190 privacy of the home from the government. Just 00:26:53.190 --> 00:26:55.890 because the police have new, fancy toys doesn't 00:26:55.890 --> 00:26:57.529 mean that fundamental protection disappears. 00:26:58.230 --> 00:27:06.890 He wrote, And he did the same thing with the 00:27:06.890 --> 00:27:09.450 Sixth Amendment, the right to confront your accuser. 00:27:09.680 --> 00:27:13.099 The confrontation clause, oh, Scalia was an absolute 00:27:13.099 --> 00:27:15.440 hawk on this. He was probably the strongest defender 00:27:15.440 --> 00:27:18.160 of this right on the court in a century. There's 00:27:18.160 --> 00:27:20.940 a case called Melendez -Diaz. Prosecutors wanted 00:27:20.940 --> 00:27:23.579 to convict a drug dealer. To prove the substance 00:27:23.579 --> 00:27:26.359 was drugs, they just submitted a lab report from 00:27:26.359 --> 00:27:29.319 a state chemist saying, this white powder is 00:27:29.319 --> 00:27:31.680 cocaine. Which is how it's done in thousands 00:27:31.680 --> 00:27:34.420 of cases a day. It's efficient. It's efficient. 00:27:34.759 --> 00:27:37.559 The government argued that dragging the lab technician 00:27:37.559 --> 00:27:40.440 into court to testify in every single case would 00:27:40.440 --> 00:27:43.500 be expensive and time consuming. And Scalia said. 00:27:43.660 --> 00:27:46.440 What did he say? He said, essentially, too bad. 00:27:46.819 --> 00:27:48.740 He wrote the opinion saying the Constitution 00:27:48.740 --> 00:27:50.660 gives you the right to confront the witnesses 00:27:50.660 --> 00:27:53.759 against you. A piece of paper, a lab report is 00:27:53.759 --> 00:27:56.519 a witness. You have the right to drag that lab 00:27:56.519 --> 00:27:58.579 tech into court, put them on the witness stand 00:27:58.579 --> 00:28:01.539 and cross -examine them. Ask them, did you calibrate 00:28:01.539 --> 00:28:03.480 the machine correctly that day? Were you tired? 00:28:03.619 --> 00:28:05.720 Did you mix up the samples? He didn't care if 00:28:05.720 --> 00:28:07.960 it made the prosecutor's job harder or more expensive. 00:28:08.299 --> 00:28:10.660 He didn't care at all. He believed the text of 00:28:10.660 --> 00:28:13.160 the Constitution guaranteed that right. He even 00:28:13.160 --> 00:28:15.640 voted to strike down laws allowing child abuse 00:28:15.640 --> 00:28:18.119 victims to testify via video or behind a screen. 00:28:18.420 --> 00:28:21.000 He said the Constitution guarantees a face to 00:28:21.000 --> 00:28:23.420 face confrontation, even if it's traumatic for 00:28:23.420 --> 00:28:25.799 the victim. The text is the text and the right 00:28:25.799 --> 00:28:28.400 is absolute. And then the ultimate surprising 00:28:28.400 --> 00:28:30.599 Scalia moment, the one that broke everyone's 00:28:30.599 --> 00:28:34.920 brains. Flag burning. Texas v. Johnson. A man 00:28:34.920 --> 00:28:38.319 burns an American flag at a protest. Scalia the 00:28:38.319 --> 00:28:40.339 patriot, the traditionalist, the guy who talks 00:28:40.339 --> 00:28:43.359 about civic virtue. He is the deciding vote to 00:28:43.359 --> 00:28:45.799 strike down the ban on flag burning. It's just, 00:28:45.880 --> 00:28:49.200 it's still shocking to think about why. What 00:28:49.200 --> 00:28:51.619 was his reasoning? The First Amendment. Congress 00:28:51.619 --> 00:28:54.180 shall make no law abridging the freedom of speech. 00:28:55.240 --> 00:28:57.960 He absolutely hated the act of flag burning. 00:28:58.259 --> 00:29:01.519 He called it reprehensible. He famously said 00:29:01.519 --> 00:29:03.880 in an interview, if he were king, he would put 00:29:03.880 --> 00:29:07.210 every last flag burner in jail. But he wasn't 00:29:07.210 --> 00:29:10.089 king. He was a judge. And the judge has to follow 00:29:10.089 --> 00:29:12.930 the law. The judge has to follow the text. He 00:29:12.930 --> 00:29:15.170 argued that burning a flag is a form of symbolic 00:29:15.170 --> 00:29:18.190 speech. It's an expression of an idea, even if 00:29:18.190 --> 00:29:20.569 it's an ugly idea. And if you allow the government 00:29:20.569 --> 00:29:22.569 to ban speech just because it's offensive or 00:29:22.569 --> 00:29:24.910 makes people angry, then the First Amendment 00:29:24.910 --> 00:29:26.890 means nothing at all. This connects directly 00:29:26.890 --> 00:29:29.430 back to that broken clock defense we talked about. 00:29:29.849 --> 00:29:33.700 He personally. deeply hated the result, but he 00:29:33.700 --> 00:29:35.500 followed his operating system to its logical 00:29:35.500 --> 00:29:38.099 conclusion. It is the single strongest piece 00:29:38.099 --> 00:29:40.039 of evidence that he wasn't just a political hack. 00:29:40.240 --> 00:29:42.279 When the text in the original meaning led him 00:29:42.279 --> 00:29:44.720 to a liberal outcome, he followed the text. Okay, 00:29:44.779 --> 00:29:48.000 part six. We absolutely have to talk about guns. 00:29:48.380 --> 00:29:50.980 District of Columbia v. Heller in 2008. This 00:29:50.980 --> 00:29:54.180 is often called Scalia's magnum opus, his masterpiece. 00:29:54.680 --> 00:29:58.170 Before this case, it was genuinely unclear. Legally 00:29:58.170 --> 00:30:00.309 speaking, whether the Second Amendment protected 00:30:00.309 --> 00:30:02.809 an individual's right to own a gun for self -defense 00:30:02.809 --> 00:30:06.210 or just a state's right to have a well -regulated 00:30:06.210 --> 00:30:08.829 militia like the National Guard. The text of 00:30:08.829 --> 00:30:10.450 the amendment is kind of famously confusing, 00:30:10.690 --> 00:30:13.779 right? It's very awkwardly phrased. Scalia did 00:30:13.779 --> 00:30:16.779 a deep, deep dive into the grammar. He went full 00:30:16.779 --> 00:30:19.440 English professor on it. He analyzed the sentence 00:30:19.440 --> 00:30:21.779 structure. The amendment has what he called a 00:30:21.779 --> 00:30:24.940 prefatory clause, a well -regulated militia being 00:30:24.940 --> 00:30:27.960 necessary to the security of a free state. And 00:30:27.960 --> 00:30:30.319 then an operative clause, the right of the people 00:30:30.319 --> 00:30:32.700 to keep and bear arms shall not be infringed. 00:30:32.700 --> 00:30:35.339 And the debate for 200 years was. does the first 00:30:35.339 --> 00:30:37.619 part, the militia part, limit or define the second 00:30:37.619 --> 00:30:39.839 part, the right to bear arms part. Exactly. And 00:30:39.839 --> 00:30:42.579 Scalia, doing his originalist analysis, looked 00:30:42.579 --> 00:30:45.240 at how the word militia was used in dictionaries 00:30:45.240 --> 00:30:47.859 and documents from the 18th century. He concluded 00:30:47.859 --> 00:30:50.039 that militia didn't just mean a formal military 00:30:50.039 --> 00:30:53.339 unit. It essentially meant the body of all able 00:30:53.339 --> 00:30:55.940 -bodied citizens, the people themselves. So his 00:30:55.940 --> 00:30:58.099 conclusion was that the right belongs to the 00:30:58.099 --> 00:31:00.779 individual. Yes. He concluded that the operative 00:31:00.779 --> 00:31:03.799 clause grants an individual right, and the prefatory 00:31:03.799 --> 00:31:05.940 clause just explains one of the reasons why that 00:31:05.940 --> 00:31:08.859 right is important. Therefore, the right to keep 00:31:08.859 --> 00:31:11.619 and bear arms belongs to the individual for purposes 00:31:11.619 --> 00:31:14.220 like self -defense in the home. And this ruling 00:31:14.220 --> 00:31:17.319 fundamentally changed gun laws in America. It 00:31:17.319 --> 00:31:19.940 struck down Washington, D .C.'s very strict handgun 00:31:19.940 --> 00:31:22.740 ban. A total sea change. But we should be fair 00:31:22.740 --> 00:31:24.980 here. Not everyone bought the history lesson. 00:31:25.279 --> 00:31:27.640 We should mention Judge Richard Posner, who was 00:31:27.640 --> 00:31:30.259 a very famous conservative judge and intellectual 00:31:30.259 --> 00:31:34.000 in his own right. He absolutely roasted Scalia's 00:31:34.000 --> 00:31:36.240 opinion in Heller. What was his criticism? He 00:31:36.240 --> 00:31:38.599 called it faux originalism. He called it putting 00:31:38.599 --> 00:31:41.779 a historicizing glaze over personal policy preferences. 00:31:42.200 --> 00:31:44.579 He basically argued that the historical record 00:31:44.579 --> 00:31:47.500 is messy and contradictory and that Scalia just 00:31:47.500 --> 00:31:49.940 dug through history until he found the evidence 00:31:49.940 --> 00:31:51.869 that supported the outcome he already wanted 00:31:51.869 --> 00:31:54.470 and ignored the rest. So that is the constant 00:31:54.470 --> 00:31:57.309 tension with originalism. Is it objective history 00:31:57.309 --> 00:32:00.049 or is it just a scavenger hunt for your preferred 00:32:00.049 --> 00:32:02.069 outcome? That's the billion dollar question. 00:32:02.450 --> 00:32:04.609 But regardless of what you think of the method, 00:32:04.829 --> 00:32:08.049 Heller is the law of the land and it is pure, 00:32:08.230 --> 00:32:10.950 unadulterated Scalia. Let's shift gears a little 00:32:10.950 --> 00:32:13.529 bit and talk about the man himself. Part seven, 00:32:13.730 --> 00:32:17.609 the personality. Because by all accounts, you 00:32:17.609 --> 00:32:19.329 could not ignore him when he was in the courtroom. 00:32:19.680 --> 00:32:23.099 He completely changed the dynamic of oral arguments 00:32:23.099 --> 00:32:26.400 at the Supreme Court. Before Scalia, arguments 00:32:26.400 --> 00:32:28.940 were often polite, sometimes even sleepy affairs. 00:32:29.579 --> 00:32:31.980 Lawyers would get up and read prepared speeches. 00:32:32.359 --> 00:32:35.099 Scalia turned them into a graduate seminar slash 00:32:35.099 --> 00:32:38.000 debate club. He asked more questions, he interrupted 00:32:38.000 --> 00:32:40.279 more often, and he caused more laughter than 00:32:40.279 --> 00:32:42.539 any other justice. Legal writer Delia Lithwick 00:32:42.539 --> 00:32:44.900 had a great quote about this. She said he entered 00:32:44.900 --> 00:32:47.660 the court like a medieval knight girded for battle. 00:32:47.980 --> 00:32:50.779 He loved the combat of ideas. He thrived on it. 00:32:50.839 --> 00:32:52.980 And his writing style reflected that. He didn't 00:32:52.980 --> 00:32:54.660 write to build a consensus or to compromise. 00:32:55.180 --> 00:32:57.299 Most justices write their opinions to try and 00:32:57.299 --> 00:32:59.220 get four other colleagues to sign on. So they 00:32:59.220 --> 00:33:00.920 soften the language. They make it a bit bland. 00:33:01.680 --> 00:33:03.720 Scalia wrote to persuade future generations. 00:33:04.079 --> 00:33:06.500 He wrote for the law students 50 years from now. 00:33:06.910 --> 00:33:09.390 And he wrote those famous internal memos, the 00:33:09.390 --> 00:33:12.190 Nina Grams. The Nina Grams. He would fire off 00:33:12.190 --> 00:33:14.990 these sharp, witty, sometimes incredibly biting 00:33:14.990 --> 00:33:17.710 memos to his colleagues to pressure them or critique 00:33:17.710 --> 00:33:20.430 their draft opinions. He was just a constant 00:33:20.430 --> 00:33:22.910 force of intellectual personality. But he wasn't 00:33:22.910 --> 00:33:25.210 just a grump in a robe. He had a very famous, 00:33:25.450 --> 00:33:28.789 and to many, a very surprising best friend on 00:33:28.789 --> 00:33:31.950 the court. Justice Ruth Bader Ginsburg, the liberal 00:33:31.950 --> 00:33:35.230 icon. The notorious RBG herself. They were, by 00:33:35.230 --> 00:33:37.579 all accounts, best friends. Their family spent 00:33:37.579 --> 00:33:40.180 New Year's Eve's together every year. There are 00:33:40.180 --> 00:33:42.259 famous pictures of them riding an elephant together 00:33:42.259 --> 00:33:44.720 in India. They even appeared as extras in an 00:33:44.720 --> 00:33:47.680 opera together, Ariadne of Naxos. That is such 00:33:47.680 --> 00:33:50.240 a great image. The arch conservative originalist 00:33:50.240 --> 00:33:52.980 and the liberal lioness in full costume on stage 00:33:52.980 --> 00:33:55.339 at the opera. It teaches a lesson that we seem 00:33:55.339 --> 00:33:57.599 to have completely lost in our public life today, 00:33:57.740 --> 00:34:00.339 that you can disagree fundamentally on the most 00:34:00.339 --> 00:34:02.339 important issues of law and the Constitution 00:34:02.339 --> 00:34:06.000 and still respect, admire and even love the other 00:34:06.000 --> 00:34:09.360 person. Scalia once said, if you can't disagree 00:34:09.360 --> 00:34:11.699 ardently with your colleagues without personally 00:34:11.699 --> 00:34:14.179 disliking them, you are probably in the wrong 00:34:14.179 --> 00:34:17.960 business. He also, and this is a fun detail from 00:34:17.960 --> 00:34:20.639 the source material, admitted he didn't read 00:34:20.639 --> 00:34:22.690 The New York Times or The Washington Post. He 00:34:22.690 --> 00:34:25.349 called the Post shrilly liberal. He preferred 00:34:25.349 --> 00:34:27.889 talk radio and the Wall Street Journal. He definitely 00:34:27.889 --> 00:34:30.269 lived in his own intellectual ecosystem. But 00:34:30.269 --> 00:34:32.289 because he engaged so directly and personally 00:34:32.289 --> 00:34:35.389 with people like Ginsburg, he was never intellectually 00:34:35.389 --> 00:34:38.070 isolated. He was always sharpening his blade 00:34:38.070 --> 00:34:40.989 against the best possible opposition. So we come 00:34:40.989 --> 00:34:43.929 to part eight, the end of the story, February 00:34:43.929 --> 00:34:46.750 2016. It was a huge shock to the country. He 00:34:46.750 --> 00:34:48.630 was at a place called the Cibolo Creek Ranch 00:34:48.630 --> 00:34:51.349 in West Texas for a quail hunting trip. He was 00:34:51.349 --> 00:34:53.849 79, but he was still this larger -than -life 00:34:53.849 --> 00:34:55.869 force. Everyone just assumed he'd be on the court 00:34:55.869 --> 00:34:58.170 forever. And the immediate aftermath of the reporting 00:34:58.170 --> 00:35:00.650 on the scene was chaotic. A bit chaotic, yeah. 00:35:01.150 --> 00:35:03.969 The ranch owner, John Poindexter, found him in 00:35:03.969 --> 00:35:06.880 his room. He had passed away in his sleep. But 00:35:06.880 --> 00:35:09.380 the details that came out in the first 24 hours 00:35:09.380 --> 00:35:12.380 were confusing. A local judge pronounced him 00:35:12.380 --> 00:35:14.760 dead over the phone without ever seeing the body. 00:35:14.880 --> 00:35:17.340 There was no autopsy ordered immediately. And 00:35:17.340 --> 00:35:19.000 there was a pillow report that went everywhere. 00:35:19.119 --> 00:35:20.920 Right. The initial report that got out to the 00:35:20.920 --> 00:35:22.679 media said there was a pillow over his face. 00:35:22.780 --> 00:35:24.579 And that, of course, instantly triggered massive 00:35:24.579 --> 00:35:27.659 conspiracy theories. Was he murdered? Was it 00:35:27.659 --> 00:35:30.460 a political assassination? But the reality was 00:35:30.460 --> 00:35:33.719 likely less sinister. The ranch owner later clarified 00:35:33.719 --> 00:35:36.019 that the pillow was between his head and the 00:35:36.019 --> 00:35:38.360 headboard, as if propping him up. And his family 00:35:38.360 --> 00:35:41.159 was very clear. Look, he had a bad heart. He 00:35:41.159 --> 00:35:43.800 was overweight. He was 79. It was natural causes. 00:35:44.239 --> 00:35:46.840 They emphatically rejected the conspiracies. 00:35:46.980 --> 00:35:49.079 But the political earthquake that followed was 00:35:49.079 --> 00:35:53.500 very, very real. Massive. Unprecedented in modern 00:35:53.500 --> 00:35:56.079 history. He died in a presidential election year. 00:35:56.650 --> 00:35:59.309 President Obama nominated a well -respected moderate 00:35:59.309 --> 00:36:02.230 judge, Merrick Garland, to replace him. But Senate 00:36:02.230 --> 00:36:04.550 Republicans, led by Mitch McConnell, did something 00:36:04.550 --> 00:36:06.969 that had never been done before. They refused 00:36:06.969 --> 00:36:09.530 to even hold a hearing. They just said no. They 00:36:09.530 --> 00:36:11.389 just said no. They said, this is an election 00:36:11.389 --> 00:36:13.429 year. The American people are about to vote. 00:36:13.610 --> 00:36:16.030 Let the voters decide who should pick the next 00:36:16.030 --> 00:36:20.650 justice. ironically, a very Scalia -esque argument 00:36:20.650 --> 00:36:23.610 in a way, let the people decide. In a weird, 00:36:23.690 --> 00:36:26.550 purely political way, yes. So the seat remained 00:36:26.550 --> 00:36:29.150 empty for over a year, which was just unheard 00:36:29.150 --> 00:36:31.670 of, until Donald Trump won the election and appointed 00:36:31.670 --> 00:36:34.170 Neil Gorsuch. Who is very much seen as a Scalia 00:36:34.170 --> 00:36:37.449 heir. He is. Gorsuch and later Justice Kavanaugh 00:36:37.449 --> 00:36:39.670 are seen as the intellectual children of Scalia. 00:36:39.889 --> 00:36:42.130 They speak his language. They use his methods. 00:36:42.489 --> 00:36:45.719 Which brings us to The Legacy, Part 9. We started 00:36:45.719 --> 00:36:48.039 this whole deep dive by asking about the operating 00:36:48.039 --> 00:36:51.199 system. Did he succeed in installing it? The 00:36:51.199 --> 00:36:54.820 short answer is an unqualified yes. He completely 00:36:54.820 --> 00:36:57.260 transformed the terms of legal debate in America. 00:36:58.000 --> 00:37:01.159 Before Scalia, looking at legislative intent 00:37:01.159 --> 00:37:03.360 and the spirit of the law was standard practice. 00:37:03.739 --> 00:37:07.760 Today, even liberal justices start their analysis 00:37:07.760 --> 00:37:10.420 with the text. There's that incredible quote 00:37:10.420 --> 00:37:13.239 from Justice Elena Kagan. Justice Kagan, a liberal 00:37:13.239 --> 00:37:15.780 appointed by President Obama, famously said in 00:37:15.780 --> 00:37:19.039 a speech, we are all textualists now. And the 00:37:19.039 --> 00:37:21.260 liberal legal scholar Ronald Dworkin said something 00:37:21.260 --> 00:37:24.480 similar. We are all originalists now. Scalia 00:37:24.480 --> 00:37:27.059 completely changed the rules of the game. Even 00:37:27.059 --> 00:37:28.940 if you disagree with his conclusions, you are 00:37:28.940 --> 00:37:31.400 forced to argue on his turf. You have to talk 00:37:31.400 --> 00:37:33.039 about the text. You have to talk about history. 00:37:33.119 --> 00:37:35.039 You can't just talk about what would be a good 00:37:35.039 --> 00:37:38.139 social policy. Harvard Law School, a bastion 00:37:38.139 --> 00:37:40.659 of liberalism, named a professorship after him. 00:37:40.920 --> 00:37:42.860 George Mason University renamed their entire 00:37:42.860 --> 00:37:45.800 law school after him. And Neil Gorsuch, in a 00:37:45.800 --> 00:37:48.579 tribute after he took Scalia's seat, praised 00:37:48.579 --> 00:37:51.619 Scalia's intellectual humility. He noted that 00:37:51.619 --> 00:37:53.820 later in his life, Scalia was even willing to 00:37:53.820 --> 00:37:55.880 reconsider some of his own previous work, like 00:37:55.880 --> 00:37:58.159 the doctrine of Chevron deference, because he 00:37:58.159 --> 00:38:00.420 came to believe it didn't align with the constitutional 00:38:00.420 --> 00:38:03.519 text. He was loyal to the method above all else, 00:38:03.619 --> 00:38:06.059 even his own past opinions. So let's wrap this 00:38:06.059 --> 00:38:08.360 up. We have a man who believed the devil was 00:38:08.360 --> 00:38:10.579 a real person, but went duck hunting with his 00:38:10.579 --> 00:38:14.139 liberal colleagues. A judge who armed gun owners, 00:38:14.300 --> 00:38:17.440 but freed flag burners. He was a paradox, but 00:38:17.440 --> 00:38:20.059 he was a consistent paradox. He was faithful 00:38:20.059 --> 00:38:23.019 to his method, to his text, regardless of where 00:38:23.019 --> 00:38:25.260 it led him politically. And here is the final 00:38:25.260 --> 00:38:26.719 thought I want to leave you with, a thing to 00:38:26.719 --> 00:38:29.500 chew on. Scalia often said he preferred a dead 00:38:29.500 --> 00:38:31.880 constitution because a dead one protects you. 00:38:31.940 --> 00:38:34.599 It's stable. If the Constitution is alive, it 00:38:34.599 --> 00:38:37.119 can morph and change. And if it can morph, it 00:38:37.119 --> 00:38:39.719 can be changed by five unelected lawyers to take 00:38:39.719 --> 00:38:41.659 away your rights just as easily as they can be 00:38:41.659 --> 00:38:45.000 changed to grant them. A dead contract is a stable, 00:38:45.099 --> 00:38:47.639 predictable contract. But the counter argument, 00:38:47.719 --> 00:38:50.099 of course, is that a dead constitution cannot 00:38:50.099 --> 00:38:53.159 breathe. It can't adapt to a world of thermal 00:38:53.159 --> 00:38:56.619 imagers, internet surveillance, artificial intelligence, 00:38:56.920 --> 00:38:59.260 and all the modern complexities the founders 00:38:59.260 --> 00:39:01.719 could never have dreamed of. So the question 00:39:01.719 --> 00:39:04.699 for you, the listener, is this. In a world that 00:39:04.699 --> 00:39:08.199 is changing as fast as ours, is a dead set of 00:39:08.199 --> 00:39:11.639 rules a safety anchor that keeps us from drifting 00:39:11.639 --> 00:39:14.500 into the tyranny of the moment? Or is it a set 00:39:14.500 --> 00:39:16.699 of shackles that keeps us bound to the assumptions 00:39:16.699 --> 00:39:19.940 and limitations of the 18th century? That is 00:39:19.940 --> 00:39:22.000 the fundamental question Scalia forced us all 00:39:22.000 --> 00:39:23.920 to ask, and we are still struggling to answer 00:39:23.920 --> 00:39:25.780 it today. If you want to dive deeper into his 00:39:25.780 --> 00:39:28.300 thinking, check the show notes. We've linked 00:39:28.300 --> 00:39:30.559 to some of his ninograms and a few of those blistering 00:39:30.559 --> 00:39:32.980 dissents. They are worth a read just for the 00:39:32.980 --> 00:39:34.920 vocabulary. Thanks for listening to the Deep 00:39:34.920 --> 00:39:36.139 Dive. We'll see you next time.