In one of his final public appearances, the late U.S. Supreme Court Justice Antonin Scalia engaged in a dialogue with Justice Bokhary at the Chinese University of Hong Kong, where they discussed a wide range of topics, including their shared passion for the rule of law and its application in a democratic society. By Cynthia Claytor

On Feb. 1, Justice Antonin Scalia, a legal titan of American jurisprudence known for his “peppery prose”, sharp intellect and unwavering support of originalism and textualism during his 29 years on the U.S. Supreme Court, joined Hong Kong’s Justice Kemal Bokhary, Non-Permanent Judge of the Court of Final Appeal, in a discussion at the Chinese University of Hong Kong.

The event’s theme was “Justice and Democracy” and was moderated by Professor Bryan Garner, a globally distinguished expert on legal writing who co-authored two books with Justice Scalia.

Garner’s forthright questions sparked a candid exchange between the justices, giving the audience a glimpse into the real personalities behind the robes.

With Scalia’s unexpected death on Feb. 13, his opinions on several topics, such as the practice of judging and his judicial approach, now solemnly reverberate. The night’s most memorable moments are recounted below in Scalia’s honour.

JUDGING AND JUSTICE

Professor Garner wasted no time in setting the tone for the evening. His first question launched the justices into a debate on whether a judge should be concerned with pursuing justice.

Turning to Scalia, Garner asked if he had previously said judges should not be concerned with pursuing justice when interpreting statutes and constitutional provisions.

“I never said that,” Scalia theatrically responded, prompting laughter to ripple through the room.

“I think we both said that in our book… or maybe I wrote that part,” Garner replied referring to Reading Law: The Interpretation of Legal Texts, the last book they co-authored.

As the laughter faded, Justice Scalia continued, “Well, I was not the first to say it, I’ll put it that way.” According to Justice Scalia, Justice Oliver Wendell Holmes was the first to express that sentiment during a famous incident in which he was heckled by a woman while walking down the street. The woman shouted, “Do justice, Mr. Holmes,” to which the Justice swiftly replied, “Madam, I do not do justice; I apply the law!”

“That is my answer, really,” said Scalia, referring to Holmes’ response. “Justice in a democracy is what the people deem to be just. Very often my notion of what is just or what is good differs from the people across the U.S., which is to say the members of Congress. Where there is a difference, it is their notion of justice that prevails. I very often must reach a result in a case that I think is quite unfair, but if that’s the law, then in my system of democracy, that is the result I must reach.”

In Bokhary’s opinion, the courts are obligated to do justice and to do it according to law. “We do not have an independent right to do whatever we think is just, but I think the expectation of the people is that they will go to the courts for justice according to law, so that’s what we have to do.”

PURPOSIVISM VERSUS TEXTUALISM

Towards the end of the discussion, Garner asked the justices if they believed the distinction between their approaches to interpretation was illusory. For those unfamiliar with the jurists, Bokhary is known for his liberal leanings, while Scalia was a strict constructionist.

“Well, I see purpose as a possibility within the language of the text,” Bokhary replied. “I’ve never heard anybody say that you can find a purpose that is not related to the text.”

“Maybe the difference isn’t all that great. I am not sure. You have to look at a specific case… and whether you are adopting a semantic view or a view that is going beyond the text.” Bokhary later added that the Court of Final Appeal has repeatedly said their approach to interpretation is purposive.

One issue Scalia saw with purposivism was that there are various levels of purpose that can be attributed to an enactment, and the purposivist will have to pick one of those levels when interpreting it. “If you pick a level high enough, you can do whatever you want with the statute.”

“I do not look to the purpose of a statute that is not inflected in the text.”

“Justice Bokhary was saying something very similar,” Garner chimed in. “In fact, he almost sounded like a textualist!”

“No, he is not a textualist,” Scalia said, causing everyone to laugh, almost on cue. “He says it has to be consistent with the text; that it cannot be flatly contrary to it.”

“I have got text here,” Bokhary shot back as he pulled Scalia’s business card from his jacket pocket. “I see his card says ‘Associate Justice’, but I also know that he is proud to be a learned professor.”

To further tease out the differences between the two approaches, Scalia then pointed to King v Burwell, an important statutory case that recently came before the U.S. Supreme Court. It required the Court to interpret a provision of the Affordable Care Act (commonly referred to as “Obamacare”). “There was a provision of it which said that the individuals who registered for medical insurance with ‘exchanges established by a state’ – that was the language of the statute, ‘exchanges established by a state’ – would get subsidies,” he explained.

“Well, as it turns out, most of the states did not establish exchanges. And the system would not work if so many people did not get subsidies. So my Court said, well, my God, this thing would not work unless we read ‘established by a state’ to mean ‘established by the federal government’ and that is how we read it. That is purposivism, and that is a good example of how a purposivist would reach a different result.”

Scalia said he was adamantly against interpreting the statutory language, “established by a state” to mean “established by the federal government”. “If the statute will not work, that means that Congress wrote a bad statute. It’s not my job to improve the statute. They wrote what they wrote.”

“Now many thought, of course, what happened is that the members of Congress were hoisted on their own petard”, he continued, referencing William Shakespeare’s “Hamlet”, “because they were trying to force the states to establish exchanges and it did not work.”

“There is actually a debate about whether it is ‘petar’ or ‘petard’,” Garner interjected with a grin.

“He’s a philologist and he’s such a pain in the neck,” Scalia joshed, shaking his head. “He knows all sorts of stuff like that.”

“Anyway… as it turned out, the statute did not work. So should we revise the statute? No, I don’t think so! I dissented in the case.”

This article has been extracted from the cover story of Hong Kong Lawyer magazine’s March 2016 issue. Reproduced with kind permission.