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- This is One-On-One.

- I'm an equal American just like you are.

- The way we change Presidents in this country is by voting.

- A quartet is already a jawn, it'’s just The New Jawn.

- January 6th was not some sort of violent, crazy outlier.

- I don't care how good you are or how good you think you are, there is always something to learn.

- I mean what other country sends comedians over to embedded military to make them feel better.

- People call me 'cause they feel nobody's paying attention.

-_ It'’s not all about memorizing and getting information, it'’s what you do with that information.

- (slowly) Start talking right now.

- That's a good question, high five.

(upbeat music) - Hi, everyone, Steve Adubato for "Remember Them" with my colleague, Jacqui Tricarico.

Today, we recognize two giants in the judicial world.

Over my left shoulder, you'll see Justice William Brennan.

The author of that book, Steven Wermiel, who is a professor of law who talks to us about Justice Brennan, born and raised in Newark, New Jersey, served on the Supreme Court in New Jersey, but also on the US Supreme Court for many, many years.

But also Antonin Scalia.

Who do we talk to there Jacqui, in the second half?

- Jaynee LaVecchia, who is the former New Jersey Supreme Court justice here in New Jersey.

- Yeah, Jaynee LaVecchia is not only a former Supreme Court justice, excuse me, New Jersey Supreme Court justice, but is with the firm, McCarter & English, and she understands judicial history, judicial perspective.

And Jaynee LaVecchia is terrific in that interview, because here's what Jacqui and I wanted to look at with this program, not just Scalia and Brennan, William Brennan, and Antonin Scalia with New Jersey connections, if you will, but how the courts have changed.

And we asked both of our guests, Jacqui, how Justice Scalia and Justice Brennan would be looking at the United States Supreme Court today, how incredibly polarized and political it is.

Interesting.

- Yeah, it was really interesting to hear their thoughts on that.

And I think too, looking at the show overall, yeah, there are similarities between Scalia and Brennan.

And Scalia said of Brennan at one point that, he said, William Brennan is probably the most influential justice of the 20th century.

And I think some people would say that of Scalia as well.

And just something that I learned so much more about during this whole thing was Justice Scalia's whole interpretation of originalism and what that meant to him, what that means today, and, you know, should we really take that approach when it comes to looking at the Constitution?

So for Jacqui and myself and "Remember Them" team, we look two Supreme Court justices or associate justices of the Supreme Court, William Brennan from Newark and Antonin Scalia from Trenton, two giants.

- And both New Jersey Hall of Fame inductees too.

- Well, Jacqui always reminds me of things I forget.

Thank you, Jacqui.

Let's take a look.

- (Narrator) The son of Irish immigrants, William Brennan, attended public school in Newark, graduating from Barringer High School.

Upon earning a Harvard Law degree, Brennan returned to New Jersey and entered private practice at the firm of Pitney Hardin.

After military service during World War Two, he again headed back to the Garden State, where he was appointed first to the Superior Court and then to the New Jersey Supreme Court.

Although a Democrat, he was appointed to the U.S. Supreme Court by a Republican President in 1956, where he served until his retirement in 1990.

An outspoken liberal, Justice Brennan wrote more than 1300 opinions, many of which championed individual rights and expanded the right of free speech.

His success in forging consensus on divisive issues speaks not only to his intellect, but also to him as a person.

- We're now welcomed by Steve Wermiel, who is Professor of Practice of Law at American University Washington College of Law and the co-author of that book over my left shoulder, "Justice Brennan: Liberal Champion."

Good to see ya, Steve.

- Thanks for having me.

- You got it.

Professor, let me ask you.

"Remember Them" is all about remembering people who have some New Jersey connection but also often had an impact on the state, the nation, and in many cases, the world.

We should remember Justice Brennan because... - Exceedingly influential as a justice, helped lay the foundation for all of our understandings of rights in the Constitution, believed deeply that the Constitution should be understood to protect individual dignity, but I would also say, never forgot his New Jersey roots.

He was proud of his New Jersey roots.

- Born and raised in and around Newark, New Jersey, if I'm not mistaken.

And his dad, very involved in politics, influenced his career.

But is it fair to say that Justice Brennan, while obviously being very progressive, liberal, weighed in heavily on gay rights, abortion rights, opposed to the death penalty, was for affirmative action, very firmly for affirmative action, that Justice Brennan was not a, quote, political jurist?

- You know, it's become popular for the Conservatives to criticize him as being political.

He thought of himself as totally unpolitical.

His father, as you suggested, was very involved in Newark politics, became one of the city leaders in the late '20s and early '30s, and wanted his son to get involved in politics.

And Justice Brennan campaigned, I think, once with his father and then said, "That's it.

I've had enough."

He didn't really wanna be involved in politics, and he thought that he was a good jurist.

He believed he was interpreting the constitution and the laws in a way faithful to his view of that process.

- Professor, let me ask you this.

But one of the cases that our guests talked about was a case in which I believe Justice Brennan wrote the majority opinion, 5-4 opinion on the flag burning case, the right of an American to burn a flag and have it be considered part of their, quote, unquote, free speech under the United States Constitution.

The fact that Brennan and Scalia, very different views, were the same on this, could that ever happen today in your view?

Or is it likely to happen today?

- It would be harder to have it happen today.

If it happened today, it would be more likely to be on a free speech issue than anything else.

- Not flag burning.

- But it would be harder to get there.

Well, you know, Scalia believed that burning the flag was a form of protest.

And you couldn't single out the content of that protest and prohibit it.

That went against the sort of basic view of free speech.

And Brennan, I think, believed that even more deeply than Scalia, and that's what brought them together on that issue.

It would be a lot harder to get that unity today.

- So when you think about today, Professor, when it comes to affirmative action or abortion rights, Roe v. Wade in the process of being overturned, a very significant decision by the courts, the US Supreme Court, which has now turned it back to the states on so many levels.

To what degree do you see, Professor Wermiel, Justice Brennan's legacy being torn down by the current court?

- Sadly, from my standpoint, it is being eroded.

I wouldn't say it's gone, but it is certainly being eroded.

As you've suggested, Steve, he wrote the major decisions upholding affirmative action.

And we're pretty likely to see the Supreme Court eliminate affirmative action in the spring this term, which is repudiating much of what Brennan believed.

Brennan was probably the most ardent advocate on the Supreme Court of church-state separation.

He was the one who kept using the image of the wall of separation between church and state.

And the court is in the process of dismantling that quite actively, overturning the right to abortion.

The one place where his legacy, I think, still exists to a large degree is in free speech.

The conservative court is still very protective of free speech in some respect, although not all respect.

And so I think Brennan's legacy is still there.

What do you believe Justice Brennan's view of January 6th would have been?

- Well, I think he would've been absolutely appalled and shocked.

You know, he believed that one of the limits on free speech was that you couldn't riot to claim free speech.

You couldn't cause property damage and incitement to illegal action as a form of free speech.

So I think that he was about as protective of free speech as, I think, any justice ever, in the history of the court.

But I think he would've found that that crossed the line.

- He served 34 years on the court, correct?

- Yes.

- While he was on the court, was, this is really tricky because our prism today is different than what it was 20, 30, 40 years ago plus.

Was Brennan in, quote, the majority, meaning, was there a 6-3, 5-4 majority most of the time in terms of the opinions he wrote, having the majority of the members of the court agree with him?

Or was it a mixed bag?

- It's a mixed bag, and it's a great part of the story of who he is.

In the 1960s, in the court under Chief Justice Earl Warren, the famously liberal, progressive court, he was right in the middle of a pretty solid, workable majority that had the power to do a lot of what it wanted to do.

- What about Rehnquist?

- You know, Earl Warren retired in '69.

And after that, Warren Burger and then Rehnquist were a more conservative court, and Brennan had to work for every victory.

But a great part of the story is that he pulled rabbits out of the hat.

The affirmative action decisions, where he wrote the opinions upholding affirmative action, all came under a more conservative court where he scrounged to find a fifth vote.

He didn't write the abortion decisions, but he was in the majority in all of the cases upholding the right to abortion.

You know, there are many, many examples like that, where, expanding the scope of the Constitution to reach gender discrimination is another piece of Brennan's legacy.

- On the 14th Amendment, the amendment to the equal rights clause, correct?

- The equal protection clause, yeah.

- Yes, I apologize.

- Yeah, no worries.

But that's Brennan legacy and some place where he had to scrounge to get those votes.

So he was more successful in the 1970s and 1980s than he or anybody else had any right to expect that he would be.

- Real quick on this, Brennan on the New Jersey Supreme Court, his influence.

- He did a number of things.

He dissented, much to the dismay of Arthur Vanderbilt, the chief justice who thought Brennan was gonna be his sure pal as a vote, and Brennan wasn't.

He had his own mind, but he worked with Vanderbilt to reform the New Jersey court system, eliminate delays, make the handling of cases much more open, honest, and efficient.

And that's an important legacy, I think.

- Yeah, wonder what Brennan would say about all the judicial vacancies, the delays in the court system.

Whole bunch of things going on in the court system, judicial system system that it would be amazing, fascinating to hear Justice William Brennan's view.

The book is "Justice Brennan: Liberal Champion."

The co-author is Professor Steve Wermiel.

Professor, we thank you so much for putting this extraordinary justice of the Supreme Court, associate justice of the Supreme Court, who in fact had New Jersey roots, Newark, Brick City roots.

And we look at Antonin Scalia right after this.

Professor, thank you so much for joining us.

- Thanks for having me.

It was a pleasure.

- You got it.

"Remember Them," right after this.

- [Narrator] To watch more One on One with Steve Adubato find us online and follow us on Social media.

- (Narrator) Born in Trenton, Antonin Scalia graduated from Georgetown University and Harvard Law, eventually becoming a Professor of Law at the University of Virginia in 1967.

Four years later, he began his career in public service under President Nixon eventually being named his assistant attorney general for the Office of Legal Counsel.

After a stint teaching, President Reagan nominated him for a seat on the D.C.

Circuit Court of Appeals, where he built a conservative record while also winning legal admiration for his powerful and witty writing.

That led in 1986 to him being nominated to the Supreme Court and unanimously confirmed by the Senate.

The intellectual anchor of the court's conservative wing, he was nonetheless admired by legal observers of all stripes as a fierce advocate of his point of view.

- (Scalia) Don't forget that the Bill of Rights was an afterthought.

It was not what they debated about in Philadelphia.

- (Narrator) While his friendship with liberal icon Justice Ruth Bader Ginsburg and love of opera showcased his wide ranging love of life.

- We're now joined by Jaynee LaVecchia retired Justice of the New Jersey Supreme Court and a partner at McCarter & English.

Judge, good to see you.

- Great to see you too, Steve, thanks for having me.

- It's our honor.

Antonin Scalia served on the United States Supreme Court from 1986 'til his death in 2016.

His most significant impact and contribution to justice in this nation would be?

- His lasting impact on changing, I think the legal culture and how we approach questions of law.

He insisted on judges having a principled approach that they would follow in addressing questions, and he was so insistent on requiring that of himself and others, he changed the way other judges approached the law.

He wanted people to focus on the words of a statute, and the words of a constitution.

And I think after he insisted on that year, after year, after year in defense, sometimes in majority opinions, I think judges now are loath to ever start an analysis without looking precisely at the words first and foremost.

- You know, so interesting, Judge, Antonin Scalia, seen by many accurately so, as a very conservative justice on the Supreme Court, had meaningful relationships with others on the Supreme Court, including Ruth Bader Ginsburg.

They had a real friendship, a genuine friendship.

Enjoyed debating law, teaching law, teaching the Constitution.

But unless I'm wrong about this, in reading about Justice Scalia from Trenton originally, then moved to Queens, so there's a New Jersey connection, not personal, not acrimonious, or am I engaging in what I wanna believe?

- Well, I think he did enjoy very close, friendly, humorous, warm relationships with his brethren on the court.

And he enjoyed the combat of the battle, I think is how he would view it.

The give and take of argument in front of the court.

Sometimes he got a little sarcastic in his questioning.

And a little- - Personal attacks?

- No, I think he used sarcasm and humor and very direct questioning to get at the heart of a matter and what was troubling him about an advocate's position.

So advocates, I believe, found it helpful to know that right upfront in order to be able to deal with it.

In fact, Justice Kagan spoke about this.

Her first argument before the court happened to be of all things Citizen Union.

She argued Citizen Union as a first time appellate advocate, and right out of the box she was questioned really hard by Justice Scalia, and in her remarks about him after he passed, she said how much she welcomed that, even though it threw her for a loop initially, it made her focus more intently on her argument and get her legs steady under her.

So I- - The Citizen Union case about I'm sorry for interrupting, was that Citizen Union case about money and campaigns?

- That's correct.

- Just clarifying, I have to ask you this, What would you think Antonin Scalia.

would think of the court today, the Supreme Court today, and how incredibly polarized it appears to be, A and B?

How people interpret the rule of law often based on their political prism?

- He spoke about that, Steve.

He didn't want people to think that in approaching a question, he was approaching it as he might vote politically or as he might take a position in an academic discussion on his personal views.

He viewed law as rule of law means law of rules.

And he wanted to follow those rules very closely and carefully.

That was his position for textualism, when he was looking at a statute, he wanted to look at the words of the statute itself.

He didn't care what any one legislator, while it was being passed, said about it, because he viewed the end result as the compromise of many, and he wanted to look at that in its entirety.

When it came to the Constitution, and you asked about originalism, he wanted to know what the words meant at the time the constitutional provision was put in place, and he used that to then verify the historical context for that interpretation.

That's how he secured, perhaps his greatest triumph, which was his views on the Second Amendment in the case called Washington- - The Heller decision?

- Versus Heller, yes.

- I'm sorry I interrupted you.

The Heller decision.

This fascinates me because again the people talk about the Second Amendment, very few people who have studied it and really understand it but in the Heller decision, is it fair to say that the the case was largely about whether the Second Amendment referred to individual's rights to bear arms versus a state militia, a government militia's right to bear arms?

And Scalia felt that no, it was an individual right.

Is that a fair assessment?

- Yes, it is.

It's very fair and accurate.

That's what he concluded.

And yet interestingly he never viewed the right to bear arms which he looked at back in time, and what he viewed the framers of the Constitution and the Bill of Rights meant when they put those words in place, it didn't mean just the kind of weaponry that existed back at that point in time.

So there was a little bit of flex in his application of his understanding, bearing arms included modern arms.

So I think about January 6th, and I think about The role of the courts in A and B, how you believe Scalia would look at the need to, in a fair judicial fashion, deal with those who are engaged in what some believe, many believe, to be a violent effort to overthrow the government with weapons?

- I would like to think from his past work, his body of work, that he would not care who people were.

He would apply the rule of law as he understood the words of a particular statute applied to an individual.

Now, there are two things I'd like to point out about that.

One, Justice Scalia was very protective of the rights of defendants.

He was, and people attribute that to the fact that he spent time on the lower court setting when he was a judge on the Court of Appeals in DC.

So he was very meticulous about procedure and about the rights of defendants.

He did not care at all for unreasonable searches and seizures that, in his view, required warrants.

And he held, surprising to some people, contrary to the government on many of those situations.

- He was concerned about government overreach, prosecutorial overreaching, if you will.

I'm sorry, Judge, go ahead.

- Yes, no, you're right, I'm nodding because I agree with you.

He would follow his principles even if the principles and the application of the law led to an outcome that he might personally find distasteful, which is why he was able to provide the fifth vote in the flag burning case.

- Okay, so for those who say America love it or leave it, you burn a flag, that's it, that's a crime, you're going, Scalia said what?

- Scalia said, it's part of First Amendment rights to be able to engage in that speech.

He was the fifth vote that upheld that right, Justice Brennan, another New Jersey son wrote the opinion, but interestingly there would not have been a majority of the court if Scalia, Justice Scalia, had not joined that majority.

And when he talked about it later on, speaking to students or gatherings of lawyers and judges, he said, "Yes, I really didn't care for that result at all but my analysis required me to go there."

- Wow, and Justice Brennan as we looked at as well on "Remember Them", a very progressive, some say liberal, left-leaning Justice of the Supreme Court from Newark, New Jersey.

Justice Scalia from Trenton moved to Queens, as we said, an arch conservative on the court, he was the fifth vote along with Brennan and others.

Judge I, it's an amazing time.

And PS Scalia loved teaching law, right?

- He absolutely did, he spoke to students everywhere, frequently coming to New Jersey.

He was speaking to a group of high school students from New Jersey that were visiting him at his chambers.

And they asked, "What's the most important right?"

And he said, "Well, you know, New Jersey, the US Government has a number of rights in the Bill of Rights, but there were more in the old Constitution of the Soviet Union, the most important thing is separation of powers.

Because unless you have no overreaching by any branch of government it doesn't matter how many rights you write in the Bill of Rights, you need a government to enforce them."

And that's what he saw as the role of the judiciary.

- Judge Jaynee LaVecchia, a retired Justice of the Supreme Court in New Jersey, and also a partner at McCarter & English, to all of our friends at the firm, at McCarter & English, please give our best.

We cannot thank you enough Judge for joining us and putting Justice Antonin Scalia in perspective on "Remember Them", thank you so much.

- Thank you for having me, it's been a pleasure.

- And for those of you who appreciate the historic significance of "Remember Them", we appreciate you staying with us, watching us, and check out our website to find out more.

Thanks for watching, we'll see you next time.

- [Narrator] One-On-One with Steve Adubato has been a production of the Caucus Educational Corporation.

Funding has been provided by PSE&G, NJM Insurance Group.

RWJBarnabas Health.

Let'’s be healthy together.

The New Jersey Education Association.

Horizon Blue Cross Blue Shield of New Jersey.

Prudential Financial.

New Jersey Institute of Technology.

And by The Russell Berrie Foundation.

Promotional support provided by The New Jersey Business & Industry Association.

And by BestofNJ.com.

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As part of the Garden State, we help companies keep their vehicles on the road, employees on the job and projects on track, working to protect employees from illness and injury, to keep goods and services moving across the state.

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