Two-ninths of the nation’s top court sparred in a verbal jousting match Friday in front of a Lubbock audience.

A discussion on judicial interpretation of the Constitution, case law and legislation became a surprisingly heated debate when Justices Antonin Scalia and Stephen Breyer of the U.S. Supreme Court shared their insight in front of about 4,500 people Friday evening at the Lubbock Memorial Civic Center.

Known for their opposing views on the bench, Scalia and Breyer, appointed by presidents Ronald Reagan and Bill Clinton in 1986 and 1994, respectively, hit on such topics as abortion and cruel and unusual punishment as part of the Texas Tech School of Law’s Sandra Day O’Connor Distinguished Lecture Series.

“From the outside you think we disagree about everything, but we’re unanimous in our court about 40 percent of the time,” Breyer said, evoking chuckles from the audience.

The lecture rarely focused on either justice’s dissent or support of key cases or issues, but rather the manner to which they’ve come to their conclusions and supported their decisions on cases they’ve heard in their decades serving on the nation’s highest court.

The two men’s main point of conflict came in Scalia’s support of directly analyzing the text of legislation when making a ruling compared to Breyer’s support of interpreting the context and values behind a piece of legislation.

“There are ways of determine how and what the legislature was thinking of ... to determine what is the object of this law,” Breyer said.

Scalia, whose 24 years on the bench make him the Supreme Court’s longest currently serving justice, said Breyer’s method leaves too much of the decision-making process to interpretation.

“The only thing you know for sure is the words of the statute,” he said.

The lecture was moderated by New York University School of Law professor Arthur R. Miller, who often played devil’s advocate during the lecture that featured an off-beat discussion on flogging as a possible form of cruel and unusual punishment.

As an example of his textual-based stance, Scalia said interpreting the Constitution verbatim would in no way support banning the death penalty simply as a form of cruel and unusual punishment.

Noting that flogging is not banned in the Constitution, Breyer said, he would be interested to hear how Scalia would rule on a case involving the medieval punishment regularly used when the Constitution was written in the late 18th century.

Scalia’s response: “There’s a lot of stuff that’s stupid that’s not unconstitutional.”

Jokingly conceding, Scalia said he would stipulate that a court can do some positive work when ruling on a case in part by interpreting the values that went in to producing a piece of legislation or an amendment.

“Kings can do some things that a democracy would never do,” he said. “Hitler made great cars — trains ran on time in Italy under Mussolini.”

The justices also took several questions from the audience.

Miller repeated one question from an audience member: Is there a clause in the Constitution that appears to have brought the justices into disagreement more than any other.

The justices mumbled across the table to each other, trying to come to a conclusion.

“They’ll give us an answer in three weeks,” Miller said to the laughs of many in the audience.

Then, Breyer concluded: “We can disagree about almost anything.”

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