Negative assessment of Antonin Scalia offers little new insight
06/22/2014 12:00 AM
06/20/2014 1:49 PM
For almost 28 years, Justice Antonin Scalia’s originalist brand of constitutional interpretation and his tart tongue have made him a conservative hero, loathed by the liberals he loves to goad. Still angry about Bush v. Gore, the 2000 Supreme Court decision that handed the White House to Republicans? Scalia curtly tells critics on the lecture circuit to “get over it.” More pungent are the barbs he directs in dissent at his colleagues, such as his dismissal as “legalistic argle-bargle” of the 2013 decision that overturned part of the Defense of Marriage Act and expanded gay rights.
Scalia is the rare larger-than-life personality on a court where, ever since the failed 1987 nomination of Robert Bork, the confirmation process has given aspiring justices every incentive to be — or at least to appear — dull and colorless. No other sitting justice can claim to be the subject of both a play ( The Originalist) and a comic opera.
In this new biography, Lafayette College professor Bruce Allen Murphy argues that Scalia’s outbursts both on and off the bench have worked against him, alienating colleagues and dishonoring the court. Murphy, the author of three previous books about flawed justices, rehashes all of Scalia’s most intemperate dissents and impertinent public statements but offers little new insight in this relentlessly negative book.
To Murphy, it’s as if “Nino,” as Scalia is known, never grew out of being the cherished only offspring of his Italian American parents and seven childless aunts and uncles in Trenton, New Jersey. As a New York parochial-school student and on through Georgetown and Harvard Law School, he exhibited the same traits that have defined his life since: combative brilliance, deep-rooted Catholic faith and an almost compulsive need for attention.
Murphy charts Scalia’s restless rise from a law-firm associate in Cleveland to a law professor and a lawyer in the Nixon and Ford administrations, to a seat on the U.S. Court of Appeals for the D.C. Circuit in 1982. Four years later, the Senate voted 98-0 to put him on the Supreme Court after devoting more energy to vetting William Rehnquist’s simultaneous promotion to chief justice.
As an appeals court judge, Murphy writes, Scalia first exhibited his “almost pathological unwillingness” to compromise with liberal colleagues and challenged their “opinions so regularly, personally and vituperatively” that he earned the nickname “the Ninopath.” As a new justice, Scalia quickly became famous for dominating oral arguments and writing sharp-worded memos to colleagues known as “Ninograms.” Much of the book is dedicated to cataloging how he alienated potential allies on the court, particularly Sandra Day O’Connor and Anthony Kennedy. But it’s not clear whether a cuddlier yet equally inflexible Scalia would have done any better at building majorities.
Murphy, who left out no tawdry detail in chronicling Justice William Douglas’ four marriages and assorted extramarital affairs in his last book, Wild Bill, clearly isn’t averse to scrutinizing a justice’s private life. Yet this time he leaves largely unexamined the striking divergence between the sharp-elbowed justice and the man who, off the bench, is by all accounts warm and witty with friends and a family that includes his wife of more than half a century and their nine children.
Scalia has no trouble maintaining friendships with some of the colleagues he disagrees with most vehemently, including Ruth Bader Ginsburg. After serving with him for almost a quarter-century on two different courts, Ginsburg has said: “I love him. But sometimes I’d like to strangle him.” Equally intriguing is the dynamic between Scalia and his conservative colleague Clarence Thomas. The nature of their relationship gets far less ink than the ways in which Scalia has alienated other, less conservative colleagues, although Murphy does note in passing that Scalia’s son Paul, a Catholic priest, helped bring Thomas “back to their faith.”
This book fares poorly in comparison with former Washington Post reporter Joan Biskupic’s 2009 biography of Scalia, American Original, which was more compact and yet far richer in detail about his early life and jurisprudence. Murphy, who so proudly heralds the fruits of his research in earlier books — 100 interviews for his Douglas biography alone — appears not to have conducted many for this one. He did mine the public papers of retired justices and ex-presidents and shows that he carefully read all of Scalia’s public speeches. But because he was writing about a sitting justice, he lacked access to the diaries and private letters that provided the most intimate details in his earlier books about Justices Louis Brandeis, Felix Frankfurter and Abe Fortas.
Nothing in this book suggests that the author spoke with Scalia more than a single time at a reception, but Murphy has no compunction about writing as if he knows exactly what the justice was thinking or feeling at any given moment. This is particularly grating when he suggests that Scalia pined to replace Rehnquist as chief justice, with no more evidence than contemporaneous press speculation.
It is still too soon to gauge the full legacy of Scalia who, at 78, has given no indication that he plans to retire anytime soon. If nothing else, he surely deserves credit as a pitchman for his originalist approach to constitutional interpretation. Whatever you think of its merits, his brand has won in the marketplace of ideas. Major battles, such as the 2008 District of Columbia v. Heller gun rights decision, are often fought on his terms, with both sides arguing over what the founders meant.
As the court leans right — as it has most recently regarding civil rights and the separation of church and state — Scalia may yet see many more of what were once angry dissents become law.
Seth Stern reviewed this book for the Washington Post Book World Service.
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