American Original

"Do you think he even knows the rest of us are here?" old-school Nixon appointee Lewis F. Powell whispered in 1986 to his fellow Supreme Court justice, the legendary Thurgood Marshall. Both men were looking on as their newest colleague grabbed the chance to play pit bull. Greenhorns on the nation's high court usually put obsequiousness first and  assertiveness second, but not Antonin  "Nino" Scalia. 

 

Joan Biskupic's American Original: The Life and Constitution [nice touch] of Supreme Court Justice Antonin Scalia  documents how little her subject has mellowed.  You'd have to go back to indiscreet  FDR pick William O. Douglas -- Scalia's opposite in ideology and lifestyle, but his match in passion --  to name the last associate justice with this much dramatic impact.

 

"Why does the argument have to be dull, for God's sake?" Scalia wondered to Biskupic in 2008.  It's no surprise when we learn from this first-rate biography by a veteran legal-affairs reporter for USA Today that he's a serious opera fan. Inside the Court,  Scalia's scorn for playing nice has cost him majorities on more than one decision. Authorship of other opinions got reassigned when his intransigence left even simpatico colleagues unable to sign on.

 

Blessedly or not, those qualities also helped deny Scalia a shot at becoming chief justice in 2005, the only time the job has been open during his SCOTUS tenure.  His influence has been seismic anyway.  His take-no-prisoners intellectual brio made him a hero to a generation of Reaganite ambulance stoppers, GOP acolytes radicalized by the Court's midcentury liberalism under Earl Warren.

 

Two such acolytes -- Bush 43 legacies John Roberts and Samuel Alito --  now share the high bench with their rough John the Baptist.  When he looks at the ultrasmooth Roberts, who seems to have been baked in a test tube for the sole purpose of winning enough Senate confirmation votes to someday declare Congress unconstitutional, Scalia could hardly be faulted for quoting Picasso's line: "You do it first, then someone else does it pretty."

 

Biskupic's book is that uncommon thing, a genuinely fair-minded study of a polarizing (and still active) public figure.  She's also a biographer shrewd enough to recognize sideshows when she sees them.  Even though the portrait is vivid, complex, and zestily detailed,  spelunking around in Scalia's innermost motives isn't her priority.  Since he comes off as one of those  formidable extroverts whose psychology and intellect operate in such powerful tandem as to be indistinguishable, it doesn't need to be.

 

American Original makes sure nonetheless that we'll have a rich sense of his origins. Recalled as "demanding" and "severe" even by a son who's no Mister Rogers, his father, Salvatore Eugene Scalia, was an untutored immigrant who became a college professor and expert on Dante. Lacking not only siblings but even cousins -- a genuine improbability for an Italian clan in Jersey in the 1930s and '40s -- young Nino was spotlit  from the start. 

 

He was also raised as what he's remained, a hard-core Catholic without much tolerance for such make-nice 1960s innovations as the vernacular Mass.  Vatican II, he tells Biskupic with a characteristic (and likable) command of non-legal American idiom, "was not on my hit parade."  In this as in all his core values,  the most impressive and unnerving thing about Scalia is that he seems unable to experience or even understand doubt. 

 

Flash forward two decades to his first government gig. He'd compiled a predictably stellar record at Georgetown University, then rather less secularized than it is today.  Next came a magna cum laude  at Harvard Law, followed by a stint at a Cleveland law firm he quit just before making partner to teach at the University of Virginia. But Biskupic thankfully treats all this as prelude.  For her, Scalia's career begins with the 38-year-old's appointment as an assistant attorney general just days after Richard M. Nixon resigned the presidency in 1974.

 

Liberals were exulting in their victory over the Wicked Witch.  But given its role as the kiln of so much that came later, their misunderestimation of Gerald Ford's presidency as a hapless interlude may deserve a rethink. Enter a duo you know all too well: vigorous young Donald Rumsfeld, Ford's initial chief of staff before becoming his secretary of Defense, and one Dick Cheney, who took over for  Rumsfeld in the West Wing.  Watergate's damage to presidential authority had made both men zealots for restoring executive power, and Scalia was there with bells on. Speaking of Cheney, Scalia said later, "He knew who I was. He knew my qualifications. He knew I was on the right team."

 

Scalia quickly won a feisty reputation as an undaunted defender of White House prerogatives.  But Ford's 1976 defeat sent him back to private life: this time, to the University of Chicago, where his most vital legacy was to assist at the birth of the Federalist Society. Then an embryonic (just two chapters) association of conservative law students, today it's a right-wing judicial powerhouse whose effectiveness as a talent pool puts the NFL draft to shame. 

 

Once Reagan won the presidency,  Scalia was eager to get back in harness.  Being passed over for the solicitor general's job at Justice left him "bitterly disappointed" -- his words, not Biskupic's. But he soon got a plum that fit his talents better: a judgeship on the Court of Appeals for the District of Columbia Circuit. Next stop, the Supremes.

 

Biskupic is at her best in how she uses Scalia's four years on the appellate bench to dramatize the shift in American courts from last outpost of the Great Society to GOP fiefdom.  His opposite numbers on the D.C. Circuit were Truman appointee David Bazelon and JFK  appointee Skelly Wright, both members of "a liberal old boys club" that also included the Supreme Court's surviving liberal titans. They were also both exponents of a "living Constitution" that evolved with the times, a doctrine Scalia abhorred.

 

Soon dubbed "the Ninopath," he set to work propounding the drastically narrower interpretations Reaganites favored. His trademark qualities as a justice were already on full display, from the flair and pungency of his written opinions -- love him or hate him, he's his generation's most quotable jurist -- to an anti-press animus that led New York Times columnist William Safire to somewhat startlingly call him "the worst enemy of free speech in America today."

 

Safire also suspected the Ninopath of playing to the White House with an eye on the next SCOTUS vacancy: "The posture of being the fiercest opponent of the First Amendment does not hurt a judge's chances." Whether or not there was any truth to that, Scalia got the nod,  but what tells you how much the world has changed is that he was confirmed 98-0.  A year later, Reagan's foiled nomination of Robert Bork -- Scalia's great '80s rival as judicial conservatism's intellectual white knight -- launched the polarized era that cable-news viewers and both Clarence Thomas and Sonia Sotomayor can testify to.

 

Naturally, the meat of American Original is Scalia's 23 years (and counting) on the high court.  Readers allergic to legalese have reason to be grateful for Biskupic's lucidity as she guides us through dozens of cases. Always alert to incidentals that humanize them, she never loses track of the larger issues they dramatize or the insights they provide into Scalia's temperament. 

 

Instead of taking things year by year, she opts for thematic bundling -- allocating a chapter apiece to his tenure's recurring motifs,  with race questions, abortion, and other ethical quandaries, and the slow expansion of gay rights in the teeth of his resistance all bulking large.  Admittedly, this M.O. makes for some minor narrative confusions; we have to keep toggling between Scalia's relatively isolated first decade on the Court, which by 1996 had him so frustrated he considered stepping down, and the very different dynamic from which he benefited in the George W. Bush era.  Yet it's probably the most sensible way to tackle the material, considering a chronological approach would all but guarantee missing the forest for the trees.

 

The one way Scalia makes his biographer's job easier is pretty basic: he doesn't evolve.  Any number of justices more reflective than he have ended up in a different place from the one they were expected to fill on the court. One famous example is Harry Blackmun,  the staunch Republican who ended up not only authoring Roe v. Wade but decrying capital punishment after voting in favor of it multiple times. 

 

The Scalia of 2009, on the other hand -- scornful of all but the bleakest readings of individual rights, contemptuous of mandated remedies to bigotry, taking a lumberjack's view of the First Amendment, and reliably backing almost untrammeled executive power -- differs from the Scalia of 1986 only in his greater clout.   A man who, as Biskupic puts it, "considered equivocation a serious character flaw," he was a hardhead incapable of putting himself in anyone else's shoes then. He's still surrounded by empty pairs of sneakers, high heels,  Birkenstocks and Gitmo prison footgear today.

 

Scalia unsurprisingly gets bellicose at any suggestion that  his own biases and goals affect his sense of the Constitution, going so far as to maintain that his opposition to Roe v. Wade "has nothing whatever to do with my being a Catholic. It has to do with my being a good lawyer."  But while even sensible pro-choicers can regret Roe's flaws of reasoning, "nothing whatever" is gilding the lily.  Only a numbskull would think Scalia's religion and upbringing don't influence his views of not only abortion rights but the separation of church and state. Just last month, too late for Biskupic to include it -- unless it's in her closing chapter, omitted from the version of American Original sent reviewers -- he was expressing his stupefaction that Jews and other non-Christians could feel excluded by a Mojave Desert war memorial in the form of a cross. 

 

Furthermore, as she suggests here and there -- fairly delicately, since it's a tricky subject that's gotten trickier now that no less than six justices are Catholic -- his lifelong adherence to the uncompromising tenets of the pre-Vatican II Church isn't exactly at odds with his pro-authoritarian streak. Even when his arguments hold water, to call them dispassionate would be ridiculous. "Screams!"  Blackmun wrote on his copy of one early Scalia dissent, taken aback by its emotionalism.  One legal commentator quoted by Biskupic puts it more tactfully, or maybe just archly: "Whatever he may represent politically, Justice Scalia is also an individual in whom constitutional theory and personal identity fuse."

 

That's what makes him an unlikely poster boy for Republican claims that they're only trying to protect our founding document from the "judicial activism" he in fact robustly embodies. Variously termed "strict constructionism," "originalism" (the one Scalia likes), and "textualism," right-wing advocacy of sticking to the letter of the Constitution generally comes down in practice to lofty cover for a desired political result: reduced rights and entitlements. So does the liberal "living Constitution" rhetoric that promotes expanding them.

 

One polemical advantage of the "living Constitution" argument, though, is that its deliberate vagueness as dogma  makes opportunistic departures from it hard to pin down. Not so textualism,  undermined in the text itself by the Ninth Amendment -- the one that says,  in toto, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  That noted nonfan of construing, Robert Bork, once disparagingly if not outright denyingly called the Ninth "an inkblot," proving textualism is as textualism does. Though the amendment had been successfully theorized into irrelevance before Bork and Scalia were born,  shouldn't they be the ones insisting it means what it says it means?  If they don't, that's because it doesn't suit them to.

 

Even for a layman, the holes and contradictions in Scalia-style "originalism" are no chore to discern.  Example: his belief that the Constitution confers large discretionary powers on the executive "by default."  As legal logic, that's no different from the constitutional "penumbras" implying a right to privacy that Douglas invoked or invented to justify Griswold v. Connecticut,  the birth control case that set the stage for Roe v. Wade.  

 

Example: Scalia's 2008 claim to the BBC that the Eighth Amendment's prohibition against "cruel and unusual punishments" applies only to "punishment for crime," making torture of enemy combatants under interrogation legit. But the Eighth Amendment includes no such qualifier.  What makes the omission even more striking is that its predecessors in the Bill of Rights all do spell out what they apply to: ""In all criminal prosecutions..." (the Sixth), "In Suits at common law..." (the Seventh).  The absence of any such boilerplate from the Eighth's punishment clause is a powerful clue that the prohibition is general.

 

Example:  Scalia often gets laughs at conservative gatherings by reminding his listeners that homosexuality is nowhere mentioned in the Constitution. (Neither is God, but I digress.) Yet his dissent in Romer v. Evans, the 1996 decision overturning an amendment to Colorado's state constitution that prohibited local jurisdictions from passing gay-favoring anti-discrimination ordinances,  also claimed American law "allowed distinctions between homosexual and heterosexual conduct." How can it, if the Founders were mute on the topic?  You'd love some originalist to explain that one.

 

Example: One of Scalia's most successful crusades,  upending decades of appelate and Supreme Court practice, has been to disallow consideration of any law's "legislative history"  -- meaning committee reports, floor debates, and the like -- in determining its intent.  Of course, the practical effect of ignoring this raft of useful indicators to what Congress might have actually had in mind  is to give  him more latitude, not less, to impose his own interpretation in the guise of stark fidelity to the text. 

 

But over the years, Scalia has buttressed his opinions with supporting "evidence" much more vaporous than legislative history -- appeals to "relevant tradition," "the historic practices of our people," and what New Yorker writer Margaret Talbot called "his own selective notion of the vox populi."  Here's Biskupic's summary of his dissent in one decision that prohibited the posting of the Ten Commandments in a couple of Kentucky courthouses: "He said the nation's history and the understanding of the Constitution's drafters allowed 'acknowledgment of a single Creator.' " The nation's history, really? The understanding of the Constitution's drafters? If that's textualism, the Federalist Society is the proud owner of a bridge somewhere.

 

For Democrats, the most glaring example of Scalia and his fellow conservatives' readiness to ignore their own dogma for the sake of a desired political result will always be Bush v. Gore, the 2000 decision that put W. in the White House.  As Biskupic puts it,  "It would be difficult to overstate how much Scalia had tried to rein in the Court's use of the equal protection guarantee" -- the provision of the Fourteenth Amendment that's been anathema to conservatives since the Warren Court's expansive readings of it -- "and how much the Rehnquist Court had been defined by its federalism decisions safeguarding state authority." 

 

Nonetheless, both those principles got heaved overboard for the sake of protecting Florida voters' right to vote for George Bush, whether or not they'd meant to.  Tellingly, the decision included a proviso that "our consideration is limited to the present circumstances" -- meaning it shouldn't be used as a precedent, despite the awkward fact that establishing those is the Supreme Court's raison d'être. Snappish even for him, Scalia's standard reply when Bush v. Gore comes up at public forums is "Get over it," suggesting he knows perfectly well that it turned his own proudly advertised judicial philosophy into a sham.

 

Whether or not we've gotten over it, it'll be a cold day in hell before we get over Nino.  One of Biskupic's best stories may go a long way toward explaining why.  After a speech he gave in Louisiana in 2002,  Scalia met a young  admirer who told him, "I've named my pet fish after you." A law prof standing nearby asked if this devotee owned fish named for the other Supremes. The answer? "No.  Justice Scalia ate all the others."

 

 

 

 

 

 

 

Comments
by atp on ‎11-16-2009 07:27 PM

I hope the book is better than this review.  Mr. Gordon displays both ignorance and bias in nearly every paragraph.  Justice Scalia is the most important jurist of the past 50 years not because he has been at the forefront of a supposed political change in the federal courts (which has occured, but not nearly to the extent or effect imagined here), but because he has consistently and powerfully articulated a vision of legal interpretation that has been influential among legal scholars, lawyers and judges of all political stripes.  As necessary to his age as the last great Court change agent, Chief Justice Warren, was to his, Justice Scalia is woefully misunderstood if he is viewed through the cable-news, talking-head prism of liberal and conservative, Roe v. Wade, and hot button issues of the day.  Don't get me wrong.  I think Justice Scalia's politics and social views are out of step with America and that he allows them far too much influence in his analysis.  But his real influence, and his real importance, has nothing to do with whether he thinks gays should be able to marry, or whatever the next news cycle issue will be.  It is that he has, by exortation if not always by example, once again rooted the American tradition of jurisprudence in the text of its authoritative documents.  As much as the nation needed the Warren Court to breathe new life into the constitution, the nation's courts needed what has been, for all intents and purposes, the Scalia Court, to swing the pendulum back.

by karlub on ‎11-17-2009 03:54 PM

Was B&N really unable to find someone familiar with legal theory to review this book? This missive is transparently politically biased-- which is his prerogative, if potentially unhelpful in a bookstore platform-- but also shows, at best, an undergraduate's understanding of legal theory.

 

The Ninth Amendment, for example, was meant by the Founders to ensure that the enumeration of particular rights in the Constitution was not meant to deny the existence of those not enumerated. This is an interpretation shared by both Scalia and liberal legal icon Laurence Tribe. Feeling it is not the Court's obligation to discover or enforce these unenumerated rights is not inconsistent with this view. What it does do, is it permits legislation to emphasize to further identify these rights. Carson's interpretation, for example, would permit the Court to find a "right" to Federally subsidized New Age aromatherapy as a part of the "General Welfare" clause in Article I.

 

More fundamentally, Mr. Carson appears entirely unfamiliar with the notion that just because the Supreme Court cannot ensure something is Constitutionally protected does not mean it is forbidden. In other words, should Federal or State legislatures want to pass legislation regarding abortion, gay marriage, or waterboarding-- all of which are not mentioned in our founding documents-- they are free to do so. Furthermore, an orginalist court is compelled to let them. An activist court, on the other hand, may or may not insert itself into the matter, depending on its composition at any particular moment.

 

Personally, I allow as this reading of legal theory is, perhaps, mistaken. It is, though, an entirely mainstream direction of thinking. The fact that Mr. Carson misunderstands it so fundamentally renders him unfit to have performed this review. A survey of Mr. Carson's work indicates he knows his way around movies and music. But he also indulges in the fairly predictable left-wing political commentary that one would associate with a film and music critic. Again, there is nothing wrong with this. But it is inappropriate to assign someone with his background this particular review. Unless, of course, interesting and useful reviews for people likely to look into reading this book are not a priority.

 

by Mick_Lewis on ‎12-11-2009 01:20 PM

Yet his dissent in Romer v. Evans, the 1996 decision overturning an amendment to Colorado's state constitution that prohibited local jurisdictions from passing gay-favoring anti-discrimination ordinances,  also claimed American law "allowed distinctions between homosexual and heterosexual conduct." How can it, if the Founders were mute on the topic?  You'd love some originalist to explain that one.

 

 

It's actually quite simple. Since the constitution does not specify any law regarding homosexual conduct, American law is free to address it, without interference from the courts. It's actually quite simple. What Scalia opposes is courts deciding that perfectly constitutional existing laws (meaning laws such as this one that don't contradict the constitution) are somehow "unconstitutional." There is no contradiction.

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