By Jeffrey Rosen
Published: December 31, 2009 [?]
New York Times
Love him or hate him, Antonin Scalia has had a greater influence on the way Americans debate the law today than any other modern Supreme Court justice. Conservatives hail Scalia as the founding prophet of their true faith — the Jurisprudence of Original Understanding — and the leader of the opposition to moral relativism and judicial imperialism in the age of Obama. Liberals scorn Scalia as a show-off and intellectual bully who is quick to betray his constitutional principles when they clash with his fervent beliefs as a crusader in the culture wars. It's hard to write a fair-minded biography of such a polarizing figure, but that's what Joan Biskupic has done with "American Original."
Bettmann/Corbis
Antonin Scalia in 1986.
AMERICAN ORIGINAL
The Life and Constitution of Supreme Court Justice Antonin Scalia
By Joan Biskupic
Illustrated. 434 pp. Sarah Crichton Books/Farrar, Straus & Giroux. $28
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Times Topics: Antonin Scalia | U.S. Supreme Court
Scalia's social conservative sensibility was shaped at Xavier High School, a Jesuit academy in Manhattan where he attended military drills after school (and fondly recalls carrying his rifle on the subway). He went on to graduate first in his class at Georgetown and then attended Harvard Law School; during a series of interviews, he told Biskupic that the lasting lesson he took from his time with the Jesuits was: "[Do] not . . . separate your religious life from your intellectual life. They're not separate."
Scalia's formative political experience was his tenure as head of the Office of Legal Counsel in the Ford Justice Department, where he zealously defended executive power in the wake of what he viewed as post-Watergate assaults by a Democratic Congress. In 1974, along with Donald Rumsfeld and Dick Cheney, Ford's chief of staff and his deputy, Scalia persuaded Ford to veto an expansion of the Freedom of Information Act as an intrusion on the president's "exclusive" authority. Congress promptly overturned the veto; but Scalia maintained his friendship with Cheney who continued, as George W. Bush's vice president, to assert similarly broad claims of executive secrecy.
A legal Zelig, Scalia pops up at the center of other 1970s-era debates over executive power. He served as the point man for the Ford administration in opposing a federal shield law for journalists, testifying before Congress that "I do not see any great First Amendment problems" in forcing reporters to identify their sources. He called warrantless wiretapping "a practical necessity" and opposed the creation of the Foreign Intelligence Surveillance Court. He would later tell the editor of Time magazine that he favored overturning New York Times v. Sullivan, perhaps the most important free speech decision of the 20th century, which made it hard for government officials to sue their critics. Because of Scalia's dismal record on secrecy and surveillance as a federal appellate judge, the libertarian New York Times columnist William Safire attacked him in 1985 as "the worst enemy of free speech in America today." Yet when Scalia was nominated to the Supreme Court a year later, the Senate, giddy at his heartwarmingly ethnic rags-to-meritocracy story, voted to confirm him 98-0.
On the court, Scalia has shown a disdain for elites that keeps him not only in the Dick Cheney but also the Sarah Palin wing of the Republican Party. He is nostalgic for a 1950s world that he believes the court is dismantling in front of his eyes. But in addition to being nostalgic, Scalia can also be bitter. As the grandson of an Italian factory worker, Scalia has said repeatedly that he empathized not with African-American beneficiaries of affirmative action but with "the Polish factory worker's kid" who lost a job or a university slot because of "reverse discrimination"; as a Supreme Court justice, he has written a series of decisions striking down affirmative action. "You have to be prepared to be regarded as idiots by sophisticated, modern society," he told Biskupic in explaining his 1996 speech urging a Christian audience to "pray for the courage to endure the scorn" of the "worldly wise," who don't believe in miracles and the resurrection of the dead. And he also told Biskupic how much he lamented the decline of the recreational hunting culture of his youth. He then wrote a 5-4 decision declaring the right to bear arms to be a fundamental, individual right.
Now hold on, I hear you say. Isn't the whole point of Scalia's judicial philosophy that he's supposed to separate his personal beliefs from his constitutional conclusions? As Biskupic notes, "Scalia had long believed that judges were wrongly using their own personal values to decide legal issues." Why is it, therefore, that on many of the issues he cares most passionately about, Scalia's constitutional conclusions seem to coincide precisely with his personal preferences regarding affirmative action, school prayer, abortion, gay rights and gun rights?
As it happens, it's not only some Democrats who view Scalia as a constitutional hypocrite: many prominent independent and Republican judges and scholars have also criticized him for ignoring the original understanding of the Constitution in the cases he cares most passionately about. As Biskupic points out, Judge Richard Posner has derided Scalia's constitutional history in the gun case as "faux originalism," and Judge J. Harvie Wilkinson has compared Scalia's gun opinion to Roe v. Wade for its refusal to defer to the political branches. There are other conservative critics as well. The former judge Michael McConnell, the leading conservative scholar of the original understanding of the Civil War amendments, has called into question Scalia's historical claims about religious freedom and affirmative action. These critiques are devastating, but Scalia has not responded to them.
Nevertheless, in her impressively balanced and well reported book, Biskupic, who previously wrote a biography of Sandra Day O'Connor, gives Scalia his due. She notes, for example, that he has voted to let people burn flags and to confront their accusers. And there are other, below-the-radar cases as well. Whenever I teach criminal procedure, I'm struck by Scalia opinions where his suspicion of judicial subjectivity leads him to libertarian results that he must find personally distasteful — like his decision against the use of drug-detecting thermal imaging technology on private homes without a warrant. In a few terrorism cases, too, as Biskupic notes, Scalia has broken ranks with Cheney in insisting that Congress can't suspend the writ of habeas corpus for American citizens without doing so explicitly. These cases suggest that Scalia — perhaps no more or less frequently than the liberal justices — is able to separate his political from his constitutional conclusions at least some of the time.
By letting Scalia describe himself in his own words, Biskupic offers a profile of a man who, at the age of 73, sometimes appears smug and self-satisfied — adjectives he has used to describe critics of using torture in the war on terror — but not especially self-aware. Scalia thinks of himself as a pleasant fellow, and Biskupic reports that he was dumbfounded when Jon Stewart, in response to a Daily Show guest who suggested that John Roberts was nicer than Scalia, replied, "Aren't we all nicer than Scalia?"
But if Scalia were less Manichean, defensive, pleased with himself and resistant to criticism, he might be more persuasive. He is both a success story about the importance of having a clear judicial philosophy and a cautionary tale about the dangers of an injudicious temperament. As Justice Ruth Bader Ginsburg told Biskupic, "It would be better if he dropped things like: 'This opinion is not to be taken seriously.' He might have been more influential here if it did that."
Jeffrey Rosen, a law professor at George Washington University, is writing a book about the legacy of Louis Brandeis.
More Articles in Books » A version of this article appeared in print on January 3, 2010 [?], on page BR12 of the New York edition.
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