How Antonin Scalia ceased to be a powerhouse jurist and became a crank.
by Bruce Allen Murphy
Simon & Schuster, 736 pp.
The cover of this book says it all. There he is, grinning complacently, his black judges’ robes fading into black. The hair has thinned and the jaw is heavier than it used to be. He is an old bull now instead of a young buck. No one is there on the cover with him: he is all alone. Smug, cocksure, fond of his own wit, certain of his rectitude, Justice Antonin Scalia of the Supreme Court of the United States is oblivious to the way his strident, obnoxious, moralistic hectoring has chased away every friend. If such a doubt occurs to him for an uncertain moment, it soon dissolves, for the upside to being surrounded by idiots is a clear conscience. Let them call him intolerant—let them try to prove he’s wrong. It is all background noise to the sound of his own voice.
Scalia was once a force to be reckoned with on the legal right. He taught at the University of Chicago and cofounded the Federalist Society. When I entered law school in 2001, his dissents were required reading, and could erode confidence in any majority opinion. Scalia was particularly strong on procedure: he made nuances about jurisdiction and standing seem even more important than the merits. A brilliant rhetorician, he was a funny and colorful writer in a profession that seemed wedded to the stereo-instructions model of prose. Scalia also exuded scholarly refinement, peppering his decisions with allusions to classical works in Latin and Greek, and parsing statutory language with precision and rigor. When cracking wise off the cuff, he pivoted on arcana like the distinction between Gothic art and Rococo.
And then something happened. Somewhere in the mid-2000s, Scalia ceased to be a powerhouse jurist and became a crank. He began thumbing his nose at the ethical conventions that guide justices, giving provocative speeches about matters likely to come before the Court. He declined to recuse himself from cases where he had consorted with one of the parties—including, famously, Vice President Dick Cheney. He turned up the invective in his decisions. His colleagues’ reasoning ceased to be merely unpersuasive; it was “preposterous,” “at war with reason,” “not merely naïve, but absurd,” “patently incorrect,” and “transparently false.” More and more, he seemed willing to bend his own rules to achieve conservative results in areas of concern to social conservatives, like affirmative action, gay rights, abortion, gun ownership, and the death penalty. Above all, Scalia stopped trying to persuade others. He became the judicial equivalent of Rush Limbaugh, who has made a career of preaching to the choir. But Limbaugh is not merely a shock jock; he is also a kingmaker. Scalia’s position on the bench precludes any such influence. As a result, he has more fans than power.
The deterioration of Supreme Court justices is a sad tradition in our public life. Abe Fortas was ruined by scandal; William Douglas suffered a stroke and remained on the Court well past the point of incapacity. William Rehnquist became grouchier and nastier with each term; liberals like Harry Blackmun and William Brennan grew acid tongues and scolded their colleagues where before they had built coalitions. Frustrated by the Court’s ascendant conservatism in the 1980s, Thurgood Marshall all but checked out.
Scalia’s fall has been loud and it has been public. He is the Court’s most outspoken and quotable justice, and whether he is flicking his chin at reporters or standing at the lectern attacking secular values, he makes headlines. So when he was passed over for the position of chief justice in 2005, the legal world noticed. President George W. Bush had cited Scalia as well as Clarence Thomas when asked as a candidate to name justices he admired. Yet when Rehnquist suddenly died, Bush did not seriously consider elevating Scalia. “Nino” had rarely demonstrated leadership in assembling or holding together majorities; he had alienated every one of his colleagues at one point or other. His flamboyant antics off the bench might compromise the dignity of the office of chief justice. He would be the devil to confirm. Bush nominated instead John Roberts, an equally brilliant but far more disciplined judge, and one who was better suited to the responsibilities of leadership. After that, Scalia stopped playing nice and started using real buckshot.
Bruce Allen Murphy’s Scalia: A Court of One is the second biography of Antonin Scalia in the past five years—an indication of an unusually high level of interest in a sitting Supreme Court justice. The previous volume was Joan Biskupic’s American Original (2009), a fluid journalistic account filled with insights gleaned from the author’s access to Scalia and the other justices as a Supreme Court reporter. Murphy, a political scientist at Lafayette College, has produced a book more comprehensive and scholarly but with less color and texture. The author interviewed neither Scalia nor his colleagues, and relies for backstage anecdotes on the reporting of others. Scalia is nevertheless a significant achievement—Murphy’s third impressive biography of a member of the Court. Murphy’s and Biskupic’s books differ in tone and emphasis: Murphy is not exactly hostile to Scalia, but he is less sympathetic to him than Biskupic. Yet both authors agree on the central fact that seems likely to define Scalia’s career. In Murphy’s nice phrase, Scalia is “alone on his ice floe,” and it is drifting away from the Court’s center.
Murphy makes a comprehensive study of the way Scalia has alienated the three swing voters to sit on the Court with him: first Lewis Powell, then Sandra Day O’Connor, and then Anthony Kennedy. In one of his first cases as a justice, Hodel v. Irving (1987), Scalia set the wrong tone with the chivalrous Powell. The case concerned the ability of Native Americans to bequeath tribal land as property, but the Court’s focus became the litigants’ standing to sue. Defying the convention that a junior justice should be modest and deferential, Scalia dominated the oral argument, prompting Powell to whisper to a colleague, “Do you think he knows that the rest of us are here?” After the argument, Scalia badgered and browbeat O’Connor in an uncivil draft opinion, on which Powell handwrote, “I don’t like this.” Only Rehnquist’s intervention kept the majority together. It would not be the last time the chief justice would have to repair Scalia’s damage. “Nino! You’re pissing off Sandra again. Stop it!” he wrote at one point.
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