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June 30, 2014 4:54 PM Robed Curmudgeon

By Ed Kilgore

With all the attention focused on the U.S. Supreme Court’s end-of-term decisions, it’s a good time to think more broadly about SCOTUS as an institution, and as a collection of often-quirky personalities that only those with lifetime gigs can fully indulge. One of the quirkiest is Justice Antonin Scalia, the Court’s resident curmudgeon and hyper-“originalist.” So it’s appropriate that the latest issue of the Washington Monthly features Michael O’Donnell’s review of a new biography of “Nino” by Lafayette College political scientist Bruce Allen Murphy. Titled Scalia: A Court of One, Murphy’s book treats his career as a long decline from the pinnacle of conservative constitutional theory to a cranky status as a self-satisfied loner.

For all the talk of Scalia’s influence, Murphy shows his ineptitude at coalition-building on the Court has actually marginalized him.

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.

Scalia’s famous devotion to an originalism that depends not on the Founders’ intent but on an ex post facto intepretation of contemporary meaning doesn’t fare much better in Murphy’s book. In particular, it contradicts the Justice’s equally famous contempt for legislative history in interpreting statutes, except insofar as it allows Scalia plenty of leeway to give vent to his own policy views and prejudices. O’Donnell’s conclusion is scathing:

[A]s he has become increasingly and nakedly right-wing—he astonished onlookers by lambasting President Obama’s immigration policy during a recent oral argument—he has continued to insist, more and more shrilly, on the apolitical glories of originalism. No one believes him anymore. And no one is listening.
Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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