Justice Scalia: Sometimes right, often wrong, never in doubt
There is a passage near the end of Bruce Allen Murphy's fine new book about Supreme Court Justice Antonin Scalia, Scalia: A Court of One, that explains both the reaction his work will likely receive and the remarkable life of law, politics, religion, and unremitting piousness it describes within its pages. Murphy takes us through Justice Scalia's memorable October 2013 interview with Jennifer Senior of New York and then quotes the journalist at length:
Senior would say later of her interview with the justice: "It's embarrassing, but the overlap between our worlds is almost nonexistent. It explains why the left and the right both responded so enthusiastically to this piece. Each side sees its own view, affirmed. One sees a monster and the other sees a hero. He's extraordinary, actually. The [Bill] O'Reilly constituents think he's speaking sense; the Jon Stewart vote thinks virtually everything the guy says is nuts." [Scalia: A Court of One]
This gulf is evident not only in Senior's interview, but in the early reviews of Murphy's book. At the National Review, Ed Whelan, one of Scalia's former law clerks, wrote a seven-part series on the book, which seems like an awful lot of energy and space to devote to a book Whelan declares you should neither buy nor read. On the left, meanwhile, Dahlia Lithwick offered up "Scalia v. Scalia," in which she posits that Murphy proves that "the pristine border between faith and jurisprudence is largely myth and aspiration" in the case of Justice Scalia.
I will leave it to those who regularly write about the court's inner workings, the professional and personal lives of the justices, and the sweep of constitutional history to dissect Murphy's book on its traditional merits. Those journalists, lawyers, and political scientists surely will find much in it to mine. And I'll gladly subscribe to the pay-per-view rendition of the review of this book by 7th U.S. Circuit Court of Appeals Judge Richard Posner, Scalia's equally unremitting frenemy, if Posner ever decides to read it aloud on the steps of the Supreme Court.
Regardless, though, this is a book very much worth buying and reading. Scalia's many supporters will see in it evidence of a man finding through faith the strength and the wisdom to hew to a jurisprudential doctrine that he believes is both neutral and sensible. His many detractors will see here evidence of a man who is a fraud; a political hack — a brilliant one, mind you — who has figured out how to achieve enormous success imposing his worldview upon the nation by confidently pitching a doctrine that only pretends to impose neutral principles.
What strikes me most about Murphy's work is the certainty he ascribes to Scalia's professional life, the lack of doubt this jurist brings with him when it comes time to apply the law to the facts before him. We learn that this came to brash, bold, cocky Antonin Scalia quite early in life, back at least to his days on the debate team at Georgetown. From Murphy:
More than fifty years later Scalia would tell television interviewer Tim Russert how little he remembered of his debate experience. "The only advice I remember from my debate coach when I was in college, he taught me to button my jacket. It's the only thing I took away from it — button your jacket."
It was hardly true. His absolute certainty in the merits of his positions, his love of attention, the abrasiveness of his attacks against opponents, his magnetic speaking persona, and more than all of that, his sheer love of winning are all hallmarks of his background as a championship debater. [Scalia: A Court of One]
I believe that this "absolute certainty," this lack of doubt, is the antithesis of judging. I want my judges, especially my judges who judge all the other judges, to be tortured by the cases and causes that come before them, to pause and be pained by the choices they are making. For no matter how hard Scalia and his fellow travelers have tried to convince me that "originalism" or "original intent" are worthy doctrines because they do not generate subjective choices, the more I am convinced that the opposite is true.
Here is how Murphy put it last week when I asked him via email about Scalia and his position as High Priest of the Church of the Doubtless:
The problem with Scalia's unique level of "certainty" in his decisions, and his aggressive style of argumentation against his judicial opponents both on and off the court, is the damage that is being done to the public's image of the court. The public no longer sees the institution as neutral or nonpartisan as it did for most of its history. Rather, the Supreme Court is now viewed as politically directed in its decision-making, as polling data during the [ObamaCare] case indicated.
This self-destruction might be more tolerable, I suppose, if it were based upon something true. But there is growing evidence, in Murphy's book and beyond, that Scalia's voting record on the bench is not the result of some inexorable (and humbling) application of neutral principles but rather a continuation of the partisan dogma the man has accumulated during his decades of political life in Washington. Here's a telling passage from Murphy's account of Scalia's life in the executive branch during the Ford administration:
His memos were well-written models of comprehensiveness, clarity, and persuasiveness. Reading them, one had full confidence that the recommendations were complete and correct. Beyond this, though, there was a signature style now evident in every Scalia memo. Time after time, he knew the results that he wanted to achieve on an issue, and he demonstrated an ability to manipulate the information and recommendations that he offered to achieve those results. [Scalia, A Court of One]
Let the debate now continue over whether Scalia has simply brought his "Scalia memos" to the Supreme Court all these years. Let's now talk some more in earnest about the role that religion plays in his decisions or how best we can explain the inconsistencies in the way he has applied his beloved doctrine. Let's see him less as some pure intellectual and more as a striving, conniving political animal, a man as well suited for a career in talk radio as he has been in the law.
Murphy's book isn't likely to change many minds about this extraordinary jurist. But 100 years from now it surely will animate the discussion of Scalia's place in constitutional history. It will, I think, help our children and our grandchildren understand why no one in our time ever called it the "Scalia Court," despite the enormous presence of this brilliant man in shaping, for better and for worse, the path of the law we all must walk.