A Court of One
By Bruce Allen Murphy
Simon & Schuster. 656 pp. $35.
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Reviewed by Paul Jablow
One of the most telling points in Bruce Allen Murphy's obviously unauthorized biography of Justice Antonin Scalia is how unsuccessful Scalia has been in changing the views of his U.S. Supreme Court colleagues on individual cases.
The same might be said of this book. Liberals will come away from it more convinced than ever that Scalia twists the Constitution to serve right-wing ends. Conservatives will remain equally convinced that he is a needed bulwark against left-wing justices trying to legislate from the bench, although they might find it emotionally less satisfying to wade through a book that is probably too long by a third.
Scalia does not come out well in this version of his story. While acknowledging his brilliance as a jurist and his formidable charm in purely social settings, Murphy, a professor of civil rights at Lafayette College, describes him as a bull in a normally collegial china shop. Utterly convinced of his own rightness in any case, the author says, Scalia is more likely to insult and bully colleagues in memos and, at times, in oral arguments.
His wrath is said to have been directed usually against centrist - and theoretically more convinceable - colleagues such as Anthony M. Kennedy and Sandra Day O'Connor rather than the court's liberal wing. When he was an appeals judge, some law clerks of fellow judges referred to him as "the Ninopath," a play on Scalia's nickname, "Nino."
On the court's left/right spectrum, the virtually unbridgeable gap is between "originalists" such as Scalia and "living Constitution" supporters like, for example, former Justice William J. Brennan Jr.
To Scalia, the Constitution means what it says, or at least what its words were taken to mean at the time the particular portion was adopted. If you don't like the result, amend it, or at least pass new legislation clarifying it.
Brennan wrote that "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."
Obviously, a "living Constitution" justice may draw on a wide variety of resources in support of a result he or she might deem socially desirable. The Brown vs. Board of Education school desegregation decision of 1954, for example, rested partly on analyses of the damage done to children in segregated schools.
But Murphy makes a strong case that "originalist" judges also have a large menu of resources from which to choose and are equally prone to picking the result they want and finding the legal underpinnings to support it.
So it's hard to come away from the book without thinking that one of the most dubious statements ever made about the court was one by Chief Justice John Roberts at his 2005 confirmation hearings.
His job, Roberts told the Senate Judiciary Committee, would be "to call balls and strikes."
One wonders how any judge can approach an ideologically charged case with the same dispassion as, say, a major league umpire from Philadelphia assigned to a game between the St. Louis Cardinals and the Milwaukee Brewers.
Scalia is certainly capable of making rulings in which he detests the result. In the case of a Texas man who burned an American flag in front of the Republican National Convention in 1988, Scalia described him scornfully as "bearded, sandal-wearing," but said that, "handcuffed" by the First Amendment, "I can't do the nasty things I'd like to do."
But Murphy says such opinions have been the exception. In general, he claims, Scalia cherry-picks the sources to support his conservative philosophy and strict, pre-Vatican II Catholic upbringing. He also claims Scalia has damaged the court's reputation by putting himself into conflict-of-interest situations, such as duck-hunting with Vice President Dick Cheney when Cheney had a case pending before the court.
The book is, of course, limited by the author's lack of any direct access to Scalia, although no justice in modern times has left as large a paper trail of speeches and books.
Perhaps its most valuable sections cover the years before Scalia was named to the court in 1986.
His father, we learn, was just as much an "originalist" as the son, but in a totally different field, Italian literature. A Brooklyn College professor, S. Eugene "Sam" Scalia believed that the task of the translator and the critic is to capture the meaning of the poet in his own time and in his own geographical region.
Both Scalia's parents were liberal Democrats. They raised their son in comfortable circumstances in Queens, N.Y., in what he called a "very integrated community" of Italians, Irish, Germans, and Puerto Ricans.
But it was also, Murphy says, a time of "changelessness" in the Catholic church, and Scalia, according to a high school classmate, "could have been a member of the [Catholic] Curia."
Less well-known is Scalia the politician. Murphy describes, for example, his shrewdness in waging a public speaking campaign that helped him edge out fellow conservative Robert Bork to become President Ronald Reagan's choice for a high court vacancy.
In fact, Murphy says, both men might be on the court today had Reagan nominated Bork first, because Scalia would have been better able to sell himself to what would later become a more hostile Senate Judiciary Committee.