BOOK REVIEW: ‘Scalia: A Court of One’

OPINION:

SCALIA: A COURT OF ONE
By Bruce Allen Murphy
Simon & Schuster, $35, 656 pages

Justice Antonin Scalia has been one of the most important and influential justices of the Supreme Court. Since arriving at the court in 1986, his advocacy of an approach to interpreting the Constitution rooted in its text, history and “original meaning” has had a profound effect on legal scholarship and argument. It caused nothing short of a revolt against the amorphous “living Constitution” of Justices Earl Warren and William Brennan whose effects are still being felt. Making Justice Scalia and his jurisprudence accessible to a wider audience would be a true public service.

Unfortunately, this biography delivers far less than it promises, and in key respects misreads its subject. Filled with errors of logic and analysis, and a clear bias against Justice Scalia and what he supposedly stands for, “A Court of One” is written for elites already predisposed to think ill of Justice Scalia.

Liberals have always had a hard time in trying to explain Justice Scalia’s jurisprudence, despite his clear writing in his opinions and books about how he goes about deciding constitutional cases.

Rather than a sincere fidelity to what he sees as constitutional meaning, liberals have assumed his approach must be something else: a screen for his own policy preferences, perhaps, or a devotion to a Nixon-like view of presidential power, or some dark corner of Catholic theology. Because they cannot, or do not want to, take Justice Scalia at his word, they have likewise failed to understand the great appeal of his approach for a generation of lawyers and law professors.

Bruce Murphy, who is Fred Morgan Kirby professor of Civil Rights at Lafayette College, conveys the biographical detail well enough, though the snide tone and his apparent lack of deep interest in his subject’s views detract from the narrative.

Raised in Trenton, N.J., Antonin Scalia was an only child born to Italian immigrants and schooled at Catholic high school and college before entering Harvard Law School. After a few years spent at a law firm in Cleveland, he returned to the Washington, D.C., area and taught at the University of Virginia before landing his first job, as general counsel for the Office of Telecommunications Policy.

He went on to become head of the prestigious Office of Legal Counsel during the waning and tense days of the Nixon administration. He was appointed a federal appellate judge in Washington in 1982 and then an associate justice of the Supreme Court four years later.

Among his errors, Mr. Murphy makes two key interpretive mistakes. First, he mistakes Justice Scalia’s jurisprudence as imposing particular substantive values, when at its most basic, Justice Scalia’s approach is to try to identify the values already present in the constitutional or statutory text. Mr. Murphy also makes the unsupported assertion that in general, Justice Scalia reasons “from a more ideological point of view, concerned by the result he sought in the case, then bolstering it with his textualism and other decision-making tools.”

This is a simplistic view of Justice Scalia’s approach. Rather, originalism allows the democratic process itself to convey the values the society wishes to promote. It is not for judges to decide what those values should be, aside from those already set out in the Constitution or statutory law.

Liberals are exasperated by Justice Scalia’s fidelity to the text and to democratic self-governance because they themselves see the judge’s job as forcing the people to conform to elite values. That Justice Scalia does not see that as the judge’s job, in the liberal worldview, means, he is “imposing” his values.

The second error compounds the first. Mr. Murphy makes the (poor) case that Justice Scalia is secretly importing a “pre-Vatican II” Catholic conservatism into his decisions. Mr. Murphy writes that Justice Scalia’s “conservative religious views, his textualism and originalism legal theories, his judicial decisions and his public speeches are all perfectly in harmony” with this supposed Catholic conservatism. He also says that Justice Scalia “could accomplish as a judge all that his religion commanded without ever having to acknowledge using his faith in doing so.”

This point nicely combines a caricature of conservatism with a revival of old-fashioned American anti-Catholicism, but shedding light on neither.

In fact, the evidence is to the contrary. On issues such as abortion and homosexual marriage, Justice Scalia’s position is that people must decide. If he actually was trying — secretly or not — to do all that “his religion commanded,” Justice Scalia would be much more like his fellow Catholic, Justice William Brennan, who tried to slip in all kinds of substantive values beyond what the text would allows. Oddly, though, hardly anyone talks about Justice Brennan’s “pre-Vatican II Catholicism,” even though he was a generation older than Justice Scalia.

“A Court of One” fails to address the basic arguments for Justice Scalia’s positions, and its attacks on its subject reveal the author’s biases more than those of Justice Scalia.

Gerald J. Russello is an attorney and editor of The University Bookman (kirkcenter.org).