Bruce Allen Murphy’s biography of U.S. Supreme Court judge Antonin Scalia, “Scalia: A Court of One,” brought back memories for Seattle lawyer Kevin J. Hamilton.
Bruce Allen Murphy
Simon & Schuster
644 pp., $35
U.S. Supreme Court Justice Oliver Wendell Holmes Jr. once said that “the longing for certainty ... is in every human mind. But certainty is generally illusion.” Justice Antonin Scalia would assuredly disagree. Certainty is, and always has been, his defining characteristic.
Justice Scalia has been on the Supreme Court since 1986. Over nearly three decades, he has confronted a variety of difficult decisions, but rarely has admitted uncertainty as to the outcome. As he likes to say, “anyway, that’s my opinion. And it happens to be right.” In “Scalia: A Court of One,”(Simon & Schuster, 644 pp., $35) Bruce Allen Murphy, a Lafayette College professor, provides a compelling biography of one of the most conservative, combative, and bombastic Supreme Court Justices in our nation’s history.
In 1985, then Judge Scalia served on the U.S. Court of Appeals for the D.C. Circuit, generally regarded as the second most powerful federal court in the nation. It was, at the time, closely divided between liberals and conservatives. Aside from Judge Scalia, it featured Judge Robert Bork (who lost his own confirmation battle to the Supreme Court just a few years later), Judge Ruth Bader Ginsburg (later appointed to the Supreme Court), and Judge Kenneth Starr (later the infamous prosecutor in the Monica Lewinsky trial). On the left, Judge J. Skelly Wright anchored the liberals, who included Chief Judge Patricia Wald, Spottswood Robinson, and Harry Edwards. Judge Wright had enforced desegregation of the Louisiana schools after Brown v. Board of Education and had been appointed to the D.C. Circuit by President Kennedy. Protesters burned crosses in his yard to protest his opinions.
I clerked for Judge Wright in 1985 and, from that vantage point, watched as Judge Scalia worked his personal charm on a closely divided court. It was overture, as it turned out, for the larger opera to come.
Two seemingly inconsistent traits defined Judge Scalia. First, he was, and remains, one of the best writers on the Court. His opinions, whether read in disgust by his detractors or embraced as well reasoned truth by his supporters, are always entertaining. Second, he is gregarious almost to a fault.
On the D.C. Circuit, he wielded both weapons to advantage. Judge Scalia would frequently socialize with the swing members of the court. His easy demeanor, quick laugh, and razor-sharp arguments often pulled wavering judges to his side.
He dominated oral argument, showering the lawyers with difficult, and sometimes impossible, questions. Lawyers gripped the podium in panic and often left the courtroom shaken.
His writing was even more pointed. Law clerks often write early drafts of court decisions which become the focus for debate by internal memoranda between judges. But debating with Judge Scalia in writing was not for the faint hearted. Years later, as a practicing lawyer, I learned to appreciate his antagonistic writing style, not as a model, but as a bracing lesson in the value of careful writing. Loose ends, one quickly learned, were ammunition for blistering counterattack.
Judge Scalia did not hesitate to ridicule and belittle arguments — or judges — which strayed from his rigidly conservative viewpoint. Judge Scalia promoted an “originalist” theory of constitutional interpretation, seeking to discern the public understanding of the constitution at the time of its ratification. The constitution, he likes to say, is “dead” and means what it meant when adopted. He has nothing but scorn for those who viewed the constitution as a “living” document, changing with contemporary understanding of, for example, “cruel and unusual” punishment.
This style is bracing and hardly one likely to build collegial relationships. Only a year after my clerkship with Judge Wright ended, then-President Reagan nominated Judge Scalia to the Supreme Court. He was easily confirmed. But in that forum, his caustic style has been corrosive. Supreme Court justices have to work together, sometimes over decades. He was, as Murphy calls it, a “court of one” and he lost power struggles to Chief Justice Rehnquist, then to Justice Kennedy, and later to Chief Justice Roberts. But even so, his views have often prevailed in key decisions, including Bush v. Gore.
“A Court of One” is a terrific start to understanding Justice Scalia and his impact on American constitutional law. Murphy, though, is hardly a neutral observer, and his hostility to the justice is transparent. As a result, this biography is likely to be as controversial as its subject. Perhaps that’s inevitable. Certainly Justice Scalia of all people should appreciate strongly held opinions.
Justice Scalia is now in his 80s, but age has neither softened his rough edges nor moderated his views. For those of us who knew him before his Supreme Court appointment, that’s hardly a surprise.