on 13 June 2014
For about 150 pages of this intense, revealing and quite excellent book, Antonin “Nino” Scalia is a brilliant student, a hard worker, an unbeatable debater and an all around great guy, “very kind hearted and low key.” Scalia was the golden one. As the only child of Italian immigrants, he was spoiled. That none of his aunts and uncles living nearby had any children at all only made it worse. At school, his sterling academic record allowed him the unrestrained praise of everyone. Unfortunately, his Catholic school also instilled in him the rule that it is not possible to separate religious life from intellectual life, which colored his thinking very prejudicially. Still, as a young judge, his digging led to insights and clarity deeper than the average judge’s decisions.
But when he got to the Supreme Court at age 50, that all changed overnight. Now the junior justice, he was frustrated at not being the star, not being the leader, not being the pacesetter. This could not be allowed to stand.
In a pathological effort to have the last word in any legal argument, Scalia scoured legal concordances and when that was unsatisfactory, he went to the history books and even fiction – quoting Shakespeare or Orwell as his source – to make a point either different than the other justices, or just differently. He was on a one man crusade to be right, and those who would not join him were criminally wrong. That would often be the entire rest of the court. The result was total polarization, minimal co-operation, and Scalia issuing a dissenting opinion, even when he agreed on the result. According to Murphy, those dissents (called Ninograms or Ninofits) would often be ad hominem attacks on other justices, whose opinions he did not share. This brought the court down to a new, undignified and uncomfortable level of one sided playground fighting. Eventually, other judges responded and retorted. But Scalia always insisted on having the last word, so it was pointless.
When it suited his purposes, Scalia abandoned the law and the Constitution in favor of arguments based on “everybody does it”. His dissents sometimes read like editorials rather than judicial logic. He became a Court of One, writing decisions for himself. In order to cement his different approach, he championed a theory that put him in conflict with everyone else: “What was the most plausible meaning of the words of the Constitution to the society that adopted it (as decided by Scalia alone) –regardless of the Framers might secretly have intended it?” This made him attempt to put 21st century America’s reality back to 1787, while at the same time ignoring the actual intent of the men who wrote the rules, or the political/social context. This is the judicial equivalent of Einstein’s fruitless search for one simple rule to explain the universe. Scalia’s “textualism and originalism” theory can only cause grief.
Fellow conservative Judge Richard Posner described it most succinctly: “The range of historical references … is breathtaking, but it not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.”
I found it frustrating that Murphy did not provide a scorecard. While he did show that other conservative justices voted along with Scalia less every year, he never showed how many dissents Scalia wrote, and what percentage of the total cases heard that represented every year. Because Murphy could just be obsessing on the numerous outrageous acts by Scalia. And though I doubt they are merely exceptions to suit this book, I would have liked to know the overall depth of the disaster. Murphy also spends too much ink on setups and repetition, reintroducing people and events several times. Nonetheless, he does a magnificent job showing how Scalia “evolved” from decade to decade, and what that meant for jurisprudence in those years.
The obvious irony of it all is that Scalia made an absolute conservative majority when he took his seat in 1986. He aggravated, insulted, divided and split the conservatives, pushing them to the center, and so obviated any possibility of achieving his conservative goals. All by himself. And was bitter about it!
Scalia’s antics on the bench and in public served to polarize and politicize the Supreme Court, most notably in Gore v. Bush, where the five Republican appointees outvoted the four Democrats to decide the presidential election by themselves. That politicization is shameful, demeaning and belittling to an important, impartial institution, and a horrible legacy Scalia does not for a moment acknowledge. He brooks no criticism from any quarter. In his words, he doesn’t care; he has “tenure.”
Another low blow was his overt plan for the Chief Justice’s spot. Even as Rehnquist was ailing, Scalia, under the watchful eye of his declared fan GW Bush, began openly campaigning for Rehnquist’s job, further debasing the currency of the court. His decisions and dissents that year were colored by it, confusing his declining number of admirers. It was so embarrassing he wasn’t even shortlisted.
Scalia is clearly working to become the most famous Supreme Court Justice in history. Unfortunately, that fame will be due to his lack of co-operation, his need to be the leader regardless of how he got there, and the resulting torture for the American people with the often incomprehensible decisions. He will not be remembered kindly or grandly.