Joan Biskupic - American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia

ALSO BY JOAN BISKUPIC

Sandra Day OConnor: How the First Woman on the Supreme Court
Became Its Most Influential Justice

AMERICAN ORIGINAL

The Life and Constitution of
Supreme Court Justice Antonin Scalia

JOAN BISKUPIC

SARAH CRICHTON BOOKS
FARRAR, STRAUS AND GIROUX
NEW YORK

Sarah Crichton Books

Farrar, Straus and Giroux

18 West 18th Street, New York 10011

Copyright 2009 by Joan Biskupic

All rights reserved

Distributed in Canada by D&M Publishers, Inc.

Printed in the United States of America

First edition, 2009

Library of Congress Cataloging-in-Publication Data

Biskupic, Joan.

American original : the life and constitution of Supreme Court Justice Antonin Scalia / Joan Biskupic. 1st ed.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-374-20289-7 (hardcover : alk. paper)

1. Scalia, Antonin. 2. JudgesUnited StatesBiography. 3. Constitutional law United States. I. Title.

KF8745.S33 B57 2009

347.732634dc22

[B]

2009015636

Designed by Jonathan D. Lippincott

www.fsgbooks.com

1 3 5 7 9 10 8 6 4 2

For Clay and Elizabeth

Lawyers, I suppose, were children once.

Charles Lamb, The Old Benchers of the Inner Temple

We have not just learned about life, we have learned about people. People at their worst. By and large, human fault and human perfidy are what the cases are about. We have seen the careless, the avaricious, the criminal, the profligate, the foolhardy, parade across the pages of the case reports. We have seen evil punished and virtue rewarded. But we have also seen prudent evil flourish and foolish virtue fail. We have seen partners become antagonists, brothers and sisters become contesting claimants, lovers become enemies. It does tend, as Charles Lamb suggested, to shatter the illusions of childhood rather quickly. Hence the image of the lawyer as the skeptical realist. Expect to find here no more a dreamer than a poet... Billy Budd, Pollyanna, and Mr. Micawber could never have been lawyers.

Antonin Scalia, speech to law school graduates, 1984

AMERICAN ORIGINAL

On a raised dais at Washingtons luxurious Mayflower Hotel, the Supreme Court justice Antonin Scalia is in high performance mode. His comic timing is precise. Laughter and applause ripple on cue from the five hundred lawyers packed into the ballroom. Gone in an eyeblink is most of his scheduled hour. The moderator announces that there will be one final question.

Make it easy, Scalia jokes, standing at the lectern, in especially fine spirits on this blustery November afternoon. You can make it like Senator Strom Thurmonds first question to me when I was up for my confirmation. The South Carolina Republican had presided over the Senate Judiciary Committee hearings for Scalia in 1986, when he was nominated by President Reagan for elevation from a federal appeals court. Thurmond had opened with a question that played right into Scalias view that judges were wrongly going beyond the letter of the law to solve societys larger problems, whether they related to school busing, prison crowding, or environmental catastrophes. These were conflicts Scalia believed should be left in the domain of elected lawmakers.

Now, Judge Scalia, Scalia says, mimicking the slow patois of Senator Thurmond, what do you think of judicial activism?

Scalia turns sideways at the lectern and puts his hands together as if at the plate and ready to swing a baseball bat. The sleeves of his dark suit yank up, flashing his thick white shirt cuffs.

Im ready for that pitch, he says.

The Scalia illuminated by camera lights at this closing session of the 2008 annual conference of the Federalist Society is heavier than the man America first saw at the witness table in 1986 on nationwide television. His jowls are thicker, his waist wider. His dark black hair has thinned. Yet his eyes are lit, as always. Into his seventies, Scalia still exudes energy and passion. His gestures are operatic. He points his fingers and waves his arms for emphasis. His audiences at these public occasions, irrespective of whether they are conservative or liberal, continue to be large and are nearly always captivated. When Scalia enters a room, cameras still flash. This afternoon at the conservative legal societys convention his audience is standing room only and hanging on his every word and gesture.

With his biting humor, Scalia has been advancing the legal theory known as originalisminsisting that judges should render constitutional decisions based on the eighteenth-century understanding of the text. Its a fight worth making, he says in remarks that are part battle cry, part assertion of victory.

I used to be able to say, with a good deal of truth, that you could fire a cannon loaded with grapeshot into the faculty lounge of any law school in the country and not strike an originalist, Scalia says, referring to those of the view that the Constitution has a constant meaning, one that does not change to fit the needs of a changing society. That no longer is true. Originalismwhich once was orthodoxyat least now has been returned to the status of respectability.

He says that until contemporary timesthe last fifty years or so judges interpreted the Constitution to mean what it meant when it was adopted. Whether the originalist view remained orthodoxy into the twentieth century is debatable, but it was barely in evidence by the late 1950s as such judges as Chief Justice Earl Warren interpreted the Constitution to contain broad principles that could be applied to modern circumstances. These judges did not feel constrained by the framers understanding of what they had forbidden or allowed.

Gripping the sides of the lectern with his large, square hands, Scalia has been recounting how his view of a static Constitution has been faring better among federal judges these days. Especially striking was Scalias authorship of the opinion. His no-compromise style had made him a hero on law school campuses but usually cost him votes among the justices. On the incendiary subject of gun rights, however, he was able to gain and keep the majority, helped by the youthful new chief justice, John Roberts, and the newest associate justice, Samuel Alito. The case, requiring interpretation of the Second Amendments text and history, was the perfect match for Scalias focus on the original intention of the men who drafted and ratified the Constitution.

Maybe the original meaning of the Constitution is back, Scalia tells the Federalist Society. Were not all back there yet, but maybe were on the way.

A quarter century into his judicial odyssey, Scalia may be at the apex of his influence. Roberts and Alito, who had both worked in the Reagan administration, have long admired Scalia and the way he wages the good conservative fight. On the Court since 2005 and 2006, respectively, they have been voting with Scalia more than did William Rehnquist, the previous chief justice, and Sandra Day OConnor, Alitos predecessor, whose moderate, consensus-seeking approach constantly thwarted Scalia.

Liberals such as Justices John Paul Stevens and Ruth Bader Ginsburg regard Scalias ideas as perilous. They fear that if they were ever fully accepted by the nations judges, the emphasis on individual rights established in the last half centuryfor the poor, the disenfranchisedwould be lost.