Skewing Scalia

Bruce Allen Murphy’s new biography of the most important jurist of our time, Scalia: A Court of One, has already passed through a characteristically rigorous critique at the “Bench Memos” blog at National Review Online by the redoubtable Ed Whelan. After identifying one error after another, Whelan provided a prepublication warning: “Do not waste your time or money on this book.” Well, the book is out now, and notwithstanding some inexplicably favorable reviews, it is impossible to disagree with Whelan’s verdict.

To be sure, Murphy, a professor at Lafayette College and author of earlier biographies of Justices William O. Douglas and Abe Fortas, does a fairly solid job in working through Scalia’s youth in Trenton and later Queens, his education (at the Jesuit Xavier High School in New York, Georgetown, and Harvard Law School), and rise in the world of law (private practice, academia, the executive branch, the District of Columbia Circuit Court of Appeals, and then the Supreme Court). Scalia’s professional success in post-World War II America is a credit to his excellent Jesuit education, great intelligence, and industry.

One problem—in a book replete with them—is the thesis of sorts that Murphy employs: because of the confrontational tone and more-than-occasional abrasiveness in his opinions, Scalia has alienated potential allies and failed to form the majorities necessary for his views to become law. There may be something to this view, but it is not based on what one would expect from a biographer of a living person: extensive interviews with the subject (Murphy ran into Scalia only once at a public event), interviews with law clerks who worked for him, family, friends, colleagues, and so on. Murphy has done none of this work. Consequently, the thesis is nothing more than empty speculation. Also, one cannot blame Scalia for failing to attract and hold the votes of such unprincipled, result-driven political mediocrities as Justices Sandra Day O’Connor and Anthony Kennedy.

Justice Scalia’s great constitutional project is his advocacy and practice of the method of constitutional interpretation known as original understanding, which seeks to discern how the constitutional provision at issue was understood by the society that promulgated it. Original understanding is opposed by the doctrine of a “living Constitution,” which maintains that the Constitution’s meaning evolves with the times. It is the clash between original and current meaning that Scalia has call the “Great Divide.”Despite Murphy’s confused and confusing discussions of original understanding, Scalia has been remarkably consistent and lucid in his articulation of this method in opinions, articles, and speeches.

In one representative talk, for instance, Scalia defined the issue with conversational clarity: “If you don’t use my criterion [of original understanding], what is your criterion? And you know what? There isn’t any other. I mean think about it, what can you possibly use, other than the understood meaning of the text when it was adopted? If you don’t use that, if you say, ‘Oh no, it changes, it grows,’ okay fine. What criterion are you going to tell your judges to use as to when it changes? Are they going to take a public opinion poll? You either use the original meaning of the text, the original understanding of the text, or else you tell your judges, ‘Oh, wise judges, you went to Harvard Law School or Stanford Law School. You must be experts in all of these moral questions for the whole society. You decide it for us, five out of nine of you. Decide for the whole country, whether there can be abortion, or there must not be abortion. Whether there can be the death penalty or there must be the death penalty.”

The purpose of original understanding is to fetter the impulse to government by judiciary and reinforce the constitutional values of federalism and majoritarian choice. Scalia acknowledges that originalism is far from perfect, and its considerable reliance on history can, in some cases, lead to problematic results. For example, in District of Columbia v. Heller (2008), Scalia’s majority opinion – his “judicial magnum opus,” according to Murphy—boldly declared, for the first time ever, that the Second Amendment contains an individual as opposed to a militia-related right to bear arms. Some prominent commentators—including J. Harvie Wilkinson III and Richard Posner, both of whom are respected federal appellate judges—argued that the historical materials were more complex than Scalia realized and his analysis of them ought to have been tempered by the neglected virtue of judicial modesty.

The most disappointing part of Murphy’s book is his really obtuse attempt to argue that originalism is just a jurisprudential fig leaf for Scalia’s real agenda: orthodox Catholicism. Murphy contends that “pre-Vatican II Catholicism and legal originalism/textualism are so parallel in their analytical approach that by using his originalism theory Scalia could accomplish as a judge all that his religion commanded without ever having to acknowledge using his faith in doing so.”

The nation-defining issue of abortion shows how wrong Murphy is. Scalia has written and said over and over again that the Constitution is silent on the matter of abortion. That is the original understanding and no one—not one scholar—has ever disputed that the Fourteenth Amendment has nothing to do with the issue. As a result, states are at liberty to permit it, ban it, or permit it in some cases and ban it in others. How does this constitutional approach vindicate the Catholic view on the intrinsic evil of abortion? How does Murphy fail to see the obvious flaw in his view?

In fact, with respect to his Catholicism and his work as a jurist, Scalia takes what he has rightly called “a minimalist view.” In 2007, as Murphy reports, Scalia delivered an address at the exemplary John F. Scarpa Conference at Villanova University. In his keynote talk, Scalia asserted that his faith has no impact on how he decides cases. It requires not specific results in cases but demands that he be perfect (as the heavenly Father is perfect) and not lie. These moral rules, Scalia explained, enjoin him to be scrupulous in dealing with earlier cases and not misrepresent what they mean. This is hardly the vision of a man who is using his position surreptitiously to impose his Catholic view on the law.

This brilliant, witty, principled, and rigorous justice is, I think, the most consequential public figure in American life. His opinions, many of which are masterpieces of rhetoric and models of the judicial craft, will continue to influence in a salutary way our constitutional understanding for generations. He deserves—and no doubt will eventually get—a more thorough, balanced biographical treatment than the one found in Murphy’s slovenly effort.

Scalia: A Court of One
by Bruce Allen Murphy
Simon & Shuster
Hardcover, 596 pages