Scalia in Sweden

July 15, 2014  |  Washington Monthly

The cover of this book says it all. There he is, grinning complacently, his black judges’ robes fading into black. The hair has thinned and the jaw is heavier than it used to be. He is an old bull now instead of a young buck. No one is there on the cover with him: he is all alone. Smug, cocksure, fond of his own wit, certain of his rectitude, Justice Antonin Scalia of the Supreme Court of the United States is oblivious to the way his strident, obnoxious, moralistic hectoring has chased away every friend. If such a doubt occurs to him for an uncertain moment, it soon dissolves, for the upside to being surrounded by idiots is a clear conscience. Let them call him intolerant—let them try to prove he’s wrong. It is all background noise to the sound of his own voice.

Scalia was once a force to be reckoned with on the legal right. He taught at the University of Chicago and cofounded the Federalist Society. When I entered law school in 2001, his dissents were required reading, and could erode confidence in any majority opinion. Scalia was particularly strong on procedure: he made nuances about jurisdiction and standing seem even more important than the merits. A brilliant rhetorician, he was a funny and colorful writer in a profession that seemed wedded to the stereo-instructions model of prose. Scalia also exuded scholarly refinement, peppering his decisions with allusions to classical works in Latin and Greek, and parsing statutory language with precision and rigor. When cracking wise off the cuff, he pivoted on arcana like the distinction between Gothic art and Rococo.

And then something happened. Somewhere in the mid-2000s, Scalia ceased to be a powerhouse jurist and became a crank. He began thumbing his nose at the ethical conventions that guide justices, giving provocative speeches about matters likely to come before the Court. He declined to recuse himself from cases where he had consorted with one of the parties—including, famously, Vice President Dick Cheney. He turned up the invective in his decisions. His colleagues’ reasoning ceased to be merely unpersuasive; it was “preposterous,” “at war with reason,” “not merely naive, but absurd,” “patently incorrect,” and “transparently false.” More and more, he seemed willing to bend his own rules to achieve conservative results in areas of concern to social conservatives, like affirmative action, gay rights, abortion, gun ownership, and the death penalty. Above all, Scalia stopped trying to persuade others. He became the judicial equivalent of Rush Limbaugh, who has made a career of preaching to the choir. But Limbaugh is not merely a shock jock; he is also a kingmaker. Scalia’s position on the bench precludes any such influence. As a result, he has more fans than power.

The deterioration of Supreme Court justices is a sad tradition in our public life. Abe Fortas was ruined by scandal; William Douglas suffered a stroke and remained on the Court well past the point of incapacity. William Rehnquist became grouchier and nastier with each term; liberals like Harry Blackmun and William Brennan grew acid tongues and scolded their colleagues where before they had built coalitions. Frustrated by the Court’s ascendant conservatism in the 1980s, Thurgood Marshall all but checked out.

Scalia’s fall has been loud and it has been public. He is the Court’s most outspoken and quotable justice, and whether he is flicking his chin at reporters or standing at the lectern attacking secular values, he makes headlines. So when he was passed over for the position of chief justice in 2005, the legal world noticed. President George W. Bush had cited Scalia as well as Clarence Thomas when asked as a candidate to name justices he admired. Yet when Rehnquist suddenly died, Bush did not seriously consider elevating Scalia. “Nino” had rarely demonstrated leadership in assembling or holding together majorities; he had alienated every one of his colleagues at one point or other. His flamboyant antics off the bench might compromise the dignity of the office of chief justice. He would be the devil to confirm. Bush nominated instead John Roberts, an equally brilliant but far more disciplined judge, and one who was better suited to the responsibilities of leadership. After that, Scalia stopped playing nice and started using real buckshot.

Bruce Allen Murphy’s Scalia: A Court of One is the second biography of Antonin Scalia in the past five years—an indication of an unusually high level of interest in a sitting Supreme Court justice. The previous volume was Joan Biskupic’s American Original (2009), a fluid journalistic account filled with insights gleaned from the author’s access to Scalia and the other justices as a Supreme Court reporter. Murphy, a political scientist at Lafayette College, has produced a book more comprehensive and scholarly but with less color and texture. The author interviewed neither Scalia nor his colleagues, and relies for backstage anecdotes on the reporting of others. Scalia is nevertheless a significant achievement—Murphy’s third impressive biography of a member of the Court. Murphy’s and Biskupic’s books differ in tone and emphasis: Murphy is not exactly hostile to Scalia, but he is less sympathetic to him than Biskupic. Yet both authors agree on the central fact that seems likely to define Scalia’s career. In Murphy’s nice phrase, Scalia is “alone on his ice floe,” and it is drifting away from the Court’s center.

Murphy makes a comprehensive study of the way Scalia has alienated the three swing voters to sit on the Court with him: first Lewis Powell, then Sandra Day O’Connor, and then Anthony Kennedy. In one of his first cases as a justice, Hodel v. Irving (1987), Scalia set the wrong tone with the chivalrous Powell. The case concerned the ability of Native Americans to bequeath tribal land as property, but the Court’s focus became the litigants’ standing to sue. Defying the convention that a junior justice should be modest and deferential, Scalia dominated the oral argument, prompting Powell to whisper to a colleague, “Do you think he knows that the rest of us are here?” After the argument, Scalia badgered and browbeat O’Connor in an uncivil draft opinion, on which Powell handwrote, “I don’t like this.” Only Rehnquist’s intervention kept the majority together. It would not be the last time the chief justice would have to repair Scalia’s damage. “Nino! You’re pissing off Sandra again. Stop it!” he wrote at one point.

O’Connor is tough cookies, and claims not to have been bothered by Scalia’s harsh tone over the years. Whether or not that is true, the same cannot be said for the sensitive Kennedy, whose social libertarianism and grandiloquent rhapsodies have made him a particular target for derision. Scalia chased him away like a bully on a playground. In the critical abortion decision Planned Parenthood v. Casey (1992), Kennedy, contributing to a joint opinion along with O’Connor and David Souter, described a woman’s “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Moist and misty though those sentiments be, a prudent opponent would hold his tongue so as not to alienate a potential ally in future cases. Not Scalia. When referring to Casey in a later decision, he openly mocked its “sweet-mystery-of-life passage.”

Casey is a good example of Scalia’s ineptitude as a coalition builder. The Court initially voted 5-4 to uphold Pennsylvania’s tough abortion law and to overturn Roe v. Wade. But then Kennedy began to wobble. Scalia tried to reinforce his vote, inviting him on a walk to discuss the case. (When Kennedy’s papers become available to future historians, this encounter will be a must-read.) As Murphy writes, Scalia left the conversation believing he had convinced Kennedy to stay on board. But Kennedy had already defected: along with Souter and O’Connor, he was secretly at work on the joint opinion that would modify but ultimately spare Roe. Scalia had engendered no loyalty in previous cases that would have enticed Kennedy to hold the line; he could not call upon close friendship or affection. Who knows, Kennedy may have even enjoyed sticking it to a colleague who had savaged him ruthlessly in case after case. It was the type of scenario where the more pragmatic and collegial tactics of a Brennan or a John Paul Stevens might have made the difference.

Indeed, Murphy narrates several cases where those two justices easily outmaneuvered Scalia to advance their own interests. In South Carolina v. Gathers (1989), a capital case concerning the use of victim impact statements during sentencing, Justice Byron White was the undecided justice. The liberals wanted to prohibit such statements as inflammatory, while the conservatives, including Scalia, believed they were permissible. Brennan picked up White without difficulty by writing a narrow decision permitting victim impact statements generally, but finding that such a statement was inappropriate in the case at hand because of its unique facts. In another abortion case, Webster v. Reproductive Health Services (1989), Stevens picked off O’Connor by writing a memo catering to her doubts about the majority decision, minimizing the damage from a conservative victory.

Scalia purports to be above such deal making. The Constitution says what it says, and it means what it means. You might as well horse-trade verses of holy scripture! But while this type of sanctimony is common in the law, it is nevertheless foolish. When nine judges must jointly interpret statutes, rules, and constitutional text, those who cooperate will get things done. Those who rigidly go their own way will not. Scalia’s recent victories in Second Amendment cases (District of Columbia v. Heller, 2008) and campaign finance law (Citizens United v. FEC, 2010, and McCutcheon v. FEC, 2014) represent not the triumph of reason or coalition building but of raw political power: Republican presidents have appointed enough justices to win the day. It is no surprise that Scalia’s hero is Sir Thomas More, the patron saint of lawyers who refused to agree to the annulment of King Henry VIII’s marriage and was executed for it. To Scalia, More is an inspiring and principled role model. Yet there are other interpretations of More’s defiance. Hillary Mantel suggests in the novel Wolf Hall that at the time, everyone actually thought More was a pompous ass.

Murphy devotes much of his book to examining Scalia’s vaunted method of constitutional interpretation, which is called originalism. Scalia’s originalism differs from, say, Judge Robert Bork’s, who claimed to divine the “original intent” behind constitutional provisions. What, Bork asked, did the Founders intend with phrases like “cruel and unusual punishments,” “reasonable searches and seizures,” and “equal protection of the laws”? In a series of books and lectures, Scalia emphasized that he was interested not in the Founders’ original intent, but in the text’s “original meaning.” In his own words: “What was the most plausible meaning of the words of the Constitution to the society that adopted it?” What did the general public understand “cruel and unusual punishments” to mean when the Bill of Rights was ratified in 1791? This approach—judicial interpretation as time travel—has led Scalia to some offensively wooden results, like insisting that the Fourteenth Amendment’s Equal Protection Clause, which was adopted after the Civil War, does not prohibit sex discrimination.

The eminent historians of the founding era think Scalia is on a fool’s errand. Murphy renders a great service by quoting their reflections at length. Stanford historian Jack Rakove notes,

Historians have little stake in ascertaining the original meaning of a clause for its own sake, or in attempting to freeze or distill its true, unadulterated meaning at some pristine moment of constitutional understanding. They can rest content with—even revel in—the ambiguities of the historical record, recognizing that behind the textual brevity of any clause there once lay a spectrum of complex views and different shadings of opinion.

Likewise, Gordon S. Wood of Brown University points out, “not only were there hundreds of Founders, including the Anti-Federalists, with a myriad of clashing contradictory intentions, but in the end all the Founders created something that no one of them ever intended.” Judge Richard Posner has derided Scalia’s originalism as “law office history,” in which the justice, untrained and incompetent as a historian, searches out historical sources to bolster his position, ignoring or downplaying those that contradict it. Scalia has made a career of scorning the use of legislative history—committee reports and floor speeches—to interpret statutes, because he says the process amounts to looking out over a crowd and picking out your friends. Finding the Constitution’s original meaning seems awfully similar.

If those are the mechanics of originalism, what about its politics? Scalia has insisted, loudly and repeatedly, that originalism “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.” This is nonsense dressed up in jargon. Originalism is by its very nature a reactionary enterprise that addresses contemporary problems by turning back the clock 250 years. Small wonder that it overlaps closely with Scalia’s socially conservative politics. Suppose a justice were to announce that she planned to interpret the Constitution in accord with the latest practices in Vermont—or, better yet, Sweden. This “neutral” principle would of course be blatantly progressive. Suppose further that the justice gave speech after speech insisting that Swedenism was strictly divorced from her politics—even though she herself was the most outspoken liberal on the Court. You would not only disbelieve her, you would begin to lose respect for the institution she served.

And that is Antonin Scalia’s legacy. He is toxic. He has corroded the public’s faith in the Supreme Court. His vituperative rhetoric has undermined its tradition of collegiality while making its work seem like cheap partisanship. His ethical improprieties have besmirched the Court’s reputation for integrity and impartiality. And as he has become increasingly and nakedly right-wing—he astonished onlookers by lambasting President Obama’s immigration policy during a recent oral argument—he has continued to insist, more and more shrilly, on the apolitical glories of originalism. No one believes him anymore. And no one is listening.