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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.
Don't shoot the messenger.
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Ronald H. Clark
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This is the fourth judicial study by Professor Murphy I have read. The three previous volumes I felt excessively focused on sensational dimensions of their subjects, especially the volumes on Justices Fortas and William O. Douglas (" Wild Bill"). Not to say these were not substantial studies, but the sensational elements detracted attention from Murphy's solid scholarship. I am delighted to say that I have no such qualms about this substantial (500 pages plus notes and bibliography) and extremely valuable bio of Justice Antonin Scalia. It is outstanding in a number of ways.
For me, the book's greatest asset is its meticulous analysis of how Justice Scalia developed his various interpretive theories--probably his most lasting achievement. One can read long articles on this topic, but what Murphy has done is to trace this development over time, context by context, as the bio unfolds. I found myself having a much more comprehensive understanding of Scalia's approaches (yes, he does "evolve" over time) than before. For Scalia and judicial conservatives generally, methodology is everything. Murphy also carefully differentiates Scalia's positions from those of Judge Bork and Justice Thomas, as well as others.
Murphy also tackles the toughest issue about Scalia--could he have been a more influential figure? On the one hand, clearly his originalist theory has had a substantial impact on how the Constitution is interpreted by judges, scholars, and others. Yet, on the other, his explosive personality relative to his Court colleagues has cost him the ability to become the conservative leader of the Court. Justice Kennedy and (Murphy suggests after the Obamacare decision) the Chief Justice may now rightly claim that title. Yet, although Scalia can charm many birds out of their trees, Murphy suggests that his attacks on colleagues and controversial speeches cost him whatever little chance he had of succeeding Rehnquist as Chief in 2005. A very interesting issue.
One measure of solid judicial biography is whether you feel you have a solid grasp on the personality of the subject. Murphy scores in this category as well. He carefully follows Scalia through his youth, legal education, early practice career, academic teaching, and eventually into government service. His chapters on Scalia's service in the Office of Legal Counsel at DOJ during the Ford Administrative afforded me helpful insights into his undying dedication to the expansion of presidential power--which still pops up from time to time. His views on regulation developed during his stay at the Administrative Conference and the American Enterprise Institute are important to understanding his views as a Justice. The only thing missing from Murphy's analysis is much about Scalia's family/private life, with the exception of Murphy's diligent examination of the role of Scalia's Roman Catholicism in impacting his character and judicial behavior. With now six Catholic justices, five of whom are generally quite conservative, this is a crucial topic which Murphy treats with scholarly professionalism.
There are many other pluses to the book as well. Murphy selects the cases he discusses carefully, and integrates them into his narrative so smoothly that general readers will grasp his points. Murphy certainly includes some critics of Scalia as well, especially Judge Posner who continues to wield a highly critical pen regarding Scalia, and pretty much deconstructed Scalia's major book, "Reading Law.". Murphy also takes on several crucial issues relating to Scalia's conduct on and off the Court. Especially the issue of what standards govern judicial recusals by Justices becomes important given the calls for Scalia to recuse himself after his famous hunting trip with Vice President Cheney. A related topic is what limits should Justices follow in making public statements that relate to the Court. An avid maker of speeches and public comments, Scalia has been repeatedly criticized for discussing his views on issues that might come before the Court.
This is a book where you need to read the end notes as you go along. Murphy discusses some of his most important insights in the notes (e.g., judicial recusals); since there are 75 pages of notes, there is much buried treasure found therein. His extensive bibliography, covering books, interviews, oral histories, speeches and public appearances, archive collections, and internet sources is enormously helpful. So we now have two fine book-length studies of Scalia, Murphy's and Joan Biskupic's "American Original." While many such as myself will remain critical of Scalia and his interpretive theories, we are now at least in a much better position to understand this most perplexing Justice as he approaches 80.
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There are currently two biographies of Justice Scalia, each with its distinctive strengths and weaknesses. The first was Joan Biskupic's "American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia" (Sarah Crichton Books, 2009). Biskupic's book is well-written, balanced, and based on extensive personal interviews with Justice Scalia himself, his family, and colleagues. It is not particularly strong, however, on Scalia's early life, his judicial philosophy, and his intellectual contribution.
Murphy's biography is longer, more in-depth, and more extensively researched than Biskupic's, but is less readable and makes no pretense to be even-handed. Murphy, a political science professor at Lafayette College, specializes in hard-hitting exposes of Supreme Court Justices. His earlier biographies of Abe Fortas and William O. Douglas, though useful and well-researched, spared readers no tawdry details of their subjects' flawed characters. This book adopts a similar kind of "gotcha" approach.
Unlike Biskupic, Murphy conducted few personal interviews. Instead, he draws heavily on public sources and archival records. The result is a scholarly but somewhat plodding and relentlessly critical biography. It is really the tale of two Scalias. The first is Scalia the Golden Boy: the gregarious, straight-laced Italian immigrant's son, who finished first in his class in high school and Georgetown, graduated Summa Cum Laude from Harvard Law School, rose quickly in his early career as a corporate lawyer, law professor, and government official, raised a model family, stayed true to his faith and his principles, and seemed to do everything right. The second Scalia is of the Golden-Boy-Corrupted. As Murphy tells it, a far less attractive Scalia emerges when he gets a seat on the federal bench. He becomes nastier and more combative. His love of fame and money leads him to give provocative speeches, teach legal seminars in posh settings, and engage in other conduct that Murphy considers unbecoming of federal judges. He increasingly allows his conservative religious beliefs to influence his judicial decisions. His vitriolic personal attacks and rigid refusal to compromise make it impossible for him to build effective coalitions with his conservative judicial colleagues. As power goes to his head, his ethical standards loosen, and he refuses to recuse himself from cases in which his impartiality is clearly in question. Though he professes to practice judicial restraint and fidelity to the Constitution's original meaning, Scalia's decisions become increasingly political and result-driven. Finally, the ultimate low point: Bush v. Gore: Consumed by a desire to become Chief Justice and appalled at the prospect of a Gore presidency with all that would mean for the future of the country and the Court, Scalia betrays all of his professed judicial principles and hands the presidency to Bush in a brazen act of politics that was nothing short of a judicial coup d'etat.
Readers will of course differ on how much of this latter tale they want to buy in to. Having read Biskupic's more balanced account, I found Murphy's narrative to be selective, one-sided, and far too often based on speculation rather than hard evidence. Peering into Scalia's mind with his psychic X-ray powers, Murphy sees little but ambition, hypocrisy, duplicity, and conceit.
Besides being one-sided, Murphy's book is too long. Readers hoping above all to get a feel for Scalia the man (and his family) will be disappointed by Murphy's heavy focus on Scalia's public life, his constant preoccupation with controversy, and by his slow-paced year-by-year rundown of Supreme Court decisions.
Murphy's book is also surprisingly thin on Scalia's intellectual contributions. There is very little on the origins of Scalia's textualist approach to reading statutes and constitutional texts; how Scalia elaborates and defends that approach; and the impact of his textualist approach on legal scholarship and the nation's courts.
To his credit, Murphy's extensive research does bring out many new and interesting details about Scalia's life, particularly in his childhood, his career as a corporate lawyer in Cleveland, and his work in the Nixon and Ford administrations. This scholarly legwork gives the book real value despite the relentless and often unfair negativism.