The Rock Star of One First Street
This is an unusual book. One has the feeling that the author does not really care for his subject, but, in spite of himself, Bruce Allen Murphy, the Fred Morgan Kirby Professor of Civil Rights at Lafayette College, can’t help noticing that Antonin Scalia, the most outspoken and visible member of the United States Supreme Court is witty, brilliant, creative, pungent, combative, and even spiritual. One law professor, Jonathan Turley, has even correctly observed that Scalia is our nation’s “first real celebrity justice.” Scalia is, as readers of this journal are aware, one of my heroes, and I opened this book with some trepidation, given that it had already been sharply panned in some conservative quarters.
I do not subscribe to all of Murphy’s conclusions, but anyone seeking an analysis of Scalia’s place in the politics and jurisprudence of our era, at least if that person does not know much about Scalia to begin with, could profitably consult Scalia: A Court of One. Such a reader will discover that the senior Associate Justice is the country’s most visible defender of the view that the Constitution ought to be interpreted in the manner in which it would have been understood by its framers. This jurisprudential attitude is often ridiculed in the legal academy (where most law professors long ago signed on to the view—anathema to Scalia—that the Constitution’s meaning must be altered to meet the judicially perceived needs of the times), but it is the only one that offers much hope for preserving our American tradition that ours is a government of laws, not men.
Scalia’s jurisprudence is not really cherished by Professor Murphy, but he does a creditable job in explaining it and offering it a grudging respect. This is not surprising in light of the fact that a recent editorial in the Wall Street Journal, criticizing Justice Ruth Ginsberg’s dissent in a case where she clearly was arguing politics rather than law, contrasted her with Justice Scalia, of whom the Journal said “Justice Antonin Scalia sometimes unleashes his rhetorical ferocity on decisions he dislikes, but his dissents are rooted in the law. Justice Ginsburg’s is a flight from the law.” The gist of this observation is that Scalia is a true defender of the American Constitution and the rule of law. That Scalia is a staunch such defender is the key takeaway from Murphy’s book, whether or not Murphy wanted it so.
Murphy’s study gives an absorbing and detailed look at Scalia’s pre-judicial career, and Murphy fairly (one is tempted to say, judiciously) limns the manner in which Scalia has remained true throughout his career to furthering the rights of individuals threatened by an increasingly authoritarian state. This allows Murphy to present Scalia’s later First Amendment jurisprudence and his safeguarding the rights of the criminally accused as a consistent strand in Scalia’s constitutional jurisprudence. Murphy appears to understand that this strongly demonstrates that Scalia the Justice is much more than the zealous partisan many of his critics (and occasionally Murphy) would like to make him. Murphy also is excellent in exploring Scalia’s confirmation hearings, and reminds us of what things were like in the relatively quiescent early Reagan years, when the Republicans controlled the Senate, and when, astonishingly, Scalia’s nomination was approved by an 18-0 vote of the Senate Judiciary Committee and then by a 98-0 vote in the Senate itself. This was before the parties split on matters of judicial ideology, and was something of either a tribute to Scalia himself (likely) or to the Senate’s understanding that it was politically prudent to approve the first Italian-American to sit on the Court.
Murphy suggests that once Scalia became a judge his essential attitude was to determine how a case ought to come out, and then to dip into a variety of jurisprudential strategies (textualism, originalism, traditionalism) to reach the ideological result he favored, but, again, the facts Murphy reviews reveal instead, more often than not, a committed judge and later Justice seeking to preserve American constitutional values, and seeking to demonstrate that it still remained possible for American courts to be law-finders rather than law-makers. Murphy argues that Scalia’s barbed wit against his more free-wheeling colleagues, such as Sandra Day O’Connor and Anthony Kennedy (whose jurisprudence, Murphy nicely demonstrates, was dictated more by personal preference than by the law), and his extra-judicial strident speech-making, made it impossible for Scalia to be a consensus-builder on the Court, and resulted in him becoming a “Court of One.”
Murphy at times seems to suggest that Scalia’s vaunted “originalism” is a technique that allowed him to pick and choose which historical view to endorse, and that this was, as some American historians have claimed, “law office history,” designed simply to buttress the arguments of an advocate. But Murphy does not seem to have appropriately acknowledged that at least some of the historians who criticized Scalia’s method themselves had political agendas and selectively presented evidence. Every now and then, Murphy also does make assertions that seem problematic, if not blatantly unprovable or untrue, as, when referring to Bush v. Gore, he says that “Scalia wanted George W. Bush in the White House and he was prepared to use his judicial resources to help put him there,” as if Scalia was going to ignore the law to promote his politics (precisely what Scalia constantly accused his pragmatic fellow justices of doing). A fair-minded observer of what the Florida Supreme Court (six Democrats and one independent) had done in its Bush v. Gore opinion, which essentially rewrote Florida election law to help Al Gore, would have had a bit more trouble in concluding that Scalia was doing anything other than attempting to redeem the rule of law from a group of state judicial partisans.
The reader has the feeling that Murphy might like to believe that at the end of his career Scalia is somewhat embittered, and is, Cassandra-like, a voice crying in the wilderness. Yet Murphy ends the book on a curiously conciliatory note, suggesting that it is possible that Scalia’s theories of originalism and textualism may eventually capture a majority of the Supreme Court in order to make them “the law of the land, and in doing so, prevent the pride of the Scalias from becoming just a footnote in legal history.” Through that future majority of Justices, explains Murphy, “whether he [Scalia] is around to see it or not . . . his originalism will be resurrected—will come again—and he, and it, will live forever.” Murphy immediately qualifies this by the last three words in his book, “Or, perhaps not . . .” but at the end of a book that has emphasized Scalia’s Catholicism, and his belief in miracles, in the Resurrection, and even in the Devil, Murphy’s implicit suggestion that Scalia’s fate might be like that of his Savior Himself is striking indeed.
Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law, and is currently at work on a book about law professors.
Posted: August 25, 2014