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'American Original' by Joan Biskupic

A new biography shows the intellectual prowess -- and interpretive liberties -- of Supreme Court Justice Antonin Scalia.

November 29, 2009|By Jim Newton
  • Sitting in the front row, second from the right, Antonin Scalia poses with his Supreme Court colleagues on Sept. 29. Scalia was appointed to the high court by President Reagan in 1986.
Sitting in the front row, second from the right, Antonin Scalia poses with… (Mark Wilson, Getty Images )

American Original

The Life and Constitution

of Supreme Court Justice

Antonin Scalia

Joan Biskupic

Sarah Crichton Books/Farrar, Straus & Giroux: 436 pp., $28

To begin, a few snapshots from the life of Justice Antonin Scalia:

* As a young boy, he failed the entrance exam to a prestigious high school. Six decades later, he's still kicking himself over a question he got wrong.

* He was passed over by Princeton.

* He was passed over again by President Ronald Reagan for solicitor general, and yet again by President George W. Bush for chief justice.

A lifetime of slights has left Scalia bitter and churlish. Of the experience of falling short in the solicitor general selection, he recalled: "I was bitterly disappointed. I never forgot it."

And yet, Scalia is, as Joan Biskupic illustrates in this capable, intriguing biography, gregarious and kind, delighted by intellectual combat, energized by his work and beloved by his family and acolytes. He thus qualifies as a genuinely complex character and important biographical subject.

FOR THE RECORD: The subheadline on an earlier version of this story identified Scalia as a chief justice of the Supreme Court. He is an associate justice.

Still, one can't help but sympathize with Biskupic, USA Today's Supreme Court correspondent, as she attempts to unravel Scalia. He's a difficult case and a manipulative interviewee. He remembers charming details of his youth but plays dumb on some recent deliberations of the court. He brushes off questions he doesn't like -- "Get over it," is his stock response to those who presume to judge the court's work in Bush vs. Gore -- but elaborates on hunting, which he so memorably did with pal Dick Cheney while Cheney was a defendant in a case before the court.

Biskupic treats all of this with admirable restraint. "American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia" is full of strong reporting. It is scrupulously even-handed, which may irritate partisans on both sides of the Scalia divide -- there are few fence-straddlers when it comes to him. It also is occasionally exasperating, organized to help explicate legal issues at the expense of a better understanding of Scalia himself.

Scalia is best known for his long and fervid advocacy of the legal theory known as "originalism," hence the title of Biskupic's book. His many admirers credit Scalia, since his 1986 appointment, with tenaciously advancing the idea that the words and intentions of the framers should strictly limit constitutional decision-making. Originalists argue that this approach is philosophically sound and intellectually consistent, and thus superior to those, exemplified by former Chief Justice Earl Warren, who view the Constitution as enumerating broad principles subject to modern applications. Warren's approach is perhaps best summed up in a 1958 case about cruel and unusual punishment. There, Warren wrote that "The [8th] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Scalia rejects this, which he sees as empowering judges to impose policy preferences rather than adhere to constitutional literalism.

But does Scalia really believe that, or does he merely substitute his preferences for those of the justices with whom he disagrees? On the prohibition of cruel and unusual punishment, does he genuinely conclude that the Constitution permits the use of the rack or the pillory today? How about the lash or mutilation, both commonly employed in the 18th century? More broadly, Scalia denigrates those who attempt to discern the meaning of statutes by examining committee reports and the like, but he engages in analysis of intent when it comes to the framers -- and when it produces a result he supports. He's similarly elastic elsewhere, finding that the Constitution prohibits affirmative action and offers no protections for women seeking abortions -- conveniently in line with his conservative politics -- but he's quiet when pressed on whether Brown vs. Board of Education was correctly decided.

Take the 14th Amendment's guarantee of equal protection to all Americans. When gays claimed the plain language of that amendment to challenge anti-sodomy laws, Scalia excoriated his colleagues for agreeing. "Today's opinion," he wrote in the 2003 case of Lawrence vs. Texas, "is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda." One doesn't need to wonder why his colleagues sometimes weary of him.

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