Scalia v. The World: On Antonin Scalia
Joan Biskupic began covering the Supreme Court in 1989, three years after Scalia joined the Court. One might have expected her to pull a punch or two in American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia so as not to be shut out of the most interesting chambers. But while American Original is no scathing critique, neither is it an easy endorsement. Biskupic clearly admires Scalia's pluck: on a beat where dry written opinions and aversion to the press are commonplace, he stands out as brash, funny, outspoken and controversial--a walking headline machine. But she dislikes his inconsistent jurisprudence, devoting an entire chapter to Bush v. Gore, as well as the caustic and sarcastic tone of his writing, which has only become sharper and more pronounced over the years, eroding the collegiality of the Court and leaving Scalia increasingly alone in dissent. "Scalia wrote with a recriminatory tone that often undercut his effectiveness," she writes. "He was hyperbolic and almost entirely dismissive of arguments from the other side." She gathers representative examples of his disrespectful references to his colleagues' opinions: they "cannot be taken seriously," are "beyond the absurd" and even should be considered "nothing short of preposterous." In light of the justices' reluctance to criticize one another personally, Biskupic also obtained several surprisingly candid observations made by Scalia's colleagues about his negative influence on the Court. "I think everybody respects Nino's wonderful writing ability and his style and all the rest," Justice Stevens told Biskupic. "But everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position." Justice Ruth Bader Ginsburg, a close friend of Scalia's, was even more direct in an interview with Biskupic: "I love him. But sometimes I'd like to strangle him."
Biskupic does not provide any revelations in her portrait of the past fifteen years of Scalia's career, but she has lent it depth and texture. She has made excellent use of the archives of Justices Lewis Powell and Harry Blackmun from the 1980s and early '90s to flesh out the lonely role Scalia has earned for himself on the Court. Biskupic has a fine eye for a telling memo or private comment; Blackmun's archives in particular overflow with revealingly wry jottings. For example, when Scalia circulated a notably shrill dissent in 1988, Blackmun wrote in the margin of the draft, "Screams! Without the screaming, it could have been said in about 10 pages." Biskupic also cites a number of instances in which Scalia was assigned to write an opinion and then lost the majority because of his sanctimoniousness and refusal to compromise. On other occasions, Chief Justice Rehnquist simply declined to assign a case to Scalia for fear that this would happen.
Biskupic calls Scalia "the purest archetype of the conservative legal movement that began in the 1960s in reaction to the Warren Court." That's not quite right. Scalia is indeed the top conservative legal thinker of our time, universally admired by the right, but he was one of the patrons of the modern conservative legal movement, not one of its products. The prominence of his generation is fading and a new, more effective generation is in ascendance. It is well organized and strategically deft, with an eye always on results. Its purest archetype is not the grandiose but easily ignored Scalia, who at his worst might as well be standing on a corner shouting at people, but the faux-modest radical John Roberts, who in 2005 took the seat on the bench that Scalia thought was his to become Chief Justice of the United States.
Whereas Scalia smokes cigars, uses off-color language and flicks his chin like a hotheaded Soprano, Roberts wears his hair neatly, speaks mildly and displays his handsome family for the camera. His credentials and performance before the Senate Judiciary Committee so impressed Orrin Hatch that the senator recently told The New Yorker, "You have to be a partisan ideologue not to support Roberts." (If the modern judicial nominations process is a dance, Roberts is Baryshnikov.) As Roberts has shown particularly in cases dealing with race issues, he is every bit as conservative and cerebral as Scalia but also excels at consensus building and the game of institutional politics, and was an astute pick for that reason. If Roberts can retain an ally by withholding a sharp rebuke to an argument he finds disingenuous, he will do so, and conservatives will enjoy the results when the clerk calls the next case.
Roberts hardly figures in the story told by Steven Teles in The Rise of the Conservative Legal Movement, but the young Chief Justice is unquestionably one of many beneficiaries of the long-term planning and organizing--not to mention fervent praying--undertaken by that movement's founding fathers. Scalia was one of them. Shortly after the Federalist Society--which Teles rightly describes as "an organization of extraordinary consequence"--was founded as a conservative debating club by law students at Yale and the University of Chicago in the early 1980s, Scalia, then a law professor at Chicago, became one of its most important sponsors. As Teles explains, Scalia
helped connect the Yale and Chicago contingents with the conservative law group at Stanford, helped them with fund-raising, spoke at their first conference, hosted visiting Harvard Law Federalist Society members at his home when the Society had its conference at the University of Chicago Law School, and facilitated the Society's early move into an office at the American Enterprise Institute.
At a moment when the Federalist Society could well have flamed out as another student cafeteria organization, Scalia lent it connections, prestige and momentum. Perhaps he wanted the next generation to profit from a level of support that he never enjoyed; as a law student in the 1950s, he had to settle for the St. Thomas More Society. The Federalist Society has since evolved into a powerful, loose alliance of conservative lawyers and law students. Its leaders shrewdly decided to forgo position taking and litigation clinics--both of which could divide its diverse members; instead, it has promoted debates, networking and, above all, institution building, through clerkships, government posts and law professorships.