NOVEMBER 2, 2014
IT WAS HARD to force myself to finish reading this biography of Antonin Scalia. Reading nearly 500 pages about someone I dislike is an enormous chore.
For many reasons, I am not a fan of Scalia. I am on the opposite end of the ideological spectrum. I find his originalist method of constitutional interpretation to be a nonsensical way to approach a document written for an agrarian slave society and believe that Scalia only follows it when it serves his conservative agenda. I especially dislike the sarcastic, often nasty tone of his opinions. It sets a terrible example for law students and lawyers on how to write.
Bruce Allen Murphy’s biography tells Scalia’s life story in great detail. The first 133 pages describe Scalia’s life before becoming a justice in 1986. Murphy describes all of Scalia’s characteristics that have been evident in his nearly three decades on the high court: his intelligence, his unwavering conservatism, and his combativeness.
Scalia excelled at every level of education and at each step of his career. From a young age, he was conservative in his political ideology and in his Catholic faith. Murphy tells how Scalia voted against John F. Kennedy in 1960, in part because Kennedy believed that he should not govern based on his Catholic faith.
Most of the book, though, is devoted to Scalia on the Supreme Court, and Murphy does this chronologically, telling the story of each term of the Court from 1986 through 2013. He describes Scalia’s key majority and dissenting opinions from each year, and gives special attention to Scalia’s verbal attacks on other justices and his repeated sarcasm and ridicule toward those with whom he disagrees. Murphy also recounts, for each year, Scalia’s off-the-bench speeches and media interviews, most of which advocate his originalist view of constitutional interpretation and his Catholic faith.
Those who are fans of Scalia will likely be upset by this book because it is clear that Murphy is skeptical of Scalia’s conservative views and especially his originalism. Murphy describes Scalia as a brilliant, intensely ambitious person who often is a bully to those around him. I imagine that Scalia’s supporters will say that Murphy lets his own views color his descriptions of Scalia’s opinions and speeches.
By contrast, those, like me, who are not enamored of Scalia just want to shout, enough already, I don’t want to read another account of Scalia attacking his colleagues or defending originalism. After a while, the book becomes tedious, as Scalia gives the same speeches over and over, and in case after case writes an opinion advancing the same conservative ideology.
Scalia’s judicial philosophy is familiar to all. He strongly opposes abortion rights and all constitutional protection of privacy, finds no constitutional limits on the death penalty, believes that affirmative action is unconstitutional, rejects a wall separating church and state, and favors protecting a Second Amendment right of individuals to have guns. He justifies all of this by claiming that he is applying an originalist approach to the Constitution: the meaning of a constitutional provision is fixed at the time it is adopted and does not change until amended. For Scalia, the role of the justice is to ascertain and apply the original understanding in deciding cases. Murphy does an excellent job of showing how Scalia’s originalist philosophy has changed over the years, something that Scalia does not admit or acknowledge.
Unless one believes that the 2012 Republican platform mirrors the original meaning of the Constitution, Scalia is just using originalism as a guise for imposing his conservative values. Of course, all justices inevitably make value choices in interpreting the Constitution. That is inescapable for a document written in ambiguous, expansive language, using phrases such as “due process of law” and “cruel and unusual punishment,” and requiring courts to decide what is “reasonable” or a “compelling” government interest. What makes Scalia different is that he refuses to acknowledge that he is making value choices, claiming instead to be following a neutral method of interpretation that just happens to lead to very conservative results.
Murphy describes some of the most prominent criticisms of Scalia’s philosophy, from other justices, such as John Paul Stevens, and from judges, such as Richard Posner. Murphy recounts how Scalia responds to each criticism, often in an angry and demeaning tone. But Murphy might have done more to show how Scalia follows his originalist philosophy only when it leads to conservative results. Murphy does this in discussing the Second Amendment: Scalia’s commitment to adhering to the text of the Constitution vanished in light of a text that says that it is about protecting a “well regulated militia.” But Murphy does not explain how Scalia’s vehement opposition to affirmative action cannot be reconciled with originalism; the Congress that ratified the 14th Amendment adopted many race-conscious programs to benefit former slaves that cannot be squared with Scalia’s belief that the Constitution requires that the government be color blind in its actions.
Murphy describes the Court’s decision in Citizens United v. Federal Election Commission, which held that corporations could spend unlimited amounts of money in election campaigns. But he doesn’t really question whether it is possible to say that the framers of the First Amendment intended to protect a right of corporations to spend money in elections. Obviously, the framers never thought about corporations’ free speech rights, let alone campaign spending.
The problems with originalism have been repeatedly identified. It assumes that there was a clear original understanding for constitutional provisions. In reality, those who drafted and ratified the Constitution and its subsequent amendments often disagreed, themselves, on its meaning. In teaching constitutional law, I often point to the many important disagreements between Alexander Hamilton and James Madison over basic constitutional questions. As a result, justices are not discovering the original understanding; they start with their conclusions and then look for the historical evidence to support it.
Even more important, even if the original understanding could be discerned, that does not explain why it should control modern constitutional interpretation. Long ago, Chief Justice John Marshall wrote that we must never forget that it is a Constitution we are expounding, a Constitution meant to adapt and endure for ages to come. The Constitution was written for a vastly different world, and applying its original meaning leads to results that are clearly unacceptable. The same Congress that ratified the 14th Amendment also voted to segregate the District of Columbia public schools. Under an originalist philosophy, Brown v. Board of Education was wrongly decided.
Murphy points out that several years ago Scalia said that he believes that the equal protection clause of the 14th Amendment does not limit the ability of the government to discriminate against women. It certainly illustrates the unacceptability of originalism, but it also shows the incoherence of the theory. The 14th Amendment says that no state may deny any person equal protection of the laws. Why isn’t that text a prohibition of sex discrimination regardless of what the drafters of the provision intended?
In fact, if one were to take Scalia’s originalist philosophy seriously, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II of the Constitution refers to these officeholders as “he,” and the framers undoubtedly thought that they had to be men. Women were not even accorded the right to vote until the 19th Amendment was ratified in 1920.
Murphy pays a good deal of attention to Scalia’s Catholic faith and Scalia’s many speeches about it. Murphy also points to the similarity between Scalia’s religious beliefs and his constitutional jurisprudence, except when Scalia’s religion does not lead to conservative results. For example, Scalia parts company with the position of the Catholic Church on the death penalty.
In chapter after chapter, Murphy describes Scalia’s belligerence and his nastiness to those with whom he disagrees. Scalia attacked Justice Sandra Day O’Connor, for instance, when she refused to join his opinion overruling Roe v. Wade in 1989. Murphy describes Scalia’s repeated caustic dissents to opinions by Justice Kennedy, such as those limiting the death penalty, protecting the rights of those held as enemy combatants, and ordering the release of prisoners from greatly overcrowded institutions that were proven to be deliberately indifferent to the medical needs of inmates.
Murphy, like others, questions the effectiveness of these attacks. Joan Biskupic, for example, who has written biographies of both Sandra Day O’Connor and Antonin Scalia, has argued that Scalia forever alienated O’Connor with his attack on her in the 1989 abortion case.
But what Murphy does not do is question whether such sarcasm and caustic rhetoric belong in judicial opinions at all. I find that my students find such colorful language entertaining and more appealing than the dry prose so often found in judicial opinions. But I also see that they try to emulate the sarcastic and dismissive tone when they are drafting briefs. Putting ideology completely aside, I believe that Scalia’s sarcasm has no place in judicial opinions, but has had a real, detrimental effect on how others write. The caustic language does not add to the substance of an argument, or even its persuasiveness, but it does add an unpleasantness that undermines the civility that we should expect of all lawyers and all who engage in discourse.
Ultimately, Murphy rightly concludes that it is impossible to know what Scalia’s lasting effect will be on constitutional law and the Supreme Court. Scalia is the foremost champion of originalism ever to serve on the Court. But will it survive his tenure?
Scalia has served on a Court that has been quite conservative and became more conservative over time, first when Clarence Thomas replaced Thurgood Marshall and then when Samuel Alito replaced Sandra Day O’Connor. If a Republican is elected president in 2016 and is able to replace Justices Ginsburg and Breyer, it is quite likely that Scalia’s views will prevail for decades to come. But if a Democrat wins in 2016 and can replace Scalia and Kennedy, both of whom are now 78, then the Court is likely to move significantly to the left and Scalia’s most important conservative precedents are not likely to survive very long.
In assessing Murphy’s detailed description of an important figure in American law, it is hard to not blame the messenger. For those of us who disagree with Scalia and dislike his manner, it is hard not to be put off by almost 500 pages of the stuff. Yet in fairness to Murphy, he really is just the messenger, and a good one at that.
Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law, with a joint appointment in Political Science.