The Alienator
Making sense of Justice Scalia's personality—and his theory.
In Joan Biskupic's new biography of Antonin Scalia, American Original, the justice wears a wreath of superlatives. He is the most quoted member of the Supreme Court and the one scholars write about most. He is the justice who writes the most concurrences—separate opinions that accept the holding of a majority opinion but usually part company with its reasoning. He is also the justice who prompts the most laughter at oral argument, according to two bona fide studies. Court observers pick Scalia as the most talkative. He disagrees with that one. They would probably call him the most argumentative. And he'd disagree with that, too.
Here's my superlative, to add to the pile: Scalia is the justice liberals most love to hate and conservatives most love. He is also the only justice to use the Sicilian finger flick in public or to say "quack quack" during a speech (after he was asked to recuse himself from a case in which Dick Cheney was the named plaintiff, because he'd gone duck hunting with the vice president). As Biskupic says, her subject is "a showman, a streetwise guy, and a pulverizer." The more I read about his penchant for battle, and in particular about his unrelenting pattern of pushing away other justices at critical moments, rather than compromising to win a majority, another label occurred to me: the alienator.
All of the excess and flamboyance, not to mention the sharply right-wing judicial opinions and the slash attacks on his colleagues, make Scalia the subject a somewhat odd match for Biskupic the biographer. She is an utterly fair-minded, diligent reporter who covers the Supreme Court for USA Today and has written an authoritative biography of the more temperate Justice Sandra Day O'Connor. (I reviewed it here.) The Scalia book, too, will stand up over time. But it probably won't satisfy ardent Scalia lovers or haters. Biskupic calls her man out for lapses and inconsistency at some moments and mildly sympathizes with him at others. In other words, she delivers neither a knockout punch nor a bear hug. Biskupic tells you all you need to know to make up your own mind about Scalia's character, but perhaps not quite to judge the way he applies his signature and influential theory of constitutional law: originalism.
Antonin Scalia grew up in an Italian neighborhood in Trenton, N.J., that he would later call his "little platoon." He wasn't just an only child: He was "the only child of his generation from both sides of his family," which included myriad aunts and uncles. How many Italian Catholics of his time can say that? Somehow, despite all the attention, Scalia never learned the native Italian of his grandparents, an omission he says he's ashamed of and that disappointed his father. (The son calls him "severe" and "demanding"—no surprise.)
Slate V: Author Joan Biskupic discusses Antonin Scalia.
Scalia was rejected from Princeton even though he was a high-school valedictorian with a prized Naval ROTC scholarship. It was an early brush with the stifling forces of elitism he still sees himself fighting. Scalia went to Georgetown, where he says he learned "not to separate your religious life from your intellectual life," and then to Harvard Law School. I couldn't locate in these pages a light bulb moment of dawning conservative consciousness. Biskupic mentions an important lecture that took place while Scalia was at Harvard, by the scholar Herbert Wechsler, who criticized the Supreme Court's school desegregation ruling in Brown v. Board of Education as lacking a "basis in neutral principles."
But Scalia doesn't remember attending. His traditionalism may simply be part of him, and it is certainly deeply felt: By the time he was raising his kids in the 1970s, he didn't let them wear jeans. His antipathy for a living, evolving Constitution—one that courts interpret differently over time—hasn't, well, evolved, either. Scalia's theory of originalist interpretation dictates that judges must give to the words in the Constitution only the meaning that the framers assigned to them. Nowhere in the document is that theory of interpretation written; still, Scalia is sure his is the single tool for understanding it. Even setting this quarrel aside, the question remains whether he is devoted to originalism first and foremost as a handy vehicle for reaching the results closest to his heart. Scalia's method of interpretation tethers the country to the past. It points away from a right to abortion, away from gun control, and toward the death penalty and religious monuments on government property. These happen to be positions Scalia passionately espouses.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. She's working on a book about bullying.


