Joan Biskupic's American Original.

Joan Biskupic's American Original.

Joan Biskupic's American Original.

Reading between the lines.
Nov. 24 2009 10:00 AM

The Alienator

Making sense of Justice Scalia's personality—and his theory.

American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia.

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.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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.

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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."

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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.

In response to such a charge of convenience, Scalia gives us his vote, on the Supreme Court, for a right to free speech that encompasses flag burners. "I don't like scruffy, bearded, sandal-wearing people who go around burning the United States flag," he protests. Fair enough. But does Scalia's claimed consistency extend to the guarantee of equal protection in the 14th Amendment? Most scholars think the amendment, passed in 1868, was concerned with racial justice but did not ban segregated schools. So would Scalia have dissented in Brown v. Board of Education? He has said no without explaining why. "His position on Brown is indefensible," says Harvard law professor Michael Klarman. Scalia also doesn't recognize that the 14th Amendment does not cut against affirmative action; that is, it does not mandate color-blindness. Biskupic talks about Scalia's identification with "the Polish factory worker's kid" who he fears will bear the brunt of race-conscious preferences. But she doesn't delve deeply into how his approach to racial justice fails to treat the framers of the 1860s with the regard he accords to the framers of the 1780s.

Scalia moved to the bench in 1981, when President Reagan appointed him to the U.S. Court of Appeals for the D.C. Circuit. (Disclosure: My grandfather sat on the court with Scalia. They were ideological opponents. For the book, I put Biskupic in touch with my grandmother, whom she quotes as remembering Scalia in the early '80s as jovial, clever, full of himself, and not obnoxious.)

On the bench, his slash-and-burn style came to the fore. Appellate judges cannot be solo operators, as Biskupic points out. Nothing they write has the force of law unless their colleagues sign on to it. And yet on the appeals court and even more clearly since he joined the Supreme Court in 1986, Scalia has never cared about playing nicely with others. He mocks and castigates them in dissent. He writes concurrences so he does not have to bend toward their views. He often refuses to compromise even a bit of his conservative position to win the five votes needed for a majority. "He's got to have the last word. But is it really worth it?" Justice John Paul Stevens muses to Biskupic.

For years, the answer was no. Being the alienator cost Scalia the effectiveness that comes with writing for the majority—and also, perhaps, the shot he might have had to sit in the chief justice's chair instead of Roberts. (Though as Biskupic also notes, he was also probably just too old.) But Scalia's rigidity looks different, more farsighted, now that Roberts and Samuel Alito have joined the court. Biskupic ends with Scalia's majority opinion in District of Columbia v. Heller, which killed off D.C.'s handgun ban and also resurrected the Second Amendment as protecting an individual right to bear arms. By the book's end, Justice Scalia has collected another superlative: most influential. Now that's one he wouldn't quarrel with.