Had he been born 30 years later, Justice Antonin Scalia would have been a heck of a blogger. One of the few larger-than-life figures on the current Supreme Court, Scalia has also been the most disdainful of the press. In 2003, he banned all broadcast media from a speech at which he accepted a free-speech award. The next year he had to apologize to print reporters when his security guards made them erase tapes of a speech he delivered in Mississippi. Then there was that awkward episode with a possibly obscene gesture at a reporter outside a Boston church in 2006. As for the mostly bookish Supreme Court press corps, Scalia has excoriated us for an imagined tendency to reduce cases to conflicts between the “nice old lady” and the “scuzzy guy.”
Yet that same Justice Scalia is taking it to the streets this month to promote his new book, Making Your Case: The Art of Persuading Judges, co-authored with professional wordsmith Bryan Garner. That’s right—Scalia, who claims to believe his colleagues can’t be persuaded of anything, is the co-author of a new book on persuasion. And he’s not just content to teach others how to persuade—he’s started doing a bit of it himself. In a series of unprecedented media appearances over the past few weeks, Scalia has taken his case for originalism directly to the American people. He’s gone from the court’s loneliest dissenter to the country’s first infomercial pitchman-jurist. Whether this means he’s reassessing his own powers of persuasion or re-evaluating the intelligence of the American people remains to be seen.
Making Your Case is principally a how-to manual for attorneys, as Scalia emphasized in an MSNBC interview last week with Tim Russert. It’s not a book about legal philosophy. But Scalia used that sit-down—and several other interviews this month—to sell his constitutional theories. This is extraordinary exposure for Scalia, who has until now been more comfortable lobbing his intellectual grenades in closed speeches, written opinions, or his inimitable comedic performances at the court’s oral arguments.
Scalia’s timing couldn’t be better. Last Tuesday, presidential hopeful John McCain served up a stemwinder about judicial philosophy that mostly amounted to a tired old rant about the imagined dangers of mythical “activist judges.” The war on judges is hopelessly 2006—even Scalia has dismissed activist judge as a “conclusory” label we apply when we dislike of the result in a given case. Still, McCain spent a morning demonizing the entire judicial branch, mostly because judges work in private and never fight back. This makes Scalia’s willingness to shuck the robes and chat about his school days and his nine children (and 28 grandchildren!) particularly welcome. The public fears secretive, mysterious judges, and Scalia proves himself very human and unpretentious, even when he’s talking about water-boarding. You can disagree with most of what he’s saying and still find yourself liking the guy. That’s always been his great gift as a writer as well.
Scalia wields a wicked pen. He once wrote of Justice Sandra Day O’Connor’s position in a case that it “cannot be taken seriously.” Last year he lashed out at Chief Justice John Roberts for “faux judicial restraint.” Last month he went after John Paul Stevens in a very personal attack. Scalia’s writing style is a disarming mix of the lowbrow and the lofty. He recently served up the Supreme Court’s first citation to Oscar the Grouch (PDF). Yet he insists that lawyers avoid all contractions, which he deems inappropriate efforts to be “buddy-buddy” with judges.
A devout Roman Catholic and admitted “social conservative,” Scalia also insists his personal politics have nothing to do with his conservative constitutional methodology. As he repeated in his interview on 60 Minutes, his method of “originalism”—strict adherence to the original text and meaning of the Constitution—is perfectly value-neutral. Reacting to a question from Leslie Stahl about whether he seeks “to drag us back to 1789,” he protested: “I’m not saying no progress; I’m saying we should progress democratically.” It’s for legislators, not judges, to adapt to evolving standards.
That’s quite a sales pitch from a justice who has always taken the position that he bears no burden of persuasion. He likes to say that he gave up on swaying his colleagues, or the public, long ago. He told Russert last week that the justices’ formal case conferences are “not an exercise in persuading one another.” In response to a question from Stahl about his inability to charm his colleagues into embracing originalism, he repeated that his brethren are unpersuadable: “I’m not going to change their basic philosophy. These people have been thinking about the law for years.” He has also stated that he writes for law students and the case books; it’s “too late” for the rest of us. Which makes it that much more ironic that he has written a book about persuasion. If he truly suspects that he himself cannot influence his colleagues, how can a few writing- and oral-advocacy tips really help lawyers do so?
Some of Scalia’s colleagues have not given up all hope of exerting intellectual influence on the court or on the public. In a Washington, D.C., debate against him last year, Scalia’s more liberal colleague Stephen Breyer laughed that after writing his own dissents, he invariably proclaims to his wife that “this time it will really persuade them!” In that same spirit, Breyer authored Active Liberty in 2005, a book aimed at selling his own constitutional methodology. But Scalia has always seemed more comfortable marinating in his own rightness. He’d either given up on us or just wanted it to look that way.
Perhaps Scalia rejects the burden of winning over his colleagues because he came to the high court in 1986 weighted down with the expectation of conservatives who saw him as the constitutional antidote to former Justice William Brennan—who schmoozed his way from one liberal triumph to another in the 1960s and early ‘70s. But Scalia never did manage to glad-hand his way to a conservative counterrevolution. He didn’t really try. Some commentators even believe his slash-and-burn approach was responsible for pushing some Rehnquist Court moderates leftward.
Scalia seems not the least bit bothered by his inability to convert his colleagues to his constitutional world view. (Clarence Thomas came to the court already embracing an even more radical theory of originalism than Scalia’s.) The court has moved dramatically to the right, not because of Scalia but thanks to the appointment of two new conservative jurists. They may share his conservative principles but not his originalist bent, and perhaps that has led Scalia to seek—finally—a broader audience: He’s now reaching out to sell the rest of us—the guys he used to call “Joe Sixpack” back when teaching law school—on the elegant simplicity of originalism.
Critics will argue he’s just using the media to move books. I don’t think so. I suspect that at 72, Scalia is starting to think about his constitutional legacy, and that legacy won’t be that he helped lawyers become better advocates. His legacy is that he espouses what he believes to be a legal method that’s near perfect, and after years of whistling that song in the graveyard, he’s ready to shout it from the rooftops.
That said, it’s not yet clear to me that Scalia truly trusts the American public to do too much constitutional heavy lifting. He recently told a group of students from Thomas Jefferson High School that he didn’t want cameras in the courtroom because the court’s work is too “lawyerly” for most of us to comprehend. Still, his willingness to defend his ideas in public against Russert, Stahl, and NPR’s Nina Totenberg suggests he’s more interested in a dialogue than a monologue.
The problem, for those of us admittedly charmed but decidedly not persuaded by Scalia’s argument, is that Scalia has decided to make his case at a moment when there’s no one with his charisma offering an opposing view. Justice Scalia’s absolute certainty about his own constitutional worldview has benefited over the years from near radio silence from the court’s liberal wing. The fuzzy echoes of Brennan’s “living constitutionalism”—the notion that the Constitution evolves with social norms—have become too easy for him to parody.
Without a really compelling legal theory from the court’s liberals, and with his new willingness to be open and expansive for the cameras, it was virtually guaranteed that once Scalia uncorked his considerable charisma, his constitutional methods would appear to be the most plausible approach, if not the only one. Scalia has mastered the art of persuading by simply being. If that isn’t a chapter in his new book, it should be.
A version of this piece appears in this week’s Newsweek.
