The AlienatorMaking sense of Justice Scalia's personality—and his theory.
Posted Tuesday, Nov. 24, 2009, at 10:00 AM ET
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.
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StumbleUponHere'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."
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Among other things, Scalia is a devout, traditionalist Roman Catholic. Once he graduated from Georgetown, he moved in circles where disdain for traditional Christianity in general and Catholicism in particular as a relic of the past is common. I suspect that in his academic career, and perhaps even on the D.C. Circuit, he received a certain amount of condescension from people who wondered, politely of course, how a man as smart as him could actually believe that stuff. Did he sharpen his elbows in response?
-- jack_cerf
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"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."
His ruling in R.A.V. v. St. Paul rejected the principle of selective hate speech codes, which reflects the view of some sympathetic with his apparent policy views who reject political correctness. A ban on flag burning in effect is a sort of speech code. And, the right to speak one's mind, express yourself, even in bombastic ways that offend seems right up his alley. He is quite willing to give someone the right to speak to return the favor and tell them how wrong they are.
This doesn't mean he's being unprincipled. One's political views often reflects one's views of constitutional principles (they don't always totally overlap, but they tend to a lot). It just doesn't necessarily make his flag burning vote some self-negating example.
-- Joe_JP
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