'American Original' by Joan Biskupic

By Jim Newton

Nov. 29, 2009 12 AM PT

American Original

The Life and Constitution

of Supreme Court Justice

Antonin Scalia

Joan Biskupic

Sarah Crichton Books/Farrar, Straus & Giroux: 436 pp., $28

To begin, a few snapshots from the life of Justice Antonin Scalia:

* As a young boy, he failed the entrance exam to a prestigious high school. Six decades later, he’s still kicking himself over a question he got wrong.

* He was passed over by Princeton.

* He was passed over again by President Ronald Reagan for solicitor general, and yet again by President George W. Bush for chief justice.

A lifetime of slights has left Scalia bitter and churlish. Of the experience of falling short in the solicitor general selection, he recalled: “I was bitterly disappointed. I never forgot it.”

And yet, Scalia is, as Joan Biskupic illustrates in this capable, intriguing biography, gregarious and kind, delighted by intellectual combat, energized by his work and beloved by his family and acolytes. He thus qualifies as a genuinely complex character and important biographical subject.

FOR THE RECORD: The subheadline on an earlier version of this story identified Scalia as a chief justice of the Supreme Court. He is an associate justice.

Still, one can’t help but sympathize with Biskupic, USA Today’s Supreme Court correspondent, as she attempts to unravel Scalia. He’s a difficult case and a manipulative interviewee. He remembers charming details of his youth but plays dumb on some recent deliberations of the court. He brushes off questions he doesn’t like -- “Get over it,” is his stock response to those who presume to judge the court’s work in Bush vs. Gore -- but elaborates on hunting, which he so memorably did with pal Dick Cheney while Cheney was a defendant in a case before the court.

Biskupic treats all of this with admirable restraint. “American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia” is full of strong reporting. It is scrupulously even-handed, which may irritate partisans on both sides of the Scalia divide -- there are few fence-straddlers when it comes to him. It also is occasionally exasperating, organized to help explicate legal issues at the expense of a better understanding of Scalia himself.

Scalia is best known for his long and fervid advocacy of the legal theory known as “originalism,” hence the title of Biskupic’s book. His many admirers credit Scalia, since his 1986 appointment, with tenaciously advancing the idea that the words and intentions of the framers should strictly limit constitutional decision-making. Originalists argue that this approach is philosophically sound and intellectually consistent, and thus superior to those, exemplified by former Chief Justice Earl Warren, who view the Constitution as enumerating broad principles subject to modern applications. Warren’s approach is perhaps best summed up in a 1958 case about cruel and unusual punishment. There, Warren wrote that “The [8th] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Scalia rejects this, which he sees as empowering judges to impose policy preferences rather than adhere to constitutional literalism.

But does Scalia really believe that, or does he merely substitute his preferences for those of the justices with whom he disagrees? On the prohibition of cruel and unusual punishment, does he genuinely conclude that the Constitution permits the use of the rack or the pillory today? How about the lash or mutilation, both commonly employed in the 18th century? More broadly, Scalia denigrates those who attempt to discern the meaning of statutes by examining committee reports and the like, but he engages in analysis of intent when it comes to the framers -- and when it produces a result he supports. He’s similarly elastic elsewhere, finding that the Constitution prohibits affirmative action and offers no protections for women seeking abortions -- conveniently in line with his conservative politics -- but he’s quiet when pressed on whether Brown vs. Board of Education was correctly decided.

Take the 14th Amendment’s guarantee of equal protection to all Americans. When gays claimed the plain language of that amendment to challenge anti-sodomy laws, Scalia excoriated his colleagues for agreeing. “Today’s opinion,” he wrote in the 2003 case of Lawrence vs. Texas, “is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” One doesn’t need to wonder why his colleagues sometimes weary of him.

As Biskupic explains, Scalia maintained there and elsewhere that equal protection may be overcome when it is rational to do so -- although equal protection acquired much more significance for Scalia when it was not gays but Republicans who were claiming its privileges. Lawyers for George W. Bush argued that equal protection is so profoundly important that it justified the court abandoning its deference to state judges in overseeing elections -- Scalia usually is a firm advocate of states’ rights -- and blocking the further counting of ballots in Florida. Suddenly, for Scalia, the claim had great and meaningful significance. Originalist principles of federalism and disdain for expansive application of equal protection went merrily out the window. Adding insult to constitutional injury in Bush vs. Gore, Scalia and the majority then ruled that no future court should be bound by their use of equal protection in the 2000 election: “Our consideration is limited to the present circumstances.” In other words: “Get over it.”

Scalia is similarly selective as a textualist. His most notable opinion for the court came this year, when he persuaded a majority to conclude that the 2nd Amendment confers an individual right to bear arms. As for the introductory language of the amendment -- “A well regulated militia being necessary to the security of a free state” -- Scalia disregarded it and discovered an individual right that two centuries of Supreme Courts had not noticed. And was that newfound individual right guaranteed to all? That would produce a policy result that would be difficult to sanction; even gun advocates worry about arming criminals and the insane. Again, constitutional principles gave way to policy preferences: Nothing in the opinion, he wrote, “should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . or laws imposing conditions and qualifications on the commercial sale of arms.” Conservative critics have compared Scalia’s 2nd Amendment treatise to Roe vs. Wade.

For Scalia, then, does the Constitution mean precisely what it says? The answer: Only when he says so. Originalism is neither original nor objective. As Justice William Brennan so aptly observed, “it is little more than arrogance cloaked as humility.”

Biskupic presents all of that with determined objectivity, letting Scalia present his views and soliciting the views of a range of constitutional scholars. Biskupic does so thematically, in chapters on race relations, abortion rights, presidential power and free press (notwithstanding some of the Constitution’s plainest language -- “Congress shall make no law . . . abridging the freedom of speech, or of the press” -- Scalia is happy to clip the press’ wings wherever he can).

That is a useful device, but it creates small annoyances and a large problem. Because each theme requires returning to Scalia’s early years on the court, characters enter, leave and are reintroduced. Justice Anthony Kennedy, for instance, makes a brief appearance in Chapter 7 but isn’t confirmed to the bench until Chapter 8. We are reminded, by my count four times, that Brennan joined the court in 1956. That’s tedious but necessary, given the book’s structure. What’s worse is that looping back denies us insight into Scalia’s development as a justice. He is always starting over, making the story feel repetitive and reinforcing the notion that he is precisely the same character that he was as a high school student.

That’s a weakness but not a fatal one. Biskupic’s larger accomplishment is to present the recent evolution of the Supreme Court through the prism of its most colorful member. In that vein, it’s worth noting this: Viewed through Scalia, Chief Justice William Rehnquist is described as a moderate. A justice who was the most conservative member of the Burger Court now comes to us as a centrist. Such is the state of today’s court.

And yet, the book’s final paradox surely won’t be lost on its subject. Decades of service and biting opinions have made Scalia a formidable intellectual figure; he commands adoring audiences and heads a worshipful school of jurisprudence. But he remains marginal on the court, effective only when he persuades moderates, usually Kennedy, to join him. Thus, years of arguing originalism and belittling its skeptics have succeeded largely in empowering a justice who doesn’t accept the idea.

That must frost Scalia. Oh, well. Get over it.

Newton is The Times’ editor-at-large and author of “Justice for All: Earl Warren and the Nation He Made.”