Fuse Book Review: Associate Justice Antonin Scalia A Jud...

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Fuse Book Review: Associate Justice Antonin

Scalia A Judge Who Refuses to Evolve
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Bruce Allen Murphy conveys the impression that Scalia knows how he feels on every issue
before the briefs have been argued, then pulls out citations of law which justify his
pre-conceived notions.
Scalia: A Court of One, by Bruce Allen Murphy. Simon and Schuster, 644 pages, $35.00.
By Thomas Filbin
Hes a complicated man, but no one understands him but his woman. Isaac Hayes, theme
from the motion picture Shaft.
If ever there was a man who is defined
by, indeed trapped in, his culture,
religion, temperament, and upbringing,
it is Antonin Scalia, Associate Justice

In Brief

of the United States Supreme Court

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Jack Bruce Thundering
Dynamo of the Bass Guitar

since 1986. Most people change or

evolve at least a little in a lifetime, but

A homage to Jack Bruce, thundering

to Scalia the very word evolve has

dynamo of the bass guitar, singer of

the connotation of betraying principle

unmatched power and clarity, coequal with Clapton at the

in favor of a squishy relativism of the

helm of the supergroup Cream.

moment. People who have allegiance

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to truth do not evolve, they stay as they

are and fight to their last breath against

After a 35+ year run, writers for the paper

all those whose views deviate from

certain absolute notions of the good
and the right. So thinks the man who
feels the Constitution is not a living
document to be applied to changing
times, but one writ in stone whose
purpose is to prevent change.

learned today that the Providence Phoenix

will be shutting its doors after next weeks
issue.

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Culture in Over 20 Years.
Mayor Walsh Announces Cabinet Level
Chief of Arts and Culture. Important step in
ongoing elevation of arts in Boston, Appointee led Chicagos
cultural planning process.

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Bruce Allen Murphy, author of previous biographies of Justices Abe Fortas and William

Arts Fuse Brief: Giant Author

Puppets on Parade!

Douglas, has written a thorough and scrupulously researched account of the life of a man

On September 21, giant author puppets will

considered the most contentious, stubborn, and acerbic ideologue ever to sit on the court, and

be on parade in Mansfield, CT.

those are just things his friends would say about him. Although appointed by Reagan as a
conservative, Scalia one by one alienated all of his natural allies on the court who were

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moderate to conservative Republicans. He has attacked OConnor and Kennedy in particular

even when he concurred with their decisions, making sure in his written opinions to hector

Its important for there to be funds, curators,

them that they had missed some point of law or came to the right decision for the wrong
reasons. One gets the feeling that little Nino was told by his fourth grade teacher that he was

institutions, and audiences for art that can

speak truth to power in unconstrained ways.

the smartest little boy who had ever come to P.S. 13 in Queens and he never got over it.
Born to Italian immigrant parents, he learned respect for learning and hard work from his
father who, through Herculean determination, learned English well enough to receive a
doctorate from Columbia. Antonin was educated by the Jesuits at Xavier High School in
Manhattan, where the classics were taught accompanied by military style discipline. An honors

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student, he thought of Princeton but felt snubbed there in an interview because of his ethnicity,
and instead went to Georgetown where he was an outstanding scholar and prize debater. The

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art of debate for him, however, was so competitive that it meant not merely winning on points,
but hammering his opponents into the ground. This trait might be useful for a trial lawyer, but
appellate judges are supposed to possess a reflective nature, hearing all the arguments and

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weighing them against one another before deciding. Murphy conveys the impression that

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Scalia knows how he feels on every issue before the briefs have been argued, then pulls out

@theartsfuse

citations of law which justify his pre-conceived notions.

Scalias career was a steady ascent from brilliant law student at Harvard, to working lawyer,
professor and writer, government official and counsellor, appeals court judge, and finally to the
Supreme Court. He knew which avenues best secured promotion, and he caught the eye of his
masters as one who could be trusted to exercise judicial restraint. His views leave little role for
the highest court, instead favoring what state legislatures or the democratic process determine
to be the state of things. The unabridged will of the people and their elected lawmakers trumps
the notion of majority rule with respect for minority rights in this judges mind.

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One of Scalias guiding lights is a principle of constitutional analysis which he described as

originalism in the beginning, but which morphed into a more arcane version called
textualism. Originalism seeks to discern what the founding fathers intended when they wrote
the Constitution, while textualism asks what the ordinary person at that time understood the
words of the Constitution to mean. Scalia takes this so seriously that he has written a lengthy

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Websters 1828 edition of the dictionary. One can imagine eyes rolling in chambers as the other

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Doom Soul Speaks artsfuse.org/116836/fuse-mu
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justices listen to his declamations on all things from voting rights, gun laws, health care, and

Expand

treatise on the subject, but more so and more ridiculously when he cites things such as

same sex marriage. If it wasnt conceivable in 1789, it isnt permissible today seems to be his
mantra.

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The book spends a goodly amount of time on Scalias extra-judicial speechmaking. Judges
must be circumspect in their public comments lest they are thought to be players rather than
referees. A devout and conservative Catholic (certainly more Catholic than the current pope),
he lectures frequently at Catholic colleges and law schools, often citing the evil of religion
being banished from the public square by a wall of separation he feels the founders never
intended. The father of nine children and an ardent admirer of St. Thomas More, who lost his
head as Henry VIIIs chancellor for not assenting to the kings divorce and break from Rome,
Scalia sees himself similarly as a martyr of sorts for his beliefs. (Thomas More had earlier in
his career put some heretics to death, making you half imagine the justices heart is there as
well). His critics have suggested Scalias religion influences his judgments, although he denies
it, but he accepts no general constitutional right of privacy under which the court struck down

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state laws criminalizing homosexual acts. He opposes abortion and same sex marriage, and
indeed has compared societal disapprobation of homosexuality as similar to disapproving of
murder, polygamy, or cruelty to animals. When called to account for it by a gay law student at
a lecture, Scalia denied it was a case of similars, but rather a reductio ad absurdum, which the

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student should have known. Denigrating the opponent as well as disagreeing is the Nino style.

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beliefs and loyalties. Murphy writes that in overturning a long existing precedent in a Second

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Amendment case it was not a problem for Scalia, who was by now adept in manipulating
his originalist theory to reach the result he sought. In Bush v. Gore, Scalia assumed an
aggressive stance to convince his fellows to take the case on appeal from Florida, and to find in
favor of stopping the vote count to guaranty Bush the presidency. This was a low moment in
SCOTUS history as Justice Stevens noted: Although we may never know with complete
certainty the identity of the winner of this years presidential election, the identity of the loser
is perfectly clear. It is the Nations confidence in the judge as an impartial guardian of the rule
of law.
Scalia feels that textualism is the one true way to interpret the Constitution, all others being
merely theories held by judges. Once again, the true faith doesnt need to be proven. Most
scholars, whether lawyers, historians, or literary critics would say his textualism is just another
theory, and not a very good one, flawed like the pedantic Rev. Casaubons magnum opus, The
Key to All Mythologies, in Middlemarch. The Constitution for Scalia is static by intent, stating:
It certainly cannot be said that a constitution naturally suggests changeability; to the contrary,
its whole purpose is to prevent change

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Justice Scalia. Perhaps Ruth Bader Ginsberg believes that inside the bully boy is some better
soul who, but for chance, could have been other than he is.
Murphy rightly notes that most justices regardless of party are philosophically pragmatist,

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considering the consequences of their decisions. How will this affect people in their dealings,
they ask; what outcomes will ensue? Roberts, Kennedy, and Souter are all of this stripe: judges
believing decisions need to function in the world of affairs. Scalia in this, like all things, begs
to differ.
One term the court has used in recent decades to overturn or modify decisions of bygone eras is

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to invoke the notion of the evolving standards of decency that mark the progress of a
maturing society, as Justice Kennedy wrote for a 5-4 majority in the 2005 case of Roper v.
Simmons, holding the execution of a person under eighteen to be unconstitutional as cruel and
unusual punishment. The section of the Constitution which prohibits such punishments, but
nowhere defines what they might be, underscores the weakness of Scalias view. Capital
punishment for minors, whipping, and cutting off ears were all punishments which existed in
colonial times, and which the founding fathers were familiar with, but in not clearly stating
what is cruel or unusual specifically, leads to the inescapable conclusion that this was meant to
be left up to future judges to determine.
Scalia approaches age eighty in good health, determined to soldier on. Once he had hopes of
converting the court to his views, perhaps even becoming chief justice, but as that ship has
sailed he can only go on as he has. There is a trait called judicial temperament; less brilliant
people have been better judges because they possessed it. His only friend on the court is Ruth
Bader Ginsburg, who shares his love for opera. One imagines the tiny, frail, but steel spined
Ginsburg undisturbed by Scalias outbursts. Perhaps she believes that inside the bully boy is
some better soul who, but for chance, could have been other than he is.
Murphy observes in summing up that Scalia will continue to use his originalism and
textualism decision making theories, his traditionalism as dictated by his religious beliefs, and
his partisan conservatism, not always seeing how these are, at times, contradictory. This well
written biography leaves us believing that Scalia will be remembered as an idiosyncratic
footnote and a long serving anachronism who saw the law as an immutable object, not as a
force whose purpose is the advancement of civilization and the protection of the individual.

Thomas Filbin is a lawyer and freelance writer. His reviews have appeared in The New York
Times Book Review, The Boston Sunday Globe, and The Hudson Review.
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