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Biskupic bio offers fascinating look at Scalia

Published:January 3, 2010, 6:31 AM

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Updated: August 21, 2010, 3:55 AM

We like to think of our U. S. Supreme Court justices as black-robed, highly principled, brilliant jurists—perched in their ivory towers high above the pettiness of partisan politics and ideological scuffles.

But then you read an impeccably researched biography of a Supreme Court justice, and you learn that they, too, are political, ideological titans, who forged their own paths to the top of the judicial food chain.

That’s exactly what we have in Associate Justice Antonin Scalia.

This is an absolutely brilliant traditionalist, who fits the definition of a Constitution “originalist,” believing that justices should base their judicial decisions on the 18th century understanding of the Constitution.

To originalists, the Constitution has a constant meaning, not subject to the needs of a changing society, while liberal justices fear that that mindset threatens all the gains in individuals’ rights made in the last half-century.

What makes Scalia fascinating is that the same originalist who appeals to conservatives also doubles as a flamboyant, wise-cracking, irreverent showman.

“Part of my charm is telling people what they don’t like to hear,” he has said.

Two concise quotes sum up Scalia the showman:

When he was criticized for going duck hunting with Vice President Dick Cheney while a case involving Cheney was on the court calendar, Scalia had a quick reply to those raising the conflict-of-interest issue: “Quack, quack.”

And years after the 2000 presidential election, when people would keep asking Scalia about the fairness of the 5-4 Supreme Court decision in Bush v. Gore, his stock answer was “Get over it.”

Biskupic has to walk two tricky tightropes here, and she does well with both.

First, are you writing for legal scholars, attorneys and law students, or are you writing for the layman unschooled in the legal craft?

As one of the latter, this reviewer found some of the legal explanations to be rough sledding, but some legal scholars have accused the author of oversimplifying and distorting some of his positions.

That’s the challenge of writing about the legal world, and Biskupic has walked that line successfully.

Second, the book already has garnered criticism from both sides of the political aisle, for being too soft or too hard on Scalia and his politics. To this reviewer, the book seems totally evenhanded.

Biskupic goes to great lengths to show how Scalia has become perhaps the most public and controversial of the current justices.

Legal scholars love to read, quote and debate his decisions. He’s not at all reluctant to make public appearances at universities. And he has mastered the simple, easily digestible sound bite, with his trademark “Quack, quack” and “Get over it” comments.

For nonlawyers, the most interesting question about Scalia may be whether his decisions are really consistent, relying on his originalist mantra, or whether they’re just adapted to fit neatly into a conservative agenda.

Biskupic provides ammunition for both sides. On one hand, she cites his voting with the majority in the Bush v. Gore decision that gave George W. the presidency.

“. . . Here were the conservative fivesome who set the tone of the bench, who had consistently favored states’ rights and advocated judicial restraint, suddenly adopting an intrusive view of equal protection,” she writes. “The message seemed to be that they found the stakes simply too high to follow their usual course . . . that they would do all that was required to ensure a Bush victory.”

But the author also gives Scalia his due, as he has insisted that he bases his decisions on legal grounds and will go against his own political views.

The best example may be his vote to strike down laws banning flag-burning as a political protest, a vote that clashed sharply with his own views.

As he has said, “I don’t like scruffy, bearded, sandal-wearing people who go around burning the United States flag.”

Like him or not, that’s vintage Scalia.

Gene Warner is a News reporter.

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

By Joan Biskupic

Sarah Crichton/Farrar, Straus and Giroux

448 pages, $28

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