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Scalia: A Court of One

By Bruce Allen Murphy

Simon & Schuster

610 pages, $35

By Gene Warner

News Book Reviewer

He’s one of only nine members of the nation’s – and perhaps the world’s – most intellectual and academic team. This team labors behind the scenes on its own field, using its carefully chosen arguments, wit and logic to forge our nation’s legal rulings. Traditionally, the internal debates and any vitriol have stayed mostly out of the public eye, behind closed doors, as we see usually just the well-polished final product.

And then there’s U.S. Supreme Court Associate Justice Antonin Gregory Scalia.

A Court of One.

That’s the book’s subtitle. It’s also the main theme of this story, interwoven throughout this lengthy narrative.

Author Bruce Allen Murphy skillfully portrays Scalia as a man who has never changed too much from his college debate-team and law-school days, a man absolutely certain of the merits of his position, abrasive in his attacks against opponents, magnetic in his speaking persona and guided by a love of winning.

And yet the same man could be genial, gregarious and back-slapping, especially in his younger days.

But Scalia has turned out to be a far different Supreme Court justice from the one court-watchers expected when he was appointed by Ronald Reagan and unanimously approved, 98-0, by the U.S. Senate in 1986.

On the D.C. Court of Appeals, he had earned somewhat of a reputation as a team-playing jurist who could forge a consensus with his more conservative colleagues while also skillfully working at times with the opposite, liberal side of the court. Sure, there were partisan and abrasive moments, but not enough to stir up any Senate opposition in a very contentious era for Supreme Court nominees.

Then Scalia seemed to turn, gradually, helping politicize the Court and launch partisan warfare on the usually staid bench. “In time, liberal jurists would begin to speak in response to Scalia and debate him in public, and in doing so ratchet up the extrajudicial partisan political nature of the Court, while also encouraging others to breach the vow of silence norm,” the author writes.

The best moments in this long, fairly dry narrative are the quick anecdotes behind the Supreme Court wall. Like the day when Scalia totally monopolized one oral argument, clearly deviating from each justice’s usually being limited to a single question. That led Justice Lewis Powell to lean over and whisper to Justice Thurgood Marshall, “Do you think he knows that the rest of us are here?”

So Scalia began ignoring the politics of his position in the late 1980s, sacrificing judicial votes when he could have helped lead a shaky 5-4 conservative majority on the Court, the author suggests. Instead, Scalia lost the votes of possible swing and centrist jurists, especially Justices Powell, Sandra Day O’Connor and Anthony Kennedy.

Following one biting dissent by Scalia against O’Connor, Chief Justice William Rehnquist sent him a simple note: “Nino, you’re pissing off Sandra again. Stop it!”

Great stuff.

The author, of course, has a tricky tightrope to walk here, writing for both the legal community and the untrained layperson who struggles with tricky legal concepts. In explaining the way different justices interpret the U.S. Constitution, Murphy spends a lot of time splitting the wafer-thin distinction between Scalia’s “textualism” and other more conservative jurists’ “legislative intent.”

But the larger, less subtle point about differences on the court comes through loudly and clearly. Our nine-member Supreme Court is split less on liberal-conservative lines than on whether the meaning of the Constitution should evolve with the times or stay true to its original late-18th century meaning, the way Scalia interpreted it.

“At base, the question was whether the Constitution was meant to be static, frozen in time by the Founders’ words, or evolving in order to extend to new times,” the author writes. “This would become the partisan fault line on the Supreme Court.”

Scalia comes off as a man of true principle, with his originalist approach sometimes leading him to a personally unsatisfying ruling, especially in his support for expanded free-speech rights. Years later, he publicly admitted that he hadn’t liked keeping a bearded, scruffy, sandal-wearing flag burner out of jail, following an incident at the 1988 Republican National Convention.

“But I was handcuffed,” Scalia said. “I couldn’t help it. That’s my understanding of the First Amendment. I can’t do the nasty things I’d like to do.”

The reader is left to believe that Scalia’s key legacy may be that of a highly principled judicial loner who failed to rally a potentially conservative Court behind him.

But Murphy turned kinder in his stated conclusion: “Until the end of his time on the Supreme Court, … Antonin Gregory Scalia will know that while the wins and losses in battles over future cases will come and go, his mission to impose his legal theory on the Court, and on America, will be his enduring legacy.”

Gene Warner is a veteran News reporter and Supreme Court watcher.