Book Review

A controversial view from the bench

(Sarah Crichton Books via Ap)
By Claude R. Marx
December 7, 2009

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The late Supreme Court Justice William Brennan in 1985 famously derided conservatives who advocated an “originalist’’ interpretation of the Constitution as adhering to a philosophy best summarized as “arrogance cloaked as humility.’’

Although Antonin Scalia wasn’t on the high court yet, one could argue that Brennan was being prescient in forecasting how conservative jurisprudence might shape the judiciary.

Scalia, as a result of his intellectual heft and the presence of ideological allies such as Chief Justices William Rehnquist and John Roberts and Justices Samuel Alito, Clarence Thomas, and sometimes Anthony Kennedy and Sandra Day O’Connor, has been able to leave a large footprint.

Until now Scalia has not been the subject of a full-scale biography that is intellectually rigorous, yet accessible to the general reader. Joan Biskupic, the legal affairs correspondent for USA Today, has filled the gap nicely. “American Original: the Life and Constitution of Supreme Court Justice Antonin Scalia’’ is a must-read for anyone who wants to understand this jurist.

Biskupic, who had access to Scalia and his family, makes the most of her material. The reader comes away with an understanding of the political, social, and pre-Vatican II Catholic culture in which Scalia grew up and how it shaped his world view. Always an academic standout, he developed a love of drama and textual analysis at an early age, in part from his father, a literature professor.

He always enjoyed engaging his ideological adversaries, but Biskupic contends that Scalia often feels the need not just to prevail but denigrate liberals.

In an interview with the BBC, he derided those who concluded “smugly and with great satisfaction’’ that certain kinds of treatment of war prisoners amounted to torture.

Biskupic writes that “Scalia’s reference to someone coming in ‘smugly and with great satisfaction’ was an echo of past condemnation of critics. He had a way of portraying people who held views counter to his as haughty, self-righteous know-it-alls - which ironically was sometimes how he was perceived.’’

His intellectual bullying occasionally backfired, such as when his rigidity and arrogance drove Justice Kennedy to the other side on Planned Parenthood v. Casey, a landmark 5-4 decision issued in 1992 that could have overturned Roe v. Wade, with the shift of one vote.

Scalia’s strained relations with some of his colleagues and reluctance to compromise and play the political game made him less influential than he might have been in his early days on the high court. He was never the coalition builder on the right that Brennan was for so long on the left. His views have prevailed more often recently with the addition of ideological allies Roberts and Alito.

Two cornerstones of Scalia’s approach to judging - a deference to the founders’ intent and a reluctance to have judges make decisions that he feels are best left to politicians - are apparent in many of the cases that Biskupic analyzes in a thorough, though dryly written, manner.

Biskupic, while admiring Scalia’s intellect and his philosophical consistency, does an effective job of pointing out when he sheds his deference to the will of the people because he wants to attain a certain result, such as last year’s decision invalidating the District of Columbia’s restrictive gun law. Even some conservatives thought that was an example of arrogant judicial second guessing. Though the book is generally balanced, Biskupic is a bit more critical than laudatory.

The mantra that judges aren’t supposed to make law has been so ingrained in the nation’s thinking that even liberals often feel the need to embrace it. That’s a measure of Scalia’s impact on modern-day jurisprudence. Readers wanting to learn about him will find “American Original’’ an approachable précis of his life and work.

Claude R. Marx is a journalist who has written extensively on history and politics.

AMERICAN ORIGINAL: The Life and Constitution of Supreme Court Justice Antonin Scalia By Joan Biskupic

Farrar Straus and Giroux, 338 pp., $27

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