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American Original: The Life And Constitution Of Supreme Court Justice Antonin Scalia
Literary Spotlight
By GREGORY J. SULLIVAN, For The Bulletin
Justice Antonin Scalia is the most prominent and influential jurist in the country. This fact is not difficult to explain: A brilliant man with extraordinary skill as a rhetorician, Scalia is also a very animated figure. The Justice is, as Joan Biskupic writes in her new biography American Original, “a combination of Felix Frankfurter and Luciano Pavariotti.” And despite the flat journalistic treatment of this book, Scalia, with his outsized personality and intellectual brio in defense of his constitutional philosophy, emerges as a kind of jurisprudential Samuel Johnson.
Biskupic has covered the U.S. Supreme Court for The Washington Post and currently does that job for USA Today. Although a competent journalist, Biskupic is a less-than-insightful biographer and almost completely in over her head in discussing constitutional doctrine. These problems marred her 2005 biography of Justice Sandra Day O’Connor, a mediocre study of a very mediocre jurist. They afflict this biography as well.
To be sure, Biskupic reliably puts all the basic biographical data in place. Scalia was born in Trenton as the only offspring of Italian immigrants. His father was an academic whose work took the family to New York. Scalia attended the Jesuit-run Xavier Military High School in Manhattan and finished first in his class. His academic prowess led him to Georgetown University, where he again topped his class. Finally, Scalia received his legal training at Harvard Law School.
Scalia spent the next few years in private practice at a law firm in Cleveland. He then moved into academia by taking a position teaching at the University Virginia Law School. Subsequently, Scalia moved on to executive-branch work under Presidents Nixon and Ford, followed by a return to teaching at the University of Chicago Law School. During this time, he and his wife, Maureen, began what eventually became a very large family of nine children and (to date) thirty grandchildren.
Scalia came to real prominence following his appointment by President Reagan to the United States Court of Appeals for the District of Columbia Circuit and later the Supreme Court. He quickly established himself as the best judicial writer since Justice Robert Jackson and a fierce and brilliant proponent of “originalism” in constitutional interpretation. This interpretive method emphasizes adherence to the text and history of the Constitution; it emphatically rejects using current meaning to understand a provision. Pioneered by the estimable Robert Bork, originalism has become a major force in constitutional law because of Scalia’s astounding influence.
Biskupic organizes her book around the various major constitutional conflicts of Scalia’s tenure on the Court: separation of powers, race and affirmative action, abortion, Bush v. Gore, among others, are examined in detail. The problem is that Biskupic does not really seem to grasp what is at stake in the constitutional war that Scalia is waging. By adhering to the doctrine of original understanding, Scalia is reinforcing the fundamentally majoritarian nature of our constitutional order. By contrast, the make-it-up-as-you-go-along “Living Constitution” embraced on the current Court by Justices Stevens, Ginsburg, and Breyer results in the lawless usurpation of legislative prerogative.
Scalia’s originalism now has strong support on the current Court. Justice Thomas actually practices a slightly more rigorous originalist approach than Scalia, and Justice Alito and Chief Justice Roberts are also practitioners. He is winning more often these days, but there is one area where his originalist victory may be Pyrrhic. In 2008, Scalia wrote the majority opinion in District of Columbia v. Heller, where the Court held for the first time ever that the second amendment contains an individual right to bear arms. The problem is that Scalia’s careful analysis of the amendment’s text and history is countered by a meticulous review of the same materials in the main dissent by Justice John Paul Stevens.
So close a call in an area that will place the Court in the middle of a complicated political dispute has been severely criticized by conservatives, most notably by federal judge J. Harvie Wilkinson, III. In his major critique, “Of Guns, Abortions, and the Unraveling Rule of Law” (published in the Virginia Law Review), Wilkinson likens the overreaching in Heller to that of Roe v. Wade. Moreover, the Heller decision applies to the federal government only, but the Court is now reviewing a case (McDonald v. City of Chicago) that will almost certainly “incorporate” (or apply) the right against states. Every gun permit denied by a local official will potentially present a federal case. These are cases that will cause serious damage to the judicial modesty integral to originalism.
Scalia is incontestably the most consequential jurist of our time. This larger-than-life figure awaits a biographer who will do him justice.
Gregory J. Sullivan (Gregoryjsull@aol.com) is a lawyer in private practice.
American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia. By Joan Biskupic. Sarah Crichton Books. 434 pp. $28.00.
Biskupic has covered the U.S. Supreme Court for The Washington Post and currently does that job for USA Today. Although a competent journalist, Biskupic is a less-than-insightful biographer and almost completely in over her head in discussing constitutional doctrine. These problems marred her 2005 biography of Justice Sandra Day O’Connor, a mediocre study of a very mediocre jurist. They afflict this biography as well.
To be sure, Biskupic reliably puts all the basic biographical data in place. Scalia was born in Trenton as the only offspring of Italian immigrants. His father was an academic whose work took the family to New York. Scalia attended the Jesuit-run Xavier Military High School in Manhattan and finished first in his class. His academic prowess led him to Georgetown University, where he again topped his class. Finally, Scalia received his legal training at Harvard Law School.
Scalia spent the next few years in private practice at a law firm in Cleveland. He then moved into academia by taking a position teaching at the University Virginia Law School. Subsequently, Scalia moved on to executive-branch work under Presidents Nixon and Ford, followed by a return to teaching at the University of Chicago Law School. During this time, he and his wife, Maureen, began what eventually became a very large family of nine children and (to date) thirty grandchildren.
Scalia came to real prominence following his appointment by President Reagan to the United States Court of Appeals for the District of Columbia Circuit and later the Supreme Court. He quickly established himself as the best judicial writer since Justice Robert Jackson and a fierce and brilliant proponent of “originalism” in constitutional interpretation. This interpretive method emphasizes adherence to the text and history of the Constitution; it emphatically rejects using current meaning to understand a provision. Pioneered by the estimable Robert Bork, originalism has become a major force in constitutional law because of Scalia’s astounding influence.
Biskupic organizes her book around the various major constitutional conflicts of Scalia’s tenure on the Court: separation of powers, race and affirmative action, abortion, Bush v. Gore, among others, are examined in detail. The problem is that Biskupic does not really seem to grasp what is at stake in the constitutional war that Scalia is waging. By adhering to the doctrine of original understanding, Scalia is reinforcing the fundamentally majoritarian nature of our constitutional order. By contrast, the make-it-up-as-you-go-along “Living Constitution” embraced on the current Court by Justices Stevens, Ginsburg, and Breyer results in the lawless usurpation of legislative prerogative.
Scalia’s originalism now has strong support on the current Court. Justice Thomas actually practices a slightly more rigorous originalist approach than Scalia, and Justice Alito and Chief Justice Roberts are also practitioners. He is winning more often these days, but there is one area where his originalist victory may be Pyrrhic. In 2008, Scalia wrote the majority opinion in District of Columbia v. Heller, where the Court held for the first time ever that the second amendment contains an individual right to bear arms. The problem is that Scalia’s careful analysis of the amendment’s text and history is countered by a meticulous review of the same materials in the main dissent by Justice John Paul Stevens.
So close a call in an area that will place the Court in the middle of a complicated political dispute has been severely criticized by conservatives, most notably by federal judge J. Harvie Wilkinson, III. In his major critique, “Of Guns, Abortions, and the Unraveling Rule of Law” (published in the Virginia Law Review), Wilkinson likens the overreaching in Heller to that of Roe v. Wade. Moreover, the Heller decision applies to the federal government only, but the Court is now reviewing a case (McDonald v. City of Chicago) that will almost certainly “incorporate” (or apply) the right against states. Every gun permit denied by a local official will potentially present a federal case. These are cases that will cause serious damage to the judicial modesty integral to originalism.
Scalia is incontestably the most consequential jurist of our time. This larger-than-life figure awaits a biographer who will do him justice.
Gregory J. Sullivan (Gregoryjsull@aol.com) is a lawyer in private practice.
American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia. By Joan Biskupic. Sarah Crichton Books. 434 pp. $28.00.
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