American Original

reviewed by Evan Lee

During the past four decades, no American judge has been more polarizing than Supreme Court Justice Antonin Scalia. Conservatives adore him, liberals revile him, and even many moderates have been driven to choose sides. We learn why in American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, the first Scalia biography aimed at a non-academic audience. (Its author is longtime USA Today Supreme Court reporter Joan Biskupic, who previously wrote a biography of Justice Sandra Day O'Connor.)

To begin with, there is Scalia's jurisprudence. He is the Court's most doctrinaire advocate of sweeping executive-branch power in both military and civilian affairs. He has also helped lead the charge against race-conscious remedies for past societal discrimination, and against Roe v. Wade. Last term he raised the Second Amendment from the dead in his majority opinion in District of Columbia v. Heller.

But it is not only Scalia's decisions that either rankle or inspire, it is also his methods, according to Biskupic. Along with rejected Supreme Court nominee Robert Bork, Scalia has been the most prominent champion of "original intent" theory, which roughly posits that courts should interpret the Constitution only in ways that protect the individual rights that the Framers would have recognized. (Biskupic does remind us that Scalia once described himself as merely a "moderate originalist," lest he be accused of approving the use of thumbscrews or ear-notching for punishment, as was common in the 18th century.) Scalia has also lambasted his fellow justices for relying on legislative history. In his view, Congress enacts only the text of a statute, not whatever intentions or assumptions underlie it, and therefore the courts may not interpret that text in light of those intentions or assumptions.

Another Scalia method is to always insist on bright-line rules rather than pragmatic, multifactor tests. Better to accept that some cases will be decided unjustly than to "Make Everything Come Out Right," as he chided Justice O'Connor for doing in Hamdi v. Rumsfeld.

But, as Biskupic shows, it is mostly Scalia's personal style that makes him the judicial darling of the right and the judicial bete noire of the left. Unlike Justice Clarence Thomas, who sits mutely through oral arguments and rarely says much outside of court, and unlike the late Chief Justice William Rehnquist, who eventually became more a manager and less a conservative agitator, Scalia loves incendiary rhetoric. For example, Biskupic recounts that during one oral argument, after a lawyer noted that his client had been released to Mexico, where he continued to be prohibited from consuming alcohol, Scalia retorted, "Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States." After catching considerable flak for using this ethnic stereotype, Scalia reflected, "I didn't have to say 'tequila drinking,' but it's a nice touch, I think." In another case, Lawrence v. Texas, the 2003 decision striking down a statute that criminalized homosexual sodomy, Scalia stated in dissent, "Today's opinion is the product of a Court, which is the product of a law profession culture, that has largely signed on to the so-called homosexual agenda. ..." And dissenting in Boumediene v. Bush, which held that Guantanamo detainees are entitled to habeas corpus, Scalia called Justice Anthony Kennedy's majority opinion a "game of bait-and-switch" that "will almost certainly cause more Americans to be killed."

One might object that in her book Biskupic has focused, to a distracting degree, on Scalia's abrasive style. But not to focus on his style would be, as the gleeful thespian Scalia might say, to play Hamlet without the prince. Antonin Scalia is as arrogant, egotistical, confrontational, and defiant a jurist as America has had in recent memory. Whether that makes him a prophet or a scoundrel is in the eye of the beholder, and Biskupic's book gives us an eyeful.

Evan Lee is a professor at UC Hastings College of the Law in San Francisco.

---