Book review: ‘Scalia: A Court of One’

Posted Sunday, Jun. 08, 2014  comments  Print Reprints
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Scalia: A Court of One

by Bruce Allen Murphy

Simon & Schuster, $35

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Author Bruce Allen Murphy’s most recent work in profiling U.S. Supreme Court justices centers on one of that esteemed body’s most controversial ever.

Scalia: A Court of One explores the rise of Antonin Scalia from the son of an immigrant to the product of Jesuit institutions in high school and at Georgetown to finally a Harvard-educated attorney who took his first job with a firm in Cleveland.

The picture painted by Murphy of the longest-serving member currently on the court is one of a narcissist who craves power and publicity — the book opens with an anecdote of Scalia donning a large hat, a gift of the Thomas More Society, at President Obama’s second inauguration, all for the purpose of being seen, according to Murphy — and possesses the super-ambition of upward mobility.

History tells us, of course, that he ultimately succeeded with an appointment to the nation’s top bench, but not before stints in the administrations of Presidents Nixon and Ford, where as the president’s top legal adviser he consistently argued for executive privilege.

And, according to Murphy, not before an active campaign for the post, highlighting for potential presidential policymakers his originalist theory of constitutional interpretation. That concept holds that justices should be bound to interpret the Constitution by discovering the original meaning or intent of the framers. It’s a concept that, to Scalia, reinforces judicial restraint.

It seems difficult, at first, to understand how an “authoritative” biography could be developed when the subject remains in active service. Then one recalls that Scalia has the skeletons of almost 30 years on the bench.

There’s much to this career, and Murphy shows the reader the results of his research, as well as some interpretation of what he finds.

Murphy details Scalia’s role in the most prominent case of his era on the court, Bush v. Gore in 2000.

Out the door, in Murphy’s telling, went Scalia’s judicial restraint. In its place was an activist judge who lobbied his colleagues on the prudence of issuing a stay in Florida’s recount in three counties.

He became, Murphy writes, “a driving force in the court’s approach to the election.”

“We should not be a prominent institution in a democracy,” Scalia said at the time. “… We are called in to correct mistakes. When you have to call us in, someone has screwed up; something has gone terribly wrong.”

In Scalia’s view, the wrong was outlined in the Equal Protection Clause of the 14th Amendment. It was unconstitutional to recount only in three counties and not all of Florida, he contended. Secondly, he argued, there was no set standard for what qualified as a vote from a hanging chad. All three counties had differing standards.

“Count first and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” Scalia said.

His argument, Murphy contends, had an impact on the swing justice in the case, Anthony Kennedy, a man Murphy paints as easily influenced by others, especially the last person he speaks to.

With that knowledge, Murphy writes, “Scalia was determined to be that person.”

Scalia’s purpose for favoring George W. Bush’s case and ultimately deciding the election was twofold, Murphy says: He favored Bush’s politics and he wanted to be the chief justice of the court, a post seemingly within grasp considering Bush’s effusive praise of the justice during the campaign.

That never happened, but unlike justices Sandra Day O’Connor and Kennedy, who have openly wondered in retrospect whether the case should have been accepted by the court, Scalia continues to this day to be unapologetic.

That’s the reputation of the 78-year-old.

“Oh, God, get over it,” Murphy cites Scalia as saying. “The newspapers that did, newspapers, not Republicans, did a … painstaking survey of how it would have come out if they had counted the dimpled chads … that the Democrats wanted, they would have lost anyway.”

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