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BOOK REVIEW: Today’s ‘most influential’ justice

- The Washington Times - Wednesday, December 2, 2009

AMERICAN ORIGINAL: THE LIFE AND CONSTITUTION OF SUPREME COURT JUSTICE ANTONIN SCALIA

By Joan Biskupic

Sarah Crichton Books/Farrar, Straus & Giroux. $28, 434 pages, illus.

Reviewed by Priscilla S. Taylor

Several years ago, Joan Biskupic, a journalist with a law degree, wrote a splendid biography of Sandra Day O'Connor that was subtitled "How the First Woman on the Supreme Court Became Its Most Influential Justice." Now that the makeup of the court has swung to the right, Ms. Biskupic has transferred the "most influential" title to another justice, Antonin Scalia, because he has made "originalism" respectable.

At the same time, she writes, much of Justice Scalia's influence depends on how Justice Anthony M. Kennedy votes. "Overall, Kennedy is likelier to side with the conservatives than liberals, giving Scalia a greater shot at a majority opinion."

The legal theory of "originalism" that Justice Scalia has been advancing, says the author, insists that "judges should render constitutional decisions based on the 18th century understanding of the text." Justice Scalia maintains that "the Constitution has a 'constant' meaning, one that does not change to fit the needs of a changing society."

Thus, Justice Scalia has "found no abortion rights, found no room for school prayer and public aid to parochial schools, and yet found strict prohibitions on affirmative action and various legislative rules for election campaign activities."

The jurist whom the author characterizes as "a combination of Felix Frankfurter and Luciano Pavarotti" and as "the showman of the bench," began life as the beloved and indulged only child in an entire generation of a close-knit Sicilian immigrant family in Trenton, N.J.

(Perhaps to compensate for his lack of cousins, "Nino" Scalia decided against the priesthood and, with his wife, Maureen, produced nine children; they have, at last count, 30 grandchildren.) He excelled at his Jesuit high school in Manhattan, at Georgetown University and at Harvard Law.

After spending six years with a law firm in Cleveland, he surprised his colleagues there by resigning to teach law at the University of Virginia before moving to Washington to work for the Nixon administration.

It was during his time as an assistant attorney general in the post-Watergate Justice Department, says the author, that he developed important connections and solidified his view "that the executive had broad powers in important areas, by default of sorts, where the Constitution did not say otherwise."

Justice Scalia spent the Jimmy Carter era teaching at the University of Chicago, but itched to return to Washington. After being interviewed for the job of solicitor general under President Ronald Reagan, he was "bitterly disappointed" when he didn't get it.

In 1982, he was offered a position on the 7th U.S. Circuit Court of Appeals, based in Chicago, but held out for the District of Columbia Circuit, which came through later that year.

One of his fellow judges there was Ruth Bader Ginsburg, who hosted a party for him when he joined the court. Justice Ginsburg is quoted as saying, "I was fascinated by him because he was so intelligent and so amusing. You could still resist his position, but you just had to like him." Four years later they found themselves serving together on the Supreme Court, as Justice Scalia, the first Italian-American ever nominated, was confirmed by a 98-0 vote in a Senate that had worn itself out fighting the nomination of Robert Bork.

While Ms. Biskupic enlivens her text with examples of Justice Scalia's considerable personal charm, she gives equal time to his lack of interest in compromise and his sharp rhetoric: "certain, contemptuous, clever." She shows how his frequent use of sarcasm contrasts with the traditional civility of his fellow justices and gives the impression that he is playing to the gallery. As a new justice staking out positions, he showed that "not only would he have a difficult time pulling colleagues to his side, he might also alienate them along the way."

Justice Harry A. Blackmun wrote on a copy of Justice Scalia's 30-page draft of his dissent in the challenge to a statute allowing judges to appoint special prosecutors, "Screams! Without the screaming, it could have been said in about 10 pages." Justice O'Connor once responded to a Scalia tirade against hiring preferences based on sex and race with, "Why, Nino, how do you think I got my job?"

Ms. Biskupic summarizes her subject as "a product of his immigrant background, his traditional upbringing, and his devout Catholicism," and observes that he has never tried to separate his constitutional views from his core identity.

His intensity on the bench may account for the quotation from Justice Ginsburg after she had served with him for a while: "I love him, but sometimes I'd like to strangle him." Unlike other justices, particularly John Paul Stevens and the late Lewis F. Powell Jr., who came to oppose the death penalty, Justice Scalia seems to glory in his inflexibility.

Ms. Biskupic writes, "His position on the death penalty and, separately, on race-conscious policies endured term after term." She points out that Justice Scalia's opposition to affirmative action grew partly from his identification with a group that did not benefit from it: As the grandson of an Italian factory worker, the justice has repeatedly argued for the perspective of a white person subjected to reverse discrimination.

Ms. Biskupic predicts that Justice Scalia may now be at the height of his influence. She argues that the Supreme Court is unlikely ever to go as far as he wants on racial policies, and that Justice Kennedy would block any reversal of Roe v. Wade. Justice Scalia is also likely "to continue on the losing side of gay rights, courtesy of Kennedy."

However, she says that Justice Scalia, with the help of Justice Kennedy and fellow conservatives, could yet help bring about more mingling of church and state and less government regulation of campaign financing. She predicts that Justice Scalia will also "continue to nourish his originalism constitutional theory and bring it to wider audiences."

Ms. Biskupic is that rare writer who can clearly and concisely explain the issues in cases considered by the court while carrying general readers along with the human narrative.

Priscilla S. Taylor is a writer in McLean.