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American Original: The Life and Constitution of Supreme Court Justice…

by Joan Biskupic

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A profile of the conservative Supreme Court justice offers insight into his absolute belief system and considerable body of work, evaluating Scalia as an "apex of power" whose opinions may have far-reaching consequences in the social counterrevolution.
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Justice Scalia is one of those people I'd love to have over for dinner (even though I don't quite have his love of opera,) but I don't buy his premise that he's an originalist, i.e. one who argues that the law is to be interpreted in light of the intent of the framers. I mean really, then we'd be back implementing the 3/5ths rule, and I don't buy the idea that the framers all thought monolithically. He despises the idea of a "living Constitution," yet refuses to answer questions that seem to go to the heart of contradictions in his decisions like 1995 United States v Lopez that overturned a federal law regulating guns near schools "because it trampled on state authority," but ten years later voted to "uphold a federal drug law that voided a California policy allowing marijuana use for medical purposes." So where was his reverence for state law in 2005 Gonzales v Raich?

"I do not think," Scalia wrote in Nixon v Missouri Municipal League, "that the avoidance of unhappy consequences is an adequate basis for interpreting a text." Well, perhaps not, but Scalia's arrogance would prohibit any other interpretation of that text but his own. He seems to be quite happy savaging his colleagues (Sandra Day O'Connor was a favorite target - he considered one of her opinions to be "devoid of content.") Biskupic suggests that Scalia's influence on the court could have been even greater had he tried to be a little more diplomatic and attempted to build consensus. He seems to be quite happy railing at cultural change, "...the court is designing a constitution for a country I do not recognize." And perhaps therein lies the rub. He doesn't want the world to change, he doesn't like gays, probably hates the ordination of woman, still goes to a Catholic church where the mass is said in Latin, loves his guns Clarence Thomas said "he loves killing unarmed animals", and the man as head of the household. Conceived in Florence, but born in Trenton -- which he hated -- he now admits to becoming more and more crotchety to the point where he might wish a return to the days of Medician flogging and ear notching as forms of punishment.

In the meantime, times have changed, and some on the court have recognized that. Brennan and others recognized that the United States of today is very different than that of 1789 and if the country is to survive and prosper perhaps some interpretative differences will emerge. Scalia insists that he separates his personal theology and morality from his judicial role, yet he has been quoted as saying that he learned at Georgetown, a Jesuit university, that you must never" separate your religious life from your intellectual life. They're not separate." And just a little before he was nominated to the Supreme Court by Reagan he said "his judicial philoso0phy was "inevitably affected by moral and theological perceptions." Sounds like Sotomayor's famous speech.

The fact remains that through force of will (and perhaps more than a little sarcasm) he has been, to quote Elena Kagan in 2007, "the justice who has had the most important impact over the years on how we think and talk about law." Certainly the term originalist and original meaning are now the prevailing term in any legal discussion. Originalists take the position that the words in the Constitution mean today what they meant in 1789 and must be interpreted in that light. This assumes that the world of today is the same as the world of 1789 and assumes , to quote Justice Brennan, that the greatness of the Constitution lies precisely in "the adaptibility of its great principles to cope with current problems and current needs." The early originalists focused on the framers "intent," but that had to be revised as it became clear that determining intent of the large number of writers of the Constitution proved impossible so the focus then shifted to textual originalism. His argument that in a democracy, the legislature makes the laws and judges interpret it, and that if judges use moral positions in their interpretation they have become lawmakers rather than interpreters, i.e. tying decisions to text prevents judicial despotism (surely he must see the irony of this view with Bush v Gore, surely) does find sympathy with me. But then so does Brennan's view that judges are there to make sure that the system is "fair."

Scalia’s background working for the executive branch under Ford which required him to testify Congress on many occasions, left him with a palpable disdain for the legislative process and legislators in particular. He was quoted once as saying he could take them all on with one hand tied behind his back. In fact, one of his legacies will be less attention being paid to the legislative history of a bill, i.e. what the legislators said during debates (somewhat ironic for a textualist.) If he has any particular bias it would certainly be a sympathy for the executive branch. With five Catholics and no Protestants now sitting on the bench and his strong adherence to conservative Catholicism, one suspects that might influence him as well. One of his less attractive features is his total arrogance in denying any kind of influence.

My suspicion is that Scalia wants a return to the inequality of the old days where the folks in power, the rich, all knew they were superior, that they were better and the courts validated that superiority. The rules become an unbendable way to enforce the distinctions. A preserver of distinctions and inequality.

Sorry for all the references to Brennan but I just finished [b:The Last Liberal: Justice William J. Brennan, Jr. and the Decisions That Transformed America|2931599|The Last Liberal Justice William J. Brennan, Jr. and the Decisions That Transformed America|Kim Isaac Eisler|http://photo.goodreads.com/books/1267379493s/2931599.jpg|2959033] and am reading [b:Justice Brennan: The Great Conciliator|1232256|Justice Brennan The Great Conciliator|Hunter R. Clark|http://photo.goodreads.com/books/1266750476s/1232256.jpg|1220857]. I have a short attention span.

minor editing 11/8/11 ( )
  ecw0647 | Sep 30, 2013 |
Supreme Court Justice Antonin Scalia is a central figure of the conservative movement in America. He has also been controversial, ever since he was appointed by President Reagan in 1986. Outspoken and opinionated, Scalia has not hesitated to "tell people what they don't want to hear." This biography focuses on his most colorful, written opinions and public remarks, of which there are plenty.

The book begins with a short synopsis of "Nino" Scalia's early years. He was born in Trenton, New Jersey in 1936, the son of an immigrant father, from Sicily, a professor of romance languages at Brooklyn College, and a first generation American mother. Although it was the middle of the depression there were no tenements, migrant camps, unemployment lines or matchbook selling on street corners for the Scalia family. They were high achievers with high expectations for their only child. Biskupic suggests that Scalia's "originalism" or more accurately, textualism, his insistence on considering only the text of the Constitution or of any laws being considered by the court, may be derived from his father's professional interest in the written word.

An originalist believes that the Constitution should be interpreted as it was understood by the founders, that it is not a "living" constitution, changing with fashion or with society's evolving needs. A textualist believes that the law is the law (or the Constitution) as written. Legislative history, committee reports, speeches by Seantors and the Federalist Papers are irrelevant to a textualist. Contrary to the practice of the last two hundred and fifty odd years, only the words of the Constitution and of the laws passed by Congress are to be considered.

In American Original, Biskupic asks whether Scalia's opinions are formed from his understanding of the Constitution, to which he strictly adheres, come what may, or are they rooted in his conservative Catholic upbringing and his Republican politics, then justified by reference to the text of the Constitution. For the most part she leaves the answers up to the reader.

In the 1990 case of Nancy Cruzan, who had been in a persistent vegitative state since an automobile accident in 1983, Scalia found that the state had a compelling interest in preventing the death of an incompetent person who had left no directive and that the framers had not addressed the issue in the Constitution. Of course the framers had no means of extraordinary medical intervention, not even a feeding tube. How then could they have addressed the issue? In effect Scalia is saying that the state has an interest in maintaining living corpses, at the expense of the families of those unfortunates, because the issue was not addressed in the 18th century. (He was in the minority in the Cruzan case, as he often was.) Biskupic asks was this originalism or late 20th century, right to life conservatism? Sometimes issues will arise that the 18th century is silent on.What is an originalist to do?

In an interview quote on jury selection, after having dissented in favor of a prosecutor who had eliminated all black jurors and invoked OJ Simpson in a trial against a black defendant. "I think blacks ought to be able to strike whites from the jury if they think they will get a fairer shake from a black jury, and vice versa. I think you ought to be able to strike Methodists because Methodists will have something against you because you're a Catholic. It is crazy to try to turn discretionary strikes into rational strikes. They were never intended to satisfy you that this is a panel you'd feel comfortable with, for whatever crazy reason." This seems less grounded in the Constitution, of course it was an opinion aired in a public forum and not in court. It also seems a bit irrelevant to the issue as it was a prosecutor, and not a defendant, that was dismissing jurors by race.

In the last decade the Supreme Court has reversed many of the affirmative action remedies that have been in effect since the 60s and 70s. Scalia has an interesting take on this. "The law can't treat races unequally. That's my whole objection to affirmative action that it violates the principle of equality, that it is the state preferring one race over another - perhaps for very benign reasons. But nevertheless the Constitution forbids it. Jim Crow laws are bad. Scalia has been quoted to the effect that the children of Polish immigrants are paying the price for the acts of the ancestors of WASPs.

Biskupic quotes Scalia's son Eugene on religion: "My father views the Catholic faith today as the inheritor of a cultural heritage, the great art, the music, the Latin tradition," said Scalia's eldest son Eugene. "To him it's Bach and Beethoven versus a guitar Mass. I don't think it's a conservative thing, or a right wing thing. He wants a tradition." (Bach was Lutheran, I'm just sayin'.)

One place where religion could have a profound effect on a Supreme Court Justice is Roe v Wade. "Scalia rejected the notion that his Catholicism directed his rulings. He did, however, readily acknowledge that, like his religion, his insistence on the wrongness of Roe stirred his deepest emotions. "Roe v. Wade was a lie, [and] even those who favor the outcome acknowledge that the reasoning in the opinion was terrible," he said, explaining why he wanted to overturn the 1973 case." He considers it bad law. Is the tail wagging the judicial dog or not? There is no place in the Constitution that specifies a privacy right. It has been implied by Supreme Court rulings in the past, Roe being the most prominent.

And then there is the case of Bush v Gore. You will remember that the Supreme Court ordered the recounting of votes in three Florida counties stopped, on the basis of a claim, by the Bush campaign, that counting them was a violation of the equal protection guarantee in the fourteenth amendment, because different counties in Florida were using different standards to judge the intent of voters. "Taking it upon himself to defend the majority's action, Scalia wrote that letting the recounts continue would threaten the 'legitimacy' of Bush's election. 'Count first, and rule on legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,' Scalia said." This statement, as I remember it, was made after the Court had ordered the recounts stopped but before the decision in Bush v Gore was handed down. In the decision, Scalia's principles of respecting state laws and courts and of looking only to the text of the Constitution and the law are ignored. States historically have had complete control over voting, even in national elections. Article one of the Constitution gives them that control. Varied ballots and methods of counting them within states have always been common.

Bush v Gore struck out into new ground, insisting on a standard method of recounting the varied ballots in different counties and overruling a state Supreme Court decision to do it, taking Federal control of Florida's election. The decision also stated that it applied only to this one instance. When in history has a Supreme Court decision ever applied to only one instance? The opinion, believed to have been written by Sandra Day Oconnor and Anthony Kennedy, was unsigned. When has a Supreme Court decision ever been anonymous? Scalia said he wanted to protect the integrity of Bush's election. I believe that the Supreme Court destroyed it. Only the withdrawal of Al Gore from the fray and his insistence on respecting the result saved us from a crisis of monumental proportion.

The New York Times and Washington Post attempted to count the votes in question after the fact and concluded that Bush would have won anyway. We will never know if this was accurate.

It has been said tha Man is the rationalizing animal. This applies equally to you and I as well as to Supreme Court Justices. American Original gives you, the reader, the opportunity to judge where rationalization has been at work, and who has been doing it, in the case of Justice Scalia.
  cbjorke | Apr 21, 2010 |
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Biskupic tells you all you need to know to make up your own mind about Scalia's character, but perhaps not quite to judge the way he applies his signature and influential theory of constitutional law: originalism.
added by Shortride | editSlate, Emily Bazelon (Nov 24, 2009)
 
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A profile of the conservative Supreme Court justice offers insight into his absolute belief system and considerable body of work, evaluating Scalia as an "apex of power" whose opinions may have far-reaching consequences in the social counterrevolution.

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