Roundup of ‘Scalia’ reviews

The initial reviews of Bruce Allen Murphy’s Scalia: A Court of One have largely praised the book as an engrossing intellectual biography of Justice Scalia or criticized it for being grounded more in published materials than in personal interviews.

The latter group, including Joshua Hawley’s review in the Wall Street Journal, strike me as criticizing the book for not being what those readers would rather have read, thus violating John Updike’s Rule No. 1 of book criticism: “Try to understand what the author wished to do, and do not blame him for not achieving what he did not attempt.”

Dwight Garner in the New York Times:

Mr. Murphy is impressed by Justice Scalia — the wit and erudition behind his bushy eyebrows, his charm and drive. He is less impressed by Justice Scalia’s jurisprudence, which he finds to be nakedly partisan and overly informed by religious stricture, nearly to the extent that the justice would have us live in a theocracy. “Be fools for Christ,” Justice Scalia told a religious audience in a 2005 speech. “And have the courage to suffer the contempt of the sophisticated world.”

Mr. Murphy also finds his subject to be perversely, almost purposefully, ineffectual. By alienating even the other conservatives on the court with his bullying tone and withering dissents, Mr. Murphy says, Justice Scalia has frittered away opportunities to wield genuine influence by building consensus. He has become, as this book’s title has it, a solo artist, a court of one.

Mr. Murphy’s book does not read, despite its blunt criticisms, like a book-length put-down. It’s a sensitive and scholarly reading of Justice Scalia’s intellectual life, based on archival research rather than on extensive interviews (Justice Scalia did not speak to the author, except in passing), and an account of the development of his “originalism” theory: that we should view the Constitution not as a living document but by closely attending to the language of the framers.

This book is more about the mind than about the man. It’s most impressive for the manner in which the author takes us slowly through case after case and ruling after ruling, sometimes stretching our patience but illuminating every twitch of Justice Scalia’s synapses along the way. This volume, which quotes the justice at length, functions as an M.R.I. scan of one of the most influential conservative thinkers of the 20th century.

Glenn C. Altschuler in the Boston Globe:

Murphy acknowledges that Scalia is brilliant and gives him credit for several landmark First Amendment opinions and a “memorable dissent” in a Fourth Amendment case involving a claim that mandatory DNA searches should be accepted as legitimate police booking procedures.

That said, although he does not draw the conclusion that the emperor has no clothes, Murphy comes pretty darn close. And it’s a safe bet to assume that Murphy endorses the view of Linda Greenhouse, the onetime Supreme Court reporter for The New York Times, that “this smart, rhetorically gifted man” has “cast a long shadow,” pushed away potential allies (like Sandra Day O’Connor and Anthony Kennedy), and “accomplished surprisingly little.”

Joshua Hawley, former law clerk for Chief Justice John Roberts, in the Wall Street Journal:

Mr. Murphy’s real interest lies not in historical investigation but in grading Justice Scalia’s judicial work. Once the narrative gets the justice to the high court, the book spends successive chapters alternatively critiquing his major opinions and cataloging his alleged misbehavior off the bench.

Mr. Murphy sees in Antonin Scalia the jurist a rigid partisan who writes from an “ideological point of view, concerned by the result he sought in the case.” Indeed, Justice Scalia emerges from these pages as little more than a craven politician wearing judicial robes. …

Meanwhile, Mr. Murphy spends much time harrumphing about Justice Scalia’s public speechmaking. In chapter upon chapter, we are told that the justice violated the “prevailing ethical norms of the Court” by giving lectures about the Constitution in public—the Constitution being, apparently, a dangerous and seditious topic. … None of these charges can be taken very seriously. They are either unsubstantiated, purely ad hominem or, as in the case of the alleged ethics violations, simply untrue. Justices have long published books and given speeches to public audiences.

And Mr. Murphy shows an alarming willingness to bend the facts to fit his caricature. … All that is to say: This is not a good book. And that’s a shame, because [Scalia’s] legacy deserves serious analysis. Rarely has a legal career been so transformative.

Paul M. Barrett, a writer for Bloomberg Businessweek, in the San Francisco Chronicle:

Searching for the sources of Scalia’s passionately held positions, Murphy explicates the jurist’s belief that the Constitution has a fixed meaning determined exclusively by the way it would have been understood by those who ratified it. He shows the origins of this interpretive philosophy in the strict literalism practiced by Scalia’s professor father, a scholarly translator of Italian poetry. Murphy also relates Scalia’s absolutism to his severe, pre-Vatican II version of Catholicism.

Most usefully, the author demonstrates the fallacy of Scalia’s belief that his approach to reading the Constitution is the only legitimate one and that anyone who disagrees is, as the justice would have it, an “idiot.” Murphy does this not by championing the liberal view of an “evolving” Constitution, but by showing that other intellectually brilliant conservatives clash with Scalia.

The late Robert Bork, shot down as a Supreme Court nominee in 1987, argued for an “originalism” based not on the general understanding at the time of enactment, but by the specific intentions of the particular men who drafted the Constitution – a very different historical inquiry.

On a less abstract plane, Murphy usefully contrasts the approaches of Scalia and Richard Posner, a conservative but less dogmatic judge on the U.S. Circuit Court of Appeals in Chicago. Posner and Scalia might agree on many case outcomes, but Posner nevertheless has condemned Scalia for practicing “faux originalism” – serious fightin’ words in jurisprudential circles.

The 18th century framers and ratifiers of the Constitution believed in a decidedly “loose” – meaning flexible or nonliteral – construction of legal rights, Posner has argued, with ample historical evidence to back him up. Scalia, according to this view, has confected a contemporary interpretive doctrine that wouldn’t be recognizable to the founding generation and is, in fact, subject to just as much manipulation as any other approach.

Seth Stern, author of a biography of Justice William Brennan, in the Washington Post:

Murphy, who left out no tawdry detail in chronicling Justice William Douglas’s four marriages and assorted extramarital affairs in his last book, “Wild Bill,” clearly isn’t averse to scrutinizing a justice’s private life. Yet this time he leaves largely unexamined the striking divergence between the sharp-elbowed justice and the man who, off the bench, is by all accounts warm and witty with friends and a family that includes his wife of more than half a century and their nine children. …

This book fares poorly in comparison with former Washington Post reporter Joan Biskupic’s 2009 biography of Scalia, “American Original,” which was more compact and yet far richer in detail about his early life and jurisprudence. Murphy, who so proudly heralds the fruits of his research in earlier books — 100 interviews for his Douglas biography alone — appears not to have conducted many for this one. He did mine the public papers of retired justices and ex-presidents and shows that he carefully read all of Scalia’s public speeches. But because he was writing about a sitting justice, he lacked access to the diaries and private letters that provided the most intimate details in his earlier books about Justices Louis Brandeis, Felix Frankfurter and Abe Fortas.

Nothing in this book suggests that the author spoke with Scalia more than a single time at a reception, but Murphy has no compunction about writing as if he knows exactly what the justice was thinking or feeling at any given moment. This is particularly grating when he suggests that Scalia pined to replace Rehnquist as chief justice, with no more evidence than contemporaneous press speculation.

Andrew Cohen, a fellow at the liberal Brennan Center for Justice, in The Week:

[T]his is a book very much worth buying and reading. Scalia’s many supporters will see in it evidence of a man finding through faith the strength and the wisdom to hew to a jurisprudential doctrine that he believes is both neutral and sensible. His many detractors will see here evidence of a man who is a fraud; a political hack — a brilliant one, mind you — who has figured out how to achieve enormous success imposing his worldview upon the nation by confidently pitching a doctrine that only pretends to impose neutral principles.

What strikes me most about Murphy’s work is the certainty he ascribes to Scalia’s professional life, the lack of doubt this jurist brings with him when it comes time to apply the law to the facts before him. We learn that this came to brash, bold, cocky Antonin Scalia quite early in life, back at least to his days on the debate team at Georgetown.


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