Michael O'Donnell: Scalia v. The World
The dean of the modern conservative legal movement, Justice Antonin Scalia, is neither an intellectual nor a primitive. He is both. Scalia has fused the cerebral and the atavistic strains of conservatism in a manner that leaves one wondering if they were ever distinct at all. For decades Scalia has beguiled conservative law students with his abhorrence of compromise and the colorful, take-no-prisoners style of his opinions. More than any other contemporary jurist, he claims to abide by a host of scrupulous legal principles: strict fidelity to a statute's text, adherence to the Constitution's original meaning, respect for the nation's federal structure of government. But notwithstanding these "neutral" principles and his habit of adorning his defense of them with intellectual flourishes, Scalia writes his opinions in boiling ink, mixing prodigious citations and vast learning with callous disregard for others and bursts of derision bordering on bigotry....
Joan Biskupic began covering the Supreme Court in 1989, three years after Scalia joined the Court. One might have expected her to pull a punch or two in American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia so as not to be shut out of the most interesting chambers. But while American Original is no scathing critique, neither is it an easy endorsement. Biskupic clearly admires Scalia's pluck: on a beat where dry written opinions and aversion to the press are commonplace, he stands out as brash, funny, outspoken and controversial--a walking headline machine. But she dislikes his inconsistent jurisprudence, devoting an entire chapter to Bush v. Gore, as well as the caustic and sarcastic tone of his writing, which has only become sharper and more pronounced over the years, eroding the collegiality of the Court and leaving Scalia increasingly alone in dissent. "Scalia wrote with a recriminatory tone that often undercut his effectiveness," she writes. "He was hyperbolic and almost entirely dismissive of arguments from the other side." She gathers representative examples of his disrespectful references to his colleagues' opinions: they "cannot be taken seriously," are "beyond the absurd" and even should be considered "nothing short of preposterous." In light of the justices' reluctance to criticize one another personally, Biskupic also obtained several surprisingly candid observations made by Scalia's colleagues about his negative influence on the Court. "I think everybody respects Nino's wonderful writing ability and his style and all the rest," Justice Stevens told Biskupic. "But everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position." Justice Ruth Bader Ginsburg, a close friend of Scalia's, was even more direct in an interview with Biskupic: "I love him. But sometimes I'd like to strangle him."
Biskupic does not provide any revelations in her portrait of the past fifteen years of Scalia's career, but she has lent it depth and texture. She has made excellent use of the archives of Justices Lewis Powell and Harry Blackmun from the 1980s and early '90s to flesh out the lonely role Scalia has earned for himself on the Court. Biskupic has a fine eye for a telling memo or private comment; Blackmun's archives in particular overflow with revealingly wry jottings. For example, when Scalia circulated a notably shrill dissent in 1988, Blackmun wrote in the margin of the draft, "Screams! Without the screaming, it could have been said in about 10 pages." Biskupic also cites a number of instances in which Scalia was assigned to write an opinion and then lost the majority because of his sanctimoniousness and refusal to compromise. On other occasions, Chief Justice Rehnquist simply declined to assign a case to Scalia for fear that this would happen.
Biskupic calls Scalia "the purest archetype of the conservative legal movement that began in the 1960s in reaction to the Warren Court." That's not quite right. Scalia is indeed the top conservative legal thinker of our time, universally admired by the right, but he was one of the patrons of the modern conservative legal movement, not one of its products. The prominence of his generation is fading and a new, more effective generation is in ascendance. It is well organized and strategically deft, with an eye always on results. Its purest archetype is not the grandiose but easily ignored Scalia, who at his worst might as well be standing on a corner shouting at people, but the faux-modest radical John Roberts, who in 2005 took the seat on the bench that Scalia thought was his to become Chief Justice of the United States.
Roberts hardly figures in the story told by Steven Teles in The Rise of the Conservative Legal Movement, but the young Chief Justice is unquestionably one of many beneficiaries of the long-term planning and organizing--not to mention fervent praying--undertaken by that movement's founding fathers. Scalia was one of them. Shortly after the Federalist Society--which Teles rightly describes as "an organization of extraordinary consequence"--was founded as a conservative debating club by law students at Yale and the University of Chicago in the early 1980s, Scalia, then a law professor at Chicago, became one of its most important sponsors. As Teles explains, Scalia
helped connect the Yale and Chicago contingents with the conservative law group at Stanford, helped them with fund-raising, spoke at their first conference, hosted visiting Harvard Law Federalist Society members at his home when the Society had its conference at the University of Chicago Law School, and facilitated the Society's early move into an office at the American Enterprise Institute.
At a moment when the Federalist Society could well have flamed out as another student cafeteria organization, Scalia lent it connections, prestige and momentum. Perhaps he wanted the next generation to profit from a level of support that he never enjoyed; as a law student in the 1950s, he had to settle for the St. Thomas More Society. The Federalist Society has since evolved into a powerful, loose alliance of conservative lawyers and law students. Its leaders shrewdly decided to forgo position taking and litigation clinics--both of which could divide its diverse members; instead, it has promoted debates, networking and, above all, institution building, through clerkships, government posts and law professorships.
Scalia's interactions with one of the society's founders nicely illustrates the way it patiently established a beachhead and then penetrated every corner of the profession. Lee Liberman Otis co-founded the Federalist Society while a student of Scalia's at Chicago in the early '80s. In 1982 Scalia became a judge on the US Court of Appeals for the DC Circuit, and he asked Liberman to clerk for him. A few years later she took a position vetting judicial nominees in President Reagan's Justice Department, where she determinedly championed Scalia for the Supreme Court in 1986 over his better-known colleague on the DC Circuit, Judge Robert Bork. Scalia was nominated and confirmed, and he promptly hired Liberman to clerk for him again, granting her the one credential that can open any door in the legal world. Liberman went on to teach law at George Mason University and then returned to work in the two Bush administrations. She currently serves as senior vice president of the Federalist Society. A mutually beneficial relationship installed a giant on the Supreme Court and twice provided him the services of a reliably conservative law clerk, and in turn landed a young conservative lawyer posts in the judicial and executive branches of federal government and in the predominantly liberal academy. Multiply this story by a thousand, and you begin to grasp the Federalist Society's muscle....
If Scalia's ascendance and the role of social and religious conservatism suggest some fundamental inseparability of the conservative legal movement from the worst elements of the base, then so does the movement's bloody shirt: the Senate's rejection of Bork's Supreme Court nomination in 1987. Teles describes the impact of this defeat in vivid terms, emphasizing the pain and anger many legal conservatives felt as their godfather was savaged on the Senate floor. Bork was extremely well connected in Washington legal circles and mentored scores of up-and-coming conservative lawyers in his various positions as solicitor general, a popular law professor and a judge of the US Court of Appeals alongside Scalia. His many acolytes took his humiliation personally. "People felt genuinely outraged," Calabresi told Teles; it was as if "their father or mother had not been confirmed to the Supreme Court."...
If the movement's greatest success has been to place ideologically sympathetic judges like Scalia on the courts, it still straggles far behind in the legal academy, where ideas are shaped and prestigious degrees handed out. One exception, to which Teles devotes considerable attention, is the law and economics movement, which approaches legal problems through the language and analytic tools of economics. The movement began at the University of Chicago in the 1950s, and its most prestigious accolade was the John M. Olin Fellowship in Law and Economics, given each year to a handful of accomplished young scholars. (The fellowship program ended in 2005, when the Olin Foundation, as stipulated by its mission, disbanded after exhausting its assets.) But even here, the results are limited. If law and economics (and the Olin Fellowship) was once a proxy for more overt conservative credentials, now it is just another research field with questionable correlation to political views. Even the movement's biggest superstar, Richard Posner, makes little use of its tenets in his opinion writing; as a judge, he is much better described these days as a pragmatist than as a law and economics guru. (Full disclosure: I worked for Posner and other judges as a staff attorney at the US Court of Appeals for the Seventh Circuit from 2004 to 2006.) And regardless, a little knowledge of economics is a dangerous thing. While hard economics research is, of course, an important and empirically based discipline, applying economic principles broadly and casually is a little like psychoanalyzing your neighbor: anyone can do it, and the results are laden with spongy assumptions and frequently wrong.