American Original

The Life and Constitution of Supreme Court Justice Antonin Scalia
Joan Biskupic

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.

The Invisible Constitution

Laurence H. Tribe


There is a great deal more in constitutional law than is contained in the spare, sparse language of the U.S. Constitution. Or at lease Laurence Tribe believes so. Mr. Tribe is a constitutional law professor at Harvard Law School. Other than the justices on the supreme court, there is really no better authority on what constitutional law contains. Yet there is disagreement about this. Justice Antonin Scalia is well known for his strict adherence to the written words of the Constitution.

Consider, however, the words of article IX of the Bill of Rights: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Professor Tribe argues that the words of this clause are a huge gap through which truckloads of rights, unknown to James Madison or John Marshall, can be driven. How, then can we decide what is a right retained by the people and what is a kooky, left wing idea, best left in the dust bin of history?

Tribe offers six methods that jurists have used to think about, and argue for, these invisible constitutional rights. First the geometric construction, connecting the dots between different articles of the constitution. This is how the much argued right to privacy has been derived. Nowhere does the constitution mention the word "privacy." It does say, though "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. " and "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." When you put them together you get a more general concept that the government should leave people alone, especially in their own homes, but also in their possessions and their bodies, in short - privacy.

Another method of constructing constitutional rights described by Tribe are the geodesic - building a dome, like Buckminster Fuller, again out of already existing rights, to protect the freedoms of the individual. The global is another, reinforcing ones argument by reference to laws and practices in other countries. Justice Scalia has been guilty of this practice himself, according to professor Tribe. The geological, unearthing evidence of the intent of the founding fathers in historical sources is the fourth method. The gravitational, where he makes an argument based on Einstein's relativity theory and argues that laws create distortions of the social space time continuum is another. (did I mention that some of this is kind of hard to follow?) And finally the gyroscopic, in which the force of previously made decisions in the court help to stabilize the interpretation of the constitution by weight of their precedent, even when they are wrong.

Professor Tribe is obviously a really smart person and he has had the help of some other really smart people over the years, including a young research assistant who has gone on to bigger things, a fellow named Barry Obama. I tended to go all glassy eyed reading some of Tribe's explanations. Me and Sarah Palin are probably not destined to sit on the Supreme Court, I would guess. He has almost made me a strict constructionist, but then he did convince me that strict constructionists are most strict when construction arguments against things that the personally don't care for and are a lot looser when they argue for something that suits them.

The Supreme's Greatest Hits

The 34 Supreme Court Cases That Most Directly Affect Your Life
Michael G. Trachtman Sterling Publishing Co. Inc. New York 2006
ISBN-13: 978-1-4027-4107-4 ISBN-10: 1-4027-4107-3

Editors note: for Diana Ross etal please click here. Well, not really. It's hard to see how the Dred Scott decision directly affects my life, but I get the point. This book illustrates how the Supreme Court works, it's foibles as well as it's triumphs. Some of the cases, such as Bush v. Gore are illustrations of how the prejudices of individual Supreme Court justices can affect the course of history in unexpected ways. How can an eighteenth century document, the United States Constitution, be used to regulate twenty first century social issues? What about internet commerce? When does human life begin or end in an era of ever expanding medical technology? Many fascinating questions are asked and not answered. Stay tuned to the Supreme Court of the future as these issues are addressed.