New book about Scalia manages the impossible: evenhandedness





Love him or hate him, Antonin Scalia has had a greater influence on the way Americans debate the law today than any other modern Supreme Court justice. Conservatives hail Scalia as the founding prophet of their true faith — the Jurisprudence of Original Understanding — and the leader of the opposition to moral relativism and judicial imperialism in the age of Obama. Liberals scorn Scalia as a show-off and intellectual bully who is quick to betray his constitutional principles when they clash with his fervent beliefs as a crusader in the culture wars. It’s hard to write a fair-minded biography of such a polarizing figure, but that’s what Joan Biskupic has done with “American Original.”

Scalia’s social conservative sensibility was shaped at Xavier High School, a ­Jesuit academy in Manhattan where he attended military drills after school (and fondly recalls carrying his rifle on the subway). He went on to graduate first in his class at Georgetown and then attended Harvard Law School; during a series of interviews, he told Biskupic that the lasting lesson he took from his time with the Jesuits was: “[Do] not . . . separate your religious life from your intellectual life. They’re not separate.”

Scalia’s formative political experience was his tenure as head of the Office of Legal Counsel in the Ford Justice Department, where he zealously defended executive power in the wake of what he viewed as post-Watergate assaults by a Democratic Congress. In 1974, along with Donald Rumsfeld and Dick Cheney, Ford’s chief of staff and his deputy, Scalia persuaded Ford to veto an expansion of the Freedom of Information Act as an intrusion on the president’s “exclusive” ­authority. Congress promptly overturned the veto; but Scalia maintained his friendship with Cheney who continued, as George W. Bush’s vice president, to assert similarly broad claims of executive secrecy.

A legal Zelig, Scalia pops up at the center of other 1970s-era debates over executive power. He served as the point man for the Ford administration in opposing a federal shield law for journalists, testifying before Congress that “I do not see any great First Amendment problems” in forcing reporters to identify their sources. He called warrantless wiretapping “a practical necessity” and opposed the creation of the Foreign Intelligence Surveillance Court. He would later tell the editor of Time magazine that he favored overturning New York Times v. Sullivan, perhaps the most important free speech decision of the 20th century, which made it hard for government officials to sue their critics. Because of Scalia’s dismal record on secrecy and surveillance as a federal appellate judge, the libertarian New York Times columnist William Safire attacked him in 1985 as “the worst enemy of free speech in America today.” Yet when Scalia was nominated to the Supreme Court a year later, the Senate, giddy at his heartwarmingly ethnic rags-to-meritocracy story, voted to confirm him 98-0.

On the court, Scalia has shown a disdain for elites that keeps him not only in the Dick Cheney but also the Sarah Palin wing of the Republican Party. He is nostalgic for a 1950s world that he believes the court is dismantling in front of his eyes. But in addition to being nostalgic, Scalia can also be bitter. As the grandson of an Italian factory worker, Scalia has said repeatedly that he empathized not with African-American beneficiaries of affirmative action but with “the Polish factory worker’s kid” who lost a job or a university slot because of “reverse discrimination”; as a Supreme Court justice, he has written a series of decisions striking down affirmative action. “You have to be prepared to be regarded as idiots by sophisticated, modern society,” he told Biskupic in explaining his 1996 speech urging a Christian audience to “pray for the courage to endure the scorn” of the “worldly wise,” who don’t believe in miracles and the resurrection of the dead. And he also told Biskupic how much he lamented the decline of the recreational hunting culture of his youth. He then wrote a 5-4 decision declaring the right to bear arms to be a fundamental, individual right.

[Excerpt - Continue reading at the New York Times website]


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