Murphy’s Law
From the July 7, 2014, issue of NR

Supreme Court justice Antonin Scalia (Alex Wong/Getty Images)


Ed Whelan

Anything that can go wrong will go wrong: So goes Murphy’s Law. And so demonstrates another Murphy, Lafayette College professor Bruce Allen Murphy, in his new biography of Supreme Court justice Antonin Scalia (for whom I clerked more than two decades ago), Scalia: A Court of One.

Murphy sets out to show how Scalia’s political views, religious faith, and personality have influenced his judicial decisions and speeches. But instead of the sophistication and nuance such an undertaking would demand, Murphy delivers a cartoonish and incompetent account.

For the most hilarious example, take Murphy’s stunning misuse of Scalia’s 2004 dissent in Hamdi v. Rumsfeld, a case that concerned the rights of an American citizen who was being detained indefinitely as an enemy combatant. Murphy spends two and a half pages arguing that Scalia’s dissent shows “his unwavering support for a powerful American presidency.” According to Murphy, Scalia argued “in favor of a ‘blank check’ on behalf of total presidential power” and opined that “whatever George Bush wanted to do in the ‘War on Terror’ should not be second-guessed by his judicial colleagues.”

Wrong on all counts. What Murphy somehow misses is that Scalia, joined by the liberal Justice Stevens, dissented from Justice O’Connor’s plurality opinion because he regarded it as too deferential to presidential authority. While O’Connor allowed the president to detain an American citizen indefinitely (and merely afforded the citizen the opportunity to contest the factual basis for his detention), Scalia read the Constitution as denying the president — yes, George W. Bush — that detention power. Far from arguing in favor of a “blank check” in wartime, Scalia emphatically rejected the principle that “liberty give[s] way to security in times of national crisis.” In sum, among the nine justices, he and Stevens adopted the position that was most restrictive of presidential authority.

It is astounding that a putative constitutional scholar could get Scalia’s dissent so wrong. But Murphy displays a dogged tendency throughout his book to contend that the evidence supports whatever thesis he is positing even when it plainly doesn’t.

I’ll note further that after reviewing the book galley, I highlighted Murphy’s massive blunder on Hamdi (as well as other bloopers) some seven weeks before the book’s release date. Yet, to their deep discredit, Murphy and his publisher didn’t bother to make a fix.

Murphy is equally obtuse, and even more outrageous, when he maintains, in one of his major theses, that Scalia’s methodology of originalism enables him to “accomplish as a judge all that his [Catholic] religion commanded without ever having to acknowledge using his faith in doing so.” There is a glaring defect in Murphy’s claim that Scalia’s originalism — which looks to the public meaning of constitutional provisions at the time they were adopted — is a cloak for imposing his “traditional Catholic values”: On the vast bulk of hot-button “culture war” issues — from abortion to marriage to obscenity — Scalia’s position is that the Constitution is, within very broad bounds, substantively neutral and instead leaves those issues to the democratic processes to be resolved one way or another. Scalia doesn’t read the Constitution to prohibit permissive abortion laws, to require that marriage be defined as the union of a man and a woman, or to bar obscenity. In short, he doesn’t read the Constitution to impose the Catholic position on these important matters (or any other matters).

Indeed, if Murphy were correct that Scalia believes that “his religion command[s]” him to impose Catholic values, he ought to be deeply puzzled that Scalia is an originalist rather than a living constitutionalist. On abortion, for example, a living-constitutionalist of a conservative bent would have no difficulty, given modern advances in embryology, in recognizing unborn human beings as “persons” for purposes of the Due Process Clause of the 14th Amendment.

In another of his major theses, Murphy contends that Scalia’s interpretive methodology has repeatedly changed over the years. According to Murphy, “any fair reading of his speeches and judicial opinions demonstrates clearly [that Scalia] became a strict textualist on the Supreme Court by the late 1980s, then evolved into a broader originalist by 1996, spoke as a Catholic on the Court in the early 2000s, became an even more partisan originalist by 2005, and was [in 2010] casting himself as the judge of the historians.”

Murphy’s contention and his labels are hopelessly confused. Murphy uses the term “strict textualist” to mean that Scalia supposedly used to base decisions solely on dictionary definitions. But Scalia never embraced the bizarre notion that textualism could involve nothing but dictionary definitions, and his broad originalism was clearly on display in his classic 1988 dissent in Morrison v. Olson (the independent-counsel case), at the end of only his second term.

In his impressive 2006 book on Scalia’s jurisprudence, Ralph Rossum concluded that Scalia “has been remarkably consistent in his approach to questions of constitutional and statutory interpretation.” (Murphy lists Rossum’s among the 150 or so books in his bibliography, but gives no signs that he ever read it.) To be sure, there may well be plenty of room for an intelligent scholar to identify changes in Scalia’s approach as well as inconsistencies in how he has applied his stated principles. But Murphy’s account of Scalia’s purported shifts is ridiculous.