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Joan Biskupic’s Biography of Justice Scalia—Part 3



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In the prologue (p. 9) of American Original, Joan Biskupic presents the rhetorical questions that she says “go[] to the heart of Scalia’s legacy”: 

Is his brand of originalism simply a way to achieve conservative results?  Does he talk a good game until his method fails to get him what he wants as a policy matter?

Biskupic’s bottom-line answer to these questions is yes—e.g., “Scalia could not separate his constitutional views from the core of his identity, which was decidedly Catholic” (p. 210)—but her answer rests heavily on makeshift evidence.

Let’s consider first the supposedly “gotcha” anecdote (pp. 8-9) in Biskupic’s prologue that surrounds her rhetorical questions.  At a 2008 Federalist Society convention, the “last question” to Scalia was how he reconciles his positions in United States v. Lopez (1995) (where he voted “to overturn a federal law that regulated guns near schools because it trampled on state authority”) and Gonzales v. Raich (2005) (where he “voted to uphold a federal drug law that voided a California policy allowing marijuana use for medical purposes”).  Biskupic points out that Justice O’Connor, in her dissent in Raich, had labeled the results in Lopez and Raich to be “irreconcilable,” and she says that legal analysts three years later were still “buzzing over whether Scalia abandoned his abhorrence of federal intervention simply because he opposed the legalization of marijuana.”  She finds it especially telling that Scalia chose not to engage the question but instead requested another one.

The trusting reader might imagine that Scalia can’t reconcile his positions in the two cases and would be surprised to learn that Scalia wrote a separate concurring opinion in Raich that addresses precisely that matter.  (Even in her endnote (p. 365 n. 9), Biskupic refers only to the majority opinion and the O’Connor and Thomas dissents.)  It would of course be fair game to examine and contest the arguments in that concurring opinion, but Biskupic doesn’t even acknowledge their existence.  Had she done so, her reliance on Scalia’s declining to answer the question would be revealed to be as ridiculous as it is.  (There are, of course, innocuous reasons why Scalia would have disfavored this “last question.”  He might, for example, have regarded the matter as too intricate for a brief off-the-cuff response.)

Although she seems not to realize it, Biskupic herself provides compelling evidence that Scalia’s constitutional positions don’t align with his religious or policy views.  According to Biskupic (p. 196), Scalia holds “fervent views consistent with his religious beliefs” about “the moral issue of whether women should have abortions and the policy issue of whether laws should permit or forbid that choice.”  It ought to be particularly striking, then, that Scalia does not read the Constitution to bar permissive abortion laws.  He does not seek, in other words, to entrench in the Constitution his “fervent views.”  Instead, he believes that the Constitution leaves policy decisions on abortion to the legislative processes, where the people, through their elected representatives, can determine whether or not to regulate abortion.  (I developed this general point more fully in my NRO essay “Abortion and Justice:  Let’s hope John Roberts is a genuine moderate.”)

To bolster her confused case, Biskupic resorts to more misrepresentations of Scalia’s positions.  She claims, for example, that Scalia has said that “legal views are ‘inevitably affected by moral and theological perceptions’” and insinuates that he believes that it’s proper for a judge to indulge those “moral and theological perceptions” (p. 210).  But in the very speech that she purports to quote (published as “Morality, Pragmatism, and the Legal Order,” 9 Harv. J. L. Pub. Policy 123 (1986)), Scalia distinguishes at the outset between a judge’s “doing justice” by “deciding the rights of litigants before me in accordance with the laws as they are written” and society’s “moral beliefs” about justice.  (Biskupic’s quote is also a misquote, as her excerpt comes from Scalia’s statement that “the value that one [in society] places upon competing goods—sexual pleasure versus economic security, or avoidance of pain versus preservation of human life—is inevitably affected by moral and theological perceptions.”)

(See also Parts 1 and 2.)


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