Bench Memos

Bruce Allen Murphy’s Scalia: A Court of One—Part 4

See Parts 1, 2, and 3

I’ll turn in future posts to some more of the theses that Bruce Allen Murphy sets forth in his new biography of Justice Scalia. But in this post I’d like to highlight some of the countless bloopers, non sequiturs, and baffling assertions that pervade the book, as I think that they provide some insight into the level of Murphy’s craft. So, in no particular order:

1. In the course of raising alarms over “a controlling majority of Catholic votes on the Court,” Murphy asserts that Chief Justice Roberts “is surrounded by a web of conservative Catholic figures and organizations in the Washington area.” At the “center of this web is his wife, Jane Sullivan Roberts, who in 1995 joined the Feminists for Life.” Murphy adds:

In time, John Roberts also became a member of the organization’s [Feminists for Life] board and offered pro bono legal advice.

Really?!? In all the speculation during his confirmation process over John Roberts’s views on Roe v. Wade, had everyone simply failed to mention that he was on the board of a pro-life organization? Or had I somehow forgotten all the discussion of that fact?

Fortunately, Murphy’s endnote referred me to his source for this surprising proposition, a Washington Post article that states that “Roberts instantly joined the [Feminists for Life] board and gave the group legal advice.” The only problem for Murphy’s proposition is that the “Roberts” that the article  refers to is Jane Sullivan Roberts. There is nothing in the article (which is helpfully titled “Nominee’s Wife Is A Feminist After Her Own Heart”) that states or in any way suggests that John Roberts ever joined the Feminists for Life board or provided the group pro bono legal advice. Nor did John Roberts list any such affiliation or activity on his Senate questionnaire response.

In short, on a point that he should have recognized would (if true) have been a matter of considerable public interest during the confirmation process, Murphy simply misread the article he cited by confusing John Roberts with Jane Roberts.

2. Murphy asserts that, beyond his losses in Court rulings, “something … happened in early April [1996] that particularly unsettled” Scalia. What so jarred Scalia? Of all things, Murphy contends, a Time magazine article, titled “The Search for Jesus,” that argued that Jesus was “an imaginative theological construct.” According to Murphy, “the notion that religion was being questioned … seemed to disturb Scalia profoundly.”

To put things in context: Scalia was not six years old in 1996. He was sixty. The Time magazine article that Murphy imagines so upset Scalia was of a genre that Scalia had surely encountered for decades.

Murphy offers not an iota of evidence that Scalia ever saw the Time article. But that doesn’t stop him from contending that Scalia “decided to lash out against [its] anti-religion message” in a speech that he gave at a Christian Legal Society prayer breakfast in Mississippi on April 9, 1996. Never mind, again, that there is nothing in Murphy’s secondhand account of the speech to indicate that Scalia even referred to the article. Never mind that the article (appearing in the issue postdated April 8) was published just days before Scalia’s speech, which Scalia would have prepared well in advance. (Indeed, I’m fairly certain that it was part of his standard set of speeches, as I believe that I heard it on an earlier date.)

Murphy simply has no insight into the subject of his biography if he imagines that the Time article (if Scalia had ever seen it) would have elicited more than a harrumph.

3. Murphy also absurdly asserts that Scalia felt overshadowed by Justice Thomas in mid-March 2008 when the Weekly Standard’s Bill Kristol proposed Thomas, but not Scalia, as a potential vice-presidential candidate for John McCain. This “unexpected event changed the political landscape” for Scalia and led him to seek “a new media platform to restore his place in the conservative pantheon.” Therefore, he traveled to London in February 2008 to address the London School of Economics and be interviewed on BBC.

Again, Murphy offers zero evidence for his causal chain. He doesn’t even try to establish that Scalia actually learned of Kristol’s suggestion of Thomas as VP.

The attentive reader will note that Murphy contends that something that happened in mid-March 2008 caused Scalia to take actions a month earlier (or likely much earlier, if one makes the sensible assumption that Scalia’s foreign travel gets planned well in advance). This is but one of several instances in which Murphy frees himself from the inconvenient logical constraints that linear time imposes.

4. Murphy, a supposed “scholar of American Constitutional law,” contends that the trimester framework that Justice Blackmun imposed in Roe v. Wade is “based on the concept that life begins at the point of viability outside the womb.” In fact, Blackmun famously (or infamously) declared, “We need not resolve the difficult question of when life begins.” He posited viability not as the point when “life begins” but rather as the point at which the state’s “important and legitimate interest in potential life” may allow it to “regulate, and even proscribe, abortion except”—rule-destroying loophole alert!—“where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” (Blackmun refers to “potentiality of human life” even after viability, so nothing about his use of the term “potential life” signals that he regards viability as the point “when life begins.”)

5. In what Murphy seems to regard as a “gotcha” moment, he recounts the lone conversation he had with Scalia. At a small after-dinner reception, Murphy set out to ask Scalia about his supposedly “evolving decision making.” After describing Scalia’s puzzlement at his line of inquiry, Murphy recites this back-and-forth (emphasis in original):

Murphy: “What if it turned out that historians learned more from newly uncovered sources and changed their scholarship?”

Scalia: “If someone brings me historical evidence that shows that I was wrong in the past case, I would certainly write differently, saying ‘on the basis of historical scholarship, I previously believed that this case interpretation was correct, but it turns out not to be true.’ Then I would correct the holding.”

Murphy: “So that would allow you to evolve?”

Scalia: “Yes.”

The exchange, of course, establishes nothing more than Scalia’s willingness to recognize the hypothetical possibility that he might read the available originalist evidence at a particular time to yield an interpretation of the Constitution that turns out to be wrong. Scalia isn’t saying that an unamended provision of the Constitution has one correctly discerned meaning at one time and somehow evolves to have a contrary meaning at another time. Nor, fairly understood, is he saying that his own judicial approach would “evolve.” He is simply acknowledging the trivial point that his approach, applied to different sets of originalist evidence, could yield different results. (And his closing “Yes” evidently provided him an escape to begin talking to someone else.)

6. In a remarkably obtuse passage, Murphy contends that the position of House Republicans that “every newly passed law contain an explanation of its foundation” in the Constitution “was contrary to Scalia’s philosophy that there could be new rights so long as the legislature passed a new law.”

What House Republicans were calling for, of course, is that Congress set forth the constitutional source of its power to enact a particular law. In recognizing that the Constitution leaves it to the democratic processes, in Congress and in state legislatures, to enact new rights, Scalia has never taken the position that the Constitution doesn’t impose limits on Congress’s powers. So the conflict that Murphy perceives comes from some weird confusion in his own head.

7. Continuing to display his profound knowledge of all things Catholic, Murphy finds comfort in Justice Alito’s former home parish in New Jersey:

Through its stated goal to teach its parishioners how to incorporate Catholicism into their daily lives, the Alitos’ New Jersey church’s mission statement made clear that it was not the same kind of traditional conservative church as Scalia’s St. Catherine’s or Thomas’s St. Andrew’s.

So Murphy thinks that a “traditional conservative [Catholic] church” doesn’t want its parishioners “to incorporate Catholicism into their daily lives”?!? If so, why is he writing a book with a dominant thesis that falsely contends that Scalia’s traditional Catholic views lead him to use his daily life to impose his Catholic values on others?

*  *  *

I could go on and on with more examples. But if you’re paying attention, this, together with my previous posts, ought to be enough to alert you to the fact that Murphy doesn’t pay careful attention to what he reads, doesn’t pay careful attention to what he writes, doesn’t reason very clearly, doesn’t know all that much about the Constitution and leading Supreme Court cases, and doesn’t understand Justice Scalia. Other than that, he’s a great choice to write a Scalia biography.

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