Bench Memos

Bruce Allen Murphy’s Scalia: A Court of One—Part 7

See Parts 1234, 5, and 6

In his forthcoming biography of Justice Scalia, Bruce Allen Murphy engages in a lot of implausible armchair psychologizing, as he crams the facts into his seemingly pre-formed theses. A few examples (beyond what’s in previous posts):

1. In his opening anecdote about the distinctive hat that Scalia wore to President Obama’s second inaugural, Murphy manages to withhold judgment on whether Scalia wore the hat in order “to cause … a sensation” (or in order to keep warm in the intense cold). But he asserts that Scalia “could not have been unhappy with the result” because “he was usually most pleased if the focus was on him.”

But on the very next page, Murphy claims that Scalia “attracted attention by not attending”  Obama’s 2013 State of the Union address. Never mind that Scalia hadn’t attended a State of the Union address since 1997, and never mind that it’s routine for justices not to attend. (As one summary of a study puts it, “In the period from 2000 forward, on average only 32% the justices attended the address, including a three-year period when Justice Stephen Breyer was the only court representative present.”)

2. Murphy contends that Scalia always searched for jobs that would “offer[] him the power, public visibility, and upward mobility that he craved.” He actually writes this in the same paragraph in which he reports that Scalia took his first job out of law school in the great power center of … Cleveland.

3. Murphy imagines that Scalia was happy to be the only originalist on the Court when he joined it, as he “would have the stage to himself, just as he liked it.”

4. Murphy even viciously and outrageously insinuates that Scalia was happy that Judge Bork’s 1987 nomination was defeated, as “Scalia was now completely free of the intellectual shadow of Robert Bork” and “he and he alone would represent the original interpretation theory on the Supreme Court.” 

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