Bench Memos

Devastating New Republic Review of Scalia Biography

In a New Republic review titled “A Liberal’s Reluctant Defense of Scalia,”* University of Chicago law professor Justin Driver provides an excellent and devastating critique of Bruce Allen Murphy’s new biography of Justice Scalia. As Driver sums it up:

There can be no question that Murphy intends readers to walk away from his book with a thoroughly negative impression of Scalia, but his hatchet is so crude and so wanton that it falls well short of achieving its intended effect…. Legal liberals should find Murphy’s grotesque rendering of Scalia especially distressing because the stakes could hardly be higher. 

Driver’s lengthy critique, I’m pleased to note, has much in common with my (much shorter) review as well as with my (longer) series of blog posts (see Parts 1234, 5, 6, 7, and 8). I encourage you to read Driver’s entire review, including the eight or so paragraphs at the outset in which he intelligently discusses Scalia’s extraordinary influence on American law. I’ll highlight here some excerpts that particularly reflect Driver’s assessment of Murphy’s book:

[W]hatever the book’s virtues, they are dwarfed by its vituperative attacks on Scalia’s character and even on his religion….

Murphy’s book, alas, … consistently casts Scalia’s actions and motivations in the least flattering light available. Indeed, Murphy’s portrait of Scalia consists overwhelmingly of wartsand, worse still, some of the blemishes he depicts seem more contrived than real….

Murphy also misleadingly alleges that Scalia’s public addresses initiated numerous undesirable developments at the institution that he joined. These speeches, Murphy claims, “began the process of politicizing the Court and launching the partisan warfare among the justices.” But Scalia cannot possibly bear responsibility for starting that process at the Court, because it antedated his arrival…. [See my Part 6 post]

On no topic, however, is Murphy’s treatment more objectionable than his fixation on Scalia’s Catholicism…. [I]n a truly astonishing passage, Murphy writes: “In sum, pre-Vatican II Catholicism and legal originalism/textualism are so parallel in their analytical approach that by using his originalism theory Scalia could accomplish as a judge all that his religion commanded without ever having to acknowledge using his faith in doing so.” Suggesting that Justice Scalia is using his seat on the Supreme Court to promote Catholic teachings is an unusually aggressive move. Regrettably for Murphy, the claim does not withstand much scrutiny even in the highly inflammatory context in which he lodges it….

If Scalia were truly committed to eliminating the gap between Catholicism and constitutionalism, many observers would surely find that these positions fail spectacularly at accomplishing the task. It requires no great familiarity with Catholicism to know that the Church understands life to begin at conception. A jurist committed to operationalizing that notion would encounter little difficulty finding, contra Scalia, that the Constitution clearly forbids laws permitting women to receive abortions under any circumstances. [See my Part 3 post]  

Driver also soundly faults Dahlia Lithwick (as I did) for somehow “shower[ing] praise” on Murphy:

Failure to acknowledge the ample flaws in Murphy’s treatment of religion is a dereliction. But celebrating the biography for its bold willingness to speak truth topower is perverse. 

* Update: I see that the New Republic has changed the title to “How Scalia’s Beliefs Completely Changed the Supreme Court.”

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