Bench Memos

Joan Biskupic’s Biography of Justice Scalia—Part 1

I’ve read through USA Today reporter Joan Biskupic’s new biography of Justice Scalia, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia.  In this and a few additional posts, I’ll offer my comments on the book. 

Disclosure:  As I assume regular Bench Memos readers know, and as clicking my name above will readily reveal, I had the privilege of serving as a law clerk to Justice Scalia.  (I clerked during the October 1991 Term.)

American Original has 16 chapters.  The first four are the most purely biographical, tracing Scalia’s life from his birth in Trenton, New Jersey, in 1936 to his appointment to the D.C. Circuit in 1982.  Chapters 5 and 6 cover his service on the D.C. Circuit and his nomination to the Supreme Court.  The remaining ten chapters cover various aspects of his tenure on the Supreme Court, largely (if somewhat loosely) by the subject matter of cases (e.g., race, abortion, homosexuality, Bush v. Gore).

Biskupic succeeded in securing Scalia’s cooperation on her book project.  She interviewed him a dozen times, and as she puts it, he “was generous with his time and candor, and he encouraged colleagues, friends, and relatives to talk to me.”  (p. 413)

My overall take on American Original is decidedly mixed.  On the positive side:  The book is well written, much more so than I expected from my occasional encounters with Biskupic’s reporting.  It is also in many places more evenhanded than I expected.  And I found the first four chapters particularly interesting.

I’ll flesh out the negative side in my posts to come, but here’s an overview:  Consistent with her reductionist depiction of judging as politics, Biskupic does not engage well with Scalia’s ideas about judging.  In particular, I doubt that any reader will come away from the book understanding what Scalia’s original-meaning methodology is, much less his stated reasons for believing that it’s the correct interpretive methodology.  Far from grappling with Scalia’s jurisprudential ideas, Biskupic resorts to flawed and simplistic accounts.  Worse, she misrepresents Scalia’s positions and statements on a variety of matters—always to his detriment.  In sum, although she may well have, as she says (p. 415), “worked hard to be both fair to him and true to the readers of this book,” she has fallen well short of those goals.