Bench Memos

Joan Biskupic’s Biography of Justice Scalia—Part 4

It’s true, as I put it in my Part 1 post, that Joan Biskupic’s American Original is “in many places more evenhanded than I expected.”  But my expectations were low, and Biskupic’s book is decidedly, if sometimes subtly, stacked against Scalia.

One set of examples consists of Biskupic’s rhetoric.  Time after time, Biskupic tells us that Scalia has “fervent” views (e.g., pp. 107, 149, 196) or a “fervidly argued position” (p. 196).  He has an “authoritarian instinct” and an “authoritarian bent” (pp. 51, 64) that supposedly explains his views on executive power (but that would be difficult to reconcile with his position that the Constitution leaves the vast bulk of policy issues to the people to decide).  His academic success “led him to feel superior” (p. 26), and he “exuded … the belief that if he did it, it was right” (p. 36).  His jurisprudential limits on judicial discretion apparently grew out of a “fixation on rules” (p. 26).  What in another justice would be admirable evidence of consistency over a career is instead proof that Scalia is “an unflinching, unyielding justice”  (p. 153).  And so on.

Then there are Biskupic’s misrepresentations of Scalia’s positions.  Beyond those I outlined in Parts 2 and 3, I’ll call attention to a couple of more here.

Biskupic contends (pp. 97-98) that Scalia’s testimony at his Supreme Court confirmation hearing about the libel case of Tavoulareas v. Washington Post “implicitly contradicted how much the case had mattered to him at the time and continued to matter.”  But Biskupic clips Scalia’s testimony to omit his primary point that the case “is the one case, one of very few cases, I can’t talk about because it’s still before our court on petition for rehearing.”  (Hearing transcript, p. 96.)  She seems to think that it’s somehow damning that Scalia clarified that he wasn’t the author of the opinion in the case but instead joined the opinion.  But Scalia’s clarification was an appropriate response to a question that asserted (in context that Biskupic doesn’t provide) that Scalia “ruled against the press” in the case—as though the ruling might have been entirely his.  It’s simply ridiculous for Biskupic to contend that Scalia was misportraying his role in the case when he was in fact stating clearly that he couldn’t discuss the case. 

Summarizing Scalia’s position on the Establishment Clause, Biskupic asserts, “When it came right down to it, he believed almost no government action would violate the Establishment Clause, short of outright coercing religious participation” (p. 139).  But in his dissent in Lee v. Weisman (1992), Scalia expressly accepts that

our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington … down to the present day, has, with a few aberrations, ruled out of order government sponsored endorsement of religioneven when no legal coercion is present, and indeed even when no ersatz, “peer pressure” psycho coercion is present — where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world, are known to differ (for example, the divinity of Christ).  [Emphasis added; internal citation omitted.]

The third respect in which Biskupic stacks the deck is the profligate attention that she gives critics of Scalia, whether or not their criticisms make any sense.  The starkest example here is the 2-1/2 pages (pp. 203-205) that she gives law professor Geoffrey Stone’s “painfully awkward observation” that all five justices in the majority in the 2007 partial-birth ruling (Gonzales v. Carhart) were Catholic. 

I certainly don’t mean to contend that Biskupic shouldn’t pay attention to Scalia’s critics, nor do I dispute that even feeble critiques may reasonably bear on political controversy over Scalia, but Biskupic’s incessant resort to critics frequently seems her way of bolstering her charges against Scalia on the basis of the critics’ supposed authority rather than on the basis of reasoned argument.