‘If this turns out to be something you enjoy doing,” C-SPAN’s Brian Lamb asked Supreme Court justice Antonin Scalia, “what would another book you’d like to write be?”
It was May 2008, and the justice was promoting Making Your Case: The Art of Persuading Judges, a legal-advice manual he co-authored with Bryan Garner. Interviewer and interviewee had known each other since 1971, when Scalia and Lamb worked in the White House Office of Telecommunications Policy. Ever since, they had been lunching near-quarterly on anchovy pizza and cheap red wine at Scalia’s haunt, the now-long-gone A.V. Ristorante on New York Avenue in Washington, D.C.
On the surface, the C-SPAN encounter appeared as simply yet another installment in Lamb’s storied career as a gentle but probing interviewer of historical and literary figures; to the knowing eye, he and Scalia were ceaselessly taking the mickey out of each other. Lamb would pop-quiz the justice on how many grandchildren he had or show him hostile clips from The Daily Show; in an earlier interview, just prior to Scalia’s nomination to the Supreme Court, Scalia addressed his interlocutor, for comic effect, as “Mr. Lamb.”
Now, however — having been seated on the Court for 22 years, destined to serve seven more before dying in his sleep, during a Texas hunting trip, in 2016 — Scalia answered earnestly. “I’ve thought about doing a book on textual interpretation,” he said, which thought flowered, the following year, into Reading Law: The Interpretation of Legal Texts, also co-authored with Garner. But the first project he mentioned was something else: “I’ve toyed with the idea of doing a book just of prior publications and prior speeches that I’ve given, some of which I really am quite fond of, and the speeches have never been published.”
Now it’s here. Edited by Ed Whelan, the former Scalia clerk who is president of the Ethics and Public Policy Center, and Christopher J. Scalia, the second-youngest of the justice’s nine children, and featuring a foreword by Justice Ruth Bader Ginsburg, Scalia Speaks is engrossing and invaluable, a treasure for lawyers and non-lawyers alike, a milestone in the literature of this profoundly influential American and in the annals of the Supreme Court.
Organized thematically, the 48 entries include speeches, commencement addresses, and eulogies spanning from 1984 to 2016. Whelan’s introductory notes draw on his own recollections (“My last memory of Justice Scalia . . . is seeing him on his knees in prayer in the chapel’s choir stalls”), while Christopher Scalia’s introduction, explaining how his father crafted speeches, presents a touching farewell from a son who wishes he had accepted that last invitation to a cigar.
Written in the Scalia style — learned but streetwise, powerfully argumentative yet seductively commonsensical — Scalia Speaks is the closest thing to an autobiography we will get from this jurist and writer of supreme intellectual and literary gifts. Before audiences of high-schoolers and turkey-hunters, the justice mixed his powers of suasion with anecdotes from his Queens youth to educate and enlighten, celebrate and lament, poke and prod. “I will probably be telling you some stuff you do not want to hear,” he cautioned Congress’s Tea Party Caucus in a 2011 event open to all House members. “That is part of my charm.”
But only part of it. Scalia was a man on a mission — in fact, several: to be a dutiful son of Christ and faithful executor of his federal oath; to argue and write in ways that entertained without subjecting the English language, badly eroded by the millennium, to further degradation; to remind his listeners of a time in American society, not long ago, when children freely played outside (“No adult supervision. No conceivable financial liability”) and all schools, not just military academies, emphasized the formation of moral character; and to advance textualism, Scalia’s philosophy of how judges should interpret statutes and the Constitution.
This last objective forms the bulk of the book and brings the largest measure of repetition, something Whelan and Christopher Scalia acknowledge they retained to show how frequently the justice evangelized on selected subjects. Textualism holds that judges should exalt the meaning a law was widely understood to have when it was adopted, rather than graft onto statutes the judges’ own policy predilections, shaped by succeeding generations or intellectual fads.
Making that point, as Scalia did tirelessly, invariably led him to the Founders and the genius of the federal government they devised. Indeed, among the revelations here, especially for non-lawyers, is the justice’s reminder that it is not the Bill of Rights that guarantees Americans’ freedoms. “It is the beginning of wisdom in this area to acknowledge that the Constitution says what it says,” Scalia told students of New York’s Juilliard School for the performing arts in 2005. “And the fullness of wisdom is to recognize that the crowning achievement of America is not the Bill of Rights (every modern banana republic has one) but rather the structure of government and the democratic tradition that make a Bill of Rights enforceable according to its terms.”
Scalia’s piety happily coexisted alongside his ebullient and gregarious personality — he considered, as a high-school senior, pursuing the priesthood — and among the most powerful of his speeches, delivered dozens of times over the final quarter-century of his life, was “The Christian as Cretin”: a sermon, of sorts, on the “apartness” devout Christians will inevitably feel from secularized friends. “Surely those who adhere to all or most . . . traditional Christian beliefs are regarded, within the educated circles that you and I travel in,” he told Green Bay’s St. Thomas More Society in 2010, “as — well, simpleminded . . . by which I mean those who do such positively peasant-like things as saying the rosary, kneeling in adoration before the Eucharist, going on pilgrimages to Lourdes or Fatima, and, worst of all, following indiscriminately (rather than in smorgasbord fashion) the teachings of the Church.”
Readers will learn about a formative event that occurred as Scalia was finishing oral exams at Georgetown in 1957, before matriculating to Harvard Law. Walter W. Wilkinson of the history department posed what young “Nino,” as the valedictorian was known then, considered a “softball” question: “Of all the historical events you have studied, which one in your opinion had the most impact upon the world?” “How could I possibly get this wrong?” Scalia asked rhetorically on his return to Georgetown in 1998:
There was obviously no single correct answer. The only issue was what good answer I should choose. The French Revolution perhaps? Or the Battle of Thermopylae — or of Lepanto? Or the American Revolution? I forget what I picked, because it was all driven out of my mind when Dr. Wilkinson informed me of the right answer — or at least the right answer if I really believed what he and I thought I believed. Of course it was the Incarnation. Point taken. You must keep everything in perspective, and not run your spiritual life and your worldly life as though they are two separate operations.
Liberal readers inclined to see Scalia’s rulings on abortion, sodomy, and same-sex marriage as unalloyed products of his Christian faith, and not of textualism, will learn from Scalia Speaks how he strove on the bench to keep his religiosity in check.
“No matter how good a Catholic a short-order chef may be,” the justice told a Long Island audience in 1992, “there is no such thing as a Catholic hamburger. Unless, of course, it is a perfectly made and perfectly cooked hamburger.”
– Mr. Rosen is the chief Washington correspondent for Fox News and the editor of the New York Times bestseller A Torch Kept Lit: Great Lives of the Twentieth Century, by William F. Buckley Jr. He is at work on a biography of Justice Scalia.