First, it’s a very good article. Well worth reading despite its considerable length. A lot of journalism on legal topics, even by people who have done it for a long time, is unreliable and makes important mistakes. But I didn’t catch any errors in this article. Several things, however, did catch my eye (these are in the order in which they appear in the article).
Early on in the article, we come upon this:
Another audience member asked, "There are those who think the 2000 election was stolen. Could you explain why that’s wrong?" Scalia growled, "I am inclined to say, four years and another election later, ‘Get over it!’" He waited for the boos and the applause to die down. "The only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world," he said. Besides, he asked, how could the Court have declined to hear the case? "On what grounds?" he asked. "That it’s not important enough for us to trouble ourselves with?" The prestige of the Court is "not something you put up on the mantel and admire," he said with pride. "It’s there for use in battle."
Even putting aside Scalia’s flip "get over it" comment, I find this entire paragraph shocking. First, it’s surprising indeed to hear that Scalia gives a damn about whether we "look like a fool in the eyes of the world" – this is the guy who routinely chastises his colleagues for making any reference to international law, yet he’s willing to precipitate a near-constitutional crisis because a couple of Europeans might be having a chuckle at our expense? Second, "the only issue was whether we should put an end to it"?? Insanity! The only issue should have been whether there was a substantial federal question to be answered – and everyone I have spoken to about Bush v. Gore, including a number of conservative lawyers and law profs who undoubtedly voted for Bush twice, agree that the "federal question" at stake in Bush v. Gore was modest at best. And then Scalia asks "on what grounds" the Court might have declined to hear the case! How about this, Nino: there was no substantial federal question to be answered – there’s your grounds for declining the case, just like you decline every other case that presents no substantial federal question, however important the case may otherwise be. You made one up so you could decide the election. Third, for a judge to think that his role in the 2000 recount was to "put an end to it," when "it" is the process laid out in the Constitution and laws of the United States for deciding a presidential election, seems to me as good a definition of "judicial activism" as any I have ever heard. So there it is, from his own lips: Antonin Scalia is a judicial activist, and don’t you forget it.
From the earth-shatteringly important to the absurd: I couldn’t resist quoting this passage:
Scalia was … an enthusiastic actor. (He played the lead in "Macbeth" and the angel Gabriel in "The Green Pastures," which a school publication described as "a humorous characterization of the Negro interpretation of the Bible." Another student was "De Lawd.")
The school in question is Xavier High School in Manhattan, "a Jesuit military academy." No further comment seems necessary.
Then comes this story about Scalia’s first day in the Nixon Justice Department:
he was given the task of deciding who owned Nixon’s tapes and papers – the American public or Nixon. Scalia drafted a memo supporting Nixon. "To conclude that such materials are not the property of former President Nixon would be to reverse what has apparently been the almost unvaried understanding of all three branches of the government since the beginning of the republic," he wrote. Congress rejected Scalia’s argument …..
I find this interesting not so much because Scalia supported Nixon and was overruled by Congress, but because of the way in which Scalia makes his case. Listen to his hyperbolic language: a decision other than the one he recommends would undo the "almost unvaried understanding of all three branches of the government since the beginning of the republic." Sound familiar? If you’ve ever read any of Scalia’s opinions, it should – he’s a big fan of this kind of "sky is falling" language, and it shows up in his writing (especially his dissents) all the time. ("Today’s opinion is without antecedent." "This proposition is so out of accord with our jurisprudence – indeed, with the jurisprudence of any society we know – that it requires little discussion." "[T]o extend to the entire run of Compensation Clause cases the rationale supporting today?s judgment … would be disastrous. The Court?s judgment … has no basis in law." "To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people." There’s plenty more – you get the idea.) It’s an effective rhetorical device, but when you consider how often Scalia employs it, you do start to wonder whether he keeps using it precisely because it’s effective, rather than because it’s really accurate. Maybe Scalia’s colleagues really are routinely disregarding the history of American law up to the point the decision in question is being written – but frankly, I doubt it.
Along similar lines, we read that "[w]hile [Scalia’s] dissents often nimbly dismantle the dodgy logic of the majority opinion, they do so in a tone of such bitter disappointment that it’s hard to imagine his arguments winning over any Justice who voted against him." And, a couple of pages later, we learn that "Scalia’s fervency has undermined his ability to form coalitions on the Court," that he is a "failure as a politician," and that "[f]or all his brilliance, Scalia has repeatedly failed at the art of persuasion." I’ve already written about this phenomenon of Scalia’s tenure on the Court in the context of whether Bush will name him to be the next Chief Justice, and whether that would be such a bad thing. I wrote before, and I still think, that precisely because of Scalia’s self-inflicted isolation, Bush won’t elevate Scalia (despite Scalia’s alleged "charm offensive"), and if he does, liberals should smile quietly to themselves.
Finally, though this post is already too long, I cannot close without noting the article’s reference to Scalia’s now-famous comment during the oral argument of this term’s Ten Commandments cases:
The commandments, he said later, are "a symbol of the fact that government derives its authority from God." This was a startling assertion, but of a piece with earlier Scalia statements, such as his claim, in the First Things essay, that the American people’s "un-European" religiosity helps explain why we "are more inclined to understand, as St. Paul did, that government carries the sword as ‘minister of God’ to ‘execute wrath’ upon the evildoer."
Startling indeed. I should think it would startle the founders of this country, to whom Scalia claims such allegiance. The founders wrote as they declared independence from Great Britain that it was "self-evident" that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." That’s right, Nino, "the consent of the governed." The founders indeed viewed those "rights" as coming from the "Creator," but they assuredly saw the legitimacy of government – whose job it is to "secure" those rights – as coming from the consent of the governed, not from God above.
So there you have it. A brilliant judge who cannot persuade a majority of his colleagues on many of the issues that are most important to him. A self-styled "originalist" who seems to have missed one of the principles that the founders thought most important. A judge who undoubtedly would take umbrage at being called a "judicial activist," yet who was willing to halt a recount process in its tracks, even though that process was being carried out according to laws enacted by the people’s duly elected representatives. Antonin Scalia’s legacy will be curious indeed.
UPDATE: I ran across this over at Volokh: "one shouldn’t confuse flip aphorisms with legal acumen." The author was writing about Oliver Wendell Holmes, but it seems to me that the comment applies with perhaps greater force to Antonin Scalia. As discussed above, Scalia is second-to-none with the nifty rhetorical devices, but in many cases, that’s all they are.
