Book Launch: American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia
Author Joan Biskupic, Supreme Court Reporter, USA Today; commentator Dahlia Lithwick, Senior Editor, Slate; Commentator Richard Lazarus, Professor of Law and Faculty Co-Director, Supreme Court Institute, Georgetown University Law Center.
Supreme Court Justice Antonin Scalia is a contradictory man who has taken an unusual path to power and will likely influence American jurisprudence for decades to come, legal experts said in a discussion of Joan Biskupic's new biography, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, on December 3 at the Wilson Center.
Author Joan Biskupic said that she became interested in Scalia while writing her previous book, Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice, because the two justices represent diametrically opposed approaches to their jobs. O'Connor was a politician who knew how to assemble a majority, a quality that enabled her to write many influential opinions. Scalia, in contrast, never served as a swing vote, and early in his career presented his positions almost entirely in dissents.
Scalia's childhood shaped his disposition, according to Biskupic. He was the son of a strict father, whom the younger Scalia felt he never satisfied, and a warmer mother. Furthermore, he grew up not merely as an only child, but as the only child of his generation of his parents' extended families. These factors combined to form an adult who is both passionate and highly disciplined in his thinking, and who has a strong vision of his place in history.
With the appointments of Chief Justice John Roberts and Justice Samuel Alito, Biskupic pointed out, the balance on the court shifted, and with it, Scalia's position. Both of the new members cite Scalia as a profound influence on their thinking, so their presence on the court offers him opportunities that were previously unavailable.
Commentator Dahlia Lithwick praised Biskupic for filling an important gap in our understanding of Scalia. Too often, she said, journalists report on the Supreme Court "as if the law were alive and the justices were dead." Biskupic, on the other hand, presents Scalia from all perspectives—as a jurist, a thinker, and a human being—and considers his influence on public discourse as well as the court.
Biskupic also captures Scalia's contradictions and grandiose ambitions well, according to Lithwick. The justice combines adherence to a pristine, mechanistic ideology, known as originalism, with passionate advocacy, considerable charm, and a rare sense of humor.
Biskupic and Lithwick agreed that of all the members of the current bench, he is the most beloved by the press, in large part because he can be relied upon to provide color and newsworthy remarks, yet he feels the most beleaguered and misunderstood. As the "perennial outsider," he does his best work in opposition. He does not care about the immediate issues of a case, but about his influence on the next generation. "I'm not writing for anyone but the law students," Scalia once said.
Commentator Richard Lazarus noted that Scalia's uncompromising approach has limited his influence. In particular Lazarus pointed to a "lost decade of conservative jurisprudence" in the late 1980s and early 1990s, when the right had a majority on the court yet did not produce many important precedents. Instead, the liberal Justice John Paul Stevens benefited from Scalia's intransigence, forging majorities after Scalia's refusal to compromise broke up coalitions favoring more conservative readings of the law.
Recent trends indicate, however, that Scalia might be changing, Lazarus predicted.
In 2005 Roberts assigned Scalia to write the opinion on an important environmental case, and Scalia lost the majority. The following year, Roberts assigned no opinions to Scalia, even though conservatives "swept the table" by winning 24 of 25 cases decided by 5-4 votes. During the 2007 term, Scalia was asked to write the opinion for District of Columbia v. Heller, a case that established that the second amendment protected individuals' right to own guns, and this time he kept his allies from defecting. The ability he demonstrated to work with other justices in this instance may make him more influential in the coming decades.