Does Conservative Justice Scalia Have a Good Outside Game?

Justice Antonin Scalia (Brendan McDermid/Reuters)
Justice Antonin Scalia (Brendan McDermid/Reuters)

A new biography of Antonin Scalia argues that his bellicose conservatism has alienated his fellow justices and rendered him ineffective. Think again.

Bruce Allen Murphy is the author of entertaining biographies of Supreme Court Justices Abe Fortas and William Douglas, and he has now written an equally entertaining biography of Justice Antonin Scalia: Scalia: A Court of One. Calling it just a biography would be inaccurate, though. Murphy’s book is biography as criticism, using a justice’s life story as critique rather than just backdrop.

In Scalia’s case, Murphy believes that his subject’s many intellectual and rhetorical gifts have been wasted because of his aggressive and angry style, which is reflected in his behavior inside and outside of the Court. Murphy argues that this style alienated many of Scalia’s fellow justices, and turned him into what the title of the book calls a “Court of One.” Decades from now, though, we will not see Scalia as a lone ranger, but as one of the more influential justices of his time. This is because influence on the Court today increasingly comes not from persuading immovable justices on the Court in the short term, but from changing how we talk about constitutional law outside of the Court in the longer term. On this front, Scalia has excelled, and precisely because of the traits that Murphy finds problematic.

Murphy argues that Scalia’s career has been marked by a “willing[ness] to go to war against his senior colleagues.” When in disagreement, Scalia became known for the “abrasiveness of his attacks against opponents.” He is often referenced as “Nino,” and Murphy reports that professional colleagues came to call the “Ninopath” the path of no compromise that Scalia would pursue. The drafts of his judicial opinions that would reflect this refusal to compromise were called “Ninograms.”

On the Court, particularly in his earlier years, this led many of his fellow justices to react strongly—and negatively—to Justice Scalia. Murphy reports that Justice Harry Blackmun wrote “screams” in the margins of a Ninogram he had received. Chief Justice William H. Rehnquist once wrote Scalia a note to inform Scalia that this style was costing Scalia his influence with moderate Justice Sandra Day O’Connor: “Nino, you’re pissing off Sandra … Stop it!” The Ninopath was also pursued, according to Murphy, in the Justice’s many and notable public appearances.  In the past few years, for instance, Scalia has come to call judges who pursue what he considers to be a more activist approach the “Mullahs of the West.”

Murphy argues that this approach minimized Scalia’s influence because it made Scalia less effective at persuading his colleagues of the correctness of Scalia’s jurisprudential approach. But the Court that Scalia was nominated to nearly 30 years ago is not the Court it is today, nor are we the country we were then. In that world—and for many years after—it was possible for a justice to persuade his or her colleagues. Many talked about the legendary persuasive abilities of Justice William Brennan, renowned for using his personal charm and political skills to put together a majority of votes for his preferred position.

Click here to continue reading…

SOURCE: David Fontana 
The Daily Beast

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