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Excerpt: 'American Original'

Note: The footnotes from this excerpt have been removed.


On a raised dais at Washington's luxurious Mayflower Hotel, the Supreme Court justice Antonin Scalia is in high performance mode. His comic timing is precise. Laughter and applause ripple on cue from the five hundred lawyers packed into the ballroom. Gone in an eyeblink is most of his scheduled hour. The moderator announces that there will be one final question.

"Make it easy," Scalia jokes, standing at the lectern, in especially fine spirits on this blustery November afternoon. "You can make it like Senator Strom Thurmond's first question to me when I was up for my confirmation." The South Carolina Republican had presided over the Senate Judiciary Committee hearings for Scalia in 1986, when he was nominated by President Reagan for elevation from a federal appeals court. Thurmond had opened with a question that played right into Scalia's view that judges were wrongly going beyond the letter of the law to solve society's larger problems, whether they related to school busing, prison crowding, or environmental catastrophes. These were conflicts Scalia believed should be left in the domain of elected lawmakers.

" 'Now, Judge Scalia,' " Scalia says, mimicking the slow patois of Senator Thurmond, " 'what do you think of judicial activism?' "

Scalia turns sideways at the lectern and puts his hands together as if at the plate and ready to swing a baseball bat. The sleeves of his dark suit yank up, flashing his thick white shirt cuffs.

"I'm ready for that pitch," he says.

The Scalia illuminated by camera lights at this closing session of the 2008 annual conference of the Federalist Society is heavier than the man America first saw at the witness table in 1986 on nationwide television. His jowls are thicker, his waist wider. His dark black hair has thinned. Yet his eyes are lit, as always. Into his seventies, Scalia still exudes energy and passion. His gestures are operatic. He points his fingers and waves his arms for emphasis. His audiences at these public occasions, irrespective of whether they are conservative or liberal, continue to be large and are nearly always captivated. When Scalia enters a room, cameras still flash. This afternoon at the conservative legal society's convention his audience is standing room only and hanging on his every word and gesture.

With his biting humor, Scalia has been advancing the legal theory known as "originalism" — insisting that judges should render constitutional decisions based on the eighteenth-century understanding of the text. "It's a fight worth making," he says in remarks that are part battle cry, part assertion of victory.

"I used to be able to say, with a good deal of truth, that you could fire a cannon loaded with grapeshot into the faculty lounge of any law school in the country and not strike an originalist," Scalia says, referring to those of the view that the Constitution has a "constant" meaning, one that does not change to fit the needs of a changing society. "That no longer is true. Originalism — which once was orthodoxy — at least now has been returned to the status of respectability."

He says that until contemporary times — "the last fifty years or so" — judges interpreted the Constitution to mean what it meant when it was adopted. Whether the originalist view remained "orthodoxy" into the twentieth century is debatable, but it was barely in evidence by the late 1950s as such judges as Chief Justice Earl Warren interpreted the Constitution to contain broad principles that could be applied to modern circumstances. These judges did not feel constrained by the framers' understanding of what they had forbidden or allowed.

Gripping the sides of the lectern with his large, square hands, Scalia has been recounting how his view of a "static" Constitution has been faring better among federal judges these days. He refers with satisfaction to a recent landmark of his own Supreme Court that declared that the Second Amendment protects an individual's right to bear arms. The ruling the previous June, written by Scalia, overturned decades of decisions by lower court judges who had held that the Second Amendment applied only to state militias, such as state national guards. It was the first time the Supreme Court found that any law violated the Second Amendment, and it was a significant reversal of settled lower court law. Especially striking was Scalia's authorship of the opinion. His no-compromise style had made him a hero on law school campuses but usually cost him votes among the justices. On the incendiary subject of gun rights, however, he was able to gain and keep the majority, helped by the youthful new chief justice, John Roberts, and the newest associate justice, Samuel Alito. The case, requiring interpretation of the Second Amendment's text and history, was the perfect match for Scalia's focus on the original intention of the men who drafted and ratified the Constitution.

"Maybe the original meaning of the Constitution is back," Scalia tells the Federalist Society. "We're not all back there yet, but maybe we're on the way."

A quarter century into his judicial odyssey, Scalia may be at the apex of his influence. Roberts and Alito, who had both worked in the Reagan administration, have long admired Scalia and the way he wages the good conservative fight. On the Court since 2005 and 2006, respectively, they have been voting with Scalia more than did William Rehnquist, the previous chief justice, and Sandra Day O'Connor, Alito's predecessor, whose moderate, consensus-seeking approach constantly thwarted Scalia.

Liberals such as Justices John Paul Stevens and Ruth Bader Ginsburg regard Scalia's ideas as perilous. They fear that if they were ever fully accepted by the nation's judges, the emphasis on individual rights established in the last half century — for the poor, the disenfranchised — would be lost.

Today in the chandeliered ballroom, however, Scalia is among the faithful, with his own. In 1982, when the Federalist Society was founded by students at Yale University and the University of Chicago to counter the liberalism of academia, Scalia was present. He was teaching at Chicago and became the faculty adviser to the founding students there. He helped the group raise money and attract prominent speakers. As the Federalist Society began to flourish, gaining wealth and adding members, Scalia was an A-list invitee for annual conferences. Now the society boasts up to forty thousand members and a record of influence, with three Republican presidents and their life-tenured appointments to federal courts.

Two years before this occasion at the Mayflower, the Federalist Society celebrated Scalia at a black-tie dinner for his twenty years on the Supreme Court. "Over the last twenty years, Justice Scalia has done for the Court what President Reagan did for the presidency and the country," declared the Northwestern University law professor Steven Calabresi, one of the founding students at Yale. "He has by the force and clarity of his opinions become a defining figure in American constitutional law of the last two decades."

Scalia had marched up to the stage, joined by his wife, Maureen, and all nine of their children. They smiled brightly, all grown-ups, yet jostling one another good-naturedly like children who had just emerged from a long trip in the family van.

"I really do much better at responding to criticism than at responding to praise," the man of the hour had said. "If you accept it as though it's really due, you're being conceited. If you reject it, you are being supposedly insincere or at least ungrateful. My favorite response has been one Lyndon Johnson used ... 'I wish my parents could have been here. My father would have been proud and my mother would have believed it.' "

Scalia grew up an only child, the son of Salvatore Eugene Scalia and the former Catherine Panaro. Remarkably, he was also the only offspring of his generation from the entire Scalia and Panaro families. None of his mother's six siblings had a child. Neither did his father's only sibling, a sister. So "Nino," as he was called, became the center of attention for two tight-knit, striving Italian immigrant families. His father had come to America knowing little English, had earned a Ph.D. at Columbia University, and had spent three decades teaching Romance languages at Brooklyn College. The son did not let him down. He was valedictorian at New York's Xavier High School, first in his class at Georgetown University, and a magna cum laude graduate of Harvard Law School. A man of pride and ambition, Scalia advanced quickly through jobs in the Nixon and Ford administrations before ending up at the University of Chicago and then on the federal appeals court in Washington, D.C.

Onstage that night in 2006, Scalia saluted the next generation of his family. He motioned to his nine children — one, a priest wearing his collar, another, an army officer in uniform — and his wife, Maureen, the Radcliffe coed whom he had met while at Harvard and married in 1960. The justice called her "the product of the best decision I ever made, the mother of the nine children you see, the woman responsible for raising them with very little assistance from me ... And there's not a dullard in the bunch!"

That was his moment in 2006. Now, in 2008, the jurist who is a combination of Felix Frankfurter and Luciano Pavarotti, entering the third act of his judicial career, is enjoying an encore. The Federalist Society is celebrating him as it does nearly every year in some way; this late Saturday afternoon there's less glitter than at the society's famously sumptuous dinners but no less gusto. Scalia's visage, bigger than life, is projected on a large screen to his right as he speaks at the Mayflower Hotel lectern.

The moderator, Leonard Leo, the executive vice president of the Federalist Society and an old Scalia friend, has been reading questions for the justice that have been penciled on small white cards and handed up from the audience. Someone asks whether the originalism approach has any theoretical flaws. Scalia pauses at first, seemingly struggling to find any shortcomings. Then, in response, he says that it is difficult for today's judges to know how the Constitution's drafters would respond to contemporary phenomena such as the Internet. He cautions that originalism is not perfect, yet adds, "But whatever our problems are, they pale next to the problems of the idea of the 'Living Constitution.' "

Another questioner notes that Scalia has called himself "a fainthearted originalist." Oh, that was so long ago, the justice responds, referring to a 1989 law review article he wrote. Scalia explains that he had used "faint-hearted" because he did not see how he, or any other judge, could vote to uphold, say, ear notching of criminals, as was allowed in the eighteenth century. If he were a true originalist, Scalia says, he would have to find ear notching today perfectly constitutional despite the Eighth Amendment ban on cruel and unusual punishment. Then he quips to the Federalist Society home crowd that maybe he could be a complete originalist these days: "I've gotten older and crankier." The audience laughs heartily.

A law student sends up a question asking what a Federalist Society member should do "in the face of militant or intolerant law professors or peers." Although the conservative legal group has developed legions of members across campuses, in law firms, and at government institutions, liberalism still dominates in law schools.

Equally significant, national politics has shifted dramatically away from conservatism. Just three weeks before the conference, on November 4, 2008, Barack Obama was elected president of the United States. This was a milestone, foremost because Obama became the first African American president, but also because his election was widely seen as the end of an era of conservatism.

In spite of that, this Federalist Society occasion is not solemn or melancholy. It is a celebration of the judicial victories that still can be claimed. Supreme Court justices reside in their own realm. At the taproot of the American legal system, the conservative legacy of three Republican presidents is still dominant, and Scalia is its central figure. It could be years before President Obama's judicial appointees are able to change the tenor of the law.

Scalia also knows how to make headway against prevailing winds. He boasts that "one of my charms is that I tell people what they don't like to hear." Comfortable with tension and relishing debate, his rhetorical style is combative. But he does not enter every fight. He rebuffs criticism that his decisions are inconsistent or driven by a desire to achieve conservative goals. "I often come to decisions I don't like," he insists. He mentions that as a policy matter, he has endorsed deregulation of markets, but as a judge, he has voted to uphold regulation when federal law required it. Scalia often reminds audiences that he voted to strike down laws banning flag burning as political protest, although personally, "I don't like scruffy, bearded, sandal-wearing people who go around burning the United States flag."

In response to the question about how to fight a disapproving professor, Scalia, a Roman Catholic, first jokes, "My mother used to say, 'Offer it up!' " Then he tells the audience: "Most of the professors I know ... would welcome someone from the other side — who can serve as a foil — because they think they can beat you. That's why they publish my dissents in their casebooks!

"The harder question is, 'What do I do when it comes to writing the exam? Do I give him the answer he taught me to be the right answer?' " Scalia pauses for effect. "Yeah," he said. As his audience chortles, Scalia adds that it is best to save real protest for another day. "Wily as a serpent," he advises with a sly smile.

Now Scalia takes that final question, the one he is waiting to knock out of the park.

Reading from a white card, Leonard Leo asks Scalia how he reconciles his differing opinions in two well-known disputes, the 1995 United States v. Lopez and 2005 Gonzales v. Raich cases. Scalia voted in 1995 to overturn a federal law that regulated guns near schools because it trampled on state authority. Ten years later, he voted to uphold a federal drug law that voided a California policy allowing marijuana use for medical purposes, over dissenting justices' protests that the federal policy infringed on the states. The 2005 case had been brought by two seriously ill women who had cultivated marijuana under California's Compassionate Use Act. For the three years since, legal analysts had been buzzing over whether Scalia abandoned his abhorrence of federal intervention simply because he opposed the legalization of marijuana.

At the Court in 2005, Justice O'Connor had declared the two Scalia positions — forbidding the federal government to displace state choices about handgun regulation but letting it override state choices about drug laws — "irreconcilable." Justice Clarence Thomas, Scalia's usual soul mate on the law, had been equally critical of the notion that Congress could interfere with a carefully restricted marijuana law providing relief to the seriously ill. He had scoffed, "The federal government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states."

The question on the little white card goes to the heart of Scalia's legacy: Is his brand of originalism simply a way to achieve conservative results? Does he talk a good game until his method fails to get him what he wants as a policy matter?

This afternoon Scalia is not going to engage such inquiry. "Oh no," he says, grimacing. "Get another question."

It has the ring of "Get over it!" That is Scalia's stock answer when someone in an audience wants him to address Bush v. Gore, the decision that stopped the presidential ballot recounts in Florida and gave George W. Bush the White House over Vice President Al Gore in 2000. The decision remained a political thorn in the side of the nation through Bush's two terms and, particularly for Scalia's critics, offered evidence of his willingness to abandon principle when it does not get him the outcome he desires.

At the Mayflower, the audience laughs when he says get another question. It is a friendly laugh. To them, there is nothing wrong with his ducking a hardball.

Leonard Leo sets aside the offending card and asks Scalia, "What's your favorite opera?"

Oh, says Scalia, there are so many works, all so different. He throws out some personal favorites: Strauss's comic opera Der Rosenkavalier, Puccini's tragic Madama Butterfly, Verdi's popular La Traviata. Then Scalia adds, "And I like country music, too."

As people leap to their feet and clap, he waves big and strides off.

Excerpted from American Original by Joan Biskupic. Copyright 2009 by Joan Biskupic. Published this month by Sarah Crichton Books / Farrar, Straus and Giroux, LLC. All rights reserved.

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Joan Biskupic