By Joan Biskupic; Farrar, Straus and Giroux, New York, N.Y. 434 pages, $28
Here you have a book that no New York lawyer, including this reviewer, can approach with an open mind. Conservatives hail the Honorable Antonin Scalia as a stalwart defender of the Constitution. More than a few of those across the political aisle denounce him as the unprincipled, evil genius of reaction. So sharp a divergence of views has not kept Joan Biskupic, a journalist specializing in coverage of the Supreme Court and a published author, from producing, in “American Original,” a work remarkable for its objectivity as well as its scholarship and extraordinary readability.
An experienced biographer, the author begins at the beginning. In fact, she goes beyond that with details of her subject’s Sicilian ancestry. She tells of his birth in 1936 as the son of immigrants in Trenton, a place he came to loath. There follows an account of his boyhood and adolescence as a resident of Queens and his attending a Catholic military academy in Manhattan. Biskupic stresses young Scalia’s academic brilliance, his religious dedication and his enthusiasm for guns and hunting, all factors, she maintains, that helped form his outlook as a jurist.
The author gives the once-over-lightly to Scalia’s undergraduate studies at Georgetown University, his three years at Harvard Law School, his six years of private practice with Jones Day in Cleveland and his seven years teaching law at the University of Virginia. He moved to Washington early in 1974 to join President Nixon’s new Office of Telecommunications Policy in an effort to counter the alleged liberal bias of the Corporation for Public Broadcasting. Successive promotions, plus survival of Watergate, elevated him to head of the Office of Legal Counsel in the Department of Justice.
His new job enabled Scalia to promote his belief in a strong Executive Branch. He advised President Ford that the papers left by Nixon belonged to him, not to the government. Congress, however, decided otherwise by enacting the Presidential Recordings and Materials Preservation Act. Scalia then persuaded Ford to veto liberalizing amendments to the Freedom of Information Act. Again Congress disagreed. It overrode the veto. The book tells how Scalia did battle in other ways for the Ford administration in opposing what were deemed encroachments on the powers and privileges of the White House.
The greater part of the book, of course, deals with Scalia’s years on the bench. He sat on the U.S. Court of Appeals for the District of Columbia from 1982 to 1986. He has served on the Supreme Court, after unanimous confirmation by the Senate, since 1986. Most readers already know how he gained a dominating position on the conservative wings of both tribunals in a broad range of constitutional and other issues. On the Supreme Court, he has done his part to fulfill what the author says prompted his nomination, namely, “the [Reagan] administration’s desire for a turnabout in American law.”
In the “Acknowledgements” that conclude her book, Biskupic writes that she has “worked hard to be both fair to [Scalia] and true to the readers of this book.” She has succeeded in both respects. Research that included a dozen interviews with the justice himself enabled her to present his views authoritatively and comprehensively. In dealing, for example, with his steadfast opposition to affirmative action, she sets forth with candor his condemnation of the unfairness of inflicting what he considers punishment for past discrimination on persons not responsible for that wrong.
The author shows an ability to treat with equal candor less attractive aspects of her subject’s character. The vehemence of his judicial and off-the-bench pronouncements, she maintains, has tended to engender resentment and diminish his effectiveness. Thus, in dissenting in Board of County Commissioners v. Umbehr (1996), Scalia accused the majority of “designing a Constitution for a country I do not recognize.” Sometimes, writes Biskupic, “Scalia could also adopt the tone of a scold.”
Similarly, Scalia declines to participate in the give and take that traditionally prevail in reaching the Court’s decisions. He insists on an uncompromising expression of his own views even where modifying a paragraph or omitting a sentence in a draft opinion might win a colleague’s vote and gain a majority. As the author puts it, “In many ways, Scalia…relinquished a chance to be a full player in negotiating the outcome of cases.”
Plenty of Americans, lawyers and others, hate everything Scalia stands for and stand for everything he hates. Yet they, along with his admirers, have to admit that his ability, his learning and his eloquence require that he be taken seriously. For better of for worse, he will leave his mark on American jurisprudence and constitutional history.
‘American Original,” which includes much more than has been referred to in this review, proves that it is not too early to determine what that mark will be. Joan Biskupic has provided her readers with not only insight and enlightenment but also with the opportunity to enjoy some fascinating reading.
Walter Barthold has retired from the practice of law in New York City.