PROLOGUE: SCALIA IN WINTER
1. It was the second time that the reelected president took the oath that week, having done so the day before, on Sunday, as administered by Chief Justice John Roberts in the Blue Room of the White House, in order to fulfill the constitutional requirement that he be sworn into office by noon on January 20.
2. Joseph Straw and Dan Friedman, “Inauguration 2013 Notebook: What’s Up with Justice Antonin Scalia’s Hat?,” New York Daily News, January 21, 2013, http://www.nydailynews.com/news/national/inauguration-notebook-scalia-odd-hat-designated-survivor-article-1.1244631. Information on the fabric: “The Secret Behind Justice Scalia’s Hat,” St. Thomas More Society, January 13, 2013, https://www.thomasmoresociety.org/2013/01/28/the-secret-behind-justice-scalias-hat/.
3. The tweets are taken from #Scaliaweirdhat, January 21, 2013, www.twitter.com, https://twitter.com/search?q=Scaliaweirdhat&src=typd.
4. Goldman quoted in: Ernest Zuckerman, “Why Antonin Scalia Is Wearing That Hat to Inauguration,” January 22, 2013, www.theatlanticwire.com.
5. Kevin Walsh, “About Justice Scalia’s Headgear,” Walshlaw, January 21, 2013, http://walshslaw.wordpress.com/2013/01/21/about-justice-scalias-headgear/.
6. “The Secret Behind Justice Scalia’s Hat,” St. Thomas More Society.
7. Napp Nazworth, “Was Scalia’s Hat a Birth Control Mandate Protest,” January 23, 2013, http://www.christianpost.com/news/was-scalias-inauguration-hat-a-birth-control-mandate-protest-88703/.
8. Matthew Schmitz, “First Thoughts,” First Things, January 21, 2013, http://www.firstthings.com/blogs/firstthoughts/2013/01/21/scalia-wears-martyrs-cap-to-inauguration/.
9. For an account of Scalia’s view on this speech, see Sam Baker, “Justice Scalia to Deliver Own Speech on State of the Union Night,” The Hill, February 12, 2013, thehill.com/homenews/news/282571-justice-scalia-delivering-own-speech-during-state-of-the-union.
10. Scalia interview with NPR’s Nina Totenberg, Smithsonian Associates Interview, Lisner Auditorium, George Washington University, Washington, D.C., February 12, 2013, Lexis/Nexis. Hereafter: Nina Totenberg interview.
11. Scalia interview with Charlie Rose, Charlie Rose, PBS, November 27, 2012, Lexis/Nexis transcript). Hereafter: Charlie Rose interview, November 27, 2012.
CHAPTER 1: PRIDE OF THE SCALIAS
1. James Staab, The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court (Lanham, MD: Rowman & Littlefield, 2006), p. 1.
2. Scalia interview with Lesley Stahl, “Justice Scalia,” 60 Minutes, CBS News, April 27, 2008. Hereafter: Lesley Stahl interview.
3. The name is mentioned in the epigraph for S. Eugene Scalia, Luigi Capuana and His Times (New York: S. F. Vanni, 1952).
4. Steerage Passenger Manifest, “States Immigration Officer at the Port of Arrival,” New York City, Ellis Island Passenger records, December 22, 1920, List 91, http://www.ellisisland.org/search/viewTextManifest.asp?MID=08843433860891131616&FNM=SALVATORE&LNM=SCALIA&PLNM=SCALIA&bSYR=1903&bEYR=1903&first_kind=1&last_kind=0&RF=1&pID=105267170046. For more see the article by Scalia’s son, Eugene Scalia, response to Akiba Covitz, “Alito Is Not a Scalia Clone,” TNR online, November 1, 2005, www.tnr.com.
5. Memoir of Professor Joseph F. DeSimone, October 2, 1989, Brooklyn College Archives. My thanks to Brooklyn College archivist Marianne La Batto for locating and providing this material. For the “deeply religious” comment, see Ruth Marcus and Susan Schmidt, “Scalia Tenacious After Staking Out a Position,” Washington Post, June 22, 1986.
6. Ibid.
7. Scalia interview with Charlie Rose, Charlie Rose, PBS, June 20, 2008, Lexis/Nexis transcript. Hereafter: Charlie Rose interview, June 20, 2008.
8. This Scalia family material can be found on Ancestry.com at http://search.ancestry.com/iexec?htx=View&r=an&dbid=7488&iid=NYT715_2899-0983&fn=Salvatore&ln=Scalia&st=r&ssrc=pt_t1469813_p-1937247585_kpidz0q3d-1937247585z0q26pgz0q3d32768z0q26pgPLz0q3dpid&pid=4024867058.
9. Ship Manifest for Duca d’Aosta, Port of New York passenger records, Ellis Island Foundation, www.ellisisland.org/search/viewTextManifest.asp?MID=168. See also S. Eugene Scalia response to Akiba Covitz, TNR online, November 1, 2009; and Antonin Scalia, “The Disease as Cure: In Order to Get Beyond Racism We Must First Take Account of Race,” Washington University Law Quarterly (1979): 147–52.
10. Memoir of Joseph F. DeSimone.
11. Ibid.
12. Hanna Rosin, “The Partisan,” GQ, May 2001, p. 202.
13. Giosuè Carducci biography, www.nobelprize.org, http://nobelprize.org/nobel_prizes/literature/laureates/1906/carducci-bio.html.
14. S. Eugene Scalia, Carducci: His Critics and Translators in England and America, 1881–1932 (New York: S. F. Vanni, 1937).
15. Ibid., pp. 9–14, citing Francis Hueffer, “The Poets of Young Italy,” Fortnightly Review, April 1881, 11.
16. S. Eugene Scalia, Carducci, pp. 14–15.
17. Ibid., p. 45.
18. Ibid., p. 71.
19. This literal reading style of interpretation, designed to capture more than just the words of the translation, but also its spirit, has once again become the subject of new scholarship in the translation field. See Daniel Weissbort and Astradur Eysteinsson, eds., Translation—Theory and Practice: A Historical Reader (Oxford: Oxford University Press, 2006); and Gillian Dow, “Uses of Translation: The Global Jane Austen,” in Gillian Dow and Clare Hanson, eds., Uses of Austen: Jane’s Afterlives (London: Palgrave Macmillan, 2012), pp. 154–75. With thanks to Ms. Dow for pointing out this parallel and suggesting these references.
20. S. Eugene Scalia, Carducci, p. 71.
21. Ibid., pp. 90, 94–95.
22. S. Eugene Scalia, Luigi Capuana and His Times, p. 250.
23. Franklin Fisher and Brian Kates, “They Judged Him Back Then,” New York Daily News, June 19, 1986, p. 7.
24. Scalia interview with Stanley Pottinger, Beyond Politics, PLUM TV, July 2006.
25. Scalia interview with Lesley Stahl, 60 Minutes, CBS News, September 14, 2009, CBS transcript. Hereafter: Lesley Stahl interview, September 14, 2009.
26. Ibid. See also Fisher and Kates, “They Judged Him Back Then.”
27. Fisher and Kates, “They Judged Him Back Then,” and Jennifer Senior, “In Conversation: Antonin Scalia,” New York, Oct. 6, 2013.
28. Joan Biskupic, “Scalia, Long Shy of Media, Shows More Openness,” USA Today, April 20, 2008.
29. Memoir of Joseph DeSimone.
30. Ibid.
31. Charlie Rose interview, June 20, 2008.
32. Dominick Carielli, Sotto Voce: The Official Newsletter of the Center for Italian American Studies at Brooklyn College, no. 1 (Fall 2009). See also Memoir of Joseph F. DeSimone.
33. Brooklyn College Bulletin, Division of Graduate Studies, “College Libraries, Centers, Institutes, and Special Studies,” http://www.brooklyn.cuny.edu/bc/pubs/bulletin/2001/html/clcisf.htm. Carielli, Sotto Voce.
34. S. Eugene Scalia and Margherita Marchione, Philip Mazzei: My Life and Wanderings (Morristown, NJ: American Institute of Italian Studies, 1980).
35. Antonin Scalia, “The Limits of the Law,” New Jersey Law Bulletin, April 30, 1987, p. 4.
36. Scalia interview with Brian Lamb, “Q and A Show,” C-SPAN, May 4, 2008.
37. Scalia interview with Stanley Pottinger, “Beyond Politics.”
38. In various speeches and http://www.wisequotes.net/quote/17331-bear-in-mind-that-brains-and-learning-like-muscle.html. A shorter version was presented to the National Italian American Federation, May 2004, quoted in Margaret Talbot, “Supreme Confidence,” New Yorker, March 28, 2005, p. 43: “Brains are like muscles—you can hire them by the hour. . . . The only thing that’s not for sale is character.”
39. Scalia interview with Brian Lamb, May 4, 2008.
40. Charlie Rose interview, June 20, 2008.
41. Ibid.; Lesley Stahl interview, September 14, 2009; Scalia, “Supreme Court Justice Perspective,” a talk in the West Conference Room of the Supreme Court Building to Thomas Jefferson High School, Fairfax County, Virginia, C-SPAN, April 9, 2008, Lexis/Nexis transcript.
42. Anthony Tommasini, “Justices Greet Diva: It’s Ardor in the Court,” New York Times, November 1, 2008.
43. Ibid.
44. Marcus and Schmidt, “Scalia Tenacious After Staking Out a Position.”
45. “Antonin Scalia, Supreme Court Justice, b.1936,” New York, March 31, 2013, http://nymag.com/news/features/childhood/antonin-scalia-2013-4/.
46. Ibid.
47. Scalia interview with Stanley Pottinger, Beyond Politics.
48. “Antonin Scalia, Supreme Court Justice, b.1936.”
49. Lesley Stahl interview, September 14, 2009. They were consulting a copy of Scalia’s report cards when speaking about this issue.
50. Originally the programs had been in the public schools, but changed to this because of the Supreme Court’s decisions. See Zorach and Clauson, 343 U.S. 306 (1952).
51. Scalia keynote speech to Agudath Israel of America, June 2, 2008, http://www.jta.org/2008/06/02/news-opinion/the-telegraph/scalia-addresses-agudah.
52. The case was Zorach v. Clauson, in 1952, which overturned McCollum v. Board of Education, decided in 1948, in ruling through a majority opinion written by William O. Douglas that “released time” programs which were held outside public schools were not a violation of the Establishment of Religion Clause of the First Amendment.
53. Life as a Catholic is based on: Garry Wills, Bare Ruined Choirs: Doubt, Prophecy, and Radical Religion (Garden City, NY: Doubleday, 1971), Introduction, Chapters 1 and 2; Eugene Kennedy, Tomorrow’s Catholics, Yesterday’s Church: The Two Cultures of American Catholicism (St. Louis: Liquori, 1995); Jay P. Dolan, In Search of an American Catholicism: A History of Religion and Culture in Tension (New York: Oxford University Press, 2003), pp. 191–211, 238–59; Peter Steinfels, A People Adrift: The Crisis of the Roman Catholic Church in America (New York: Simon & Schuster, 2004), Introduction, Chapter 7; Donald Cozzens, Faith That Dares to Speak (Collegeville, MN: Liturgical Press, 2004), Chapter 5; Andrew Greeley, The Catholic Revolution: New Wine, Old Wineskins, and the Second Vatican Council (Berkeley: University of California Press, 2004), Introduction.
54. Wills, Bare Ruined Choirs, pp. 15, 1.
55. Ibid., p. 15.
56. Ibid., p. 18.
57. Ibid., p. 31.
58. Ibid., p. 16.
59. Ibid., pp. 17–18.
60. John W. O’Malley, What Happened at Vatican II (Cambridge: Belknap Press/Harvard University Press, 2008), p. 40 and Chapter 1.
61. Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (New York: Macmillan, 2009), pp. 20–21.
62. Antonin Scalia, Justice Department Questionnaire for Judicial Appointment, 1986, Peter J. Wallison Files, Ronald Reagan Presidential Library Papers, Simi Valley, California. Hereafter: Scalia Justice Department Questionnaire.
63. Fisher and Kates, “They Judged Him Back Then,” p. 7.
64. George Brennan Jr., Excellence: Sons of Xavier Forever (Bloomington, Indiana: 1st Books Library, 2003). Peter J. Reilly, “A Better Way to Celebrate Saint Patrick’s Day,” Forbes, March 16, 2012.
65. Ibid., p. 3.
66. Scalia, “Supreme Court Justice Perspective.”
67. Clay Carey, “Scalia Champions Hunting and Conservation,” Associated Press report of speech to National Wild Turkey Federation annual convention, February 26, 2006, www.gunandgame.com.
68. Margaret Talbot, “Supreme Confidence,” New Yorker, March 28, 2005.
69. Fisher and Kates, “They Judged Him Back Then,” p. 7.
70. Scalia keynote speech to Agudath of Israel.
71. Lesley Stahl interview, September 14, 2009; Scalia, “Supreme Court Justice Perspective.”
72. Lesley Stahl, who examined his record for 60 Minutes.
73. “Presenting,” Xavier Review, November 7, 1952, p. 3. Also: interview with Xavier High School alumni director Joseph Gorski, February 3, 2010.
74. Marcus and Schmidt, “Scalia Tenacious After Staking Out a Position.”
75. Sarah A. Knapp, “Justice Antonin Scalia, ’53,” in “National Leadership,” Xavier Alumni News. Many thanks to alumni director Joseph Gorski for providing this information.
76. Evening Parade, Xavier High School yearbook, 1953, pp. 24–25.
77. Lesley Stahl interview, September 14, 2009; Scalia, “Supreme Court Justice Perspective”; Fisher and Kates, “They Judged Him Back Then,” p. 7.
78. “Antonin Scalia, Supreme Court Justice, b.1936.”
79. Scalia, “Supreme Court Justice Perspective.”
80. Marcus and Schmidt, “Scalia Tenacious After Staking Out a Position.”
81. Fisher and Kates, “They Judged Him Back Then,” p. 7.
82. Ibid., p. 97.
83. Talbot, “Supreme Confidence.”
84. Nina Totenberg interview.
85. “Girls Debate Boys on Election Issues,” New York Times, October 20, 1952.
86. Evening Parade, p. 103.
87. Irvin Molotsky, “The Supreme Court: Man in the News: Judge with Tenacity and Charm: Antonin Scalia,” New York Times, June 18, 1986.
88. “Presenting,” Xavier Review, p. 3.
89. Knapp, “Justice Antonin Scalia, ’53.” Many thanks to Alumni Director Joseph Gorski for providing this further information.
90. The Scalia interview with Stanley Pottinger, Beyond Politics, contradicts the law review article on Scalia on the effect of his Italian background on his work. See also Peter Lauricella, “Chi lascia la via vecchia perla nuova perde e non sa quel che trova: The Italian-American Experience and Its Influence on the Judicial Philosophies of Justice Antonin Scalia, Judge Joseph Bellacosa, and Judge Vito Titone,” Albany Law Review 60 (1997): 1701.
91. Scalia Justice Department Questionnaire.
92. Marcus and Schmidt, “Scalia Tenacious After Staking Out a Position.”
CHAPTER 2: THE CHOSEN FEW
1. Georgetown University catalogue, 1954, p. 18.
2. See William Coleman Nevils, Miniatures of Georgetown, 1634–1934: Tercentennial Causeries (Washington, D.C.: Georgetown University Press, 1934), pp. 271–72; Georgetown University catalogue, 1954, p. 26, both in Georgetown University Archives, cross-checked with Georgetown website, www.georgetown.edu.
3. “Protecting Catholic Identity Important, Scalia Says.” The Hoya, February 5, 2002, Georgetown University Archives, www.thehoya.com.
4. Garry Wills, Bare Ruined Choirs: Doubt, Prophecy, and Radical Religion (Garden City, NY: Doubleday, 1971), pp. 38–39.
5. Ibid., p. 48.
6. “History, Government Departments Now Divided,” The Hoya, February 18, 1954; Georgetown University catalogue, 1954, 1955.
7. Tom Kaaelman, “Dr. Kerekes Dies; College Mourns Loss,” St. Joseph College Hawk, October 10, 1969, Georgetown Archives.
8. Georgetown University catalogue, 1956, Georgetown University Archives.
9. Georgetown University catalogue, 1954, Georgetown University Archives.
10. Margaret Talbot, “Supreme Confidence,” New Yorker, March 28, 2005.
11. J. Wm. Hunt, S.J., memo, “Debating at Georgetown University,” 1956, Georgetown University Archives.
12. Ibid.; “Philodemic Oldest Society of College Debaters in U.S.,” The Hoya, March 28, 1957, Georgetown University Archives; “G.U.’s Philodemic Society, First Debating Group in United States, Founded in 1830,” The Hoya, March 17, 1955.
13. “Tourney Topic: Resolved U.S. Should Adopt a Policy of Free Trade,” The Hoya, March 18, 1954, Georgetown University Archives. The description of debates is also based on the author’s experience as a college debater and coach.
14. The author debated from 1969 to 1972 on the national debate circuit as a representative from the University of Massachusetts at Amherst, and his debate rounds with teams from Georgetown are among his most memorable.
15. Scalia entries in Ye Domesday Booke, Georgetown University yearbook, 1953 and 1954. Georgetown University Archives.
16. Ye Domesday Book, 1957. Georgetown University Archives.
17. Nancy Marz Better and Loren Feldman, “Wanted: The Park Avenue Swindler,” Australian Financial Review, July 28, 1989; David Margolick, “A Lawyer Vanishes, Leaving a Trail of Fraud Charges,” New York Times, May 12, 1989.
18. “Schmidt Awarded N.Y.U. Grant,” The Hoya, May 16, 1957. Georgetown University Archives.
19. Margolick, “A Lawyer Vanishes, Leaving a Trail of Fraud Charges.”
20. “Scalia Named White Prexy,” The Hoya, April 8, 1954, Georgetown University Archives.
21. “Debate Groups Make Changes,” The Hoya, October 14, 1954, Georgetown University Archives.
22. “Debate Teams to Compete at Vermont, Pa. Tourneys,” The Hoya, November 18, 1954, Georgetown University Archives, and Hunt, “Debating at Georgetown University.”
23. “G.U. Debaters Win 80% of Their Meets; Frost Post 93%,” The Hoya, December 9, 1954, Georgetown University Archives.
24. Hunt, “Debating at Georgetown.” Georgetown University Archives.
25. “Debaters Win at NYU; Post 3rd Tourney Victory,” The Hoya, December 16, 1954, Georgetown University Archives.
26. David T. Boltz, “M and B’s First Show: 4 Stars for Owens,” The Hoya, December 12, 1954, p. 3, Georgetown University Archives.
27. Ibid., play program, November 4–5, 1954, Georgetown University Archives. “Scalia M & B Pres. Cast Announced,” The Hoya, January 13, 1955, Georgetown University Archives. Dave Boltz, “M & B Play Festival; Loyola Takes First,” The Hoya, February 24, 1955. Georgetown University Archives.
28. Arthur Ciervo, “Profiles: Antonin Scalia,” Georgetown Alumni Magazine, 1976, Georgetown University Archives.
29. At the time the school was being run by the Dominicans because the Jesuits were “under political disfavor” in Switzerland. “Fribourg Contingent Rally Under Fr. McHugh,” The Hoya, April 19, 1956, Georgetown University Archives.
30. “Fribourg Courses to Start in Fall,” April 1, 1954, The Hoya, Georgetown University Archives.
31. “Hoyas at Fribourg Approve ‘Junior Year Abroad’ Plan,” The Hoya, March 1, 1956; “Georgetown Juniors to Study at Fribourg, Tour Europe Next Year,” The Hoya, May 12, 1955, Georgetown University Archives.
32. “Philodemic Society Team Captures NYU Tournament,” The Hoya, December 6, 1956, Georgetown University Archives.
33. “Date Changed for Oral Exam in Philosophy,” The Hoya, April 4, 1957, Georgetown University Archives.
34. “Debating Heads Mr. Hunt and Len Thornton Major Factors in Philodemic Accomplishments,” The Hoya, March 13, 1958, Georgetown University Archives.
35. Scalia interview with Tim Russert, Tim Russert, MSNBC, May 3, 2008, Lexis/Nexis transcript. Hereafter Tim Russert interview.
36. Biskupic, American Original, p. 25.
37. Antonin G. Scalia, “Cohonguroton Address,” The Journal 86, no. 1 (Autumn 1957), pp. 12–14.
38. “Journal Fall Issue on stands Nov. 12, with Cohonguroton,” The Hoya, November 7, 1957, p. 1. Georgetown University Archives.
39. Anonymous interview with Georgetown University library official, January 22, 2008. According to this official, the material was removed at that time.
40. Scalia, “Cohonguroton Address,” The Journal, p. 1.
41. Maya Noronha, “Protecting Catholic Identity Important, Scalia Says,” The Hoya, February 5, 2002, Georgetown University Archives.
42. Lesley Stahl interview, April 27, 2008.
43. Charlie Rose interview, June 20, 2008.
44. Scalia, question and answer session with Thomas Jefferson High School students, C-SPAN, April 10, 2008.
45. Scalia interview with Brian Lamb, Q and A Show, C-SPAN, May 4, 2008. He told the same story in the Thomas Jefferson High School question and answer session.
46. Ibid.
47. “Schmidt Awarded N.Y.U. Grant,” The Hoya, Georgetown University Archives.
48. Better and Feldman, “Wanted: The Park Avenue Swindler”; Margolick, “A Lawyer Vanishes, Leaving a Trail of Fraud Charges”; Deborah Rankin, “Personal Finance: When a Lawyer Steals Your Money,” Business Day section, New York Times, April 30, 1989.
CHAPTER 3: THE HARVARD HIT PARADE OF THE 1950S
1. Oral History of Zona Hostetler, interviewer Joan Goldfrank, ABA Commission on Women in the Profession, “Women Trailblazers in the Law,” October 18, 2008. Student numbers from Harvard Law School catalogue, 1957–58, Harvard Law School Archives, http://pds.lib.harvard.edu/pds/view/9045568?n=5308&imagesize=1200&jp2Res=.5.
2. Margaret Talbot, “Supreme Confidence,” New Yorker, March 28, 2005, pp. 40–55.
3. Oral History of Zona Hostetler.
4. Ibid., Harvard Law School catalogue, 1957–58.
5. Harvard Law School catalogue, 1958–59, pp. 37–40.
6. Harvard Law School catalogue, 1957–58, p. 13.
7. Charles Tighe Oral History, June 5, 2002, William Madison Randall Library, University of North Carolina at Wilmington.
8. Polly J. Price, Judge Richard S. Arnold: A Legacy of Justice on the Federal Bench (Amherst, NY: Prometheus, 2009).
9. Harvard Law School Yearbook, 1958, pp. 162–63.
10. Stephen J. Adler, “Live Wire on the D.C. Circuit,” Legal Times, June 23, 1986.
11. Ruth Marcus and Susan Schmidt, “Scalia Tenacious After Staking Out a Position,” Washington Post, June 22, 1986.
12. Adler, “Live Wire on the D.C. Circuit.”
13. Talbot, “Supreme Confidence,” p. 46.
14. Harvard Law School yearbook, 1957–58, p. 174.
15. Harvard Law School yearbook, 1959–60, p. 173.
16. Peter B. Edelman, “Justice Scalia’s Jurisprudence and the Good Society: Shades of Felix Frankfurter and the Harvard Hit Parade of the 1950s,” Cardozo Law Review (1990–91): 1799.
17. William M. Wiecek, The Birth of the Modern Constitution: The United States Supreme Court, 1941–1953, History of the Supreme Court of the United States, Oliver Wendell Holmes Devise (Cambridge: Cambridge University Press, 2006), Vol. 12, pp. 446–63.
18. Ibid., p. 454.
19. Ibid., p. 451.
20. Harvard Law School catalogue, 1957–58, pp. 45–46.
21. Frank Michelman, “Anastasoff and Remembrance,” Arkansas Law Review 58 (2005): 555.
22. Ibid.
23. Ibid., pp. 565–66.
24. Ibid., p. 574.
25. Ibid., p. 587.
26. Ibid., p. 588.
27. Ibid., p. 589.
28. For more on the Brown v. Board of Education case, see Richard Kluger, Simple Justice: The History of Brown v. Board of Education and the History of Black America’s Struggle for Equality (New York: Vintage, 2004).
29. Michelman, “Anastasoff and Remembrance.”
30. Quoted in: Talbot, “Supreme Confidence,” p. 46.
31. Ibid.
32. Ibid.
33. Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73, no. 1 (November 1959): 1–35. This is a footnoted copy of the speech as it was read. Scalia told Joan Biskupic, for her American Original biography (pp. 27–28), that he did not remember attending the lecture.
34. Edelman, “Justice Scalia’s Jurisprudence and the Good Society,” p. 1799ff.
35. Arthur Ciervo, “Profiles: Antonin Scalia,” Georgetown Alumni Magazine, 1976, Georgetown Archives.
36. Lesley Stahl interview, April 27, 2008.
37. Ibid.
38. “Justice Scalia at Pepperdine,” Los Angeles County Bar Blog, March 10, 2009, lacbablog.typepad.com.
39. Talbot, “Supreme Confidence,” p. 46.
40. Ethan Bronner, “Bulldog Justice,” Washingtonian, December 1990, p. 139; Adler, “Live Wire on the D.C. Circuit.”
41. Scalia speech, Federalist Society meeting, October 15, 2012, www.fed-soc.org.
42. This section benefited greatly from the evidence and analysis in Michael Sean Winters, Left at the Altar: How the Democrats Lost the Catholics and How the Catholics Can Save the Democrats (New York: Basic Books, 2009).
43. Ibid., p. 78. Winters’s analysis is based on 1960 campaign material in Box 1015, John F. Kennedy, Presidential Library and Museum, Boston.
44. John F. Kennedy, speech on his religion, September 12, 1960, http://www.npr.org/templates/story/story.php?storyId=16920600.
45. Ibid.
46. Winters, Left at the Altar, p. 70.
47. Ibid., p. 83.
48. Scalia speech, “The Role of Catholic Faith in the Work of a Judge,” at the 2nd annual John F. Scarpa Conference on Law, Politics and Culture, Villanova University, October 16, 2007 (author’s notes of speech). See also accounts of the speech: Mary Claire Dale, “Scalia Speaks at Villanova University,” October 16, 2007, http://abclocal.go.com. Quote from David O’Reilly, “Scalia Opines on Faith and Justice,” Philadelphia Inquirer, October 17, 2007, www.philly.com; and Jim McCaffrey, “Scalia Talks Catholic Values at Villanova Lecture,” Evening Bulletin (Philadelphia), October 17, 2007, www.thebulletin.us.
49. “put aside” characterization from Rick Garnett, “Justice Scalia, a ‘Catholic’ Judge,” Mirror of Justice blog, October 18, 2007, www.mirrorofjustice.blogs.com.
50. Scalia, “The Role of Catholic Faith in the Work of a Judge.”
51. See John W. O’Malley, What Happened at Vatican II (Cambridge: Belknap Press/Harvard University Press, 2008), pp. 40–50.
52. Ibid., p. 52.
53. Adler, “Live Wire on the D.C. Circuit.”
CHAPTER 4: BUILDING A RÉSUMÉ
1. E. R. Shipp, “Scalia’s Midwest Colleagues Cite His Love of Debate, Poker and Piano,” New York Times, July 26, 1986; Richard A. Brisbin, Justice Antonin Scalia and the Conservative Revival (Baltimore: Johns Hopkins University Press, 1997), p. 16.
2. Stephen J. Adler, “Live Wire on the D.C. Circuit,” Legal Times, June 23, 1986, p. 89.
3. Scalia Justice Department Questionnaire.
4. Adler, “Live Wire on the D.C. Circuit,” p. 89.
5. Ibid.
6. Shipp, “Scalia’s Midwest Colleagues Cite His Love of Debate, Poker and Piano.”
7. Paul Marcotte, “New Kid on the Block,” ABA Journal, August 1, 1986.
8. Shipp, “Scalia’s Midwest Colleagues Cite His Love of Debate, Poker and Piano.”
9. Marcotte, “New Kid on the Block.”
10. Shipp, “Scalia’s Midwest Colleagues Cite His Love of Debate, Poker and Piano.”
11. Regina McEnery, “James Courtney, former partner in Jones Day firm, Hanna Exec,” Cleveland Plain Dealer, December 10, 2006.
12. Ibid.; Scalia Justice Department Questionnaire.
13. Scalia Justice Department Questionnaire.
14. Shipp, “Scalia’s Midwest Colleagues Cite His Love of Debate, Poker and Piano.”
15. Scalia Justice Department Questionnaire. The case being cited can be found at 355 F.2d 705 (1966).
16. Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (New York: Macmillan, 2009), p. 37.
17. While women had not yet been admitted to the undergraduate school, there were a handful of women in the law school.
18. List of accredited law schools can be found at the American Bar Association, http://www.abanet.org/legaled/approvedlawschools/alpha.html.
19. Scalia, “Sovereign Immunity and Non-Statutory Review of Federal Administrative Action,” Michigan Law Review 68 (1970): 867; Scalia and Graham Lilly, “Appellate Justice: A Crisis in Virginia,” Virginia Law Review 57 (1971): 3; Scalia, “The Hearing Examiners Loan Program,” Duke Law Journal (1971): 319; Scalia, “Don’t Go Near the Water (A Proposal Concerning the FCC’s Fairness Doctrine,” Federal Commercial Bar Journal, 25 (1972): 111.
20. Scalia and Graham Lilly, “Appellate Justice: A Crisis in Virginia,” p. 3.
21. Adler, “Live Wire on the D.C. Circuit,” p. 89.
22. Scalia Justice Department Questionnaire. As Scalia later described the full range of his duties: “I was responsible for the legal matters of policy formation concerning such matters as the regulatory regimes that should govern commercial broadcasting, domestic satellites, specialized communications carriers, public television, land-mobile communications, telecomputers, and cable television (including copyright payments). My work involved almost exclusively federal and public international communications law.”
23. See http://www.sectv.com/LV/our_founder.html.
24. One of the best general sources on the Cable Compromise of 1971 is a master’s thesis by Harvey C. Jassem, “The Selling of the Compromise—1971 or Cable Television Goes to the City,” Ohio State University, 1972; pp. 12–13.
25. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968).
26. Sol Schildhause Oral History, Hauser Oral and Video Collection, the Cable Center, Penn State University, and Denver Colorado, http://www.cablecenter.org/cable-history/the-barco-library/hauser-oral-history-collection-cable-history.html.
27. Ibid.
28. Ibid.
29. Ibid.
30. Adler, “Live Wire on the D.C. Circuit,” p. 89.
31. “The Cable and Satellite Carrier Compulsory Licenses: An Overview and Analysis,” March 1992, Register of Copyrights, Washington, D.C.
32. Much of this story of CPB financing is based on a remarkable document presenting the summaries of over one thousand documents from that era on the question of Nixon and the CPB financing, released under a FOIA request: The Nixon Administration Public Broadcasting Papers: A Summary, 1969–1974, National Association of Educational Broadcasting, 1979. Hereinafter cited as Nixon Broadcasting Papers. This can also be found in a shorter version on the Internet as the Public Broadcasting Policy Base, PBPB, http://www.current.org/pbpb/nixon/nixon71.html.
33. Adler, “Live Wire on the D.C. Circuit,” p. 89.
34. Ibid.
35. Scalia to Whitehead, “Memo to the President,” June 4, 1971, Nixon Broadcasting Papers, pp. 29–30.
36. Ibid.
37. “Memorandum for the President,” June 18, 1971, Nixon Broadcasting Papers, pp. 30–31.
38. Quoted in “Memorandum for the President,” September 23, 1971, Nixon Broadcasting Papers, pp. 35–36.
39. Ibid., pp. 35–36.
40. Memorandum for the President, September 28, Nixon Broadcasting Papers, pp. 36–37.
41. Ibid., pp. 38–39.
42. Memorandum, Rose to Larry Higby, October 15, 1971, Nixon Broadcasting Papers, pp. 41–42.
43. Clay T. Whitehead speech to the National Association of Educational Broadcasters, October 20, 1971, Miami, Florida, Nixon Broadcasting Papers, p. 45.
44. Scalia to Whitehead, December 23, 1971, Nixon Broadcasting Papers, p. 52.
45. A.C.L.U. Report, 2/20/72, Nixon Broadcasting Papers, p. 57.
46. Adler, “Live Wire on the D.C. Circuit,” p. 89.
47. Statement of Antonin Scalia, Associate Justice Supreme Court of the United States, Before the Subcommittee on Commercial and Administrative Law, Committee on the Judiciary, U.S. House of Representatives, hearing on the Reauthorization of the Administrative Conference of the United States, 108th Congress, Washington, D.C., May 20, 2004.
48. Ibid.
49. Scalia Justice Department Questionnaire.
50. Statement of Antonin Scalia, May 20, 2004.
CHAPTER 5: THE PRESIDENT’S LEGAL ADVISER
1. Jennifer Senior, “In Conversation: Antonin Scalia,” New York, October 6, 2013, found at http:mymag/news/features/antonin-scalia-2013-10/.
2. “Robert G. Dixon, Jr. Dies,” Washington Post, May 7, 1980.
3. Stephen J. Adler, “Live Wire on the D.C. Circuit,” Legal Times, June 23, 1986.
4. Office of Legal Counsel, Department of Justice, http://www.usdoj.gov/olc/.
5. “Position Description,” Office of Legal Counsel, February 2, 1962, White House Century Files, FG 17, Box 87, Ford Library.
6. Senior, “In Conversation: Antonin Scalia.”
7. Scalia, “In Memoriam: Edward H. Levi,” University of Chicago Law Review 67, no. 4 (2000): 983.
8. Letter, Gerald R. Ford to Attorney General [Saxbe], August 22, 1974, Philip Buchen Files, Box 32, Ford Library.
9. Memo, Scalia to Attorney General Saxbe, September 3, 1974, Philip Buchen Files, Box 32, Ford Library.
10. Ibid.
11. John M. Crewdson, “White House Says Tapes are Nixon’s Own Property,” New York Times, August 15, 1974.
12. Arthur Ciervo, “Profiles: Antonin Scalia,” Georgetown Alumni Magazine, 1976, Georgetown University Archives.
13. Paul Marcotte, “New Kid on the Block,” ABA Journal, August 1, 1986.
14. Letter, Attorney General William Saxbe to President Ford, September 6, 1974, Philip Buchen Files, Box 32, Ford Papers.
15. The materials were finally moved to the Nixon Library in Yorba Linda, California, in 2010.
16. Letter, Richard Nixon to Arthur F. Sampson, September 6, 1974, Philip Buchen Files, Box 32, Ford Library.
17. George Lardner, “Saxbe Not Told of Tape Deal,” Washington Post, September 9, 1974.
18. “Congress Passes Nixon Tapes Bill,” New York Times, December 10, 1974; “Ford Signs Bill on Nixon Papers,” New York Times, December 20, 1974.
19. Nixon v. Administrator of General Services, 433 U.S. 425 (1977).
20. Ibid., p. 545.
21. Brandeis, Other People’s Money: And How the Bankers Use It (New York: Frederick A. Stokes, 1933), p. 62.
22. Dan Lopez, Thomas Blanton, Meredith Fuchs, and Barbara Elias, “Veto Battle 30 Years Ago Set Freedom of Information Norms,” National Security Archive, posted November 23, 2004, www.gwu.edu/~nsarchiv/.
23. Memo, by Mr. [John S.] Warner, “Subject: Veto Action on H.R. 1247,” September 23, 1974, Office of General Counsel, CIA, FOIA release, “The Memory Hole” “Supreme Court Justice Scalia Fought Against the Freedom of Information Act,” www.thememoryhole.org/foi/scalia_foia.htm.
24. George Lardner Jr., “Cover-Up Trial Delay Barred,” Washington Post, September 12, 1974.
25. Scalia to Phillip E. Areeda, September 24, 1974, Kenneth A. Lazarus Files, Box 25, Ford Library.
26. Ibid.
27. Memo, Scalia for John S. Warner, September 26, 1974, Office of General Counsel, CIA, FOIA release, “The Memory Hole” “Supreme Court Justice Scalia Fought Against the Freedom of Information Act,” www.thememoryhole.org/foi/scalia_foia.htm.
28. Ford Veto Message, October 17, 1974, Blanton Briefing Book. Relying on Cole to Ford, September 25, 1974, Gerald R. Ford Library, cited in Blanton Briefing book.
29. Memorandum for the Record, “Subject: ICRC Revision of E.O. 11652 in Light of FOI,” January 25, 1975, Office of General Counsel, CIA, FOIA release, “The Memory Hole” “Supreme Court Justice Scalia Fought Against the Freedom of Information Act,” www.thememoryhole.org/foi/scalia_foia.htm.
30. Scalia to Areeda, February 13, 1975, with Blue Book foreword draft attached, and Areeda, Memorandum for the President, February 14, 1975, Kenneth A. Lazarus Papers, Box 25, Ford Library.
31. Kenneth A. Lazarus to Scalia, February 25, 1975, Kenneth A. Lazarus Papers, Box 25, Ford Library.
32. Scalia, Memorandum for the Honorable Philip W. Buchen, “Re: Applicability of the Freedom of Information Act to the White House Office,” February 26, 1975, Kenneth A. Lazarus Papers, Box 25, Ford Library.
33. Ibid.
34. Scalia, “In Memoriam: Edward H. Levi,” pp. 971ff.
35. Ibid.
36. Gerald K. Haines, “The Pike Committee and the CIA,” http://bss.sfsu.edu/fischer/. John Prados, “Big Brother’s History,” May 25, 2006 found at www.tompaine.com. This section was aided considerably by the work of John Prados and other digital privacy experts, who laid the overall historical groundwork for my search of the Ford Library files on this question. L. Britt Snider, “Unlucky Shamrock: Recollections from the Church Committee’s Investigation of NSA,” Studies in Intelligence 43, no. 1, Winter 1999–2000, www.cia.gov/csi/studies; James G. Hudec, “Unlucky Shamrock—The View from the Other Side,” found at www.cia.gov/library/; “Profile: Pike Committee,” The Center for Grassroots Oversight, found at www.historycommons.org; also, Dubose and Bernstein, VICE book, pp. 35–38.
37. 418 U.S. 683 (1974).
38. Scalia to Philip W. Buchen, “Claim of Executive Privilege with Respect to Materials Subpoenaed by the Committee on Government Operations, House of Representatives,” February 17, 1976, Presidential Handwriting Files, Box 31, Ford Library.
39. Many of these files remain classified, but this section is based on a review of the material by Ford Library archivist William H. McNitt, email communication with author, August 20, 2007.
40. Scalia speech, International Conference on the Administration of Justice and National Security in Democracies, Ottawa, Canada, June 12, 2007. Thanks to reporter Charlie Savage of The New York Times for providing a digital recording of this address. This speech is discussed in Savage’s excellent Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (New York: Little, Brown, 2007). See also an account by Colin Freeze, “What Would Jack Bauer Do?,” Globe and Mail (Canada), June 16, 2007.
41. Memo, Robert D. Murphy, Chairman, Intelligence Oversight Board, to President Ford, May 7, 1976, with memo attached, “CIA Program of Resettling Meo Tribesmen in Laos,” Presidential Handwriting Files, Box 31, Ford Library.
42. Ibid.
43. Scalia, “Memorandum to the Attorney General, Re: Report to You from the Intelligence Oversight Board, dated May 13, 1976,” May 27, 1976, FOIA release, Presidential Handwriting Files, Box 31, Ford Library.
44. Ford to George H. W. Bush, Director of Central Intelligence, July 10, 1976, Presidential Handwriting Files, Box 31, Ford Library.
45. Scalia speech, Ottawa, Canada.
46. Antonin Scalia, opening statement, Subcommittee on Intergovernmental Relations of the Committee on Government Operations of the United States Senate, considering Senate Bill 2170, October 23, 1975, reprinted in Executive Privilege—Secrecy in Government, Hearings before Subcommittee on Intergovernmental Relations of the Committee on Government Operations of the United States Senate, September 29 and October 23, 1975, pp. 96–125, at p. 125.
47. The Scalia and Muskie exchange is from ibid., pp. 71–89.
48. Buchen to Ford, February 3, 1976, Richard B. Cheney files, Box 5, cited also in Dubose and Bernstein, Vice, pp. 36–37; Philip Buchen, “Memo for the President,” Subject: Chairman of the Federal Trade Commission, February 3, 1976, Richard B. Cheney files, 1974–77, Box 5, folder “Federal Trade Commission,” Ford Library, cited in Dubose and Bernstein, Vice, pp. 36–37.
49. Scalia to Ford, January 14, 1976 [sic], WHCF FG 17–15/A, Scalia Name File, Ford Library; Ford to Scalia, January 18, 1977, WHCF, FG 17/A, Box 88, Ford Library.
CHAPTER 6: WILDFLOWERS AMONG THE WEEDS
1. The motto of the magazine is “competition of ideas is fundamental to a free society.” William Niskanen, “A Retrospective,” Regulation, Summer 2002, p. 4.
2. Regulation, July 8, 1977, p. 2.
3. Scalia Justice Department Questionnaire.
4. Ibid. The Scalias would have a ninth child in 1980, Margaret Jane.
5. Listing of courses in the University of Chicago Law School announcements, 1977–78, 1978–79, 1979–80, and 1981–82, University of Chicago Law School Archives. Thanks very much to D’Angelo Law Library reference librarian Todd Ito for his assistance in retrieving this information.
6. E. R. Shipp, “Scalia’s Midwest Colleagues Cite His Love of Debate, Poker and Piano,” New York Times, July 26, 1986.
7. For more, see Leo Strauss, The City and the Man (Chicago: University of Chicago Press, 1978); Leo Strauss, Persecution and the Art of Writing (Chicago: University of Chicago Press, 1988); and Leo Strauss and Joseph Cropsey, History of Political Philosophy (Chicago: University of Chicago Press, 1987).
8. Richard A. Epstein, “Foreordained for Chicago,” Chicago Law School Centennial Essays, webcast-law.uchicago.edu/centennial/.
9. “Antonin Scalia and the Case of the Albemarle Pippins,” August 10, 2006, Barbara, Famosity, http://famosity, Blogspot.com/2006.
10. Joan Biskupic, American Original, quoting Lee Liberman, p. 76.
11. “Antonin Scalia and the Case of the Albemarle Pippins.”
12. Ibid.
13. Ibid.
14. Ibid.
15. Robert Bolt, A Man for All Seasons, quoted in story about the use of this passage by Scalia in Biskupic, American Original, pp. 66–67.
16. Biskupic, American Original, p. 67.
17. For more here, see Steven M. Teles, The Rise of the Conservative Legal Movement (Princeton: Princeton University Press, 2008), pp. 67–79.
18. Ibid., pp. 137–62. For a more recent history of the organization, see Michael Avery and Daniele McLaughlin, The Federalist Society: How Conservatives Took the Law Back from the Liberals (Nashville: Vanderbilt University Press, 2013).
19. Jerry Landay, “The Federalist Society: The Conservative Cabal That’s Transforming American Law,” Washington Monthly, March 2000; Owen M. Fiss, “What Is the Federalist Society?,” Harvard Journal of Law and Public Policy 15, no. 1 (1992).
20. Steven Calabresi, speech Federalist Society 25th Anniversary Gala, November 15, 2007, http://www.fed-soc.org/publications/detail/25th-anniversary-gala-event-audiovideo.
21. Teles, The Rise of the Conservative Legal Movement, p. 141.
22. Program Federalist Society 25th Anniversary Gala, November 15, 2007, in About Us, Federalist Society video http://www.fed-soc.org/aboutus/. See also Landay, “The Federalist Society.”
23. Calabresi speech, Federalist Society 25th Anniversary Gala.
24. Henry J. Abraham, Justices, Presidents and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II (New York: Rowman & Littlefield Publishers, 2007), 5th ed., pp. 265–77.
25. The paperback was revised in 1993: Robert Bork, The Antitrust Paradox: A Policy at War with Itself, 2nd ed. (New York: Free Press, 1993).
26. Fiss, “What Is the Federalist Society?”
27. Teles, Rise of the Conservative Legal Movement, p. 142.
28. Samuel Alito speech, Federalist Society 25th Anniversary Gala, November 15, 2007.
29. Sidney Blumenthal, “Quest for Lasting Power,” Washington Post, September 25, 1985.
30. Teles, The Rise of the Conservative Legal Movement, p. 142.
31. Landay, “The Federalist Society.”
32. Federalist Society 25th Anniversary Gala.
33. Ibid.
34. Scalia, “Rulemaking as Politics,” Administrative Law Review 334, no. 3 (1982): v–xi; Scalia, “Support Your Local Professor of Administrative Law,” Administrative Law Review 34, no. 2 (1982); Scalia, “Separation of Functions: Obscurity Preserved,” Administrative Law Review (Winter 1982): v.ff.
35. Scalia, “Two Wrongs Make a Right: The Judicialization of Standardless Rulemaking,” Regulation, July 8, 1977, p. 40.
36. Turner Broadcasting System v. FCC, 512 U.S. 622 (1994).
37. Scalia, “The Legislative Veto: A False Remedy for System Overload,” Regulation, November/December 1979, p. 19.
38. Scalia Justice Department Questionnaire.
39. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
40. Scalia, “The Freedom of Information Act Has No Clothes,” Regulation, March/April, 1982, pp. 15–19.
41. Ibid., p. 15.
42. Ibid., p. 16.
43. Ibid., p. 19.
44. Ibid.
45. Scalia, “Testimony on the Constitutionality of Tuition Tax Credits,” Washington, D.C., American Enterprise Institute, reprint No. 84, March 1978.
46. Ibid.
47. Scalia, “On Making It Look Easy by Doing It Wrong: A Critical View of the Justice Department,” in Edward McGlynn Gaffney Jr., ed., Private Schools and the Public Good: Policy Alternatives for the Eighties (South Bend: University of Notre Dame Press, 1982).
48. 438 U.S. 265 (1978).
49. Scalia, “The Disease as Cure,” Washington University Law Quarterly (1979): 154.
50. Ibid., p. 147.
51. Ibid., pp. 152–53.
52. Ibid., p. 152.
53. However, when the case was appealed before an en banc hearing the Justice Department was able to prevail, meaning that the evidence had to be provided to the SEC and could be transferred to the Justice Department. Scalia Justice Department Questionnaire.
54. Ibid.
55. This information was released as the result of a Freedom of Information search for the Antonin Scalia Name File, Ronald Reagan Presidential Library, Simi Valley, California.
56. Donald E. Santarelli to Edwin Meese, December 19, 1980; Frank D. Stella to Red Cavney, March 19, 1981, FOIA search Reagan Library.
57. Ethan Bronner, “Bulldog Justice,” Washingtonian, December 1990, p. 245. For more on Scalia being upset about not getting the solicitor generalship, see Biskupic, American Original, pp. 72–74.
58. Cass Peterson, “Bork Reported in Line for D.C. Appellate Court,” Washington Post, August 13, 1981.
59. Biskupic, American Original, p. 80.
CHAPTER 7: IT ISN’T EASY TO BE RIGHT
1. Laura A. Kiernan and Fred Barbash, “Appeals Judge Plans to Leave U.S. Court Here,” Washington Post, April 2, 1982; Laura A. Kiernan, “Appeals Judge Robb Confirms His Plans,” Washington Post, April 3, 1982.
2. Stephen J. Adler, “Live Wire on the D.C. Circuit,” Legal Times, June 23, 1986, p. 91.
3. Ibid., pp. 10–11.
4. Ibid., p. 11. The panel had apparently not been impressed by Scalia’s nineteen single-spaced pages of explanations of all of the appellate court cases in which he had been involved. Scalia Justice Department Questionnaire.
5. Ibid.
6. Scalia to Judge Edward Allen Tamm, August 11, 1983, with attachment, Financial Disclosure Report, August 17, 1983, Peter J. Walliston Files, Reagan Library.
7. Confirmation of Federal Judges, Hearings Before the Committee on the Judiciary, United States Senate, 97th Congress, 2nd Session, Part 4, August 4, 1982, p. 91.
8. Ibid., pp. 91–92.
9. Ibid., p. 92.
10. Al Kamen and Laura Kiernan, “Metro,” Washington Post, August 9, 1982.
11. Robert H. Bork Oral History, District of Columbia Court of Appeals Oral History, Manuscript Division, Library of Congress, Washington, D.C., pp. 3–4.
12. Ibid.
13. Patricia M. Wald Oral History, District of Columbia Court of Appeals Oral History, Manuscript Division, Library of Congress, Washington, D.C., pp. 195–96.
14. Ibid.
15. Washington Post v. U.S. Department of State, 685 F. 2d 698 (1982).
16. 31 U.S.C. § 67(f) (1) (Supp. IV 1980).
17. Washington Post v. United States, 685 F. 2d. 698, at 708 (1982) (Scalia, dissenting).
18. The cases are: Community Nutrition v. Block; KCST-TV v. F.C.C. 699 F.2d. 1185 (1983); United States v. Richardson, 702 F.2d. 1079 (1983); Community for Creative Non-Violence v. Watt, 703 F.2d. 586 (1983).
19. Community for Creative Non-Violence v. Watt, at 599.
20. Ibid., at 622 (Scalia, dissenting).
21. Ibid. Scalia paraphrased a sentence from the Saia loudspeaker protest case by one of his judicial heroes, Robert Jackson.
22. Ruth Marcus and Susan Schmidt, “Scalia Tenacious After Staking Out a Position,” Washington Post, June 22, 1986.
23. Adler, “Live Wire on the D.C. Circuit,” p. 5.
24. Chaney v. Heckler, 718 F.2d 1174 (1983) (Wright, majority).
25. Ibid., at 1197–98 (Scalia, dissenting).
26. Ibid., at 1198.
27. Adler, “Live Wire on the D.C. Circuit,” p. 3.
28. Ibid., at 1198.
29. Marcus and Schmidt, “Scalia Tenacious After Staking Out a Position.”
30. Ibid.
31. Alex Kozinski, “My Pizza with Nino,” remarks at the Symposium for the Justisprudence of Justice Antonin Scalia, Benjamin N. Cardozo School of Law, October 28, 1990, Cardozo Law Review 12, 1991, p. 1583, at 1583–84.
32. Marcus and Schmidt, “Scalia Tenacious After Staking Out a Position.” Marcus and Schmidt quote the Scalia phrase as “It isn’t easy to be right,” while Judge Kozinski describes it as “Nothing is easy.” The two Washington Post reporters, though, quote the clerks who created the plaque.
33. Ollman v. Evans, 713 F.2d 838 (1983), at 839.
34. Ollman v. Evans, 750 F.2d 970 (1984), at 983.
35. Ibid., at 993.
36. Ibid., at 1036.
37. Ibid., at 1038–39.
38. Ibid., at 995–96.
39. Ibid., at 1039, footnote 2.
40. In re The Reporters Committee for Freedom of the Press, 773 F.2d 1325 (1985).
41. Ibid.
42. Address, Judge Antonin Scalia, before the Attorney General’s Conference on Economic Liberties, Washington, D.C., June 14, 1986, Appendix C, Original Meaning Jurisprudence: A Sourcebook, Report to the Attorney General, Office of Legal Policy, U.S. Department of Justice, March 12, 1987, pp. 101–6.
43. Ironically, Scalia’s “neutral principle” enabled him to reach an outcome that was the opposite of what Wechsler had been advocating. The irony, as Scalia would learn even later, is that others, following liberal rather than conservative goals, would be able to use his “neutral principle” of reliance on history to expand rather than contract constitutional rights in a process called “progressive originalism.” See Robert Post and Reva Siegel, “Originalism as a Political Practice: The Right’s Living Constitution,” Fordham Law Review 75, no. 2, Article 5 (2006). One person’s “neutral” originalist conservatism could become another person’s equally “neutral” originalist liberalism.
44. Scalia, “The Use of Legislative History,” speech delivered to the University of Chicago Law School, on file in University of Chicago Law School library, Hyde Park, Illinois. This is the actual reading copy of Scalia’s speech, with the high points in it made clear because Scalia underlined the key sentences to punch up for his presentation.
45. Ibid. The quotation marks were added in Scalia’s hand and are not in the original typed version.
46. Ibid.
47. It would be another ten months, in the fall of 1986, with conservative Douglas Ginsburg’s appointment to the Court, and after Scalia had left it, that the Republicans finally took control of the circuit.
48. Robert H. Bork Oral History, District of Columbia Court of Appeals Oral History, Manuscripts Division, Library of Congress, Washington, D.C., pp. 8–9.
49. Dr. S. Eugene Scalia obituary, New York Times, January 7, 1986; Biskupic, American Original, p. 122. Confirmed by United States Social Security Index, thanks to Carol Wright for her confirming research on Ancestry.com.
50. For more, see Henry J. Abraham, Justices, Presidents and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II (New York: Rowman & Littlefield, 2007), 5th ed.
51. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
52. Patricia M. Wald Oral History, p. 146.
53. Oliver Gasch Oral History, District of Columbia Court of Appeals Oral History, Manuscript Division, Library of Congress, Washington, D.C., p. 186.
54. Ibid.
55. Ibid., p. 188.
56. Synar v. U.S., 626 F. Supp. 1374; (D.C. 1986), at 1403, February 7, 1986.
57. Ibid., at 1398–99.
58. While determining the correct dissent rate of Court of Appeals judges, there are indications that it is usually less that 10 percent of the time, at least on the D.C. Court of Appeals. Former D.C. Court of Appeals judge Harry T. Edwards, in “The Effects of Collegiality on Judicial Decision Making,” University of Pennsylvania Law Review 151 (May 2003): 1639, note 65, using D.C. Court of Appeals statistics from 1986 to 2001, reported four sets of dissent rates in cases with published opinions varying from 7.8 percent (2000), 8.9 percent (1999), 9.1 percent (1998), and also reporting an 11–13 percent rate from 1995 to 1997. On the other hand, Scott Gerber and Keeok Park found in their article “The Quixotic Search for Consensus on the U.S. Supreme Court: A Cross-Judicial Empirical Analysis of the Rehnquist Court Justices,” American Political Science Review 91, no. 2 (1997): 390ff, Academic OneFile, August 21, 2010, that while justices from 1986 to 1994 dissent on the Supreme Court 21 percent of the time, those who served on the federal Court of Appeals, or in Sandra Day O’Connor’s case, served on the Arizona State Supreme Court, dissented in only 2 percent of the cases. Thurgood Marshall dissented in 35 percent of the cases on the Supreme Court, but in only 3 percent of the time on the federal Court of Appeals. As for Scalia, of the 698 cases in which he wrote an opinion, from 1986 through the end of the 2009–10 term, he dissented in 201 of them, or 28.8 percent of the time.
CHAPTER 8: TERMINOLOGY IS DESTINY
1. “Memorandum for the File, Peter J. Wallison, Counsel to the President,” August 29, 1986, Peter Wallison Files, Supreme Court/Rehnquist/Scalia, Notebook II, Folder 1 of 3, OX 14287, Reagan Library (Wallison Memoir); and “Remarks by the President, Chief Justice Warren Burger, Justice William Rehnquist and Judge Antonin Scalia,” Peter Wallison files, Ronald Reagan Library (Wallison files). For additional accounts of this selection process, see David Yalof, Pursuit of Justice: Presidential Politics and the Selection of Supreme Court Nominees (Chicago: University of Chicago Press, 1999); and Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin, 2008).
2. Richard K. Cacioppo to Ronald Reagan, June 8, 1985, Scalia White House Alphabetical File, Reagan Library.
3. Wallison Memoir, August 29, 1986, Peter Wallison Files, Supreme Court/Rehnquist/Scalia, Notebook II, Folder 1 of 3, OX 14287, Reagan Library.
4. Untitled memo written by Roger Clegg, included in “Memorandum for the File, Peter J. Wallison, Counsel to the President,” June 11, 1986, Peter Wallison Files, Supreme Court/Rehnquist/Scalia, Notebook II Folder 1 of 3, OX 14287, Reagan Library.
5. Wallison Memoir, August 29, 1986, Peter Wallison Files, Supreme Court/Rehnquist/Scalia, Notebook II Folder 1 of 3, OX 14287, Reagan Library.
6. “Materials Submitted by the Department of Justice,” Supreme Court/Rehnquist/Scalia, Notebook II—Candidates [1 of 3], Peter J. Wallison files, Reagan Library.
7. Ibid.
8. Supreme Court—Robert Bork, Copy of Candidate Notebook, Rehnquist/Scalia, Arthur Culvahouse files [1 of 2], Reagan Library.
9. Untitled Scalia Appointment Memo, Supreme Court/Rehnquist/Scalia Notebook I—Candidates [3 of 4], Peter Wallison Files, Reagan Library.
10. Ibid.
11. Ibid.
12. Lee Liberman and staff Justice Department Attorneys, Untitled Scalia Memo, Supreme Court/Rehnquist/Scalia Notebook I—Candidates [3 of 4], Peter Wallison Files, Reagan Library.
13. Peter Wallison, Ronald Reagan: The Power of Conviction and the Success of His Presidency, (New York: Basic Books, 2004), p. 151, and Wallison email to author, October 29, 2013.
14. Wallison Memoir, August 29, 1986, Peter Wallison Files, Supreme Court/Rehnquist/Scalia, Folder 1 of 3, OX 14287, Reagan Library.
15. Biskupic, American Original, p. 108.
16. Address, Judge Antonin Scalia, before the Attorney General’s Conference on Economic Liberties, Washington, D.C., June 14, 1986, found in Appendix C, Original Meaning Jurisprudence: A Sourcebook, Report to the Attorney General, Office of Legal Policy, U.S. Department of Justice, March 12, 1987, pp. 101–6.
17. Wallison Memoir, August 29, 1986, Peter Wallison Files, Supreme Court/Rehnquist/Scalia, Folder 3, Reagan Library.
18. “Remarks by the President, Chief Justice Warren Burger, Justice William Rehnquist and Judge Antonin Scalia,” June 17, 1986, Alan Charles Raul Files, Supreme Court Nominations and Confirmations, Reagan Library.
19. Ibid.
20. ABC News transcript, September 26, 1986.
21. Dr. S. Eugene Scalia obituary, New York Times, January 7, 1986.
22. The Senate had been concerned about what some feared was Rehnquist’s pattern of inclination toward bigotry, including his role in drafting an anti–Brown v. Board of Education 1954 case on school desegregation, his membership in an all-male club, and living in a house with a restrictive covenant against sale to African Americans. Really, though, there was unhappiness by the Senate liberals with the extremely conservative nature of Rehnquist’s decision making on the Court, and their fear that he would lead the entire body in that direction as chief justice. For more on this, see John A. Jenkins, The Partisan: The Life of William Rehnquist (New York: PublicAffairs, 2012).
23. Nomination of Judge Antonin Scalia, Hearings Before the Committee on the Judiciary, United States Senate, 99th Congress, 2nd Session, August 5 and 6, 1986, Government Printing Office, Washington, D.C., 1987. The description of Scalia’s appearance during the hearing comes from viewing a video of the hearing posted on the internet at the C-SPAN Video Library, Scalia Confirmation Hearing Day 1 and Day 2, found at http://www.c-spanvideo.org/program/150300-1 and at http://www.c-spanvideo.org/program/150300-2.
24. Thanks for this insight to my student Ed Daley in my “Personality and Judicial Politics” class at Lafayette College.
25. On other occasions, Scalia would tell audiences that he would not be confirmed by the Senate in the recent partisan-charged Washington atmosphere, and that he would not want to go through the process again. Debra Cassens Weiss, “Scalia Doubts He Would Win Confirmation Today,” ABA Journal, July 29, 2010, http://www.abajournal.com/news/article/scalia_doubts_he_would_win_confirmation_if_vote_were_today/: “Scalia Wouldn’t Want Confirmation Hearings Again,” Fox News.com, October 10, 2005, http://www.foxnews.com/story/0,2933,171761,00.html.
26. For more, see Greenburg, Supreme Conflict.
27. “Swearing in of Chief Justice Rehnquist and Justice Antonin Scalia,” September 26, 1986, Peter J. Wallison Files, Reagan Library.
28. Stephen J. Adler, “Live Wire on the D.C. Circuit,” Legal Times, June 23, 1986.
29. ABC News transcript, September 26, 1986.
30. Ibid.
31. Ibid. See also Ted Gest, “Scalia: No Extremism Spoken Here,” U.S. News and World Report, August 18, 1986.
32. E. R. Shipp, “Scalia’s Midwest Colleagues Cite His Love of Debate, Poker and Piano,” New York Times, July 26, 1986.
CHAPTER 9: A COURT OF ONE
1. For more, see Dennis Hutchinson, The Man Who Was Once Whizzer White: A Portrait of Byron R. White (New York: Free Press, 1998).
2. Joan Biskupic, Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice (New York: Ecco-HarperCollins, 2005), p. 7.
3. Ibid. See also http://www.pbs.org/newshour/updates/law/jan-june07/oconnor.html.
4. Nat Hentoff, “The Constitutionalist,” New Yorker, March 12, 1990, p. 45, http://www.newyorker.com/archive/1990/03/12/1990_03_12_045_TNY_CARDS_000353704.
5. For more, see Seth Stern and Stephen Wermeil, Justice Brennan: Liberal Champion (Boston: Houghton Mifflin, 2010).
6. See Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (New York: Vintage, 2004); and Gilbert King, Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America (New York: Harper, 2012).
7. Not much has yet been written on Justice Blackmun, but two excellent early books are: Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (New York: Times Books, 2006), and Tinsley Yarbrough, Harry A. Blackmun: Outsider Justice (New York: Oxford University Press, 2008).
8. For more, see Kenneth A. Manaster, Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens (Chicago: University of Chicago Press, 2001).
9. Bill Barnhart and Eugene Schlickman, John Paul Stevens: An Independent Life (Dekalb: Northern Illinois University Press, 2010); Robert J. Sickels, John Paul Stevens and the Constitution: The Search for Balance (University Park: Penn State University Press, 1988).
10. For more on Powell, see John C. Jeffries, Justice Lewis F. Powell, Jr.: A Biography (New York: Fordham University Press, 2001).
11. Linda Greenhouse, “Ruling Fixed Opinions,” New York Times, February 22, 1988, p. A16.
12. Biskupic, American Original, p. 129.
13. In initially working with the conservative wing of this Court, Scalia, and his devoted conservative followers, fostered the image that his decision-making theory was called “originalism,” interpreting the Constitution and the Bill of Rights according to the “public meaning” of the phrases in the minds of the people in the constitutional Founding Era, or at the time of the state ratification of those documents. We are led to believe that Scalia came to the Court with his theory fully formed and governed his decisions throughout his time there. But it is not so.
14. Interviews, biographies, and memoirs of justices have made clear, though, that the new job is so different from one’s experience, no matter how brilliant the new justice, that it usually takes several years to adjust and learn the new tasks. Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice (New York: William Morrow, 1988); Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (New York: Random House, 2003); Harry Blackmun Oral History, Manuscript Division, Library of Congress, Washington, D.C.; William Brennan, “National Court of Appeals: Another Dissent,” University of Chicago Law Review 40 (1983): 484ff. J. Woodford Howard, “Justice Murphy: The Freshman Years,” Vanderbilt Law Review 18 (March 1965): 477ff. In recent years, scholars have argued that the “freshman effect” literature is “either incorrect or time bound,” with the Supreme Court “becom[ing] more individualistic,” but still posit that “small group process remain influential and should not be discounted altogether.” See Thea F. Rubin and Albert P. Melone, “Justice Antonin Scalia: A First Year Freshman Effect?,” Judicature 72, no. 2 (August/September 1988): 98–102.
15. The “initial bewilderment” from Edward V. Heck and Melinda Gann Hall, “Bloc Voting and the Freshman Justice Revisited,” The Journal of Politics 43 (1981): 853; “acclimation period” from Timothy M. Hagle, “ ‘Freshmen Effects’ for Supreme Court Justices,” American Journal of Political Science 37, no. 4 (November 1993): 1143. This literature spins from the seminal social psychological work on the early apprenticeship period of the Court by Eloise C. Snyder, “The Supreme Court as a Small Group,” Social Forces, vol. 36 (March 1958), reprinted in Robert G. Scigliano (ed.), The Courts: A Reader in the Judicial Process (Boston: Little, Brown, 1962), pp. 232–38. See also Robert L. Dudley, “The Freshman Effect and Voting Alignments: A Re-Examination of Judicial Folklore,” American Politics Quarterly 21, no. 3 (July 1993): 360–67.
16. Snyder, “The Supreme Court as a Small Group.” While Heck and Hall do challenge Snyder’s apprenticeship theory, they concede: “Freshman justices do indeed form close voting alliances with other justices during their first natural court [one in which the personnel do not change].” Heck and Hall, “Bloc Voting and the Freshman Justice Revisited”; Hagle, “ ‘Freshmen Effects’ for Supreme Court Justices,” 1143.
17. In this volume, I will be confirming, based on primary sources, the excellent “Scalia has no apprentice period” argument in the existing “freshman year.” See Rubin and Melone, “Justice Antonin Scalia: A First Year Freshman Effect?” See also Michael Patrick King, “Justice Antonin Scalia: The First Term on the Supreme Court—1986–87,” Rutgers Law Review 20, no. 1 (Fall 1988): 1–77; and Stephen J. Adler, “Scalia’s Court,” American Lawyer Newspaper, March 1987.
18. Adler, “Scalia’s Court.”
19. Ibid.
20. Jeffries, Justice Lewis F. Powell, Jr., p. 534; quoted also in Margaret Talbot, “Supreme Confidence,” New Yorker, March 28, 2005, http://www.newyorker.com/archive/2005/03/28/050328fa_fact_talbot.
21. Adler, “Scalia’s Court.”
22. Ibid.
23. Ibid.
24. O’Connor v. United States, November 4, 1986, 479 U.S. 27 (1986).
25. Scalia to Stevens, November 4, 1986, Lewis F. Powell Papers, Box 278, Washington and Lee Law School, Lexington, Virginia; Hodel v. Irving case file, ibid.
26. Powell to Scalia, February 26, 1987, Hodel v. Irving, Powell Papers, Box 278.
27. Rehnquist to Scalia, March 3, 1987, Scalia to Rehnquist, March 3, 1987, Powell to Scalia, March 4, 1987, Rehnquist to Scalia, March 4, 1987, Hodel v. Irving, Powell Papers, Box 278.
28. O’Connor to “The Conference,” April 21, 1987, Hodel v. Irving, Powell Papers, Box 278.
29. Hodel v. Irving, 481 U.S. 704 (1987).
30. Scalia to Rehnquist and Powell, April 21, 1987, O’Connor, Hodel v. Irving, Powell Papers, Box 278.
31. Scalia, First Draft, Hodel v. Irving, April 1987, Powell Papers, Box 278.
32. Ibid.
33. Powell to Scalia, May 4, 1987, Hodel v. Irving, Powell Papers, Box 278.
34. Powell writing on O’Connor to “The Conference,” May 5, 1987, Hodel v. Irving, Powell Papers, Box 278.
35. O’Connor draft, May 5, 1987, Hodel v. Irving, Powell Papers, Box 278.
36. Jeffries, Justice Lewis F. Powell, Jr., pp. 534–35.
37. My analysis of this term and the next two was aided by excellent research by a student, Matt Gyory, who studied this question under a Mellon Foundation Community of Scholars grant, for which I thank both him and the Mellon Foundation. I also benefited from a student paper by Ed Daley for my senior seminar, “The Infancy of Justice Scalia.”
38. O’Connor v. Ortega, 480 U.S. 709 (1987) at 712 (O’Connor, J., plurality).
39. Ibid., at 718.
40. Ibid., at 731 (Scalia, J., concurring). This type of clash with a colleague became the norm for Scalia as that year’s most visible affirmative action case, Johnson v. Transportation Agency, led to another tangle, this time between him and the Court’s senior liberal, William Brennan.
41. Harlow Giles Unger, Noah Webster: The Life and Times of a Patriot (New York: Wiley, 2000).
42. Edwards v. Aguillard, 428 U.S. 578, 593 (1987) (Brennan, J., majority).
43. Ibid., at 610 (Scalia, J., dissenting).
44. Ibid., at 611.
45. Ibid., at 639.
46. Booth v. Maryland, 482 U.S. 496, 502 (1987) (Powell, J., majority).
47. Ibid., at 520 (Scalia, J., dissenting).
48. Brennan, “The Constitution of the United States: Contemporary Ratification,” Text and Teaching Symposium, Georgetown University, October 12, 1985, in Original Meaning Jurisprudence: A Sourcebook, Report to the Attorney General, U.S. Department of Justice, March 12, 1987. A year later, in a speech on the Fourteenth Amendment to the American Bar Association meeting at New York University Law School, Brennan would say that by using this “evolving reading” of the amendment by which the Bill of Rights could be extended to the states, “the Fourteenth Amendment should be summoned to the service of the protection of a broad range of civil rights and liberties.” Only with this evolving tool could the Court fulfill what Brennan argued was its mission in America’s democratic society: “Society’s overriding concern today should continue to be, indeed must continue to be, providing freedom and equality, in a realistic and not merely formal sense, to all the people of this Nation.” Here Brennan concluded in favor of “resisting cut-backs, particularly by the Supreme Court of the United States, of Fourteenth Amendment protection. One of the great strengths of our federal system is that it provides a double source of protection for the liberties of our citizens. Federalism is not served when the federal half of that protection is crippled.” Brennan, “The Fourteenth Amendment,” Address to the Section on Individual Rights and Responsibilities, American Bar Association, August 8, 1986, New York University Law School, found in “Original Meaning Jurisprudence: A Sourcebook,” Report to the Attorney General, U.S. Department of Justice, March 12, 1987.
49. Address of Attorney General Edwin Meese III, D.C. Chapter of the Federalist Society Lawyers Division, November 15, 1985, in “Original Meaning Jurisprudence: A Sourcebook,” Report to the Attorney General, U.S. Department of Justice, March 12, 1987).
50. Bowers v. Hardwick, 478 U.S. 186 (1987) (Blackmun, J., dissenting). For more on this issue, see Deb Price and Joyce Murdock, Courting Justice: Gay Men and Lesbians v. the Supreme Court (New York: Basic Books, 2002).
51. Senator Edward M. Kennedy, “Robert Bork’s America,” June 23, 1987, http://en.wikisource.org/wiki/Robert_Bork%27s_America.
52. See Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (New York: Union Square Press, 2007); Norman Vieira and Leonard Gross, Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations (Carbondale: Southern Illinois University Press, 1998); and Mark Gitenstein, Matters of Principle: An Insider’s Account of America’s Rejection of Robert Bork’s Nomination for the Supreme Court (New York: Simon & Schuster, 1992).
53. See Bronner, Battle for Justice; Vieira and Gross, Supreme Court Appointments; and Gitenstein, Matters of Principle.
54. See Linda Greenhouse, “Robert Bork’s Tragedy,” New York Times, January 9, 2013, found at opinionator.blogs.nytimes.com. Greenhouse argues persuasively that Bork was also hurt by an answer to Utah Republican senator Orrin Hatch’s question about controversial cases beyond Roe v. Wade, in which Bork cites Brown v. Board of Education rather than Dred Scott, making it appear that he might be willing to overturn that school desegregation case as well.
CHAPTER 10: FAINT-HEARTED ORIGINALIST
1. Steven V. Roberts, “Douglas Ginsburg Withdraws Name as Supreme Court Nominee, Citing ‘Marijuana Clamor,’ ” New York Times, November 8, 1987. Had Judge Ginsburg been confirmed to the Court, he would have been just as reliably conservative and historically oriented in his interpretation as Scalia. Moreover, he might have been just as influential in changing the conversation about conservative legal jurisprudence. Ginsburg later became a distinguished Court of Appeals judge, establishing himself as one of the founding proponents of the “Constitution-in-Exile” school, by which judges decided cases based on the conservative pre-1937 “Court-Packing Plan” philosophy of a pro-corporation, and pro–states’ rights under the Tenth Amendment interpretation of the Constitution.
2. Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007), pp. 182–83.
3. Robert Reinhold, “Restrained Pragmatist: Anthony M. Kennedy,” New York Times online, November 12, 1987.
4. For an excellent journalistic examination of the effect of Kennedy’s upbringing in Sacramento, see Massimo Calabresi and David Von Drehle, “What Will Justice Kennedy Do?,” Time, June 18, 2012, pp. 28–39.
5. Kennedy Interview, Academy of Achievement, New York, June 3, 2005, www.achievement.org.
6. Find Law for Professionals, http://supreme.lp.findlaw.com/supreme_court/justices/kennedy.html.
7. Reinhold, “Restrained Pragmatist: Anthony M. Kennedy.” Kennedy is now the longest active member of the faculty at McGeorge School of Law and continues to teach a summer seminar to law students in Austria.
8. Helen J. Knowles, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (New York: Rowman & Littlefield, 2009); Frank J. Colucci, Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty (Lawrence: University Press of Kansas, 2009).
9. Scalia used this term so much that it became the title of a fine book about him by Ralph Rossum, Antonin Scalia’s Jurisprudence: Text and Tradition (Lawrence: University Press of Kansas, 2006).
10. Scalia Speech to the American Enterprise Institute, “Outsourcing American Law,” February 21, 2006. Another excellent source here is Thurston Greene’s comprehensive The Language of the Constitution (New York: Greenwood, 1991), tracing every word in the Constitution in writings of any kind during the Early American period. As Scalia would explain to an attorney after his American Enterprise Institute speech as to how to gain this information: “Oh, well, there are concordances of the Constitution that will tell you where the various phrases in the Constitution come from and they will generally lead you into the cases that—that’s the best I can do for a quick research job. I mean, there are obviously books on various subjects. But there are concordances. That’s where I’d probably start.”
11. Philip B. Kurland and Ralph Lerner, The Founders’ Constitution, 5 vols. (Chicago: University of Chicago Press, 2000), online at http://press-pubs.uchicago.edu/founders/; Edwin Meese, Matthew Spalding, and David Forte, The Heritage Guide to the Constitution (Washington, D.C.: Regnery, 2005). In recent years liberal progressives have produced online a competing concordance: Consource: The Constitutional Sources Project, www.concource.org.
12. See Herbert J. Storing, The Complete Anti-Federalist, 3 vols. (Chicago: University of Chicago Press, 2007).
13. Coy v. Iowa, 487 U.S. 1012, 1020–21 (1988) (Scalia, J., majority).
14. Ibid., at 1029 (Blackmun, J., dissenting). Blackmun then explained in a footnote: “Interestingly, the precise quotation from Richard II the majority uses to explain the ‘root meaning of confrontation’ . . . is discussed in [Wigmore]. . . . That renowned and accepted authority describes the view of confrontation expressed by the words of Richard II as an ‘earlier conception, still current in [Shakespeare’s] day’ which, by the time the Bill of Rights was ratified, had merged ‘with the principle of cross-examination.’ ”
15. Ibid., at p. 1019 (Scalia, J., majority).
16. Ibid.
17. Thompson v. Oklahoma, 487 U.S. 815, 822–23 (1988) (Stevens, J., plurality).
18. Ibid., at 864 (Scalia, J., dissenting).
19. Ibid., at 873–74. Italics in original.
20. Ibid., at 867.
21. Ibid., at 848 (O’Connor J., concurring).
22. Ibid. (Scalia, J., dissenting).
23. Ibid., at 876.
24. Ibid., at 878.
25. See Stanford v. Kentucky, 492 U.S. 361 (1989), and Penry v. Lynaugh, 492 U.S. 302, 369–70 (1989).
26. Stanford v. Kentucky, 492 U.S. 361 (1989) (Scalia, J., majority), pp. 365–81.
27. Ibid., at 379.
28. Roper v. Simmons, 543 U.S. 551 (2005).
29. Morrison v. Olson, 487 U.S. 654, 696 (1988) (Rehnquist, C. J., majority).
30. Ibid., at 672–73.
31. Ibid., at 698 (Scalia, J., dissenting).
32. Ibid., at 699.
33. Harry Blackmun comment on Scalia Morrison v. Olson draft, Morrison v. Olson folder, Harry Blackmun Papers, Manuscripts Division, Library of Congress, Washington, D.C., Box 507.
34. Morrison v. Olson, at 706 (Scalia, J., dissenting).
35. Ibid., at 709.
36. Ibid., at 712.
37. Ibid., at 713.
38. Ibid., at 727.
39. Ibid., at 731.
40. Blackmun comment on Scalia Morrison v. Olson draft, Blackmun Papers, Box 507.
41. For more on the Bush theory of the “unitary presidency,” see Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (Boston: Little, Brown, 2007).
42. Steven Calabresi speech at 20th anniversary of Antonin Scalia’s service on the Supreme Court, Federalist Society, 2006, found at www.fed-soc.org.
43. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 23 (1989) (Scalia, J., dissenting).
44. Ibid., at 33.
45. Ibid., at 33.
46. Ibid., at 45.
47. Texas v. Johnson, 491 U.S. 397 (1989).
48. Ibid., p. 414.
49. An account of a speech by Scalia on “Catholicism and Justice” at John Carroll University in Cleveland, Ohio, found in an article, “Justice Scalia says rights excessive, Can be scaled down in wartime,” March 21, 2003, at Kuro5hinhttp://www.kuro5hin.org/story/2003/3/21/35911/1828.
50. Nina Totenberg, “Justice Scalia, the Great Dissenter, Opens Up,” April 28, 2010, www.npr.org.
51. Scalia address before the Attorney General’s Conference on Economic Liberties, Washington, D.C., June 14, 1986, found in Appendix C, “Original Meaning Jurisprudence: A Sourcebook,” Report to the Attorney General, Office of Legal Policy, U.S. Department of Justice, March 12, 1987, pp. 101–6.
52. Scalia speech, “Originalism: The Lesser Evil,” in University of Cincinnati Law Review 57 (1989): 849ff.
53. Harlow Giles Unger, Noah Webster: The Life and Times of a Patriot (New York: Wiley, 2000).
54. See H. W. Brands, Andrew Jackson: His Life and Times (New York: Anchor, 2006); Jon Meacham, American Lion: Andrew Jackson in the White House (New York: Random House, 2009); and Gordon S. Wood, Revolutionary Characters: What Made the Founders Different (New York: Penguin, 2006). Wood’s wonderful essay in the end of Revolutionary Characters makes clear how America changed with the increase in partisanship in the 1790s. Brands and Meacham make clear how the country changed again with the shift in the center of political gravity to the West and the increase in the voting franchise.
55. Gordon S. Wood, “The Fundamentalists and the Constitution,” New York Review of Books, February 18, 1988, based on a speech and paper by the same name, delivered to the Virginia Commission on the Bicentennial of the United States Constitution, Center for Public Service, University of Virginia, 1987.
56. Scalia speech, Annual Convention of the Federalist Society, Washington, D.C., November 22, 2008, www.fed-soc.org.
57. Scalia speech, “The Rule of Law as a Law of Rules,” in University of Chicago Law Review (Fall 1989): 1175ff. Italics and boldface in original.
58. I am indebted to my student, Jim Hlavenka, then a senior in my Judicial Biography seminar and now an attorney, for dating the speech.
59. Scalia speech, “Constitutional Interpretation,” Sibley Lecture, University of Georgia Law School, 1989, www.ninoville.com.
60. Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice (New York: William Morrow, 1988); Bruce Allen Murphy, “Extrajudicial Activities,” Encyclopedia of the Supreme Court of the United States, David S. Tanenhaus, ed. (New York: Thomson Gale, 2008).
61. Laura A. Kiernan, “Ruling on Press Shows High Court Confusion,” Washington Post, September 17, 1979.
62. Morton Mintz, “Justice Says Press Too Afraid of Ruling,” Washington Post, September 9, 1979. The speech was referring to Gannett v. DePasquale, 443 U.S. 368 (1979). Here, Justice Potter Stewart wrote that there was “no constitutional right . . . to attend public trials.”
63. Daniel Schorr, “Justice Blackmun—The Harry I Knew,” Christian Science Monitor, March 12, 1999; John A. Jenkins, “A Candid Talk with Justice Blackmun, New York Times Magazine, February 20, 1983; and Bill Moyers, In Search of the Constitution, Episode 2, “Mr. Justice Blackmun,” www.amazon.com.
64. Schorr, “Justice Blackmun”; Jenkins, “A Candid Talk with Justice Blackmun”; Moyers, In Search of the Constitution. For more on the split between Blackmun and Burger, see Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (New York: Times Books, 2005).
CHAPTER 11: LOSING THE MIDDLE
1. 74.1 percent in the 1986 term, 78.1 percent in 1987, and 75.9 percent in 1988. Harvard Law Review annual summary statistics, for the 1986–87, 1987–88, and 1988–89 Supreme Court terms. Harvard Law Review Annual Supreme Court Issues, “The Statistics,” Harvard Law Review 101 (November 1987): 362ff; 102 (November 1988): 143ff; 103 (November 1989): 394ff.
2. 83.1 percent in the 1987 term, and 85.0 percent in the 1988 term; figures from the Harvard Law Review annual Court statistics, November 1988 and November 1989.
3. O’Connor to Scalia, June 7, 1989, South Carolina v. Gathers File, Harry Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C., Box 533.
4. Kennedy to Scalia, June 7, 1989, South Carolina v. Gathers File, Blackmun Papers, Box 533.
5. Blackmun note on Kennedy note to Scalia, June 7, 1989, South Carolina v. Gathers File, Blackmun Papers, Box 533.
6. Brennan draft opinion in South Carolina v. Gathers, Blackmun Papers, Box 533.
7. South Carolina v. Gathers, 490 U.S. 805 (1989) (Brennan, J., majority).
8. O’Connor draft opinion in South Carolina v. Gathers, Blackmun Papers, Box 533.
9. Scalia first draft dissent in South Carolina v. Gathers circulated June 7, 1989, Blackmun Papers, Box 533.
10. Ibid.
11. Webster v. Reproductive Health Services, 492 U.S. 490 (1989), conference notes, Blackmun Papers, Box 536.
12. Ibid.
13. Ibid.
14. Rehnquist first draft opinion in Webster v. Reproductive Health Services, Blackmun Papers, Box 536.
15. Stevens to Rehnquist, May 30, 1989, Blackmun Papers, Box 536.
16. Memo, Eddie [Lazarus] to Blackmun, May 30, 1989, Blackmun Papers, Box 536.
17. Sandra Day O’Connor first draft opinion of Webster, June 23, 1989, Blackmun Papers, Box 536.
18. Rehnquist, final draft opinion of Webster, Blackmun Papers, Box 536.
19. Eddie [Lazarus] to Blackmun, June 26, 1989, Blackmun Papers, Box 536.
20. Webster v. Reproductive Health Services, 492 U.S. 490, 532 (1989) (Scalia, J., concurring).
21. Ibid., at 533.
22. Ibid., at 534.
23. Ibid., at 535.
24. Ibid., at 537.
25. Ibid.
26. Ibid.
27. Ibid., at 538 (Blackmun, J., dissenting).
28. Reynolds v. United States, 98 U.S. 145 (1878).
29. Sherbert v. Verner, 378 U.S. 393, 404 (1963) (Brennan, J., majority).
30. Ibid., at 406.
31. Employment Division of Oregon v. Smith, 494 U.S. 872, 879 (1990) (Scalia, J., majority).
32. Ibid., at 888.
33. Ibid., at 901 (O’Connor, J., concurring).
34. Ibid., at (Scalia, J., majority).
35. On the opinion negotiations, Blackmun clerk, “Martha” Matthews to Blackmun, March 13, 1990, Blackmun Papers, Box 546. On the Note, O’Connor to Blackmun, April 17, 1990, Blackmun Papers, Box 546.
36. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 520 (1990) (Kennedy, J., plurality).
37. Ibid., at 520–21 (Scalia, J., concurring).
38. Blackmun dissent draft, Ohio v Akron, Blackmun Papers, Box 544.
39. Ibid.
40. Ibid.
41. Letter, Kennedy to Blackmun, June 21, 1990, Blackmun Papers, Box 544.
42. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 541 (1990).
43. Martha [Matthews] to Blackmun, May 16, 1990, Blackmun Papers, Box 544.
44. Ibid.
45. Blackmun to O’Connor, June 1, 1990, Blackmun Papers, Box 544.
46. Maryland v. Craig, at 850 (O’Connor, J., majority); Blackmun to O’Connor, June 22, 1990, Blackmun Papers, Box 559.
47. Maryland v. Craig, at 853 (O’Connor, J., majority).
48. Martha to Blackmun, June 5, 1990, Blackmun Papers, Box 559.
49. Maryland v. Craig, at 861 (Scalia, J., dissenting).
50. Ibid., at 862.
51. Ibid., at 862–63.
52. Ibid., at 867.
53. Ibid., at 870.
54. Richard C. Reuben, “Man in the Middle,” California Lawyer, October 1992, p. 38.
55. New York Times, July 21, 1990; Martin Tolchin, “Vacancy on the Court,” Washington Post, July 22, 1990.
56. Ann Devroy, “President Selects Souter,” Washington Post, July 24, 1990.
57. Ruth Marcus and Joe Pichirallo, “Seeking Out the Essential David Souter,” Washington Post, September 9, 1990; Ruth Marcus and Joe Pichirallo, “Souter’s Life in the Law,” Washington Post, September 10, 1990.
58. Stuart Taylor, “Surprise! Souter Won’t Surprise Bush,” Washington Post, September 30, 1990.
59. Thanks to Reuben, “Man in the Middle,” for suggesting these two cases as examples.
60. Batson v. Kentucky, 476 U.S. 79, 99 (1986) (Powell, J., majority).
61. Powers v. Ohio, 499 U.S. 400, 416 (1991) (Kennedy, J., majority).
62. Ibid., at 427 (Scalia, J., dissenting).
63. Ibid., at 439.
64. Edmondson v. Leesville Concrete Co., 500 U.S. 614, 644 (1990) (Scalia, J., dissenting).
65. Ibid., at 645.
66. O’Connor and Stephen Breyer interview with George Stephanopoulos, This Week, July 6, 2003, ABC News transcript, Lexis/Nexis.
67. Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007), p. 129.
68. Harvard Law Review The Statistics; Harvard Law Review 102 (November, 1988): 143ff; 103 (November, 1989): 394ff; 104 (November, 1990): 359ff; 105 (November, 1991), 177ff; 106 (November, 1992): 163ff.; nickname from Terry Carter, “Crossing the Rubicon,” California Lawyer, October 1992, p. 104.
69. Ibid. Kennedy’s and O’Connor’s agreement with Scalia scores between them averaged in the mid-80 percentile in their first three terms together (89.7 percent in the 1988 term, 83.2 percent in 1989, 84.6 percent in 1990), before dropping to a low of 63.2 percent in 1991.
70. Payne v. Tennessee, 501 U.S. 808, 844 (1991) (Marshall, J., dissenting).
71. John E. Yang and Sharon La Franiere, “Bush Picks Thomas for Supreme Court,” Washington Post, July 2, 1991.
72. R.A.V. v. City of St. Paul, 506 U.S. 377 (1992).
73. Chaplinsky v. New Hampshire, 315 U.S. 568, 570–71 (1942) (Murphy, J., majority).
74. Ibid., at 572.
75. R.A.V. v. City of St. Paul, 506 U.S. 377, 391 (1992) (Scalia, J., majority).
76. Ibid., at 391–92.
77. Ibid., at 396.
78. Ibid., at 415 (White, J., concurring).
79. Ibid., at 436 (Stevens, J., concurring).
CHAPTER 12: THE EVIL NINO
1. County of Allegheny v. American Civil Liberties Union; City of Pittsburgh v. ACLU; Chabad v. ACLU, 492 U.S. 573, 621 (1989).
2. County of Allegheny v. ACLU, at pp. 620–21 (Blackmun, J., majority). Under O’Connor’s “no endorsement” test in Lynch v. Donnelly, 465 U.S. 668 (1984), “Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.” Symbolic religious displays will be acceptable if “they serve such secular purposes and because of their ‘history and ubiquity,’ such government acknowledgments of religion are not understood as conveying an endorsement of particular religious beliefs.”
3. County of Allegheny v. ACLU, at 677 (Kennedy, J. concurring and dissenting).
4. Ibid., at 610 (Blackmun, J., majority).
5. Ibid., at 611.
6. Oral argument transcript, Lee v. Weisman, 505 U.S. 577 (1992), www.oyez.org, http://www.oyez.org/cases/1990–1999/1991/1991_90_1014.
7. Kennedy to Blackmun, March 30, 1992, Harry Blackmun Papers, Manuscripts Division, Box 586, Library of Congress, Washington, D.C.
8. Kennedy to Rehnquist, March 30, 1992, Blackmun Papers, Box 586.
9. Lee v. Weisman, 505 U.S. 577, 592 (1992) (Kennedy, J., majority).
10. Ibid., at 592.
11. Scalia, Draft Dissent to Conference, June 18, 1992, Blackmun Papers, Box 586. Wording also appears in Lee v. Weisman, 505 US 577 (1992), at 631–32.
12. Ibid., language in final opinion, p. 636.
13. Ibid., language in final opinion, p. 644.
14. Souter to Blackmun, November 18, 1991, and Conference Notes, November 8, 1991, Blackmun Papers, Box 586.
15. Souter to Blackmun, December 31, 1991, Blackmun Papers, Box 586.
16. Souter to Blackmun, April 15, 1991, Blackmun Papers, Box 586.
17. See Jon Meacham, American Gospel: God, the Founding Fathers, and the Making of a Nation (New York: Random House, 2007), passim.
18. Lee v. Weisman, 505 U.S. 577, 612 (1992) (Souter, J., concurring).
19. Ibid., at 616–17.
20. Ibid., at 629–30.
21. Ibid., at 631.
22. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); rule quoted in Rehnquist draft for Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), May 27, 1992, Blackmun comments, Blackmun Papers, Box 601.
23. Rehnquist draft, Planned Parenthood, Blackmun Papers, Box 601.
24. Ibid.
25. Kennedy to Blackmun, May 29, 1992, Blackmun Papers, Box 601.
26. Notes of meeting between Blackmun and Kennedy, March 30, 1992 [actually May 30], Blackmun Papers, Box 601.
27. Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin, 2008), pp. 155–56. Jeffrey Toobin, The Nine, p. 59, has a similar story.
28. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 844 (1992), (O’Connor, Souter, and Kennedy, J.’s, plurality).
29. Ibid., at 851.
30. Ibid. Kennedy’s biographers would later cite this sentence as representing the heart of his judicial libertarian instincts. See Helen J. Knowles, The Tie Goes to Freedom, and Frank J. Colucci, Justice Kennedy’s Jurisprudence.
31. Lawrence v. Texas, 539 U.S. 558, at 588. (2003) (Scalia, J., dissenting).
32. Planned Parenthood, at 854.
33. Ibid., at 864.
34. Ibid., at 868.
35. Ibid., at 877.
36. Ibid., at 878.
37. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 966 (1992) (Blackmun, J., dissenting).
38. Ibid., at 943.
39. Memo from Steff [Stephanie Dangle] to Blackmun, June 20, 1992, Blackmun Papers, Box 601.
40. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 987 (1992) (Scalia, J., dissenting).
41. Ibid., at 996.
42. Ibid., at 999.
43. Ibid., at 1000.
44. Ibid., at 1001.
45. Ibid., at 1002.
46. Terry Carter, “Crossing the Rubicon,” California Lawyer, October 1992, pp. 9, 103.
47. Ibid.
48. Ibid., p. 104.
49. Ibid.
50. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027 (1992) (Scalia, J., majority).
51. Ibid., at 1031.
52. Molly [McUsic] to Blackmun, February 28, 1992, Blackmun Papers, Box 599.
53. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1036 (1992) (Blackmun, J., dissenting).
54. Ibid., at 1044.
55. Ibid., at 1055.
56. Ibid., at 1060.
57. Molly [McUsic] to Blackmun, June 25, 1992, Blackmun Papers, Box 599.
58. Scalia draft dissent, Lucas v. South Carolina Coastal Council, Blackmun Papers, Box 599.
CHAPTER 13: MASTER OF THE BARBED OPINION
1. The research for this chapter was aided by the student papers of Charles Prutzman, “Justice Antonin Scalia, 1992–1994,” and Todd Marschall, “Justice Antonin Scalia: Life Cycle Analysis: 1995–97 Terms,” in my “Personality and Judicial Decision-Making” senior seminar course at Lafayette College.
2. Adam Liptak, “A Sign of the Court’s Polarization: The Choice of Clerks,” New York Times, September 6, 2010, http://www.nytimes.com/2010/09/07/us/politics/07clerks.html?pagewanted=all.
3. Nina Totenberg interview.
4. Lamb’s Chapel v. Center Moriches School District, 508 U.S. 384, at 396 (1993) (White, J., majority).
5. Ibid., at 398 (Scalia, J., dissenting).
6. Ibid., at 399.
7. Ruth Marcus, “Judge Breyer May See Clinton Today,” Washington Post, June 11, 1993.
8. Ruth Marcus, “Clinton’s Unexpected Choice Is Women’s Rights Pioneer,” Washington Post, June 15, 1993.
9. Philip Allen Lacovara, “Un-Courtly Manners: Quarrelsome Justices Are No Longer a Model of Civility for Lawyers,” ABA Journal, December 1994, p. 50.
10. Ibid., p. 52.
11. Ibid.
12. Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 690 (1994) (Souter J., majority).
13. Ibid., at 696.
14. Ibid., at 706.
15. Ibid., at 732 (Scalia, J., dissenting).
16. Ibid., at 735–36.
17. Ibid., at 743.
18. Ibid., at 708 (Souter, J., majority).
19. Ibid., at 709.
20. Ibid., at 748 (Scalia, J., dissenting).
21. Ibid., at 752.
22. This view is bolstered by the fact that Blackmun quietly deposited a several-hundred-page oral history with the Library of Congress that was released just five years after his death, in 2004, when many of his colleagues were still on the bench dealing with the same issues that he had faced. (This new tradition of retiring so that the other party, in this case the Democrats, would get the appointment to keep the ideological balance on the Court more in tune with what the liberal retirees had supported was continued by David Souter in 2009, and John Paul Stevens in 2010.)
23. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
24. Ibid., at 342 (Stevens, J., majority).
25. Ibid., at 346.
26. Ibid., at 357.
27. Ibid., at 371 (Scalia, J., dissenting).
28. Ibid.
29. Ibid., at 372.
30. Ibid., at 385. Scalia’s anti–anonymous free speech position was a curious one for an originalist historian who was well aware of the fictitious names for anonymous speech used in the Founding Era by Thomas Paine, the authors of the Federalist Papers, the authors of the Anti-Federalist papers, and even the third chief justice of the United States Supreme Court, John Marshall, in defending the Court against attacks on the 1819 McCulloch v. Maryland state taxation of the national bank case. See Gerald Gunther, John Marshall’s Defense of McCulloch v. Maryland (Palo Alto: Stanford University Press, 1970).
31. David Van Biem, Richard N. Ostling, Lisa H. Towle, et al., “The Gospel Truth?,” Time, April 8, 1996, http://www.time.com/time/magazine/article/0,9171,984367,00.html#ixzz0v8DgjMwF.
32. I Corinthians 4:10, American King James Bible.
33. Though no text of the speech was released, quotes from the speech are taken from http://christianactionforisrael.org/isreport/fools.html. See also Eileen Loh, “Supreme Court Justice: Don’t Be Afraid to Be a Christian,” Associated Press, April 9, 1966; Tony Mauro, “Justice Scalia Says Religion, Reason Do Mix,” USA Today, April 10, 1996; Joan Biskupic, “Scalia Makes the Case for Christianity,” Washington Post, April 10, 1996; “We Are Fool’s for Christ’s Sake,” Shalom Jerusalem Family, www.shalomeruslaem.com/heritage/heritage7.html/; and Rubel Shelly, “Fools for Christ’s Sake,” Lovelines, April 24, 1996.
34. Colman McCarthy, “Martyrs in Their Own Mind,” Washington Post, April 23, 1996.
35. Richard Cohen, “Justice Scalia and the Worldly Wise,” Washington Post, April 12, 1996.
36. Edd Doerr, “Scalia’s Chutzpah,” Humanist, July/August, 1996.
37. Quotes from the speech are taken from http://christianactionforisrael.org/isreport/fools.html.
38. Transcript of Scalia speech and question and answer session at Gregorian Pontifical University, June 13, 1996, Catholic News Service, http://www.catholicnews.com/data/stories/cns/960613.htm.
39. The Colorado amendment stated: “No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”
40. Romer v Evans, 517 U.S. 620, 624 (1996) (Kennedy, J., majority).
41. Ibid., at 631.
42. Ibid., at 635–36.
43. Ibid., at 636 (Scalia, J., dissenting).
44. Ibid.
45. Ibid.
46. Ibid., at 638–39.
47. Ibid., at 644. Scalia’s list of other state morality–based legislation is much longer; see the discussion of Lawrence v. Texas in chap. 16 and footnote 51.
48. Amy Davidson, “The Animus of Antonin Scalia,” New Yorker, December 12, 2012, http://www.newyorker.com/online/blogs/comment/2012/12/the-moral-feelings-of-antonin-scalia.html.
49. Representative Barney Frank, “Why I Called Justice Scalia a Homophobe,” Huffington Post, March 26, 2009, http://www.huffingtonpost.com/rep-barney-frank/why-i-called-justice-scal_b_179434.html.
50. Romer v. Evans, at 652 (Scalia, J., dissenting).
51. Scalia speech, “Constitutional Interpretation,” Woodrow Wilson International Center for Scholars, Washington, D.C., March 14, 2005.
52. BMW of North America v. Gore, 517 U.S. 559, 572 (1996) (Stevens, J., majority).
53. Ibid., at 598 (Scalia, J., dissenting).
54. Ibid., at 599.
55. Ibid., at 600.
56. Ibid., at 607.
57. Scalia, “Constitutional Interpretation.”
58. Ginsburg majority, United States v. Virginia, 518 U.S. 515, 545–46 (1996) (Ginsburg, J., majority).
59. Ibid., at 557.
60. Ibid., at 566 (Scalia, J., dissenting).
61. Ibid., at 567.
62. Ibid., at 569.
63. Ibid., at 570. Later, two of Scalia’s law clerks, Steven G. Calabresi and Julia T. Rickert, used originalism theory to argue that the Constitution did protect women’s rights here. See Calabresi and Rickert, “Originalism and Sex Discrimination,” Texas Law Review, 90, no.1 (2011), p. 1ff.
64. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).
65. O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).
66. Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996).
67. O’Hare Truck Service, at pp. 723–24 (Kennedy, J., majority).
68. Board of County Commissioners v. Umbehr, at pp. 684–85 (O’Connor, J., majority).
69. Ibid., Scalia dissent O’Hare and Umbehr, p. 686.
70. Ibid., p. 687.
71. Biskupic, American Original, p. 220.
72. Ibid., p. 363.
73. Board of County Commissioners, at pp. 709–10 (Scalia, J., dissenting).
74. Ibid., at pp. 710–11.
75. Blackmun to Scalia, July 2, 1996, Blackmun Papers, Box 1408.
76. Scalia to Blackmun, July 2, 1996, Blackmun Papers, Box 1408.
CHAPTER 14: WAR OF THE WORDS
1. Chelsea Morse, “Constitutional Interpretation Undergoes Transformation,” Indiana Lawyer, February 7, 1996; Scalia speech, “A Theory of Constitutional Interpretation,” Catholic University of America, October 18, 1996, on Ninoville website, www.joink.com/homes/users/ninoville. My thanks to one of my senior seminar students, Jim Hlavenka, for dating this speech.
2. Antonin Scalia and Amy Guttman, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1998), p. 3.
3. Ibid., p. 7.
4. Ibid., p. 13.
5. Ibid., p. 14.
6. Ibid., p. 17.
7. Ibid., p. 22.
8. Ibid., p. 23.
9. Ibid., p. 37.
10. Ibid., p. 38.
11. Ibid., p. 40.
12. Gordon S. Wood, “Comment,” in ibid., p. 62.
13. Ibid., pp. 62–63.
14. Ibid., p. 63.
15. Scalia, A Matter of Interpretation, p. 131.
16. Morse, “Constitutional Interpretation Undergoes Transformation.”
17. Philip Potempa, “Scalia Sees Misuse of Constitution,” South Bend Tribune, January 24, 1996.
18. Scalia speech, “A Theory of Constitutional Interpretation.”
19. Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage 1997), p. xv.
20. Ibid., pp. 9–10.
21. Ibid., p. 11.
22. Ibid., pp. 12–13.
23. Ibid., p. 13.
24. Ibid., pp. 21–22.
25. Ibid., pp. 367–68.
26. New York v. United States, 505 U.S. 144, 158 (1992) (O’Connor, J., majority).
27. Printz v. United States, 521 U.S. 898, 944–45 (1997) (Scalia, J., majority).
28. Ibid., at 909.
29. Ibid., at 910–11.
30. Ibid., at 916.
31. Ibid., at 936.
32. Ibid., at 940.
33. Ibid., at 946 (Stevens, J., dissenting).
34. Ibid., at 959–60.
35. Ibid., at 966.
36. Clinton v. New York, 524 U.S. 417, 439 (1998) (Stevens, J., majority).
37. Ibid., at 440.
38. Ibid., at 447.
39. Ibid., at 466 (Scalia, J., dissenting).
40. Ibid., at 469.
41. “Governor George W. Bush, Republican from Texas and a GOP Presidential Candidate, Talks About His Bid for the Presidency, Other Presidential Candidates and His Political Career,” Meet the Press, NBC News transcript, November 21, 1999.
42. Warren Richey, “The Next Supreme Court Majority,” Christian Science Monitor, January 20, 2000.
43. Richard Willing, “Abortion Case Could Put Campaign Spotlight on the Court,” USA Today, January 17, 2000.
44. Frank J. Murray, “Election Could Reshape Court; Candidates Eager to Appoint Justices,” Washington Times, October 16, 2000.
45. Kim Eisler, “Supreme Court’s High Honor but Low Pay Could Send Justice Scalia Job Hunting,” Washingtonian, March 2000.
46. Murray, “Election Could Reshape Court.”
47. Eisler, “Supreme Court’s High Honor but Low Pay Could Send Justice Scalia Job Hunting.”
48. Robert Novak, “Scalia Hints He’ll Quit High Court if Gore Wins,” Chicago Sun-Times, April, 2, 2000.
49. There was a third loss for Scalia in that term as well. In Troxel v. Granville (530 U.S. 57 [2000]) the Court reviewed a case involving a request by grandparents in Washington State to be granted visitation rights to their granddaughters, the children of their son, who had committed suicide, and a woman to whom he was never married and who had denied the grandparents’ visitation rights.
Justice O’Connor ruled that the reason the mother excluded the grandparents from visiting the children had more to do with a “mere disagreement” between the parties, and nothing to do with either any allegations that the mother was now an “unfit parent,” or any other factors that would affect the “child’s [sic] best interests.” Since the lower court had incorrectly placed on the mother, who was “the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters,” O’Connor reversed that decision, saying that it was not the correct judicial standard here.
Speaking in dissent, Antonin Scalia returned to his originalism theory to propose a different resolution of the child visitation rights question. For him, then, the decision to assign those rights should be left to the political branches, as voted into office by the people, rather than be determined by the discretion of Supreme Court justices.
50. Miranda v. Arizona, 384 U.S. 436 (1966) (Warren, C. J., majority).
51. 18 United States Code, Section 3501.
52. Michigan v. Tucker 417, U.S. 433 (1974).
53. Dickerson v. United States, 530 U.S. 428 at 437–38 (2000) (Rehnquist, C. J., majority).
54. Ibid., at 437.
55. Ibid., at 443.
56. Ibid., at 424. The Miranda case has been cut back so extensively that it now offers much less protection, if any at all, to suspects. See Rhode Island v. Innis, 446 U.S. 291 (1980); New York v. Quarles, 467 U.S. 649 (1984); Mary Berghuis, Warden v. Van Chester Thompkins, 560 U.S. (2010); J.D.B. v. North Carolina, 564 U.S. _ (2011).
57. Ibid., p. 434 (Scalia, J., dissenting).
58. Stenberg v. Carhart, 530 U.S. 914, 945–46 (2000) (Breyer, J., majority).
59. Ibid., at 953 (Scalia, J., dissenting).
60. Ibid., at 954–55.
61. Ibid., at 955.
62. Ibid., at 956.
63. Tony Mauro and Sam Loewenberg, “Who Really Wants to Lift Ban on Fees?,” Legal Times, September 18, 2000, www.nationallawjournal.com.
64. “Stevens Now a Millionaire, Supreme Court Filings Show,” Washington Post, June 7, 1990.
65. “Judges Fail to Fully Comply with Financial Disclosure Rules,” (Minneapolis) Star Tribune, 1994, http://www.google.com/search?q=Scalia+financial+disclosure&hl=en&client=firefox-a&hs=yAT&rls=org.mozilla:en-US:official&prmd=ivns&ei=_XEqTdPvEY=u8Ab_1tjKAQ&start=10&sa=N.
66. Mauro and Loewenberg, “Who Really Wants to Lift Ban on Fees?”
67. “Ban Lifted on Speaking Fees for U.S. Workers,” New York Times, March 31, 1993.
68. Scalia, “Text of Scalia’s Letter on Reinstating Honoraria,” The Recorder, September 18, 2000.
69. Frank J. Murray, “Irate Scalia Lashes Out at Resignation Rumors,” Washington Times, October 3, 2000; Anne Gearan, “Supreme Court Justice Complains of ‘Mean-Spirited Attack,’ ” Associated Press, October 2, 2000; “Scalia Strikes Back at Reporter,” Newsmax.com, October 5, 2000; “Justice Scalia Tears into Newspaper, Denies His Needs Led Him to Back Pay Hike,” SFGate.com, October 3, 2000.
CHAPTER 15: BUSH V. GORE
1. http://www.authentichistory.com/1993–2000/3-2000election/2-electionnight/index.html.
2. Evan Thomas and Michael Isikoff, “The Truth Behind the Pillars,” Newsweek, December 25, 2000; Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election (New York: Random House, 2002); Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007); Jess Bravin, “Supreme Interests: For Some Justices, the Bush-Gore Case Has a Personal Angle,” Wall Street Journal, December 12, 2000.
3. Thomas and Isikoff, “The Truth Behind the Pillars.”
4. Toobin, Too Close to Call, p. 249. A good collection of the articles about the case can be found in Richard K. Neumann Jr., “Conflicts of Interest in Bush v. Gore: Did Some Justices Vote Illegally?,” Georgetown Journal of Legal Ethics 16 (Spring, 2003): 375–78.
5. http://www.authentichistory.com/1993–2000/3–2000election/2-electionnight/index.html.
6. Gore would eventually have one “faithless elector” from D.C. who refused to vote for him, putting his final count at 266.
7. Joan Biskupic, Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice (New York: Ecco/HarperCollins, 2005), p. 303.
8. Bruce Allen Murphy, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (New York: Oxford University Press, 1982). See also L. Anthony Sutin, “Presidential Election Law/The Recount,” Jurist Legal Intelligence, December 14, 2000, http://jurist.law.pitt.edu/election/electionfaq.html. For my understanding of the complex law in Bush v. Gore I am indebted to Sutin, the former dean of Appalachian School of Law and expert in election law at Hogan & Hartson who worked in various Democratic Party campaigns and groups on this issue. Two years after writing this, Dean Sutin was tragically killed in a mass shooting at his law school.
9. For more on this timing, see the chronology of the recount and legal battle in Toobin, Too Close to Call, pp. xv–xix. As the recount proceeded in the various Florida counties, continuing reports surfaced of votes being lost because minority voters were denied access to the polls, and senior citizen voters in Palm Beach were baffled by the so-called butterfly ballot. As a result, thousands of voters in the county believed they had mistakenly voted for third-party conservative candidate Patrick Buchanan instead of, as they intended, the Democratic candidate, Al Gore. Perhaps because of this, Buchanan received far more votes than anticipated in the liberal county. Then came the question of whether votes could be counted even when a hole was not punched cleanly through the card. They also tried to interpret the meaning of ballots with “undervotes” for the presidential race, which the voting machine could not read and thus did not count, or where there was a missing vote on an otherwise completed ballot, and “overvotes,” ballots that had more than one hole punched for a single office.
10. “Doris Kearns Goodwin and William Safire Discuss the Legal Battles in the Presidential Election,” Meet the Press, NBC News, November 19, 2000.
11. Palm Beach County Canvassing Board v. Katherine Harris, 772 So. 2d 1220 (2000).
12. The process of vote count certification in Florida is outlined in Toobin, Too Close to Call, pp. 190–91.
13. David Margolick, “The Path to Florida,” Vanity Fair, October 2000, p. 320.
14. Ibid.
15. Toobin, Too Close to Call, p. 248.
16. Gore v. Harris, 772 So. 2d 1243, December 8, 2000.
17. Margolick, “The Path to Florida,” p. 322.
18. Ibid.
19. Bob Woodward and Charles Lane, “Scalia Takes a Leading Role in Case,” Washington Post, December 11, 2000.
20. Ibid.
21. Stevens interview with Scott Pelley, 60 Minutes, November 28, 2010. Stevens would add to his recollection of this encounter in his memoir, Five Chiefs: A Supreme Court Memoir (New York: Little, Brown, 2011): “We agreed that the application was frivolous. To secure a stay, a litigant must show that one is necessary to prevent a legally cognizable irreparable injury. Bush’s attorneys had failed to make any such showing. . . . Justice Breyer expressed the same opinion, and we went our separate ways confidently assuming that the stay application would be denied when we met the next day” (pp. 198–99).
22. Bush v. Gore (Certiorari/Stay Application Order 531 U.S. 1046, 1047 December 9, 2000) (Stevens, J., dissenting).
23. Ibid., at 1047–48.
24. Ibid., at 1048–9 (Scalia, J., dissenting). On the timing of the opinion, see Margolick, “The Path to Florida,” p. 355.
25. Margolick, “The Path to Florida,” p. 355.
26. Bush v. Gore, Oral Argument, Oyez Project, http://www.oyez.org/print/58961.
27. Margolick, “The Path to Florida,” p. 356.
28. Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin, 2008), pp. 174–77; and Margolick, “The Path to Florida,” p. 356.
29. Margolick, “The Path to Florida,” p. 356.
30. Ibid.
31. Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam opinion).
32. Ibid., at 108.
33. Ibid., at 111.
34. Margolick, “The Path to Florida,” p. 357.
35. Bush v. Gore, at 109 (per curiam opinion).
36. Ibid., at 111 (per curiam opinion).
37. Ibid., at 114 (Rehnquist, C.J., concurring).
38. Ibid., at 129 (Stevens, J., dissenting).
39. Ibid., at 157–58 (Breyer, J., dissenting).
40. Margolick, “The Path to Florida,” p. 357.
41. Toobin, The Nine, pp. 173–74; Toobin, Too Close to Call, p. 266; also cited in Margolick, “The Path to Florida,” p. 357.
42. Linda Greenhouse, “Bush Prevails, by Single Vote, Justices End Recount, Blocking Gore After 5-Week Struggle,” New York Times, December 13, 2000.
43. Less commonly known, though, is that in seizing for itself the duty of determining the outcome in this highly political question, the Court had circumvented another even more clear democratic process for determining the winner of the presidential election—one already established by law by Congress. According to Title III, Chapter 1, Section 15 of the United States Code, which deals with the counting of the Electoral College votes in presidential elections, the 2000 vote count should have been headed to the two chambers of the new, incoming 107th Congress for formal counting. The result would have been one of the most unusual events coming from an obscure dark corner of American politics that could be the subject of a good political novel. By federal law, the new Congress is required to convene on January 6 after the states’ electors have met to count the Electoral College votes and certify the winner of the presidency. Had the Supreme Court not intervened, once Governor Jeb Bush certified the twenty-five Republican electors to Congress on Sunday, November 26, the two different slates of electors from Florida should have been submitted to Congress for counting. Title III, Chapter 1, Section 15 allows for objections in writing to be made to these state certifications, with the determination as to which slate will be counted left to a separate vote by both houses of Congress. Each house of the newly sworn in Congress is then instructed to “withdraw” and separately consider the various contesting Electoral College slates before casting votes choosing one of them. If both houses agree on a result, then that slate is counted. However, both houses of the new 107th Congress were not going to agree on this issue. At the time, there were 221 Republicans and 212 Democrats in the House, meaning that the Republican slate from Florida would have been chosen by that body. In the Senate, though, it was 50–50. By constitutional rule, it would be left to the president of the Senate, the sitting vice president, to cast the tie-breaking vote. Until January 20, that was Al Gore, whose vote would certainly have gone to the Democratic slate of electors that supported his election. Both houses of Congress would have been split on the determination of the assignment of the Florida Electoral College vote.
The federal vote-counting law had a solution for just this circumstance. With both houses of Congress splitting on the determination of the Florida Electoral College vote, Title III, Chapter 1, Section 15 is clear on who casts the tie-breaking vote: “If the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.” In short, the governor of the disputed state, in this case Florida, would be the final determiner of which slate of electors from that state would be counted. That is why the result of the election would not have changed regardless of the Supreme Court’s action. As the duly elected governor of Florida, even the most diehard Democrat would have to agree that, according to this federal law, Jeb Bush was empowered by Congress to settle the matter. By circumventing the voting process, disregarding the political question doctrine by which it should have avoided deciding this case, and ignoring states’ rights issue involved here, while also deciding in favor of the Fourteenth Amendment Equal Protection Clause for a voting case, and limiting the precedential impact of this case as applying only to this case, the conservative majority had spared the nation the embarrassment of having Florida’s governor, Jeb Bush, pick his own brother, George W. Bush, for the presidency.
For more, see L. Anthony Sutin, “Presidential Election Law/The Recount,” Jurist Legal Intelligence, December 14, 2000, http://jurist.law.pitt.edu/election/electionfaq.html. And a reading of Title III, Chapter 1, Section 15 in the U.S. Code, Cornell University, Legal Information Institute, http://www.law.cornell.edu/uscode/html/uscode03/usc_sec_03_00000015—000-.html. The process of certification in Florida is outlined in Toobin, Too Close to Call, pp. 190–91; Sutin suggests one more possible outcome: if somehow it was determined that Al Gore had actually won the popular vote, by Florida law the presidential electors, even members of the Republican electoral slate, were bound to vote for the winner of the popular election.
44. Greenburg, Supreme Conflict, p. 32.
45. Sandra Day O’Connor interview with Wolf Blitzer, The Situation Room, January 28, 2010. A few moments later, Blitzer asked, “So the right man was elected president?” “Well, the man who got the most votes,” she responded. To Jan Crawford Greenburg, she added, “Could we have done a better job? Probably. But it wouldn’t have changed the result.” Greenburg, Supreme Conflict, p. 32.
46. Dahleen Glanton, “O’Connor Questions Court’s Decision to Take Bush v. Gore,” Chicago Tribune, April 27, 2013, www.chicagotribune.com. See also Rachel Weiner, “O’Connor: Maybe Supreme Court Shouldn’t Have Taken Bush v. Gore,” Washington Post, April 29, 2013, www.washingtonpost.com.
47. Scalia speech, University of Fribourg, Switzerland, March 8, 2006, www.bafweb.com,bureauaudiovisuelfrancophone.
48. Interview with Antonin Scalia, by reporter Lesley Stahl, 60 Minutes, CBS News, April 27, 2008; Scalia interview with Brian Lamb, “Q and A” program, May 4, 2008, C-SPAN, transcript found at http://www.q-and-a.org/Transcript/?ProgramID=1178; Interview with Scalia, Charlie Rose Show, PBS, June 20, 2008); Legally speaking, blog Calvin Massey, “The Originalist,” January, 2011, found at http://www.callawyer.com/story.cfm?eid=913358&evid=1.
49. Display ad, “554 Law Professors Say,” New York Times, January 13, 2001, funded by the liberal lobbying group People for the American Way.
50. See Robert Post and Reva Siegel, “Originalism as a Political Practice: The Right’s Living Constitution,” Fordham Law Review 75 (2006): 562; and Jack Balkin, Balkinization, October 10, 2004, http://balkin.blogspot.com/; both cited in Alan Dershowitz memo, “Scalia’s Inconsistent Originalism, Reordered by Case Strength,” December 4, 2008.