CHAPTER 16: SCALIA VS. THE POPE

1. This chapter benefited from the perspectives of several students who wrote seminar papers for my senior seminar course at Lafayette College: “Personality and Judicial Decision-Making,” dealing with the impact of Scalia’s Catholicism on his work on the Court; Allison Ligorano, “Italian Catholic Justices and Their Individual Differences in Judicial Decision-Making as a Result of Difference in Catholic Upbringing”; Lori Weaver, “Scalito or Alitist? The Future Evolutions of Justice Scalia and Justice Alito”; Amy Polizanno, “2002: A Catholic Justice Emerges”; Matt Soper, “Antonin Scalia: Originalist Martyr”; Katerina Mantell, “Antonin Scalia: A Catholic Justice: A Life Cycle Analysis.” It also benefited from work done by four students—Allison Ligorano, Amy Polizzano, Lori Weaver, and Colleen Sullivan—under a Lafayette College Community of Scholars grant from the Mellon Foundation.

2. Molly Redden, “Rick Santorum’s Virginia Church and Opus Dei,” New Republic, March 6, 2012, http://www.newrepublic.com/article/politics/101420/santorums-church-opus-dei#; Bill Broadway and David Cho, “Quiet Great Falls, Va., Parish Draws Famous, Demure Crowd,” Washington Post, April 5, 2001, http://news.google.com/newspapers?nid=1774&dat=20010405&id=ElUhAAAAIBAJ&sjid=6YQFAAAAIBAJ&pg=6747,7664314; Michelle Boorstein, “Rare Latin Mass a Return to Ritual,” Washington Post, June 4, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/06/03/AR2006060300227.html.

3. “Music Schedule and Information,” http://st-catherines.net.

4. Opus Dei began in 1928, when Spanish priest Josemaría Escrivá de Balaguer returned from a spiritual retreat in Madrid proclaiming that he received a vision from God to create this organization. He envisioned it as a conservative secular institute within the Catholic Church seeking to preserve its religious mission of a universal call to holiness. The best book on Opus Dei is John L. Allen, Opus Dei: An Objective Look Behind the Myths and Reality of the Most Controversial Force in the Catholic Church (New York: Doubleday, 2005). See also Robert Hutchison, Their Kingdom Come: Inside the Secret World of Opus Dei (New York: St. Martin’s Press, 1998); and Michael Walsh, Opus Dei: An Investigation into the Powerful, Secretive Society Within the Catholic Church (San Francisco: Harper, 2004). Opus Dei lay members pursue their religious mission by observing Escrivá’s admonition to practice “humility” and rely on discretion even to the point of secrecy. Members of the organization are forbidden to flaunt any evidence of their religion, or use the organization for personal or professional gain, that might separate them from other Catholics. Some believe that the most dedicated of its members practice self-sacrifice by sleeping on a board or the floor once a week, and commemorating the crucifixion of Jesus through “self-mortification,” beating themselves with a cord whip called a “discipline” and wearing an uncomfortable hair shirt undergarment or even a spiked chain, called a “cilice,” designed to break the skin of their upper thigh for a period of time each day in order to induce constant pain. Others see this organization as “the elite guard of God,” staffed by the most dedicated of the Catholic faith’s followers, and criticize it as a secretive and conspiratorial cult.

Of the billion or so Catholics in the world, there are said to be fewer than ninety thousand Opus Dei members in the world, with three thousand or so in the United States. The everyday practice of Opus Dei members is to “strive for holiness in everyday life through strict adherence to the Roman Catholic Church’s teachings, at work and at home.” Members pray daily, and attend days of recollection, retreats, and workshops, which help them to strictly observe their devout faith. They also attend traditional Masses in Latin, and usually they are members of parishes that observe pre–Vatican II strictures.

5. “Jose Maria Escriva” website, found at http://www.escrivaworks.org/doc/opus_dei.htm.

6. Allen, Opus Dei, p. 4.

7. Mark Karlin, “Pope Francis Has Antonin ‘Opus Dei’ Scalia’s Undies in a Bunch,” December 20, 2013, Buzzflash.com, found at truth=out.org.

8. “Ministries and Organizations,” St. Catherine of Siena Church website, http://st-catherines.net/organ.php; “Programs at Reston Study Center,” Reston Study Center website, http://www.restonstudycenter.org. These spiritual activities are pursued at Longlea in the Blue Ridge Mountains of Virginia, and conducted by Opus Dei priests, who operate within the Prelature of the Catholic Church.

9. “Tridentine Travelogue: Old St. Mary’s, Washington, D.C.,” Tridentine Community News, June 17, 2007, http://www.detroitlatinmass.org/jospht/61707.pdf; Michelle Boorstein, “Rare Latin Mass a Return to Ritual,” Washington Post, June 4, 2006.

10. See Mike Whitney, “Scalia and Opus Dei: Radicals on the High Court,” Counterpunch, January 17–18, 2004, http://www.counterpunch.org/whitney01172004.html; Allen, Opus Dei; Hutchison, Their Kingdom Come; Walsh, Opus Dei; Frank Cocozzelli, “An Opus Focus on SCOTUS?,” May 2, 2007, No. 26; May 5, 2007, No. 27; May 13, 2007, No. 28, www.streetprophets.com; “What One More ‘Fundamentalist’ US Supreme Court Justice Will Do to Constitutional Law in Our Country,” Time for Change’s Journal, February 18, 2008, http://journals.democraticunderground.com; Ron Grossman, “Catholics Scrutinize Enigmatic Opus Dei,” Chicago Tribune, December 7, 2003; Sharon Clasen, “How Opus Dei Is Cult-Like,” Opus Dei Awareness Network, and Alexander Cockburn and Jeffrey St. Clair, http://www.odan.org/tw_how_opus_dei_is_cult_like.htm; “Scalia and Opus Dei: Radicals on the High Court,” Counterpunch, January 17/18, 2004, www.counterpunch.org/whitney; and Mark Karlin, “Pope Francis Has Antonin ‘Opus Dei’ Scalia’s Undies in a Bunch.”

Scalia is not alone in this regard, as others have speculated, though it has never been confirmed, that Clarence Thomas and the other conservative Catholics on the Supreme Court might also be members of the organization. Such criticism of highly visible Catholic public officials was also made against Democratic presidential candidate John F. Kennedy in 1960.

11. Whitney, “Scalia and Opus Dei.”

12. Allen, Opus Dei, pp. 145, 278.

13. Evangelium Vitae, paragraph 27, March 25, 1995, http://www.vatican.va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae_en.html.

14. Ibid., paragraph 56.

15. Catholic Catechism, p. 2267, cited in Sister Helen Prejean, The Death of Innocents: An Eyewitness Account of Wrongful Execution (New York: Vintage, 2006), p. 282. This section of the Catechism of the Catholic Church can be found in its Part III, Life in Christ, Section II: The Ten Commandments, Chapter 2, “You Shall Love Your Neighbor as Yourself,” Article 5, 5th Commandment, paragraph 2267.

16. Session 3, “Religion, Politics, and the Death Penalty,” for the “A Call for Reckoning: Religion and the Death Penalty” conference transcript, January 25, 2002, thttp://features.pewforum.org/death-penalty/resources/transcript3.html.

17. See also Romans 13: 1–5. On the view of St. Paul (St. James Edition of the Bible): “Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.”

18. Sam Harris, The End of Faith: Religion, Terror, and the Future of Reason (New York: W. W. Norton, 2004), pp. 156–57.

19. Ibid., p. 158.

20. Antonin Scalia, “God’s Justice and Ours,” First Things, May 2002, pp. 17–21. Issue Archive found at www.firstthings.com.

21. Ibid.

22. Ibid.

23. Ibid.

24. Prejean, The Death of Innocents, p. 173. See also Sister Helen Prejean, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (New York: Vintage, 1994).

25. Scalia, “God’s Justice and Ones,” pp. 17–21.

26. Prejean, The Death of Innocents, p. 176.

27. Ibid.

28. Ibid., pp. 178–79.

29. Atkins v. Virginia, 536 U.S. 304, at 312 (2002) (Stevens, J., majority).

30. Penry v. Lynaugh, 492 U.S. 302 (1989).

31. Atkins v. Virginia, at 321 (Stevens, J., majority).

32. Ibid., at 365 (Scalia, J., dissenting).

33. Ibid., at 370.

34. Kiran Krishnamurthy, “Scalia: Religion Has Its Place,” Richmond Times Dispatch, January 13, 2003.

35. “Ethicists Don’t See Scalia Sitting Out Most Church-State Cases,” Associated Press, October 20, 2003, www.firstamendmencenter.org/news.aspz?id=122092.

36. Tony Mauro, “Scalia Recusal Revives Debate over Judicial Speech, Ethics,” Legal Times, October 20, 2003, www.law.com, citing Gina Holland of the Associated Press.

37. Ibid.

38. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). See also “Federal Appeals Court in California Upholds ‘Under God’ in Pledge of Allegiance,” March 11, 2010, http://www.foxnews.com/politics/2010/03/11/federal-appeals-court-california-upholds-god-pledge-allegiance.

39. David G. Savage, “Some ‘Mystified’ by Awards to Scalia for Free Speech,” Los Angeles Times, March 18, 2003.

40. Ibid.

41. Years later, then Cardinal Bevilacqua was caught up in the charges over the Philadelphia Catholic Church’s obstruction of justice in the parish priest pedophilia investigation, and was facing a court trial on this issue when he died in 2012. Robert Huber, “Catholics in Crisis: Sex and Deception in the Philadelphia Archdiocese,” Philadelphia, July 2011, http://www.phillymag.com/articles/catholics-in-crisis-sex-and-deception-in-the-archdiocese-of-philadelphia/; MaryClaire Dale, “Philadelphia Priest Trial: Cardinal Anthony Bevilacqua Shredded List of Accused Priests’ Names,” Huffington Post, April 13, 2012, http://www.huffingtonpost.com/2012/04/13/philadelphia-priest-trial-anthony-bevilacqua-shredded-list_n_1423823.html; Matthew Archbold, “Was Cardinal Bevilacqua Murdered?,” National Catholic Register, February 10, 2012, http://www.ncregister.com/blog/matthew-archbold/was-cardinal-bevilacqua-murdered.

42. Lawrence v. Texas, 539 U.S. 548 (2003).

43. “Scalia Speech Under Scrutiny,” March 8, 2004, www.cbsnews.com.

44. Ibid., Lawrence v. Texas, at 562 (Kennedy, J., majority). See also Bowers v. Hardwick, 539 U.S. 558 (1987).

45. Lawrence v. Texas, 571 (Kennedy, J., majority).

46. Ibid., at 575.

47. Ibid., at p. 578.

48. Joan Biskupic, “Gay Sex Ban Struck Down,” USA Today, June 27, 2003.

49. Lawrence v. Texas, at 586 (Scalia, J., dissenting).

50. Ibid., at 586.

51. Ibid., at 599. In another part of the opinion he cites: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity . . .”

52. Ibid., at 602.

53. Ibid., at 604–5.

54. Anne Gearan, “Scalia Ridicules Court’s Gay Sex Ruling,” Associated Press Online, October 24, 2003.

55. Adam Liptak, “In Re Scalia the Outspoken v. Scalia the Reserved,” New York Times, May 2, 2004.

56. Dahlia Lithwick, “Scaliapalooza,” Slate, October 30, 2003.

57. Liptak, “In Re Scalia the Outspoken v. Scalia the Reserved.”

CHAPTER 17: QUACK, QUACK

1. David Savage and Richard A. Serrano, “Scalia Was Cheney Hunt Trip Guest,” Los Angeles Times, February 5, 2004. Background on this incident also benefited greatly from the account offered by Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007, pp. 201–4).

2. Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004).

3. Lee Iacocca, Where Have All the Leaders Gone? (New York: Scribner, 2007), p. 90.

4. United States v. Nixon, 418 U.S. 683 (1974).

5. See Kansas v. Crane, 534 U.S. 407 (2002).

6. David G. Savage and Richard A. Serrano, “Scalia Took Trip Set Up by Lawyer in Two Cases,” Los Angeles Times, February 27, 2004.

7. See Scalia’s statement attached to ibid.

8. U.S. Code, Title 28, Part I, Chapter 21, Section 455(a), at Cornell University Law School site, www.la.cornell.edu; compared to ABA Model Code of Judicial Conduct, 2000 Edition, Center for Professional responsibility, www.abanet.org.

9. David Savage, “Trip with Cheney Puts Ethics Spotlight on Scalia,” Los Angeles Times, January 17, 2004.

10. Appellate Court Brief for Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004), filed by Public Citizen Litigation and Sierra Club, 2004 WL 3741418 (U.S.), February 24, 2004, Lexis/Nexis, 003 U.S. Briefs 475; 2004 U.S. S. Ct. Briefs Lexis/Nexis 230, March 11, 2004. Internet version at http://newsandinsight.thomsonreuters.com/uploadedFiles/Reuters_Content/2012/12_-_December/sierraclubvcheney—recusalmotion.pdf.

11. Ibid.

12. The memo issued before the final case decision was Scalia, Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004).

13. Ibid.

14. Ibid. Scalia cited the examples of Justice Byron White’s friendship with Attorney General Robert F. Kennedy, and Robert Jackson’s socializing with President Franklin Roosevelt or members of the executive branch, both of whom still sat on cases involving those officials that were pending before the Court at that time. Scalia concluded: “The question, simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined. . . . If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot. The motion is denied.”

15. Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004).

16. Bruce Allen Murphy, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (New York: Oxford University Press, 1982). For the larger argument on the standard for judging extrajudicial activities, see Bruce Allen Murphy, “Extrajudicial Activities,” in Encyclopedia of the Supreme Court of the United States, David S. Tanenhaus, ed. (New York: Macmillan Reference USA, 2008).

What is the standard by which one can “reasonably” question whether a justice’s “impartiality [can or should] be questioned”? Extrajudicial, or off-the-bench, activities of Supreme Court justices can involve something as innocuous as giving a speech, being a member of any organization, or writing books and teaching classes. They can also include politically involved activities such as suggesting, lobbying for, or even drafting legislation or speeches by political figures. (For more, see Bruce Allen Murphy and David Levy, “Preserving the Progressive Spirit in a Conservative Time: The Joint Reform Efforts of Justice Louis D. Brandeis and Professor Felix Frankfurter, 1916–1933, Michigan Law Review, vol. 78, no. 8, August 1980.)

Because of the guiding ethical tradition established by the actions and mistakes made by justices in these decisions over the years, the range and extent of extrajudicial activities by Supreme Court justices has ebbed and flowed. Change in the standard governing them has only occurred when justices have created self-inflicted wounds for the Court by going too far in their political activity, becoming exposed and facing intense public criticism. In the nineteenth century, Justice John Catron and his colleague Robert C. Grier went too far after the 1856 presidential election when they leaked to newly elected president James Buchanan the Court’s not yet announced decision in the slavery case, Dred Scott v. Sandford, which ruled the Missouri Compromise unconstitutional. This enabled Buchanan to predict in his inaugural address that the slavery issue would be “speedily and finally settled by the Supreme Court.” The public uproar over this leak and connection between the members of the Court and the new president resulted in a new informal standard against such behavior. The tradition that Supreme Court justices do not run for president, or elected office, from the bench was established in 1916 when Justice Charles Evans Hughes was drafted by the Republican Party to run for president against Democrat Woodrow Wilson, and he resigned from the bench to do so. Hughes narrowly lost the election, owing to his inability to win California, and then was reappointed to the bench in 1930 as the Supreme Court’s chief justice.

By the twentieth century, Justices Louis Brandeis and Felix Frankfurter developed a new, more secretive manner for advising the executive branch by engaging in political activities by proxy. After his Court appointment in 1916, Brandeis put thousands of dollars into a fund to support the progressive reform lobbying by Harvard Law professor Felix Frankfurter. In this manner, Brandeis hid his political involvement from public view by suggesting to Frankfurter the ideas for articles to be written in law reviews, policies such as federal unemployment insurance to be developed and promoted, political appointments to be sought, and even pieces of New Deal legislation to be drafted. While these activities did not become publicly known until years later, they instructed Frankfurter as to how he could operate politically after he was appointed to the Court in 1939. Despite his status as a justice he maintained his longtime advising relationship with his good friend President Roosevelt on an even wider range of issues than Brandeis had pursued. He suggested numerous appointments to the administration, proposed pieces of legislation, and personally visited the president to consult with him. (For more here, see Bruce Allen Murphy, The Brandeis/Frankfurter Connection.)

Because of Brandeis’s and Frankfurter’s example, Justice Abe Fortas, who was appointed to the Court in 1965, saw no reason to limit his extrajudicial work with his good friend President Johnson. Fortas helped to draft pieces of legislation, helped revise a State of the Union speech in the Oval Office, and even served as Johnson’s secret emissary to the Dominican Republic during a 1965 coup. Fortas placed no limits in his discussions regarding political issues with President Johnson on the telephone, even including issues then under consideration by the Supreme Court. When all of these extrajudicial political activities were discovered, Senate conservatives were able to thwart Fortas’s confirmation for chief justice in 1968 by beginning a filibuster. When William Lambert of Life magazine revealed a year later that Fortas had agreed to serve for an annual fee on a foundation dealing with civil rights for juveniles in Florida funded by Louis Wolfson, a man who had been convicted of stock irregularities and whose appeal was then in federal court, he was forced to resign from the Court. Because of the public uproar over this incident, Justice William Brennan resigned from one foundation, and William Douglas promised to resign from, but then remained on, a foundation funded by Albert Parvin, a man with Las Vegas connections. As a result of this connection, together with Douglas’s flamboyant personal lifestyle and continual extrajudicial activity, he faced a very serious impeachment inquiry in 1970 that was only derailed by supportive liberal Democrats in Congress.

17. Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice (New York: William Morrow, 1988).

18. Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (New York: Random House, 2003).

19. The Cheney duck hunting episode became so controversial because it went even further than any of his other extrajudicial activities. Like Fortas’s connection to President Johnson and Louis Wolfson, and Douglas’s association with Albert Parvin, this hunting trip served as a sort of ethical trip wire, in that public criticism erupted when Scalia went a bit further than in the past. By constantly stretching those ethical boundaries, thus encouraging others on the Court to do the same, Scalia became his own best example of ethical overreach that could easily have been included in the Sierra Club’s brief. The truth was that by now, no justice in the Court’s entire history had ever generated more continuous negative public controversy and commentary over a nearly two-decade term of service as Antonin Scalia.

In cases like this, it is preferable that the Supreme Court, which can set its own ethical standard, follow the earlier and somewhat broader standard of “avoiding the appearance of impropriety,” even when it is demonstrably true that no impropriety has occurred. So here it seems reasonable to argue that it would have been better for Scalia’s personal reputation, and the credibility of the institution on which he serves, if he had stepped aside from the Cheney case, even if it meant doing so after issuing his lengthy memo stating why he did not really need to do so. And it would have been wise to follow the same practice that law firms do in investigating to avoid potential conflicts of interest even in his personal recreational activities, such as hunting.

20. For more, see the discussion of the post–Abe Fortas extrajudicial era at the end of Chapter 10, “Faint-Hearted Originalist.”

21. The reports are reproduced by the Center for Responsible Politics on OpenSecrets.org, http://www.opensecrets.org/pfds/candlook.php?CID=N99999918. The reports for 2004 and later are reproduced there, but only for justices who were serving on the Court in 2013.

22. Ibid.

23. Brian Stout, “Letter of Protest Was an Accurate Portrayal of the Scalia Lecture,” Amherst Student, March 3, 2004; Daily Kos, February 11, 2004.

24. “Scalia: ‘Proudest’ Moment Was Staying on Cheney Case,” Fox News, April 12, 2006, http://www.foxnews.com/story/0,2933,191525,00.html.

25. See Chapter 18, the Koch brothers seminar controversy in 2011. See also Nina Totenberg, “Bill Puts Ethics Spotlight on Supreme Court Justices,” NPR, August 17, 2011, http://www.npr.org/2011/08/17/139646573/bill-puts-ethics-spotlight-on-supreme-court-justices.

26. Joan Biskupic, “Pen in Hand, Scalia Leaves His Mark on Ruling,” USA Today, June 27, 2008.

27. David G. Savage, “Sierra Club Asks Scalia to Step Aside in Cheney Case,” Los Angeles Times, February 24, 2004.

28. Tony Mauro, “Newly Disclosed Documents Shed More Light on Scalia’s ‘Hattiesburg Incident,’ ” Legal Times, December 14, 2007. See also U.S. Department of Justice U.S. Marshals Service Investigation of “the Hattiesburg Incident” of 07-April-2004 (OCR [searchable] version); FOIA release, governmentattic.org, at www.governmentattic.org.

29. Case Summary, U.S. Department of Justice U.S. Marshals Service Investigation of “the Hattiesburg Incident” of 07-April-2004.

30. Denise Grones, “Two Reporters Ordered to Erase Tapes While Covering Scalia Speech,” Associated Press, March 7, 2004; Antoinette Konz, “Justice: Constitution ‘Something Extraordinary,’ ” Hattiesburg American, April 8, 2004.

31. Adam Liptak, “Justice Contrite to Reporters; Marshal Destroyed Speech Recordings,” New York Times, April 13, 2004.

32. U.S. Department of Justice U.S. Marshals Service Investigation of “the Hattiesburg Incident.”

33. Adam Liptak, “In Re Scalia the Outspoken v. Scalia the Reserved,” New York Times, May 2, 2004.

34. Crawford v. Washington, 541 U.S. 36 (2004). This comment comes from Linda Greenhouse, “Justice Scalia Objects,” New York Times, March 9, 2011.

35. Ohio v. Roberts, 448 U.S., 56 at 66 (1980).

36. Crawford v. Washington, 541 U.S. 36, at 51 (2004) (Scalia, J., majority).

37. Ibid., at 67–68.

38. Hamdi v. Rumsfeld, 542 U.S. 507, at 535 (2004) (O’Connor, J., plurality).

39. Ibid., at 536.

40. Ibid., at 536–37.

41. Ibid., at 554–55 (Scalia, J., dissenting).

42. Ibid., at 573.

43. Ibid., at 576–77.

44. Ibid., at 577–78.

45. Ibid., at 579. To the surprise of many, the most liberal justice on the Court, John Paul Stevens, joined in Scalia’s dissent. But they did not always agree on this subject. See Rasul v. Bush, 542 U.S. 466 (2004).

46. “We are Fool’s for Christ’s Sake,” Shalom Jerusalem Family, www.shalomjerusalem.com/heritage/heritage7.html/. For more on the appearance at the Mississippi College School of Law in 1996, see Chapter 13, “Master of the Barbed Opinion.”

47. “Justice Scalia: Be Fools for Christ,” January 24, 2005, http://merecomments.typepad.com.

48. Ibid.; and James M. Wall, “Foolish Wisdom,” www.religion-online.org.

49. Penry v. Lynaugh, 492 U.S. 302 (1989), and Stanford v. Kentucky, 492 U.S. 361 (1989).

50. Roper v. Simmons, 543 U.S. 551, at 555 (2005) (Kennedy, J., majority).

51. Ibid.

52. Ibid., at 564–65.

53. Ibid., at 575–76.

54. Ibid., at 608 (Scalia, J., dissenting).

55. Ibid., at 611.

56. Ibid.

57. Ibid.

58. Ibid., at 616–17.

59. Ibid., at 628–29.

60. Scalia speech, “Mullahs of the West: Judges as Authoritative Expositors of the Natural Law?,” Trinity College, University of Melbourne, Australia, 2005.

CHAPTER 18: THE CHARM OFFENSIVE

1. Scalia speech, “Constitutional Interpretation.” Remarks at the Woodrow Wilson Center for Scholars, Library of Congress, March 14, 2005, Congressional Quarterly transcript, Lexis/Nexis.

2. This was the number of justices as of 2005. That number has increased to 112, including Scalia, since then, as of June 2013. The list of other originalist-like justices is a matter of debate, but among the names being considered would be: Hugo Black, James Clark McReynolds, William Howard Taft, and Oliver Wendell Holmes.

3. Lorraine Woellert, “Why Not Scalia? The Pugnacious Darling of the Right Was Sidelined by Political Calculus,” BusinessWeek, September 19, 2005.

4. Ibid.; Warren Richey, “One Scenario: Chief Justice Scalia?,” Christian Science Monitor, May 13, 2005.

5. “Scalia Slams Juvenile Death Penalty Ruling,” Washington Post, March 14, 2005 (referring to the recent Roper v. Simmons case).

6. Tom Curry, “Is Scalia Campaigning for Chief Justice?,” MSNBC, March 14, 2005.

7. Dana Milbank, “Scalia Showing His Softer Side,” Washington Post, March 15, 2005.

8. “That Scalia Charm,” editorial, New York Times, March 21, 2005, p. A16.

9. Antonin Scalia and Stephen Breyer, Norman Dorsen Moderator, “Constitutional Relevance of Foreign Court Decisions,” American University, February 27, 2005.

10. “Scalia, O’Connor, Breyer Conversation on the Court (with Tim Russert),” National Archives, Washington, D.C., April 22, 2005.

11. Richey, “One Scenario: Chief Justice Scalia?”

12. Carney and Cooper, “Justice Scalia: The Charm Offensive.”

13. Tony Mauro, “Could Scalia Be the Chief?,” American Lawyer Media, November 20, 2002, www.law.com.

14. Carney and Cooper, “Justice Scalia: The Charm Offensive.”

15. Rob Boston, “Chief Justice Scalia?: Rehnquist Illness Sparks Rumors,” Church and State, March 2005.

16. Charles Lane, “Former Clerks Pay Tribute to ‘The Chief,’ ” Washington Post, June 18, 2005.

17. Ibid.

18. Jonathan Alter, “The Real Stakes in November,” Newsweek, July 10, 2000; David Savage, “Supreme Stumpers: The Next President Could Reshape the Court and the Legal Arena,” ABA Journal, October 2000.

19. Gonzales v. Raich, 545 U.S. 1 (2005).

20. Wickard v. Filburn, 317 U.S. 111 (1942).

21. Ibid., at 120, 125 (Jackson, J., majority).

22. Gonzales v. Raich, 545 U.S. 1 (2005), at 40 (Scalia, J., concurring).

23. For more on this case, see Gonzales v. Oregon, 546 U.S. 243 (2006).

24. Gonzales v. Raich, 545 U.S. 1 (2006), at 53 (Thomas, J., dissenting).

25. Mark Moller, “What Was Scalia Thinking?,” Reason.com, June 14, 2005, www.cato.org.

26. Ryan Grim, “A Guide to Gonzales v. Raich,” Salon, June 7, 2005, www.salon.com.

27. Ibid.

28. Debra Rosenberg, “Justice: Bench Player,” Newsweek, February 12, 2007.

29. John Jenkins, The Partisan: The Life of William Rehnquist (New York: PublicAffairs, 2012), pp. 264–66.

30. Rosenberg, “Justice: Bench Player.”

31. Ibid.

32. Jenkins, The Partisan, pp. 264–66.

33. Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin, 2008), p. 20.

34. Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (New York: Random House, 2003), Chapter 38.

35. Jenkins, The Partisan, p. 265.

36. Richard W. Stevenson, “O’Connor to Retire, Touching Off Battle over Court,” New York Times, July 2, 2005.

37. Fred Barnes, “Judgment Day: What President Bush Needs to Keep in Mind with the Supreme Court,” Weekly Standard, July 18, 2005.

38. “Did Bush Promise to Appoint a Justice like Scalia?,” Media Matters for America, October 13, 2005, http://mediamatters.org/print/research/200510130005.

39. Tony Mauro, “Bush Got a Conservative Court, with Caveats,” Legal Times, November 3, 2008.

40. Peter Baker and Jim VandeHei, “Bush Chooses Roberts for Court,” Washington Post, July 20, 2005; Tony Mauro, “D.C. Circuit Gets on Supreme Court Short List,” February 22, 2005, www.law.com.

41. “Roberts Says High Court Not About ‘Political Preferences,’ ” ABC News, November 28, 2006 (a report of Roberts’s appearance at the University of Miami to answer questions by Jan Crawford Greenburg).

42. Jesse Holland, “Sources: Roberts Confirmation Hearings to Begin on September 6,” Associated Press, July 29, 2005.

43. Charles Lane, “Chief Justice Dies at Age 80,” Washington Post, September 4, 2005.

44. Peter Baker, “Second Vacancy Triggers a Scramble,” Washington Post, September 5, 2005.

45. Greenburg, Supreme Conflict, p. 240. On the Vinson appointment, see Murphy, Wild Bill. William O. Douglas, Hugo Black, Felix Frankfurter, and Robert Jackson all wanted to be chief justice.

46. The three confirmations would be for the chief justice’s position, the replacement for the vacancy created by his elevation, and the replacement of the retiring Justice O’Connor.

47. Greenburg, Supreme Conflict, p. 240.

48. Lorraine Woellert, “Why Not Scalia?,” Business Week, September 19, 2005.

49. Ibid.

50. Greenburg, Supreme Conflict, p. 240; Woellert, “Why Not Scalia?”

51. Greenburg, Supreme Conflict, p. 240.

52. Woellert, “Why Not Scalia?”

53. CBS news transcripts, September 5, 2005, Lexis/Nexis.

54. Ibid.

55. Ibid.

56. Woellert, “Why Not Scalia?”

57. Patrick J. Buchanan, “Stand Up to Them, Mr. President: Nominate Another Scalia,” Human Events Online, September 9, 2005, www.humaneventsonline.com.

58. Cynthia McFadden and Brian Ross, “High Court, High Living; Power Trip,” Nightline, ABC News transcript, January 23, 2006.

59. Ibid.

60. Ibid.

61. “Scalia: Didn’t Expect to Be Chief Justice,” CNN.com, October 10, 2005.

62. Following her divorce in 2009, Jan Crawford resumed using her maiden name. Any future references to her after this date will use this name. Citations to her work before that date will continue to refer to her married name.

63. For a report on the interview, see: Tony Mauro, “Scalia ‘Wouldn’t Have Liked’ Being Chief Justice,” November 19, 2010, blog, Legal Times, www.legaltimes.com.

64. “Scalia Puts Limits on Press at the Columbus Day Parade,” The Villager, October 19–22, 2005, www.thevillager.com.

65. Ibid.

66. Gina Holland, “Supreme Court Notebook: Justice Scalia Goes Media Shy Again,” Associated Press, October 12, 2005.

67. Corbis collection of photos on the Internet, www.corbisimages.com.

68. Holland, “Supreme Court Notebook: Justice Scalia Goes Media Shy Again.”

69. “Time to Ban Judicial Junkets,” editorial, New York Times, October 15, 2005.

70. Scalia interview with Maria Bartiromo, MSNBC transcript, October 10, 2005, Lexis/Nexis.

71. Kim Eisler, “Backbenched Scalia Speaks,” Washingtonian, December 2005.

CHAPTER 19: THE DEAD CONSTITUTION TOUR

1. Liz Marlantes, “Alito Grilling Gets Too Intense for Some,” ABCNews.com, January 11, 2005.

2. Robert Gordon, “Alito or Scalito?,” Slate, November 1, 2005, http://www.slate.com/articles/news_and_politics/jurisprudence/2005/11/alito_or_scalito.html.

3. Scalia was now in the same phase of life as Justice William O. Douglas was in the late summer of 1960 when the much younger John F. Kennedy was nominated to run for the presidency on the Democratic ticket—a position that Douglas had been privately seeking for nearly two decades. Thus freed from the burden of this career ambition, the sixty-two-year-old Douglas went through his “Wild Bill” phase, becoming the icon of the liberals, and behaving personally however he wished. For more, see Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (New York: Random House, 2003), Chapter 30.

4. “American Idiot,” February 15, 2006, www.SaveROE.com.

5. Scalia speech, “Mullahs of the West: Judges as Authoritative Expositors of the Natural Law?,” Sir John Young Oration, Boston, Melbourne, Oxford Conversazioni on Culture and Society, Trinity College, University of Melbourne, Australia, 2005.

6. Dudgeon v. United Kingdom [1981] ECHR 5, (1982) 4 EHRR 149, IHRL 31 (ECHR 1981), 22nd October 1981, European Court of Human Rights [ECtHR].

7. Scalia speech, “Mullahs of the West.”

8. Peter Lattman, “Scalia Assails Living Constitutionalists,” Wall Street Journal online, February 11, 2006, http://blogs,wsj.com/law/); Jonathan Ewing, “Revisionist Liberals Are Idiots, Halfwits and Retards,” Associated Press, February 14, 2006, http://myrightmind.blogspot.com.

9. “Scalia: Non-Originalists Are Idiots,” Associated Press, February 14, 2006, FoxNews.com. http://www.foxnews.com/story/0,2933,184815,00.html#ixzz1yGqgSYTp. See also Ewing, “Revisionist Liberals Are Idiots, Halfwits and Retards.”

10. Antonin Scalia, Stephen Breyer, and Jan Crawford Greenburg, “A Conversation on the Constitution,” Federalist Society, December 5, 2006, found at www.fed-soc.org.

11. All quotes here and below are taken from Steven Ertelt, “Supreme Court Justice Scalia: Roe Abortion Case May Never Be Reversed,” March 10, 2006, Lifenews.com, http://www.lifenews.com/nat2140.html.

12. Transcript of Scalia speech, University of Fribourg, Switzerland, March 8, 2006, Bureau Audiovisuel Francophone (BAFWEB), http://www.bafweb.com/60308scalia.wmv.

13. Terry Vanderheyden, “Justice Scalia on Roe v. Wade,” Life Site News.com, http://www.lifeside.net/Idn/2006/mar/0631004.html; Tom Strode, “Supreme Court Not Ready to Reverse Roe, Scalia Says,” March 13, 2006, www.bpnews.net.

14. Quotes that follow are from transcript of Scalia speech, University of Fribourg, March 8, 2006.

15. Ibid.

16. Ibid.

17. Ibid.

18. Ibid.

19. Ibid.

20. Ibid.

21. 548 U.S. 557 (2006).

22. Scalia Speech, University of Fribourg, March 8, 2006.

23. Ibid.

24. Ertelt, “Supreme Court Justice Scalia.”

25. Vanderheyden, “Justice Scalia on Roe v. Wade.”

26. “Scalia’s Ill-Chosen Words: Justice Crosses the Line—Again,” Philadelphia Inquirer, March 31, 2006, Philly.com, http://articles.philly.com/2006-03-31/news/25415630_1_military-tribunals-justice-antonin-scalia-activist-judges.

27. Michael Isikoff, “Supreme Court: Detainee’s Rights—Scalia Speaks His Mind,” MSNBC.com, April 3, 2006, www.msnbc.com; also found at http://www.thedailybeast.com/newsweek/2006/04/02/supreme-court-detainees-rights-scalia-speaks-his-mind.html.

28. Thanks to the timely notice by the antiabortion activist organizations, some Court watchers had already taped and transcribed the speech; and later on mirror sites of the speech would continue to pop up on search engines.

29. “Report: Scalia Criticizes Europe on Gitmo,” Washington Post, March 26, 2006.

30. CNN report, “Report: Scalia Against Rights for Gitmo Detainees,” March 27, 2008, http://www.cnn.com/2006/LAW/03/26/gu...eut/index.html.

31. Charles Lane, “Scalia’s Recusal Sought in Key Detainee Case,” Washington Post, March 28, 2006.

32. See 28 U.S.C. Sec. 455.

33. Dahlia Lithwick, “Courting Attention,” Washington Post, April 9, 2006.

34. Marie Szaniszio, “Photographer: Herald Got It Right,” Boston Herald, March 30, 2006. This version of the question is taken from Scalia’s response, in the Scalia letter to the Boston Herald editorial board, March 29, 2006, The Supreme Court website, PBS.org. The Herald’s version was “how he responds to critics who might question his impartiality as a judge given his public worship.”

35. Laurel J. Sweet, “Judicial Intemperance—Scalia Flips Messages to Doubting Thomases,” Boston Herald, March 27, 2006.

36. Ibid.

37. Scalia letter to Boston Herald editorial board, March 29, 2006.

38. See, for example, Margery Eagan, “In a Flick of the Wrist, a Judge Can Say So Much,” Boston Herald, March 28, 2006; “Justice Scalia Gives Obscene Gesture?,” CBS News, March 27, 2006; Dahlia Lithwick, “How Do You Solve the Problem of Scalia?,” Slate.com, March 30, 2006; and John in D.C., “Scalia Just Gave the Finger in Church Yesterday (Not Kidding),” Americablog.com; “An Update on Fingergate: Nino Is Still Cool,” March 29, 2006, Wonkette.com.

39. Jessica Hesslam, “Church Fires Photographer over Scalia Picture,” http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x2201202.

40. P.L. 107-40 (2001). For more, see Richard F. Grimmett, “Authorization for the Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History,” CRS for Congress, January 4, 2006, http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RS22357_01042006.pdf.

41. For more, see http://scholar.google.com/scholar_case?case=1251834070131661299&q=hamdan+v.+rumsfeld&hl=en&as_sdt=2,39&as_vis=1. It cited App. to Pet. for Cert. 65a.

42. Hamdan v. Rumsfeld, 548 U.S. 557, at 611 (2006) (Stevens, J., majority).

43. Ibid., at 635.

44. Ibid., 665–66 (Scalia, J., dissenting).

45. Ibid., at 669.

46. John Roberts, Commencement Address, Georgetown University Law Center, May 26, 2006, http://www.law.georgetown.edu/webcast/assets/GL_2006523112710.mp3.

47. Antonin Scalia and Stephen Breyer, moderated by Jan Crawford Greenburg, “A Conversation on the Constitution,” American Constitution Society and the Federalist Society joint session, Washington, D.C., December 5, 2006, http://www.fed-soc.org/publications/detail/a-conversation-on-the-constitution-with-supreme-court-justices-stephen-breyer-and-antonin-scalia-event-audio.

CHAPTER 20: OPUS SCOTUS

1. Thanks to Lori Weaver and Colleen Sullivan for their excellent research assistance on some of the material for this chapter done as part of a Mellon Foundation Community of Scholars research grant for Lafayette College.

2. See, for example, Alan Cooperman, “Court Could Tip to Catholic Majority,” Washington Post, November 7, 2005; Lynette Clemetson, “Alito Could Be 5th Catholic on Supreme Court,” New York Times, November 5, 2005; and Eric Black, “The High Court Could Be More Conservative—and More Catholic,” Minneapolis Star-Tribune, November 1, 2005.

3. For the account of Thomas’s journey, see Clarence Thomas, My Grandfather’s Son (New York: HarperCollins, 2007).

4. School Restoration, St. Benedict the Moor Catholic Church, http://home.catholicweb.com/stbenedictthemoor/index. Even now, the church’s website contains several links for “How to Be an African-American Catholic.”

5. Clarence Thomas. My Grandfather’s Son, pp. 1–30.

6. Ibid., pp. 42–44, 49.

7. Ibid., p. 51.

8. Ibid., pp. 99–100.

9. Ibid., p. 136; see also pp. 134–35.

10. Ibid., p. 184.

11. Ibid., pp. 189–90.

12. Frank Cocozzelli, “An Opus Focus on SCOTUS,” Talk to Action, May 3, 2007, http://www.talk2action.org/story/2007/5/5/10522/79375/; Terry Mattingly, “Justice’s Son Answers a Higher Call,” Deseret News, June 30, 2001; “The Religious Affiliation of Supreme Court Justice Clarence Thomas,” www.adherents.com; “On Scalia and Thomas,” Newsweek, March 9, 2001, cited in “Chief Justice Roberts and Opus Dei,” PeakDemblogs, September 20, 2005, http://blog.peakdems.org/2005/09/chief-justice-nominee-john-roberts-and.html.

A self-acknowledged Opus Dei leader, Father McCloskey had been the controversial chaplain at Princeton University, where his philosophies led him to clash with the school’s faculty members and administration. Through a center that he established and ran between 1985 and 1990 near the university, Father McCloskey recruited financial and political elites to the Catholic Church. His traditionalist views included that Vatican II created a “generally unfortunate period for our country and our Church,” and that college coeducation was a “failure” because of what he saw as the “particular needs of the complementary yet quite different sexes.”

After leaving Princeton, McCloskey had moved to Washington, D.C., where he established and directed the Catholic Information Center on K Street, the heart of the lobbying industry in the District of Columbia. The Catholic Information Center, which McCloskey called D.C.’s “downtown center of evangelization” for Catholicism, was staffed by an Opus Dei cleric and featured a chapel and a bookstore that promoted McCloskey’s traditional views. “A liberal Catholic is oxymoronic,” McCloskey liked to tell reporters. “The definition of a person who disagrees with what the Catholic Church is teaching is called a Protestant.”

Father McCloskey was reportedly singlehandedly responsible for converting several other high-level Washington notables to traditional Catholicism, many of them previously devoutly conservative and evangelical Protestants. Among these converts was Scalia’s old colleague on the D.C. Court of Appeals, Robert Bork, former senator from and later governor of Kansas Sam Brownback, conservative television economics reporter Lawrence Kudlow, and the late conservative journalist Robert Novak. McCloskey also served as an adviser and inspiration to such other political figures such as former Pennsylvania senator and presidential candidate Rick Santorum. All of these people held religious views similar to those of Thomas. For more, see Julia Duin, “A Firm Voice, Fostering Faith,” CatholiCity, http://www.catholicity.com/mccloskey/firmvoice.html; Chris Suellentrop, “The Rev. John McCloskey: The Catholic Church’s K Street Lobbyist,” Slate August 9, 2002, www.slate.com; “Father John McCloskey,” http://www.catholicity.com/mccloskey/ (Suellentrop, Chris, “The Rev. John McCloskey: The Catholic Church’s K Street Lobbyist,” Slate, http://www.slate.com/id/2069194). See also Rob Boston, Breaking the Opus Dei Code, and the chapter on Robert Hanssen titled “Of Spies and Saints: Opus Dei and Robert Hanssen,” May 2006.

13. Rachel Zoll, “Alito Would Tip Court to Catholics: If Nominee’s Confirmed, Members Would Hold Majority for 1st Time,” Indiana Star, November 2, 2005.

14. Comments in a blog post by Reverend Franklyn McAfee, a priest within the Diocese of Arlington, www.Haloscan.com, http://www.haloscan.com/comments/stribe/158070305120960847.

Before Pope Benedict XVI decreed in September 2007 that the use of the Tridentine Mass could be expanded, St. Andrew’s and Scalia’s church, St. Catherine of Siena, were the only two churches in the Diocese of Arlington that were allowed to celebrate the traditional Latin Mass (Andrew Santella, “Bene, Vidi, Vici,” Slate, July 7, 2007, slate.com. Haloscan.com). Like St. Catherine’s, the conservative nature of St. Andrew’s is indicated on their website announcing their groups and meetings (Bulletins, St. Andrew’s Parish, accessed December 2, 2007, January 6, 2008, http://www.st-andrew.org/bulletins/previous/december).

15. Benjamin Schuman-Stoler, “Religion and the Supreme Court,” September/October 2008, Moment Magazine, www.momentmag.com.

16. The other two Roman Catholic chief justices were Roger Brooke Taney and Edward Douglass White.

17. Christopher Hitchens, “Catholic Justice: Quit Tiptoeing Around John Roberts’ Faith,” Slate, http://www.slate.com/id/2123780/.

18. Hanna Rosin, “Nominee’s Wife Is a Feminist After Her Own Heart,” Washington Post, July 22, 2005.

19. Evan Thomas and Stuart Taylor Jr., “Judging Roberts,” Newsweek, August 1, 2005. Leadership in the John Carroll Society: John Carroll Society website, http://www.johncarrollsociety.org/new_page_5.htm.

20. History of the Society: John Carroll Society website, http://www.johncarrollsociety.org/new_page_6.htm.

21. “Judge Roberts’ Pastor, Msgr. Vaghi, on Tradition and Scripture,” July 21, 2005, http://richfreeman.blogspot.com; Julia Duin, “A Firm Voice, Fostering Faith,” CatholiCity; http://www.catholicity.com/mccloskey/firmvoice.html.

22. “Is Judge Roberts Opus Dei?,” News from the Underground, July 27, 2005, http://markcripinmiller.blogspot.com/2005/07/is-judge-roberts-opus-dei.html.

23. Robin Toner, “Catholics and the Court,” New York Times, August 7, 2005; Rosin, “Nominee’s Wife Is a Feminist After Her Own Heart”; Richard Ostling, “Roberts Would Be Court’s 4th Catholic,” Deseret News, August 20, 2005; Patricia Zapor, “Nominee Would Be Fourth Catholic on Current Court,” Catholic News Service, July 20, 2005, http://www.catholicnews.com/data/stories/cns/0504186.htm.

The chief justice also has a nominal role in arranging the discussion of the appeals to be considered for the Court in its conference discussions by creating a “discuss list” that will merit discussion by the Court in anticipation of a vote to consider the appeal, and a “dead list” of appeals that seem to have so little support that they will not even be discussed unless one justice votes to do so. However, it still takes a vote of four justices, with the chief’s vote having no more weight than that of any of his colleagues, to accept an appeal for review.

24. Schuman-Stoler, “Religion and the Supreme Court.”

25. Our Lady of the Blessed Sacrament website, homepage, http://www.olbs.org/, accessed December 1, 2007: “We, the people of Our Lady of the Blessed Sacrament Parish . . . form a Christian Community located in Roseland and made up of people from neighboring towns. Our mission is to give life and meaning to the reality of Christ and His message as proclaimed through the Gospel in an ever-changing world. As a community of faith we strive to provide: a life-giving worship that welcomes all people, a compassionate presence by reaching out to all those who are hurting, occasions for Christian love and bonding both within and beyond the confines of our Parish, and ongoing opportunities for experimental and intellectual growth into a mature faith life. We seek to accomplish this mission by challenging ourselves to respond according to our giftedness.”

26. “Bush Court Pick Likely in for a Fight,” MSNBC transcript, October 31, 2005.

27. Samuel A. Alito, attachment to PPO Non-Career Appointment Form (November 15, 1985), cited in “The Nomination of Samuel Alito: A Watershed Moment for Women,” National Women’s Law Center, December 15, 2005, http://www.nwlc.org/pdf/12-15-05_AlitoReportExecutiveSummary.pdf.

28. “Alito’s Abortion Stance Tough to Decipher,” USA Today, November 26, 2005.

29. Planned Parenthood of Pennsylvania v. Casey, 505 U.S. 833 (1992).

30. Robert Gordon, “Alito or Scalito?,” Slate, www.slate.com, November 1, 2005; Shannon P. Duffy, “The Mild Mannered Scalia,” Law.com, March 3, 2003.

31. Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007), p. 53.

32. Eleanor Smeal, “A Crucial Coalition,” In These Times, April 4, 2004, http://www.inthesetimes.com/article/726/a_crucial_coalition/.

33. Holy Spirit parish webpage, www.holyspiritparishsac.org.

34. Jeffrey Toobin, “Swing Shift: How Anthony Kennedy’s Passion for Foreign Law Could Change the Supreme Court,” New Yorker, September 12, 2005, p. 42.

35. Richard C. Reuben, “Man in the Middle,” California Lawyer, October 1992, pp. 36–37.

36. Jeffrey Rosen, “The Agonizer,” New Yorker, November 11, 1996.

37. Jeffrey Rosen, “Supreme Leader,” New Republic, June 18, 2007, p. 19.

38. Ibid., pp. 20–22.

39. See Toobin, “Swing Shift.”

40. Toobin, The Nine, p. 52.

41. Massimo Calabresi and David Von Drehle, “What Will Justice Kennedy Do?,” Time, June 18, 2012, p. 39.

42. The Nebraska law lacked an exception for the health of the mother: Stenberg v. Carhart, 530 U.S. 913 (2000).

43. Gonzales v. Carhart, 550 U.S. 124 (2007) (Kennedy, J., majority).

44. Tony Auth cartoon, April 20, 2007, in Robert Miller, “The Auth Cartoon,” First Things, April 26, 2007, www.firstthings.com.

45. Geoffrey R. Stone, “Our Faith-Based Justices,” April 20, 2007, Huffington Post, www.huffingtonpost.com.

46. Biskupic, American Original, p. 204. Scalia later relented and returned to speak at the University of Chicago law school in February 2012.

47. See Cooperman, “Court Could Tip to Catholic Majority”; Clemetson, “Alito Could Be 5th Catholic on Current Supreme Court”; Toner, “Catholics and the Court”; Rosin, “Nominee’s Wife Is a Feminist After Her Own Heart”; Ostling, “Roberts Would Be Court’s 4th Catholic”; and Zapor, “Nominee Would Be Fourth Catholic on Current Court.”

48. Scalia speech, “The Role of Catholic Faith in the Work of a Judge,” 2nd Annual John F. Scarpa Conference on Law, Politics and Culture, Villanova University, October 16, 2007. These quotations are taken from the author’s notes of the speech unless otherwise mentioned.

49. MaryClaire Dale, “Scalia Speaks at Villanova University,” October 16, 2007, http://abclocal.go.com.

50. David O’Reilly, “Scalia Opines on Faith and Justice,” Philadelphia Inquirer, October 17, 2007, www.philly.com.

51. Rick Garnett, “Justice Scalia, a “Catholic” Judge,” Mirror of Justice, October 18, 2007, www.mirrorofjustice.blogs.com.

52. Robert T. Miller, “Antonin Scalia Not a Catholic Judge,” First Things, October 23, 2007.

53. “Is There Such a Thing as a Catholic Judge,” Business Associations, October 23, 2007, www.businessassociationsblog.com.

54. This concept called “resourcement,” or “return to the sources,” comes from Father John O’Malley, What Happened at Vatican II (Cambridge: Belknap Press/Harvard University Press, 2008).

55. See Lesley Stahl interview, April 27, 2008. Also see Scalia speech, University of Fribourg, Switzerland, March 8, 2006, Bureau Audiovisuel Francophone (BAFWEB) http://www.bafweb.com/60308scalia.wmv.

56. Geoffrey R. Stone, “Justice Sotomayor, Justice Scalia and Our Six Catholic Justices,” Huffington Post, August 28, 2009, www.huffingtonpost.com.

57. George Rush and Joanna Rush Molloy, “Scalia a Fan of ‘24’ from the Gitmo,” New York Daily News, June 26, 2007: Colin Freeze, “What Would Jack Bauer Do?,” Globe and Mail (Canada), June 16, 2007. Scalia speech, International Conference on the Administration of Justice and National Security in Democracies, Ottawa, Canada, June 12, 2007 (transcript in author’s possession).

CHAPTER 21: THE ROCK STAR OF ONE FIRST STREET

1. Clarence Thomas, My Grandfather’s Son: A Memoir (New York: HarperCollins, 2007). And see David Kirkpatrick and Linda Greenhouse, “Memoir Deal Reported for Justice Thomas,” New York Times, January 10, 2003.

2. Transcript, “The Justice Nobody Knows: Justice Clarence Thomas Discusses His Childhood, His Career, Anita Hill, and His Book,” 60 Minutes, CBS News Transcripts, September 30, 2007.

3. Carol Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin Press, 2007).

4. “Tough Issues, Major Issues on the Agenda as the Supreme Court Opens,” ABC World News Sunday, September 30, 2007.

5. Brian Stelter, “Clarence Thomas, Reality Star?,” New York Times, October 1, 2007.

6. Nina Totenberg, “Scalia Vigorously Defends a ‘Dead Constitution,’ ” NPR, Part 3, April 28, 2008, http://www.npr.org/templates/story/story.php?storyId=90011526.

7. Ibid. Scalia repeated this comment on other occasions. See Molly McDonough, “Scalia: I Am Not a Nut!,” ABA Journal, April 8, 2008; and Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007), p. 103.

8. William Kristol, “McCain’s Daunting Task,” New York Times, March 10, 2008.

9. Scalia interview with Clive Coleman, Law in Action, BBC transcript, February 12, 2008.

10. George Bush and Joanna Rush Molloy, “Scalia a Fan of ‘24’ from the Gitmo,” New York Daily News, June 26, 2007; Colin Freeze, “What Would Jack Bauer Do?,” Globe and Mail, June 16, 2007.

11. James Vicini, “US Top Court’s Scalia Defends Physical Interrogation,” Reuters, February 12, 2008.

12. Dan Slater, “Scalia: Smacking Someone in the Face Could Be Justified,” Wall Street Journal, online, February 13, 2008.

13. “A Glance at Scalia Controversies,” Associated Press, February 18, 2008.

14. “National Lawyers Guild Calls on Justice Antonin Scalia to Recuse Himself from Interrogation-Related Cases,” Common Dreams Progressive Newswire, February 15, 2008.

15. Rick Garnett, “Scalia on ‘Torture,’ Cont’d,” Mirror of Justice blog, February 13, 2008.

16. Joan Biskupic, “Scalia’s Comments on Torture Latest Taste of Bluntness,” USA Today, February 14, 2008.

17. Mark Sherman, “Scalia Weighs in Again on Controversy,” FoxNews.com, February 13, 2008.

18. Jonathan Turley, “Scalia and the Rise of the Celebrity Justice: Should Justices Have a Political Base?,” January 23, 2011, Res Ipsa Logwiter, found at jonathanturley.org. While Felix Frankfurter and William O. Douglas would disagree, it is true for the 24/7 internet, cable news era.

19. Action Alert, “URGE YOUR SENATORS TO EXPAND THE BAN ON TORTURE,” February 7, 2008, Virginia Farris, Office of International Justice and Peace, http://www.harpers.org/media/image/blogs/misc/catholic-bishops-action.pdf, in Scott Horton, “Nino Scalia, Your Hairshirt Is Showing and Your Bishop Has a Message for You,” February 12, 2008, www.harpers.org.

20. Catholic Catechism, no. 2297.

21. Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading People (New York: Thomson, West, 2008).

22. Lesley Stahl interview, April 27, 2008.

23. Ibid.

24. Nina Totenberg, “Justice Scalia, the Great Dissenter, Opens Up,” NPR, April 29, 2008.

25. Ibid.

26. Scalia, Question-and-Answer session with Thomas Jefferson High School students, C-SPAN, April 10, 2008.

27. Jim Oliphant, “Justice Scalia Launches a Charm Offensive,” April 30, 2008, www.swamppolitics.com.

28. Ashby Jones, “The Scalia Road Show Talks Religion in Charlottesville,” Wall Street Journal Law Blog, April 11, 2008, and Ashby Jones, “Next Stop on Nino’s Book Tour,” Law Blog, May 7, 2008.

29. Tim Russert interview, May 3, 2008.

30. Ibid.

31. David Lax, “ATL Field Trip: An Evening with Justice Scalia (Part 1), Above the Law blog, June 5, 2008 found at www.abovethelaw.com. See also “Underneath Their Robe,” blog, October 26, 2004, and October 6, 2005, found at underneath their robes, blogs.com.

32. Charlie Rose interview, June 20, 2008.

33. Scalia interview, Brian Lamb, Q and A Show, C-SPAN, May 4, 2008, found at http://cspanvideo.org/program/AwithAn; http://www.cablecenter.org/education/library/oralHistoryDetails.cfm?id=132.

34. On Nelson Shanks and his artistic technique, see Steve Siegel, “I Chose to Go Directly to the Source,” Allentown Morning Call, June 23, 2013, p. GO 1–2. One wonders why the artist did not use Webster’s first An American Dictionary of the English Language.

35. Dahlia Lithwick, “Justice Scalia, Unplugged,” Newsweek, May 19, 2008.

36. Scalia interview, Brian Lamb, Q and A Show, C-SPAN, May 4, 2008. In the course of that discussion, Lamb raised the issue of political satirist Jon Stewart’s reaction on his popular The Daily Show to Scalia’s 60 Minutes interview discussion of the Bush v. Gore case (Scalia: “Gee, I really don’t want to get into this. This is—get over it. It’s so old by now”). To which Stewart said: “Really? It’s so old? Because he’s still . . . President, you know that? We’re still at war. Gas is still $5.00 a gallon. So old by now, and yet it’s still rattling around in the old noggin there. So the constitutional originalist on the Supreme Court doesn’t want to revisit any Supreme Court decisions made before the year 2000. Dude, I am so getting a slave.” Scalia, who confessed that he had seen Stewart’s show “once, and that was enough,” was not terribly amused when Lamb asked, “What’s your reaction when you see it?” Scalia responded: “It’s a free country. I thought it was childish. As for Bush versus Gore, it’s still relevant. I mean, the President was re-elected after that, so, you know, it’s not as though blaming the war and everything else on the Supreme Court, that’s just ridiculous.”

37. Scalia’s salary ranged between $194,000 and $213,900 during the period from 2004 to 2010. Salaries of Supreme Court Associate justices: 2004: $194,300; 2005: $199,200; 2006: $203,000; 2008: $208,100; 2009: $208,100; 2010: $213,900. “Salaries for Members of Congress, Supreme Court Justices and the President,” http://www.ntu.org/on-capitol-hill/pay-and-perks/salaries-for-members-of.html; Robert Longley, “U.S. Supreme Court Retirement Benefits,” About.com, US Government Info: A Full Salary for Life, http://usgovinfo.about.com/od/uscourtsystem/a/scotusretire.htm.

38. See Supreme Court Annual Financial Reports, collected by Judicial Watch, http://www.judicialwatch.org/judge/scalia-antonin/; also at OpenSecrets.org, found at http://www.opensecrets.org/pdfs/candlook.php?txtName=scalia. Scalia reported in these forms that his annual compensation for teaching various law seminars was: 2004: $21,500; 2005: $21,900; 2006: $24,500; for a total of $67,900. Scalia reported in these forms that his annual compensation from West Publishing was: 2007: $33,000 (book advance); 2008: $98,716 (book advance and royalties); 2009: $121,535 (book advance and royalties); 2010: $37,797 (book royalties); 2011: $18,775 (book royalties); for a total of $309,823. He also reported that his annual compensation for outside teaching in law seminars between 2007 and 2011 was: 2007: $25,000; 2008: $25,500; 2009: $20,000; 2010: $24,500; 2011: $26,900; for a total of $121,900. As will be made clear in Chapter 26, it appears that in one or more of those years, likely 2008 and 2009, Scalia was also receiving as part of that figure the advances on a future book. Sandra Day O’Connor also wrote memoirs, though they were likely not nearly as lucrative as Justice Thomas’s.

CHAPTER 22: KING OF THE ORIGINALISTS

1. Baze v. Rees, 553 U.S. 35, 50 (2008) (Roberts, C. J., majority).

2. Ibid., at 72–73 (Stevens, J., concurring).

3. Ibid., at p. 80.

4. The process began with Byron White, who led the Court’s argument when it first declared that the death penalty was, in part, unconstitutional: “Justice White was exercising his own judgment in 1972 when he provided the decisive vote in Furman, the case that led to a nationwide reexamination of the death penalty. His conclusion that death amounted to ‘cruel and unusual punishment in the constitutional sense’ as well as the ‘dictionary sense,’ rested on both an uncontroversial legal premise and on a factual premise that he admittedly could not ‘prove’ on the basis of objective criteria. . . . As a matter of law, he correctly stated that the ‘needless extinction of life with only marginal contributions to any discernible social or public purposes . . . would be patently excessive’ and violative of the Eighth Amendment.”

5. Baze v. Rees, at 66–87 (Stevens, J., concurring).

6. Ibid., at 87 (Scalia, J., concurring).

7. See chapters 10, 14, 18, and 21. His view here squares with his conservative Catholicism. See chapter 16.

8. Ibid., at 93.

9. Ibid., at 93.

10. For more on the case, see William Rehnquist, All the Laws but One: Civil Liberties in Wartime (New York: Vintage, 2000).

11. Boumediene v. Bush, 553 U.S. 723, 740 (2008) (Kennedy, J., majority).

12. Ibid., at 745.

13. Ibid., at 771.

14. Ibid., at 797.

15. Ibid., at 798.

16. Ibid., at 828 (Scalia, J., dissenting).

17. Ibid., at 829.

18. Ibid., 831.

19. Ibid.

20. Ibid., at 842–43.

21. Ibid., at 850.

22. For the reference to the Madison proposal, see Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2011), pp. 443–52.

23. United States v. Miller, 307 U.S. 174 (1939).

24. For more on this case, see Dr. Michael S. Brown, “The Strange Case of United States v. Miller,” Enter Stage Right—A Journal of Modern Conservatism, August 6, 2001. Thanks to National Rifle Association legal advocate Jon Goldstein for bringing this article and this argument to my attention. By the time the case came to the Supreme Court, Miller was dead—ironically of a losing battle with a handgun—so there was no argument on his side.

25. United States v. Miller, at 179 (McReynolds, J., majority).

26. In fact, the short-barreled shotgun was used by soldiers in the trenches in World War I, and by marines on naval ships. See Brown, “The Strange Case of United States v. Miller.”

27. District of Columbia v. Heller, 554 U.S. 570 (2008), 576–77 (Scalia, J., majority).

28. Ibid., at 577–78.

29. Ibid., at 585–86.

30. Ibid., at 586–87.

31. Ibid., at 592.

32. Ibid., at 602.

33. Ibid., at 614.

34. Ibid., at 646.

35. Ibid., at 637 (Stevens, J., dissenting).

36. Ibid., at 638–39.

37. Ibid., at 643.

38. Ibid., at 652.

39. Ibid., at 652, note 14.

40. Ibid., at 624 (Scalia, J., majority).

41. Nina Totenberg interview.

42. Saul Cornell, “The Second Amendment and the Right to Bear Arms After D.C. v. Heller: Heller, New Originalism, and Law Office History: ‘Meet the New Boss, Same as the Old Boss,’ ” UCLA Law Review 56 (June 2009): 1107–8.

43. Jack Rakove, “Thoughts on Heller from a ‘Real Historian,’ ” June 27, 2008, Balkinization, http://balkin.blogspot.com/2008/06/thoughts-on-heller-from-real-historian.html.

44. Richard A. Posner, “In Defense of Looseness,” New Republic, August 27, 2008.

45. In so writing, Blackstone was being consistent with centuries of British judicial thinking and action on this matter. British legal historian Paul Brand of All Souls College at Oxford University writes that a loose, “extended interpretation” of statutes had been used by the British judiciary since the signing of the Magna Carta through the thirteenth and early fourteenth centuries. Judges did not hold themselves strictly to the words of a statute, but rather went beyond the words to look at the law’s intent and primary purpose, while often deciding based on “who benefits.” Far from being early originalists, then, these judges in the dawn of British law were behaving as “living, evolving” interpreters. Paul Brand, “The Judicial Interpretation of Legislation in Later Thirteenth and Early Fourteenth Century England,” paper delivered at the 21st British Legal History Conference, July 9, 2013, Glasgow, Scotland. My thanks to Professor Brand for providing me with a copy of his paper.

46. For the reference to the earlier Rakove Original Meanings book, see “War of the Words” chapter infra.

47. The “stuck in my craw” speech: Scalia’s Henry J. Abraham Speech, April 15, 2010, University of Virginia Law School, Charlottesville, Virginia, author’s notes.

CHAPTER 23: THE METHODOLOGY OF ORIGINALISM

1. The account of this speech is based on two articles on the Harvard Law School website: “Scalia Defends the ‘Methodology of Originalism,’ ” Harvard Law Today, November 2008; “In Inaugural Vaughan Lecture, Scalia Defends the ‘Methodology of Originalism,’ ” Spotlight at Harvard Law School, October 3, 2008, www.law.harvard.edu.

2. Ibid., and Memo to Professor Alan Dershowitz, from his research assistants, December 4, 2008, “Scalia’s Inconsistent Originalism, Reordered by Case Strength.” Thanks to Professor Dershowitz for supplying the author with this memo. Other cases in which Scalia could have, but did not, use his originalism to decide: Zelman v. Simmons-Harris (2002), Hudson v. Michigan (2006), Hamdan v. Rumsfeld (2006), Meredith v. Jefferson County (2007), Baze v. Rees (2008), United States v. Williams (2008), Kennedy v. Louisiana (2008), Davis v. F.E.C. (2008), arguably Boumediene v. Bush (2008), Pleasant Valley v. Summum (2009), Montejo v. Louisiana (2009), and Caperton v. A. T. Massey (2009).

3. J. Harvie Wilkinson, “Of Guns, Abortions, and the Unraveling Rule of Law,” University of Virginia Law Review 95, April 2009, 253. An excellent article on the conservative judges’ attack on Scalia’s Heller opinion can be found in Adam J. White, “Wilkinson and Posner Dissenting: Two Conservative Judges Challenge Judge Scalia,” Weekly Standard, December 15, 2008.

4. Wilkinson, “Of Guns, Abortions, and the Unraveling Rule of Law,” p. 254.

5. Ibid., p. 263.

6. Ibid., p. 256.

7. Ibid., pp. 264–65.

8. Scalia’s argument has the same flaw as the classical American legal syllogism on which the power of judicial review is based, defining the final interpretive power of the Supreme Court over the political branches and the states for the Constitution. This argument was created by Chief Justice John Marshall based on Alexander Hamilton’s position in Federalist 78. Marshall argued in Marbury v. Madison in creating the power of judicial review that: 1) judges interpret laws, 2) the Constitution is a fundamental law, and so 3) judges can interpret the Constitution to determine the validity of legislative laws. The problem for Marshall then, as it is for Scalia now, is who is doing the interpreting. Marshall did not live long enough to see this flaw. After his death in 1835, his successor, Chief Justice Roger Brooke Taney, a Jacksonian states’ rights proponent in opposition to Marshall’s nationalist posture, reached exactly the opposite views as the earlier Court simply by using a different, state-oriented interpretation of the Constitution.

9. Stanley Fish, “Politics in the Academy: The Same Old Song,” “Opinionator,” blog, New York Times, February 6, 2012, www.nyt.com. Jack Balkin, Living Originalism (Cambridge: Belknap Press/Harvard University Press, 2011). Steven Calabresi and Julia T. Rickert, “Originalism and Sex Discrimination,” University of Texas Law Review 90, no. 1 (2011): 1–101.

10. “Text of Justice David Souter’s Speech,” May 27, 2010, Harvard Gazette, http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/; Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution First (New York: Oxford University Press, 2008). See also Roper v. Simmons, 543 U.S. 551 (2005), Lee v. Weisman, 505 U.S. 577 (1992), McCreary County v. ACLU of Kentucky (545 U.S. 844 (2005), and Van Orden v. Perry, 545 U.S. 677 (2005).

11. Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (New York: Vintage, 2008), as quoted in Nina Totenberg, “Law School Past Shapes Obama’s View on Justices,” NPR, October 30, 2008, www.npr.org.

12. Justin Jouvenal, “Ten Picks for Obama’s Supreme Court,” Salon, November 19, 2008, www.salon.com.

13. Pete Winn, “Breyer, Souter Are Obama’s Models for Supreme Court Choices, Advisor Says,” CNSnews.com, October 31, 2008.

14. Tom Brune, “McCain Praises Bush Supreme Court Appointees,” Newsday, May 6, 2008.

15. See the 2008 Pew Forum on Religious and Public Life, U.S. Religious Landscape Survey, 2008, http://www.pewforum.org/Topics/Religious-Affiliation/Unaffiliated/.

16. The remaining nearly 30 percent consists of those who are unaffiliated nonreligious (roughly 17 percent) and members of other religions.

17. Jeffrey Rosen, “McJustice,” New Republic, November 5, 2008, www.tnr.com.

18. Edward Morrissey and Elizabeth Scalia, “An Open Letter to Our Catholic Friends on Election Eve,” ProLifeBlogs.com, November 3, 2008. Scalia is a freelance writer and columnist for InsideCatholic, and the writer for the religious-oriented The Anchoress blog.

19. Douglas Kmiec, “Reaganites for Obama?,” Slate, February 13, 2008, www.slate.com; Nicholas Cafardi, “I’m Catholic, Staunchly Anti-Abortion, and Support Obama,” National Catholic Reporter, September 30, 2008, http://ncronline3.org/drupal/?q=print/2058.

20. Michael Paulson, “Priest: No Communion for Obama Voters,” November 13, 2008, “Articles of Faith,” blog, Boston Globe online.

21. Liz Halloran, “Obama Victory Ends GOP Hopes for a Much More Conservative Supreme Court,” U.S. News & World Report, November 13, 2008.

22. Antonin Scalia speech, Annual Convention of the Federalist Society, Washington, D.C., November 22, 2008, www.fed-soc.org.

23. See William Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York: Harper Perennial, 1999); William Rehnquist, All the Laws but One: Civil Liberties in Wartime (New York: Vintage, 2000); and William Rehnquist, Centennial Crisis: The Disputed Election of 1876 (New York: Vintage, 2005).

24. See Sandra Day O’Connor and H. Alan Day, Lazy B: Growing Up on a Cattle Ranch in the American Southwest (New York: Random House, 2003); and Sandra Day O’Connor, The Majesty of the Law: Reflections of a Supreme Court Justice (New York: Random House, 2004).

25. Quoted in Jeffrey Toobin, “No More Mr. Nice Guy,” New Yorker, May 25, 2009, pp. 42–51.

26. Jennifer Ludden and Linton Weeks, “Sotomayor: ‘Always Looking over My Shoulder,’ ” May 26, 2009, NPR. On the “Sonia from the Bronx” nickname, see Sonia Sotomayor interview with Scott Pelley, 60 Minutes, CBS News, June 16, 2013. For more on Justice Sotomayor’s background, see her memoir, My Beloved World (New York: Alfred A. Knopf, 2013).

27. Amy Goldstein and Alex MacGillis, “Sotomayor Was a Passionate but Civil Activist,” Washington Post, June 1, 2009; David D. Kirkpatrick, “Judge’s Mentor: Part Guide, Part Foil,” New York Times, June 21, 2009.

28. Tony Mauro, “A Catholic Super-Majority on the Supreme Court,” The BLT: The Blog of Legal Times, May 27, 2009.

29. Salazar v. Buono, Oral Argument, www.supremecourt.gov, October 7, 2009.

30. Geoffrey R. Stone, “Justice Scalia’s Cross,” Huffington Post, October 8, 2009, www.huffingtonpost.com.

31. Salazar v. Buono, 559 U.S. 700 (2010) (Kennedy, J., majority).

32. McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

33. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990) (Marshall, J., majority).

34. Ibid., at 679 (Scalia, J., dissenting).

35. Ibid., at 693.

36. Ibid., at 687.

37. Citizens United v. Federal Election Commission, 558 U.S. 310, 340–41 (2010) (Kennedy, J., majority).

38. The source of this precedent is in dispute, but it goes back to the seminal Marshall Court case of Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).

39. Citizens United v. Federal Election Commission, at p. 341 (Kennedy, J., majority). See also Richard L. Hasen, “Super-Soft Money,” Slate, October 25, 2011, www.slate.com. Whatever “history and logic” Kennedy saw here dismissing the prospect of corruption, it did not persuade the state of Montana, which in 2011 reinstated its ban on corporate campaign contributions to avoid corruption. The U.S. Supreme Court overturned this ban in June 2012. See “Supreme Court Ends Montana Ban on Corporate Political Spending,” Los Angeles Times, June 25, 2012.

40. Citizens United v. Federal Election Commission, at 356 (Kennedy, J., majority).

41. Ibid., at 356–57.

42. Ibid.

43. Ibid., at 356. See also “Senator McCain Condemns Citizens United,” Salon, March 18, 2012, www.salon.com; and Robert Barnes, “How Is the Roberts Court Unusual. A Law Professor Counts the Ways,” Washington Post, March 4, 2012, www.washingtonpost.com; and see Benjamin H. Barton, “An Empirical Study of Supreme Court Pre-Appointment Experience,” Social Science Research Network, February 24, 2012, www.ssrn.com.

44. See, for example, James Warren, “Richard Posner Bashes Citizens United Ruling,” Daily Beast, July 14, 2012, http://www.thedailybeast.com/articles/2012/07/14/richard-posner-bashes-supreme-court-s-citizens-united-ruling.html; and Adam Skaggs, “Thanks Citizens United for This Campaign Finance Mess We’re In,” The Atlantic, July 27, 2012, http://www.theatlantic.com/politics/archive/2012/07/thanks-citizens-united-for-this-campaign-finance-mess-were-in/260389/.

45. Citizens United v. Federal Election Commission, at 394 (Stevens, J., dissenting).

46. Ibid., at 394.

47. Ibid., at 396.

48. Ibid., at 391–92.

49. Ibid., at 432.

50. Ibid., at 391–92 (Scalia, J., concurring).

51. Adam Liptak, “Justices, 5–4, Reject Corporate Spending Limit,” New York Times, January 22, 2010, p. A1; Adam Liptak, “Stevens Era, Nearing End, Takes on an Edge,” New York Times, January 26, 2010, p. A12. For more on this rare practice of oral dissents from the bench, see Christopher W. Schmidt and Carolyn Shapiro, “Oral Dissenting from the Supreme Court,” William and Mary Bill of Rights Journal 19 (2010): 75–129.

52. Liptak, “Justices, 5–4, Reject Corporate Spending Limit.”

53. Lark McCarthy interview with John Paul Stevens, “John Paul Stevens Discusses Longevity,” AARP The Magazine, July 5, 2011, www.aarp.org.

54. Ibid.

55. Quotations and descriptions from author’s notes of Scalia’s Henry J. Abraham speech, April 15, 2010, University of Virginia Law School, Charlottesville, Virginia.

56. The Slaughter-house Cases, 83 U.S. 36 (1873).

57. Author conversation with Antonin Scalia, April 16, 2010, Boar’s Head Inn, Charlottesville, Virginia.

58. Joseph J. Ellis, “Immaculate Misconception and the Supreme Court,” Washington Post, May 7, 2010, p. A25. Ellis’s arguments were subsequently bolstered by Founding Era scholar Pauline Maier of MIT in her seminal and magisterial book Ratification, which proves how widespread the disagreements were among people attending the various state ratification conventions as to the meaning of the Bill of Rights: Pauline Maier, Ratification: Americans Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010).

59. See letter from Thomas Jefferson to James Madison, September 6, 1789, in Philip B. Kurland and Ralph Lerner, The Founders’ Constitution, University of Chicago Press online, http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html. Here Jefferson says, in part: “The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.—I set out on this ground, which I suppose to be self-evident, ‘that the earth belongs in usufruct to the living’: that the dead have neither powers nor rights over it.”

60. Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849ff.

61. Quotes from this speech come from “Text of Justice David Souter’s Speech,” May 27, 2010, Harvard Gazette, http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/. For more on the link between the terms “Fair Reading” and originalism, a link that Souter makes clear in his speech, see E. J. Dionne, Jr., “David Souter vs. the Antonin Scalias,” Washington Post, June 3, 2010.

62. McDonald v. City of Chicago, 561 U.S. 3025 (2010).

63. McDonald v. City of Chicago, 130 U.S. 3020, 3036 (2010) (Alito, J., majority).

64. Ibid., at 3042.

65. Thomas had already made clear publicly his support for the Privileges or Immunities Clause as a means of protecting unenumerated individual rights and libertarianism. In 2007, speaking at the twenty-fifth anniversary of the founding of the Federalist Society, Thomas had said: “I attended a conference in 1988 at UVA, I think this organization was about 6 years old, and at that time, I had the opportunity to debate J. Harvie Wilkinson, [now] Judge J. Harvie Wilkinson, about the privileges or immunities clause of the 14th Amendment. He was not too keen on it at the time, and I was very keen on it, and I remained very keen on it.” Federalist Society 25th Anniversary Gala, Washington, D.C., November 15, 2007.

66. McDonald v. City of Chicago, at 3075 (Thomas, J., concurring).

67. Ibid., at 3077.

68. Ibid., at 3088.

69. Ibid., at 3050 (Scalia, J., concurring).

70. McDonald v. City of Chicago, at 3099 (Stevens, J., dissenting).

71. Ibid., at 3107.

72. Ibid., at 3108.

73. Ibid., at 3058 (Scalia, J., concurring). News accounts and blogs at the time questioned the vehemence of Scalia’s attack. See, for example, Robert Barnes, “As Stevens Retires from Court, One Final Duel with Scalia,” Washington Post, July 26, 2010.

74. McDonald v. City of Chicago, 3052–53 (Scalia, J., concurring).

75. Ibid., at 3058.

76. Ibid., at 3117 (Stevens, J., dissenting).

77. Ibid., at 3117–18.

78. Ibid., at 3118.

79. Ibid., at 3118–19.

80. Ibid., at 3119.

CHAPTER 24: KENNEDY’S COURT

1. Associated Press, May 10, 2010, http://www.msnbc.msn.com/id/36967616/.

2. Robert Barnes, “Supreme Court Opens with Three Women, Potential for Partisan Divide,” Washington Post, October 2, 2010. Thanks also to my wife, Carol Wright, for pointing out both the baby boomer majority on the Court and, even more importantly, being the first person I know to see the real importance of the loss of Stevens from this Court.

3. Sheryl Kay Stolberg et al., “New Yorker Chose a Careful Path to Washington,” New York Times, May 11, 2010; Amy Goldstein et al., “A History of Pragmatism over Partisanship,” Washington Post, May 11, 2010; Carl Hulse, “Senate Confirms Kagan in Partisan Vote,” New York Times, August 6, 2010.

4. Adam Liptak, “The Most Conservative Court in Decades, Under Roberts, Center of Gravity Has Edged to the Right,” New York Times, July 25, 2010. at www.nytimes.com.

5. Ibid.

6. Bob Egelko, “Constitution Does Not Ban Sex Bias, Scalia Argues,” San Francisco Chronicle, September 18, 2010.

7. Stephen Colbert, The Colbert Report, September 29, 2010, comedy central, at www.colbertnation.com.

8. “Legally Speaking: The Originalist,” California Lawyer, January 2011.

9. “There He Goes Again,” editorial, New York Times, January 4, 2011.

10. Eyder Peralta, “Justice Scalia Courts Controversy for Agreeing to Speak to Tea Party Caucus,” at “The Two-Way: Breaking News from NPR,” NPR online, at http://www.npr.org/blogs/thetwo-way/2011/01/05/132683456/justice-scalia-courts-controversy-for-agreeing-to-speak-at-tea-party-caucus, January 5, 2011.

11. “Critics Attack Scalia’s Decision to Talk to New House Members,” blog, Wall Street Journal, January 5, 2011.

12. Letter, Bob Edgar to Attorney General Eric Holder Jr., January 19, 2011, Common Cause, www.commoncause.org.

13. Ibid.

14. Quoted in Common Cause letter, Arn H. Pearson to Antonin Scalia, February 28, 2011, found at www.commoncause.org. The press reports included Kate Zernike, “Secretive Republican Donors Are Planning Ahead,” New York Times, October 19, 2010. For more on the Koch brothers and politics, see Jane Mayer, “Covert Operations,” New Yorker, August 30, 2010. In addition, the Common Cause letter argued that Justice Thomas should also have recused himself because his wife, Ginni’s, conservative, Tea Party–linked associated lobbying organization, Liberty Central, would have benefited from the Citizens United decision.

15. “Code of Conduct for United States Judges,” United States Courts, http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/CodeConductUnitedStatesJudges.aspx.

16. “Disqualification of Justice, Judge, or Magistrate Judge,” 28 U.S.C. 455: “(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

17. “Supreme Court Ethics,” editorial, Los Angeles Times, May 25, 2011; “Common Cause Seeking Ethics Probe of Scalia and Thomas,” The BLT: The Blog of the Legal Times, January 20, 2011.

Another source of the “reasonable questions” as to the impartiality of the justices stemmed from questions as to why the Federalist Society was compensating the justices for their expenses for the appearance, rather than the seminar organization itself. Some might interpret this failure to fully disclose the expenses reimbursement on their annual financial disclosure forms to be an effort by both parties to hide from public inspection the real reason for the trip to California, in order to avoid press and public scrutiny and criticism.

18. Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (New York: Random House, 2003), pp. 200–1. Such requests for corrective ethical legislation were not unprecedented. Similar inquiries were made in 1966 by members of Congress after revelations that Justice William Douglas had been taking money from an organization linked to interests in Las Vegas, but Chief Justice Earl Warren put it aside at the time when Douglas assured him that the matter had been handled.

19. R. Jeffrey Smith, “Professors Ask Congress for an Ethics Code for Supreme Court,” Washington Post, February 23, 2011; “Supreme Court Ethics,” editorial, Los Angeles Times.

20. Mike McIntyre, “Friendship of Justice and Magnate Puts Focus on Ethics,” New York Times, June 18, 2011, www.nyt.com. See also Kenneth Vogel, Marin Cogan, and John Bresnahan, “Justice Thomas’s Wife Now Lobbyist,” Politico, February 4, 2011, www.politico.com. For more on the early reporting for this political donation, see Eric Lichtblau, “Justice Thomas’s Wife Sets up a Conservative Lobbying Shop,” New York Times, February 5, 2011; Reid J. Epstein, “Blog’s Battle Over New York Times’ Report on Justice Clarence Thomas,” Politico, www.politico.com/news/stories/0611/57339.html; “Justice Thomas’s Wife Now a Lobbyist,” Politico, February 4, 2011, www.politico.com/news/stories/0211/48812_Page2.html; and Kenneth P. Vogel, “Secret Donors Make Thomas’s Wife’s Group a Tea Party Player,” Politico, July 6, 2010, www.politico.com/news/stories/0710/39426.html.

21. “Cloud over the Court,” editorial, New York Times, June 22, 2011.

22. Bill Mears, “Chief Justice Addresses Ethics and Recusal Questions in Year-End Report,” CNN Justice, December 31, 2011, http://www.cnn.com/2011/12/31/justice/us-scotus-year-end-report/index.html.

23. “Trust and the Supreme Court,” editorial, New York Times, February 19, 2012.

24. Jeffrey M. Jones, “Supreme Court Approval Rating Dips to 46%,” October 3, 2011, Gallup Poll, http://www.gallup.com/poll/149906/Supreme-Court-Approval-Rating-Dips.aspx.

25. Adam Liptak and Allison Kopicki, “Approval Ratings for Justices Hits Just 44% in New Poll,” New York Times, June 8, 2012.

26. “AFJ Joins Members of Congress, Concerned Groups, Law Professors, and 100,000 Americans in Calling for Ethics Reform at the Supreme Court,” Alliance for Justice, March 6, 2012, www.afj.org/press/030712.html. The letter cited was dated March 5, 2012.

27. Ibid.

28. “A Way Forward on Judicial Ethics,” editorial, New York Times, March 11, 2012.

29. For more on the concept of the “public judiciary,” see Richard Davis, Justices and Journalists: The U.S. Supreme Court and the Media (London: Cambridge University Press, 2011).

30. In 2006, Scalia also wrote the opinion in Davis v. Washington, 547 U.S. 813 (2006), in which the Confrontation Clause cross-examination rights did not extend to a 911 call that was deemed to be “non-testimonial” because it was being used to report on an emergency.

31. Michigan v. Bryant, 131 U.S. 1143, 1164, note 17 (2011) (Sotomayor, J., majority).

32. Ibid., at 1168 (Scalia, J., dissenting).

33. Ibid.

34. Ibid., at 1171–72.

35. Ibid. Italics in original.

36. Ibid., at 1174.

37. Ibid., at 1176. While Scalia was certain that he had the best of the arguments, not even his conservative colleagues agreed. The only other dissenter was liberal Justice Ruth Bader Ginsburg. Elena Kagan did not participate in this case.

38. Linda Greenhouse, “Justice Scalia Objects,” New York Times, March 9, 2011.

39. Brown v. Plata, 131 U.S. 1910 (2011).

40. Ibid., at 1928 (Kennedy, J., majority).

41. See Dahlia Lithwick, “Show, Don’t Tell,” Slate, May 23, 2011, www.slate.com.

42. Brown v. Plata, at 1950–51 (Scalia, J., dissenting).

43. Ibid., at 1952–53.

44. Adam Liptak, “Justices 5–4, Tell California to Cut Prisoner Population,” New York Times, May 23, 2011.

45. Sykes v. United States, at 2274 (Kennedy, J., majority).

46. Ibid., at 2277.

47. Ibid., at 2284 (Scalia, J., dissenting).

48. Ibid., at 2285.

49. Ibid., at 2287.

50. Ibid., at 2288.

51. Will Oremus, “Elena Kagan Admits Supreme Court Justices Haven’t Quite Figured Out Email Yet,” Slate, August 20, 2013, www.slate.com, http://www.slate.com/blogs/future_tense/2013/08/20/elena_kagan_supreme_court_justices_haven_t_gotten_to_email_use_paper_memos.html.

52. Schwarzenegger v. Entertainment Merchants Association, November 2, 2010, Oral Argument, p. 17, Supreme Court website. After Jerry Brown was sworn into office as governor, this case became Brown v. Entertainment Merchants Association.

53. Brown v. Entertainment Merchants Association, 131 U.S. 2729, 2733 (2011) (Scalia, J., majority).

54. Ibid., at 2736–37. See also Adam Liptak, “Justices Reject Ban on Violent Video Games for Children,” New York Times, June 27, 2011.

55. Brown v. Entertainment Merchants Association, at 2742 (Scalia, J., majority).

56. Ibid., at 2752 (Thomas, J., dissenting).

57. Ibid., at 2759.

CHAPTER 25: ROBERTS’ RULES OF ORDER

1. Transcript of Scalia speech at Duquesne in author’s possession, September 24, 2011.

2. Electa Draper, “Justice Scalia Tells Catholics to Brave the Scorn of Worldly People,” Denver Post, March 6, 2012.

3. Hillary Senour, “Denver Conference Challenges Thousands to Live Catholic Faith,” Catholic News Agency, March 5, 2012.

4. Draper, “Justice Scalia Tells Catholics to Brave the Scorn of Worldly People”; Debra Cassens Weiss, “At Catholic Conference, Scalia Talks About the Possibility of Miracles,” ABA Journal, March 5, 2012.

5. Stephen Prothero, “My Take: America’s 12 Most Influential Catholics,” CNN Belief Blog, March 2, 2012.

6. United States v. Jones, 132 S.Ct. 945 (2012).

7. Kyllo v. United States, 533 U.S. 27, at 40 (2001) (Scalia, J., majority).

8. United States v. Jones, 132 S.Ct. 945 at 949 (2012) (Scalia, J., majority).

9. Ibid., at 963 (Alito, J., concurring).

10. Ibid., at 964.

11. Ibid.

12. The three cases were: National Federation of Independent Business v. Sebelius; Department of Health and Human Services v. Florida; and Florida v. Department of Health and Human Services.

13. Bloomberg National News poll, March 15, 2012, cited in Greg Stohr, “Scalia Turns Advocate Against Obama as Queries Criticized,” Bloomberg News, May 15, 2012. A separate Gallup Poll found in mid-April 2012 that 50 percent of their respondents believed that the Court would decide the case based on their “partisan political views,” while only four in ten expected that the decision would be made “on the basis of the law.” Robert Barnes and Scott Clement, “Poll: More Americans Expect Supreme Court Health Care Decision to Be Political,” Washington Post, April 11, 2012.

14. Paul D. Carrington, “Bring the Justices Back to Earth,” New York Times, April 8, 2012.

15. John Roberts, Commencement Address, Georgetown University Law Center, May 26, 2006, http://www.law.georgetown.edu/webcast/assets/GL_2006523112710.mp3.

16. Department of Health and Human Services v. Florida, Oral Arguments, March 27, 2012, pp. 4–5, www.supremecourt.gov.

17. Ibid., at 4–7.

18. Ibid., at 11–12.

19. Ibid., at 12–14.

20. Ibid., at 16–17.

21. Ibid., at 22–29.

22. Ibid.

23. Later, this would become another one of the comments by Scalia that would nettle critics as being more evidence of his partisanship. Mark Sherman, “Scalia’s Critics Fault Justice over Politics,” Associated Press, July 5, 2012; David Lyle, “The Fox News Justice: Scalia Channels Right-Wing Talking Points in Health Care Arguments,” Media Matters for America blog site, March 30, 2012, found at http://mediamatters.org/blog/2012/03/30/the-fox-news-justice-scalia-channels-right-wing/184261; and Bart Torvik, “Did Scalia Regurgitate Tea Party Talking Points During Oral Arguments,” April 3, 2012, Gillette-Torvik Blog, found at http://gillette-torvik.blogspot.com/2012/04/did-scalia-regurgitate-tea-party.html.

24. All of these quotations below from the Transcript of the Oral Arguments of the Supreme Court in Florida v. H.H.S., March 28, 2012, pp. 8–11, found at www.supremecourt.gov.

25. See, for example, Stohr, “Scalia Turns Advocate Against Obama as Queries Criticized,” Matthew DeLuca, “Did Scalia Parrot Fox News During Health Care Arguments?,” Slate, April 5, 2012, slate.com.

26. Linda Greenhouse, “Embarrass the Future?,” New York Times, April 4, 2012.

27. DeLuca, “Did Scalia Parrot Fox News During Health Care Arguments?” See also Stohr, “Scalia Turns Advocate Against Obama as Queries Criticized.”

28. Arizona v. United States, 132, S.Ct. 2492, at 2499 (Kennedy, J., majority).

29. Ibid., at 2502.

30. Ibid., at 2505–08.

31. Ibid., at 2511–12 (Scalia, J., dissenting).

32. Bill Mears, “Mexican National Executed in Texas,” CNN, July 7, 2011, http://www.cnn.com/2011/CRIME/07/07/texas.mexican.execution/index.html.

33. Arizona v. United States, at 2516–17 (Scalia, J., dissenting).

34. Pete Williams, NBC Nightly News, June 25, 2012; Dahlia Lithwick, “What It Looks Like When Justices Tear into Each Other—From Close Up,” Slate, June 25, 2012, slate.com.

35. Arizona v. United States, at 2521 (Scalia, J., dissenting). Scalia bench statement, Arizona v. United States, http://s3.documentcloud.org/documents/372493/scalia-statement.pdf. Scalia’s bench statement consisted of extracts from his dissent in the case. (Herein after Scalia bench statement, Arizona v. United States.)

36. Ibid.

37. Lithwick, “What It Looks Like When Justices Tear into Each Other—From Close Up.”

38. Scalia bench statement, Arizona v. United States and at Arizona v. United States, at 2522.

39. Ibid.

40. Walter Dellinger, “Perhaps Justice Scalia Is Reading from the Wrong Constitution,” Slate, June 26, 2012, slate.com.

41. Quoted in Sahil Kapur, “Legal Scholar: ‘Scalia Has Finally Jumped the Shark,’ ” TPMLiveWire blog, June 25, 2012, http://livewire.talkingpointsmemo.com/entry/legal-scholar-scalia-has-finally-jumped-shark.

42. E. J. Dionne, “Justice Scalia Needs to Resign from High Court,” Washington Post, June 28, 2012.

43. “Scalia’s Partisan Outbursts,” editorial, Washington Post, June 28, 2012.

44. Judge Richard Posner, “Justice Scalia Is Upset About Immigration. But Where Is His Evidence?,” “Supreme Court in Review,” Slate, June 27, 2012, slate.com.

45. Tony Mauro, “Inside the Supreme Court on a Historic Morning,” The BLTG: Blog of the Legal Times, June 28, 2012.

46. Ibid.

47. National Federation of Independent Businesses v. Sebelius, 132 U.S. 2566, at 2584 (2012) (Roberts, C.J., majority).

48. Ibid., at 2587.

49. Ibid., at 2589.

50. Ibid., at 2590–91.

51. Katherine Fung and Jack Murkinson, “Supreme Court Health Care Ruling: CNN, Fox News, Wrong on Individual Mandate,” Huffington Post, June 28, 2012, http://www.huffingtonpost.com/2012/06/28/cnn-supreme-court-health-care-individual-mandate_n_1633950.html.

52. National Federation of Independent Businesses v. Sebelius, at 2596 (Roberts, C.J., majority).

53. Ibid., at 2600.

54. Ibid., at 2604–5.

55. Ibid., at 2579.

56. Ibid., at 2643 (Kennedy, J., dissenting).

57. Ibid.

58. Ibid., at 2651.

59. Ibid., at 2656.

60. Ibid., at 2668.

61. Ibid., at 2672.

62. Ibid., at 2676–77.

63. NBC News reporter Pete Williams reported that only once previously in his tenure as chief, early in his time on a minor mortgage case, had Roberts joined a majority opinion with four liberals. The group at that time was John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and David Souter. Interview with Pete Williams on Chris Matthews’s Hardball, MSNBC, July 1, 2012.

64. This argument was made by Linda Greenhouse, “A Justice in Chief,” New York Times, June 28, 2012; Adam Liptak, “Roberts Shows Deft Hand as Swing Vote on Health Care,” New York Times, June 28, 2012.

65. Jan Crawford, “Roberts Switched Views to Uphold Health Care Law,” CBS News, July 1, 2012. For more on this case, see Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (New York: Doubleday, 2012), pp. 263–98.

66. Crawford, “Roberts Switched Views to Uphold Health Care Law.”

67. George Stephanopolous, This Week, ABC News, June 30, 2012; Paul Campos, “Roberts Wrote Both Obamacare Opinions,” Salon, July 3, 2012, salon.com.

68. Massimo Calabresi and David Von Drehle, “What Will Justice Kennedy Do?,” Time, June 18, 2012; David Von Drehle, “Roberts Rules,” Time, July 10, 2012. Law professors posted in their blogs and on Twitter speculation that the decision by Roberts to switch may have been leaked to Washington’s political leaders, such as Democratic Vermont senator Patrick Leahy, and the press, such as columnist George Will, while debating just who would have done so. See Orin Kerr, “Who Leaked?,” Volokh Conspiracy; Stewart Baker, “Did the Supreme Court’s Deliberations on Health Care Leak?,” Volokh Conspiracy, July 1, 2012, and Ian Millhiser, “Supreme Court Springs a Leak: Leaks to Conservative Pundits May Have Started More than a Month Ago,” Think Progress, July 1, 2012.

See also Campos, “Roberts Wrote Both Obamacare Opinions.” From then on the blogs, such as The Volokh Conspiracy, contained debates over who knew what and when, and who was doing the leaking. See Orin Kerr, “So Now We Have Supreme Court Leaks Disagreeing with Other Supreme Court Leaks,” Volokh Conspiracy, July 3, 2012; and Ilya Somin, “Leaks, Counter-Leaks, and the Reason for Roberts’ Switch,” and “More on the Supreme Court Leaks,” Volokh Conspiracy, July 4, 2012.

69. Adam Liptak and Alison Kopicki, “Public’s Opinion of Supreme Court Drops After Health Care Decision,” New York Times, July 18, 2012.

70. Scalia was answering a question here after a speech at the Federalist Society in Bozeman, Montana. Debra Cassens Weiss, “Scalia: SCOTUS Should Not ‘Invent New Minorities,’ ” ABA Journal, September 20, 2013, www.abajournal.com.

CHAPTER 26: READING LAW

1. Amanda Frost, “What the Supreme Court Did This Summer,” Slate, Slate.com, August 24, 2012, https://www.stmarytx.edu/?s=Antonin+Scalia&x=12&y=11. See also St. Mary’s University website: https://www.stmarytx.edu/?s=Antonin+Scalia&x=12&y=11. On payment received, see Scalia, Financial Disclosure Statement, 2012, filed in 2013, OpenSecrets blog at OpenSecrets.org: Center for Responsive Politics, http://pfds.opensecrets.org/N99999921_2012.pdf.

2. Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thomson/West, 2012). On the first publicity, see “Justice Antonin Scalia and Bryan A. Garner Release Book on the Interpretation of Legal Texts,” Thomson Reuters, June 24, 2012.

3. See Tony Mauro, “In Second Book, Scalia, Garner Warn Judicial Decisions Leading to ‘Descent into Social Rancor,’ ” National Law Journal, June 15, 2012; Richard Brust, “Scalia and Garner Release 567-Page Tome on Textualism,” ABA Journal.com, June 19, 2012; and Adam Liptak, “Hints in New Scalia Book of Views on Health Law,” New York Times, June 15, 2012

4. S. Eugene Scalia, Carducci: His Critics and Translators in England and America, 1881–1932 (New York: S. F. Vanni, 1937), p. 90.

5. Joseph Story, Commentaries on the Constitution of the United States, 2 vols. (Boston: Little, Brown, 1858). While others, such as Felix Frankfurter, had written articles and given speeches on legal analysis, not since the early nineteenth century had a sitting Supreme Court justice written and published a book of legal commentary of such comprehensiveness. See Felix Frankfurter, “Some Reflections on the Reading of Statutes,” Columbia Law Review 47 (1947): 527.

6. Marshall’s legal commentary was done anonymously, and more briefly. See Gerald Gunther, ed., John Marshall’s Defense of McCulloch v. Maryland (Palo Alto, CA: Stanford University Press, 1969).

7. Scalia and Garner, Reading Law, p. xxvii.

8. Ibid., p. 10.

9. Ibid.

10. Ibid., p. xxx.

11. Ibid., p. xxviii.

12. Ibid., p. 5.

13. Ibid., pp. 6–7.

14. Ibid., p. 16.

15. Ibid.

16. Ibid., p. 17.

17. Ibid., p. 18.

18. Ibid., p. 22.

19. Ibid.

20. Ibid., p. 30.

21. Ibid., p. 78.

22. Ibid., p. 89.

23. Ibid.

24. Ibid., p. 403.

25. Ibid., pp. 409–10.

26. Ibid., p. 410.

27. Stanley Fish, “Intention and Canons of Legal Interpretation,” New York Times, July 16, 2012.

28. This earlier figure for the Thomson West Publishing payments likely included advances for writing both his Making Your Case and Reading Law books, in addition to his royalties on the former. For more on these payments, see Chapter 21. See Supreme Court Annual Financial Reports, collected by Judicial Watch, http://www.judicialwatch.org/judge/scalia-antonin/, and also found at the OpenSecrets.org website http://www.opensecrets.org/pfds/candlook.php?txtName=scalia. Scalia reported in these forms that his annual compensation from West Publishing was: 2007: $33,000 book advance; 2008: $98,716 (book advance and royalties); 2009: $121,535 (book advance and royalties); 2010: $37,797 (book royalties); 2011: $18,775 (book royalties). While the 2012 financial disclosure forms for the Supreme Court had not yet been posted as of this writing, the figure of $63,991 (some of which may included money for the first book as well) was reported in CNN: Bill Mears, “Sotomayor’s Life Story Is Lucrative,” CNN.com, June 7, 2013, http://politicalticker.blogs.cnn.com/2013/06/07/sotomayors-life-story-is-lucrative/?iref=allsearch. See also Jesse J. Holland, “From Robes to Riches: Supreme Court Justice Sonia Sotomayor Nets over Three Million from Memoir,” Washington Times, June 7, 2013, http://www.washingtontimes.com/news/2013/jun/7/sotomayor-gets-another-19-million-memoir/print/. While the remuneration to Scalia for these books is substantial, it pales in comparison to the more than million-dollar advance reported for Justice Thomas, and the $3.1 million to Justice Sotomayor for her memoir.

29. Piers Morgan interview, Piers Morgan Tonight, CNN, July 18, 2012.

30. Chris Wallace interview, Fox News Sunday, July 19, 2012.

31. Wallace did not point out that the dissent Scalia claimed sole credit for here was actually cowritten, and cosigned, by three other conservative colleagues.

32. This comment drew comment on the Internet from some who wondered about Scalia’s “judicial temperament.” See “Scalia’s Surprising Admission,” Community blog, July 31, 2012, at http://current.com/community/93858629_scalias-surprising-admission.htm.

33. Richard A. Posner, “The Incoherence of Antonin Scalia,” New Republic, August 24, 2012, http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism#.

Posner’s critical review of Scalia’s book reignited the verbal battle they had been engaged in since the Heller opinion. This verbal brushfire became a full-fledged conflagration as a result of online responses by Scalia’s former law clerk Edward Whelan and his book’s coauthor, Bryan A. Garner. In his “Bench Memos” blog for the National Review Online, Whelan posted a five-part response titled “Richard A. Posner’s Badly Confused Attack on Scalia/Garner.” Edward Whelan, “Richard A. Posner’s Badly Confused Attack on Scalia/Garner,” “Bench Memos,” National Review Online, 5 parts, August 31, September 1, September 3, September 6, and September 7, 2012.

The postings, which would be supplemented by others on the topic over the next three weeks, began with the charge: “Posner’s attack is remarkably slipshod and untrustworthy.” After arguing that Posner had misinterpreted the book’s arguments and committed a number of analytical errors in seeking to undermine the book’s case analysis, Whelan concluded: “I have not attempted in these posts to provide an exhaustive account of Posner’s errors. I have instead focused on those errors that show that his most incendiary charge—that Scalia and Garner have misrepresented the cases they cite—is false and that his review is untrustworthy and, indeed, incompetent.” Ibid., Part 5, September 7, 2012.

Equally offended by the review, Bryan Garner launched his own verbal salvo on his blog “Law Prose,” complaining about the “tendentious hostility” of Posner’s review, and terming it “a high-profile literary rampage.” Bryan Garner, “Law Prose,” “Response to Richard A. Posner,” September 5, 2012, http://www.lawprose.org/blog/?p=570.

But Posner was unimpressed, responding in the New Republic: “Bryan Garner’s letter repeats criticisms by the National Review blogger Ed Whelan, a former Scalia law clerk who is the head of the Ethics and Public Policy Center, an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology.” Bryan A. Garner and Richard Posner, “How Nuanced Is Justice Scalia’s Judicial Philosophy: An Exchange,” New Republic, September 10, 2012. Midway through the piece, Posner bolstered his argument by offering what he characterized as another misuse of a case example, as evidence to him that the book is “riddled with inaccuracies, illustrating the adage that too many cooks spoil the broth.” (Ibid.)

34. Terry Baynes, “Fanning Furor, Scalia Says Court of Appeals Judge Lied,” Reuters, September 17, 2012; for earlier Stephen J. Adler article, see “Live Wire on the D.C. Circuit,” Legal Times, June 23, 1986.

35. Quoted in Richard A. Posner, “Richard Posner Responds to Scalia’s Accusation of Lying,” New Republic, September 20, 2012, at www.tnr.com.

36. Ibid., in which Judge Posner responded to this accusation.

37. Geoffrey R. Stone, “The Supreme Court and the 2012 Election,” Huffington Post, August 13, 2012, http://www.huffingtonpost.com/geoffrey-r-stone/the-supreme-court-and-the_b_1773347.html.

38. Charlie Rose interview, November 27, 2012.

39. Ushma Patel, “Scalia Favors ‘Enduring,’ Not Living, Constitution,” December 11, 2012, Princeton University website, www.princeton.edu; Anna Mazarakis, “Challenging a Justice,” December 12, 2012, Daily Princetonian; Caleb Kennedy, “Scalia Defends Gay Rights Position,” December 11, 2012, Daily Princetonian; “Scalia Quizzed at N.J.’s Princeton on Gay Issue,” Bismarck Tribune, December 11, 2012.

40. Amy Davidson, “The Animus of Antonin Scalia,” December 12, 2012, www.newyorker.com.

41. Patel, “Scalia Favors ‘Enduring,’ Not Living, Constitution”; Mazarakis, “Challenging a Justice”; Kennedy, “Scalia Defends Gay Rights Position”; “Scalia Quizzed at N.J.’s Princeton on Gay Issue.”

42. Davidson, “The Animus of Antonin Scalia.”

43. Alito, Maryland v. King, Oral Argument, February 26, 2013, p. 35.

44. Maryland v. King, 186 L.Ed2d. 1 (2013), at 22–23.

45. Ibid., at 26–27.

46. Ibid., at 27–28.

47. Ibid., at 53.

48. Florida v. Jardines, 133 S.Ct. 1409 (2013).

49. Michigan v. Hudson, 547 U.S. 586 (2006); Vernonia School District v. Acton, 515 U.S. 646 (1995).

50. Kyllo v. United States, 533 U.S. 27 (2001); United States v. Jones, 32 S. Ct. 945 (2012).

51. Olmstead v. United States, 277 U.S. 438 (1928).

52. Maryland v. King, at 53 (Scalia, J., dissenting).

53. Ibid., at 56.

54. Ibid., at 57.

55. Ibid., at 59–60.

56. Ibid., at 67.

57. Ibid., at 78.

58. Jeffrey Rosen, “A Damning Dissent,” New Republic, June 4, 2013, found at http://www.newrepublic.com/article/113375/supreme-court-dna-case-antonin-scalias-dissent-ages#.

CHAPTER 27: GRUMPY OLD JUSTICE

1. “N.C. Lawyers Listen as Justice Scalia Bemoans ‘Moral Arbiter’ on Eve of Gay Marriage Ruling,” Legal Monitor Worldwide, June 22, 2013, Lexis/Nexis. Scalia described the Mullahs speech as his “most provocative one” to a New England School of Law banquet in 2006. Massachusetts Lawyers Weekly Staff, “Justice Scalia Delivers Speech to New England School of Law Banquet,” Massachusetts Lawyers Weekly, March 27, 2006, Lexis/Nexis.

Scalia had shortened the title of the second Polish version of his speech from the more academic, Australian speech version, “Judges as Authoritative Expositors of the Natural Law,” to the shorter and more eye-catching “Judges as Moral Arbiters.” See both: Antonin Scalia, “Mullahs of the West: Judges as Authoritative Expositors of the Natural Law?,” Sir John Young Oration, the Boston, Melbourne, Oxford Conversazioni on Culture and Society, Trinity College, University of Melbourne, 2005; and Antonin Scalia, “Mullahs of the West: Judges as Moral Arbiters,” Rzecznik Praw Obywatelskich, August 24, 2009 (English translation).

2. Jean Ann Esselink, “Did Justice Scalia Just Telegraph His Decision on DOMA?,” The New Civil Rights Movement, June 24, 2013, http://thenewcivilrightsmovement.com/did-justice-scalia-telegraph-his-decision-on-doma/legal-issues/2013/06/24/69455.

3. Nathaniel Frank, “Scalia the Mullah: The Justice’s Misunderstanding of Morality, and How It Leads Him Astray in Cases About Homosexuality,” Slate, June 25, 2013, slate.com, http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/scalia_and_gay_marriage_how_the_justice_misunderstands_morality.html.

4. Fisher v. University of Texas, 133 U.S. 2411 (2013). (Justice Kagan took no part in the decision.)

5. Ibid., at 2422 (Scalia, J., concurring).

6. Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193, 200 (2009).

7. Ibid. (Roberts, C. J., majority), at 211. “Perfect compliance with the Fifteenth Amendment’s substantive command is not now—nor has it ever been—the yardstick for determining whether Congress has the power to employ broad prophylactic legislation to enforce that amendment. The burden remains with Congress to prove that the extreme circumstances warranting §5’s enactment persist today. A record of scattered infringement of the right to vote is not a constitutionally acceptable substitute.”

8. Shelby County v. Holder, Oral Argument, February 27, 2013, p. 47.

9. Nicole Flatow and Ian Millhiser, “Scalia: Voting Rights Act Is ‘Perpetuation of Racial Entitlement,’ ” Think Progress, February 27, 2013, http://thinkprogress.org/justice/2013/02/27/1646891/scalia-voting-rights-act-is-perpetuation-of-racial-entitlement/. See also Spencer Overton, “Justice Scalia’s Latest ‘Racial Entitlement’ Remark,” Huffington Post, April 17, 2013, http://www.huffingtonpost.com/spencer-overton/justice-scalias-latest-ra_b_3103845.html; and “Scalia Calls Voting Rights Act ‘Racial Entitlement,’ ” “Politics” blog, SF Gate, http://blog.sfgate.com/nov05election/2013/03/20/scalia-calls-voting-rights-act-racial-entitlement/.

10. Shelby County v. Holder, 133 U.S. 2612 (2013).

11. Ibid., at 2631 (Roberts, C. J., majority). For more on Roberts’s view of the changes in race relations in this country, see Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), at 748, in which he said: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

12. Howard Mintz, “Kristin Perry and Sandy Stier, at the Center of Prop 8 Supreme Court Case,” San Jose Mercury News, March 19, 2013, Huffington Post, http://www.huffingtonpost.com/2013/03/19/kristin-perry-sandy-stier_n_2912223.html.

13. In re Marriage Cases, 43 Cal. 4th 757 (2008).

14. Hollingsworth v. Perry, Oral Arguments, March 26, 2013, pp. 38–39, www.supremecourt.gov.

15. Ibid., pp. 39–40.

16. Ibid.

17. Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). Justice Kennedy wrote for an unusual group of three other dissenters—Justices Thomas, Sotomayor, and Alito—in being ready to grant standing and decide this case.

18. Ibid., at 2668 (Roberts, C. J., majority).

19. For the argument that the Fifth Amendment Due Process clause has equal protection aspects, see Bolling v. Sharpe, 349 U.S. 497 (1954).

20. United States v. Windsor, 133 S.Ct. 2675, at 2692 (Kennedy, J., majority).

21. Ibid.

22. Ibid.

23. Ibid.

24. Ibid., at 2694.

25. Ibid.

26. Ibid., at 2694–95.

27. Ibid., at 2695–96.

28. Ibid., at 2697–98 (Scalia, J., dissenting).

29. Ibid., at 2698.

30. Ibid., at 2703.

31. Ibid., at 2705.

32. Ibid., at 2707. Just as he had argued in the Lawrence v. Texas case, Scalia said here that he had trouble understanding which legal level of scrutiny Kennedy was using to decide the case.

33. Ibid., at 2707–8.

34. Ibid., at 2708.

35. Ibid. at 2709.

36. Ibid.

37. Ibid.

38. Rebecca Greenfield, “The Brouhaha Behind ‘Argle Bargle’: A Linguistic Explanation,” Atlantic Wire, June 26, 2013, http://www.theatlanticwire.com/national/2013/06/brouhaha-behind-argle-bargle-linguistic-explanation/66630/.

39. Ibid. at 2710.

40. Federal District Court judge Robert Shelby struck down Utah’s ban on gay marriages. The federal 10th Circuit Court of Appeals refused to overturn the decision immediately, allowing gay marriages to continue in that state. In Ohio, District Court judge Timothy Black ruled that despite that state’s gay marriage ban, gay marriages performed in other states must be recognized for the purposes of creating a death certificate. In early January 2014, the United States Supreme Court put the gay marriages in Utah on hold, until the 10th Circuit could fully consider appeals from the district court cases. Then, the case would have to be appealed to the Supreme Court and accepted for review. For more, see Mark Joseph Stern, “Utah Judge ‘Agrees with Scalia,’ strikes down Gay Marriage Ban,” Slate.com, December 20, 2013; Michael Muskal, “Federal Judge Backs Same-Sex Marriages in Utah; State to Appeal,” Los Angeles Times, December 20, 2013; Vincent Bzdek, “Ohio’s Ban on Gay Marriage Ruled Unconstitutional in Limited Case,” Washington Post, December 23, 2013; Robert Barnes, “Scalia Finds His Predictions on Same-Sex Marriages Ruling Being Borne Out,” Washington Post, December 29, 2013; Brett Logiurato, “Judge Completely Trolls Justice Scalia in Striking Down Utah’s Gay Marriage Ban,” Business Insider, December 20, 2013, found at Businessinsider.com; and Robert Barnes, “Supreme Court Blocks Gay Marriage,” Washington Post, January 6, 2014. On February 13, 2014, a federal district court judge overturned Virginia’s gay marriage ban. See Erik Eckholm, “Federal Judge Overturns Virginia’s Same-Sex Marriage Ban,” New York Times, February 14, 2014, at nyt.com.

41. United States v. Windsor, at 2710 (Scalia, J., dissenting).

42. Ibid., at 2711.

43. “Utah: Mullahs of the West: Judges as Moral Arbiters,” Office of the Utah Lieutenant Governor, Plus Media Solutions, August 16, 2013.

44. According to the account in the Colorado Aspen Times, which was reposted elsewhere, “Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, ‘the most advanced country in the world.’ One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected ‘the spirit of the age.’ When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble”—Bob Ward, “In Snowmass Justice Scalia Says Judges Should Not Be Policymakers,” Aspen Times, July 13, 2013. See also Steve Benen, “Scalia Reflects on 1930s Germany,” Maddow Blog, July 22, 2013, http://maddowblog.msnbc.com/_news/2013/07/22/19616321-scalia-reflects-on-1930s-germany?lite; and Jillian Rayfield, “Scalia Reportedly Linked Judicial Activism to the Holocaust,” Salon, July 21, 2013, salon.com, http://www.salon.com/2013/07/21/scalia_reportedly_linked_judicial_activism_to_the_holocaust/.

45. Abby Ohlheiser, “Report: Scalia Approaches Godwin’s Law on Judicial Activism,” Atlantic Wire, July 21, 2013, http://www.theatlanticwire.com/politics/2013/07/report-scalia-approaches-godwins-law-judicial-activism/67425. See also Elizabeth B. Wydra, “With Invocation of Nazi Germany, Scalia Loses Debate over Constitution,” Constitutional Accountability Center, July 22, 2013, http://theusconstitution.org/text-history/2152/invocation-nazi-germany-scalia-loses-debate-over-constitution.

46. Josh Marshall, “Peak Scalia,” July 21, 2013, Talking Points Memo, http://talkingpointsmemo.com/edblog/peak-scalia.

47. “Scalia Opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, ‘the most advanced country in the world’ ”: Althouse, blog site July 22, 2013, http://althouse.blogspot.com/2013/07/scalia-opened-his-talk-with-reference.html.

48. Matt Volz, “Scalia: Court Shouldn’t ‘Invent New Minorities,’ ” Associated Press, August 19, 2013, news.yahoo.com/scalia-court-shouldnt-invent-minorities-221932818.html; Debra Cassens Weiss, “Scalia: SCOTUS Should Not ‘Invent New Minorities,’ ” ABA Journal: Law News Now, August 20, 2013, http://www.abajournal.com/news/article/scalia_scotus_should_not_invent_new_minorities/; Lara Seligman, “Scalia: High Court Shouldn’t ‘Invent New Minorities That Get Special Protections,’ ” “The Hill’s Blog Briefing Room,” The Hill, August 20, 2013, http://thehill.com/blogs/blog-briefing-room/news/317773-scalia-scotus-shouldnt-invent-new-minorities.

49. Mark Joseph Stern, “Scalia Says Court Invented the Gay Minority. Women, He’s on to You, Too,” Slate, August 21, 2013, slate.com, http://www.slate.com/blogs/xx_factor/2013/08/20/antonin_scalia_to_supreme_court_don_t_invent_new_minorities_gay_people_and.html. See also Katelynn McBride, “Scalia: Inventing ‘New Minorities’ or Protecting Constitutional Rights?,” National Constitution Center, Yahoo News, August 23, 2013, http://news.yahoo.com/scalia-inventing-minorities-protecting-constitutional-rights-095609174.html.

50. Scalia made this comment when he was told during the Q&A period after a speech at Tufts University that a reporter had gotten into line to ask a question. See Bridget Murphy, “Supreme Court Justice Scalia Speaks at Tufts,” October 3, 2013, ABC News, http://abcnews.go.com/US/wireStory/supreme-court-justice-scalia-speaks-tufts-20451490; O’Ryan Johnson, “Herald Can’t Scare Scalia,” Boston Herald, October 3, 2013, http://bostonherald.com/news_opinion/local_coverage/2013/10/herald_can_t_scare_antonin_scalia; “Justice Scalia Says Has Not Expressed View on Gay Marriage,” Reuters, October 2, 2013, http://www.reuters.com/article/2013/10/02/us-usa-court-scalia-idUSBRE9911B820131002; and “The Coarsest, Meanest Prick in Washington Bemoans the ‘Coarseness of the Culture,’ ” Literary Chronicles, October 7, 2013, http://librarychronicles.blogspot.com/2013/10/the-coarsest-meanest-prick-in.html.

51. Adam Liptak, “Court Is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay,” New York Times, August 24, 2013. Ginsburg called the Roberts Court “one of the most activist courts in history,” but said there was no reason for her to leave soon because “There will be a president after this one, and I’m hopeful that that president will be a fine president.” These comments anguished liberal observers of the Court, such as UCLA law professor Adam Winkler, who posted a string of eleven tweets over a several day period on the issue, including: “Hope Ginsburg lives to 120. But has pancreatic cancer (kills 95% w/in 5 yrs). She shld retire so Obama can replace” and “Ginsburg: this Court is most activist in years. Just wait til 6 conserve votes. Aint seen nothing yet.” Adam Winkler Twitter posts, August 28, 2013, www.twitter.com. Some journalists were not supportive of such a view. See Emily Bazelon, “Stop Telling Ruth Bader Ginsburg to Retire: It’s Counterproductive,” Slate, December 18, 2013, at slate.com.

52. Dahlia Lithwick, “Grumpy Old Justices: Scalia and Ginsburg Are Really Disappointed in the Supreme Court. But Only One of Them Is Right to Be,” Slate, August 26, 2013, slate.com, http://www.slate.com/articles/news_and_politics/jurisprudence/2013/08/ginsburg_and_scalia_s_supreme_court_complaints_do_they_agree_about_what.html.

53. Jennifer Senior, “In Conversation: Antonin Scalia,” New York, October 6, 2013, http://nymag.com/news/features/antonin-scalia-2013-10/#print.

54. Ibid., italics in original.

55. Dahlia Lithwick, “ ‘No. No. Not That I Know Of’: The Scalia Interview Reveals His Remarkable Isolation from Anyone Who Doesn’t Agree with Him,” Slate, October 7, 2013, slate.com, http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/scalia_interview_in_new_york_magazine_the_conservative_justice_reveals_his.html. See also Tony Mauro, “Lawyer’s Guide to Scalia’s New York Interview,” “Supreme Court Insider,” National Law Journal, October 8, 2013, http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202622672135&Lawyers_Guide_to_Scalias_New_York_interview.

56. Senior, “In Conversation: Antonin Scalia.”

57. Lithwick, “ ‘No. No. Not That I Know Of.’ ”

58. Senior, “In Conversation: Antonin Scalia.”

59. Ibid.