Now that President Trump has nominated Neil Gorsuch to become a Supreme Court justice, many observers suggest he is “very much in the mold of Antonin Scalia,” as Reuters put it. In the rich history of the Supreme Court, Associate Justice Antonin Scalia is a standout. An enigmatic man who loved the power of words and relished a debate, the conservative Scalia often was a polarizing figure in his 30 years of service. His unexpected death in February 2016 left an even number of justices because the Republican-controlled Congress refused to consider President Obama’s nominee.
Given all of this, it is a good time to look over Scalia’s legacy. Bruce Allen Murphy, a constitutional law expert at Lafayette College, has written several books about the Supreme Court, including a 2014 biography on Scalia titled, Scalia: A Court of One. Murphy participated in the 2016 Constitutional Scholars Institute at the Rendell Center for Civics and Civic Engagement at the University of Pennsylvania, and appeared on the Knowledge at Wharton show on Wharton Business Radio on SiriusXM channel 111 to discuss Scalia’s record. An edited transcript of the conversation follows.
Knowledge at Wharton: What are the lasting memories that you have teaching and writing the book about Justice Scalia?
Bruce Allen Murphy: As a teacher in constitutional law, you think about his cases and the dramatic and effective way in which he communicated his views. But I’ve been devoting the last 30 years to exploring the lives of justices who were active off the bench, who were effectively politicians in robes. Scalia struck me as someone who was very much like former Justice Felix Frankfurter, who worked very closely with Franklin Delano Roosevelt and almost the diametric ideological opposite of the subject of my previous book, Justice William O. Douglas. They were both lone wolves. They liked to communicate their ideas off the bench, they liked to give speeches, they liked to make controversial statements, they liked to write books. And they were very effective in branding themselves and pitching their agenda of issues beyond what the court would allow them to do.
Knowledge at Wharton: That’s interesting considering that Justice Ruth Bader Ginsburg got in a bit of hot water recently because of her comments about Donald Trump. She came back and said, “You know what, I should have kept my opinions to myself.”
Murphy: I think part of the reason why she felt comfortable speaking off the bench was because her colleague and good friend William Antonin Scalia had been very involved in that activity. In 2000 it was said in Washington that Scalia was telling people, “If Gore wins, I will resign.” The difference is that he didn’t actually give an interview or series of interviews about that, it was just floated around the Beltway, whereas Justice Ginsburg went a bit farther.
Knowledge at Wharton: How that played out with George W. Bush’s election was something that Justice Scalia was a part of.
Murphy: It was one of his single greatest successes on the court. The other may have been the Heller case, the gun control case. It wasn’t what Scalia wrote, it was what Scalia was able to do. He was very much, as I title the book, a court of one. Generally, when he got there he decided he was going to work on his own. If people wanted to sign on to his writing, that would be fine. But he was comfortable speaking for himself. In this case, he needed four other justices. Who he really needed was Anthony Kennedy. He was very effective in lobbying Anthony Kennedy to stay on Bush’s side and effectively vote in that direction and help to elect Bush.
“Scalia is somewhat like Donald Trump on the court in that he commands people’s attention and says things that are unpredictable.”
Knowledge at Wharton: It is amazing how his use of words was unbelievably powerful on so many fronts. We don’t hear as much from justices as we probably should at times.
Murphy: He was an amazing liberal arts graduate student. He was trained beautifully at Georgetown University. Clearly read widely. It was his use of imagery, his use of history. He would use phrases that we just never heard in America. Legalistic “argle-bargle,” “jiggery pokery.” These were the kinds of things that sent you to your dictionary and then sent you to Google to find out the etymological background of those phrases.
And he had a way of branding himself. He said that he wrote his opinions to make them so interesting that they would be put in casebooks so that future generations of law students would read them. I think a big part of what Scalia was doing was, “even if I can’t get the votes on the court, maybe through my speeches to various groups of law students and through my opinions I can affect generations of lawyers and judges down the road.”
Knowledge at Wharton: Since Scalia’s death, how much do you think the court has lost by not having him involved, whether through his decisions or his personality?
Murphy: That’s a very good question. I work in a small faculty. You change one member of that faculty and you’ve really changed a department meeting. You’ve really changed the operation of the department. I think what it’s lost is a kind of sparkle and the kind of controversy that makes people pay attention.
He is somewhat like Donald Trump on the court in that he commands people’s attention and says things that are unpredictable. But by leaving the court it also opens up the possibility for other people to begin to come forward to ask more questions. He was a master of controlling the agenda in oral argument. Now you have other people asking questions, to get a chance to write some opinions not worrying about what he might be saying in dissent. So, there may be pluses and there may be minuses. It will matter who the next justice is on the court who fills that seat as to where the court’s going to go.
Knowledge at Wharton: Scalia was from Trenton, New Jersey. How much did his family background influence who he became on the court?
Murphy: It’s crucial in understanding Scalia. I understand Scalia more as a highly charismatic, almost dramatic actor kind of academic on the court rather than as a button-down, robed jurist on the court. But the reason is when he was raised, he was raised by his immigrant, highly educated, romantic languages college professor father. He was raised in the traditional Roman Catholic religion. He was raised to treat words very carefully. He was the only member of his generation for both Catholic families. They doted on him. He was raised to respect tradition and respect history. And he was really the subject of all of their love and attention, so he had this kind of quality that demanded attention and craved attention, and I think that affected his entire life.
Knowledge at Wharton: He was very much on point with a lot of the issues at the court over the years: abortion, same sex marriage. His influence in trying to craft arguments on those cases ended up leaning the court one way or another. There was really no gray area where Scalia was concerned.
“He was maybe the best college debater in the late 1950s. It’s a winner-take-all, dog-eat-dog kind of competitive intellectual chess. And he took no prisoners.”
Murphy: That’s right. A key to understanding who Scalia is on the court is to understand who he is in the area of argumentation. There were really two Scalias when he was being raised and going through undergraduate school at Georgetown. There was the charismatic dramatic actor known as Tony Scalia. But there was the national champion college debater in the forensics society known as Nino Scalia. He was maybe the best college debater in the late 1950s. It’s a winner-take-all, dog-eat-dog kind of competitive intellectual chess. And he took no prisoners. As he developed that persona, it affected the way he would write his opinions later on. There was no area for compromise. There was no area for collegiality, cordiality. It was just, I will make my point and I will try to bludgeon you with it.
Knowledge at Wharton: With that debating background, it is no surprise that he had the success that he did in the courts and on the Supreme Court as well.
Murphy: Yes, he was the smartest guy in every room. I honestly believe that to be the case. Here’s a fellow who was appointed as the Office of Legal Council by Nixon in the very last couple of weeks of Nixon’s administration. He gets into the Ford administration and his first job is to decide what to do with Nixon’s papers. He’s got to figure out how to traverse these minefields of problems in politics. He’s able to craft these powerful legal arguments with a political direction and satisfy all sides.
Knowledge at Wharton: I’ve read stories about how he would from time to time have lunch or dinner with some of the other justices. While he and Justice [Ruth Bader] Ginsburg didn’t see eye to eye on issues, they had a very good relationship.
Murphy: They had a superb relationship. There’s an opera that has been written about their relationship. There’s a wonderful video on YouTube by one of the law school’s law reviews using the Wiz Khalifa-Charlie Puth song about “it’s been a long time and I’ll see you again,” and it’s Scalia and Ginsburg interacting. I think the reason was they were together for years on the Court of Appeals, and they were diametric opposites in terms of policy, but they enjoyed the same things. They enjoyed opera. They enjoyed good food. They enjoyed good conversation.
One of the keys, I think, to Scalia is that’s the person that Ronald Reagan thought he was putting on the court. He thought that this charismatic person who would take over a piano during a party at night and sing show tunes to other judges and political figures would bring the conservative coalition together and unite them after the terrible years of the Warren Berger court, and maybe under the William Rehnquist court he could become the William Brennan of the Rehnquist court. But in terms of his ability to bring the court together, he was not that way. He was a lone-wolf court of one.
Knowledge at Wharton: I don’t think he ever wanted to be that kind of lead persona of the court.
Murphy: I think for Scalia it was the power of the ideas and the power of the vision. From the minute he arrived on the court, he had a bunch of older justices and was determined to make them understand he was just as good as them, if not better. He didn’t understand the rules of the game. In the very first case that he worked on, it was a Native American inheritance case and he tried to steal the opinion from Sandra Day O’Connor and took a case that should have been decided in maybe six weeks and it stretched out about five months. He really lost some support because of it, and he just didn’t care about that.
Knowledge at Wharton: That’s probably part of the issue with the court, even though it is seen as nine individuals who are supposed to be politics proof. I think now a lot of Americans understand that in some respects we shouldn’t expect it to be politics proof anymore.
Murphy: I think it has changed since the Bork nomination in 1987. The polarized Senate sent by a polarized national voting electorate will produce through the confirmation process a polarized Supreme Court justice who’s also been picked by a polarized president. What’s happening on the court is people are arranged in sort of wings. You have the liberal wing. You have the conservative wing. And then you have one, maybe two justices in the middle who are called the swing justices, but they’re really not. They’re the tipping justices — they’re the fifth vote.
“He was a lone-wolf court of one.”
Scalia never saw himself as that fifth justice. He was more comfortable sitting on the wing. But he learned how to play the game. I mentioned the Heller case, the gun control case. Scalia is a textualist. He believes in the reading of the words and the use of the dictionary. He’s an originalist. He believes in looking at the history to see how these words are used at the time of the framing. But he changes the meaning in the words of the second amendment from “keep and bear arms” to “the right of self defense.” If you look at the opinion, that’s what he’s talking about. Why? To get Justice Anthony Kennedy, who can be a libertarian, to sign on. So, even though Kennedy doesn’t necessarily agree with Scalia’s originalism, he can sign onto this libertarian view of self defense.
Knowledge at Wharton: Is it one of the hard things in the court to take the words that were written a couple of hundred years ago and apply them to what’s going on today? It seems at times he thought he had the ability to do that.
Murphy: He did believe that he could freeze time and maybe come up with an answer that other people wouldn’t see. I think it’s almost impossible to do with any clear certainty. Just doing the history, the best historians of that era say that you cannot know what is the actual meaning of words because there’s so much disagreement and there’s so much history that’s in dispute. It matters which historian you’re reading, which interpretation you’re following. It’s a starting point.
Some of the very best originalists now are in fact on the opposite ideological side. Justice Stephen Breyer in the presidential recess appointment case does a wonderful job of evolutionary originalism. He looks at the changing meaning of the Constitution as different congresses and presidents and Supreme Court justices interpret it.
Knowledge at Wharton: [Since Scalia’s death,] the Supreme Court [has decided] more cases than was expected, correct?
Murphy: It’s a tribute to the leadership of Chief Justice John Roberts. He was able to navigate his way through what was a very sticky situation. You had a balance four-four court. And they had set up a series of cases to try to determine where the court would go in the future, anticipating a conservative majority…. What does the court do? The court tries to find ways to find agreement over these issues so that they can narrow the issue down and maybe solve some of these problems. We get an answer in abortion, we get an answer in affirmative action, we don’t get an answer in immigration yet.