Scalia: A Court of One, a biography. He is the Fred Morgan Kirby Professor of Civil Rights at Lafayette College in Easton, Pennsylvania where he teaches American constitutional law and civil rights and liberties, American politics, and biographical writing. His previous books include the bestselling The Brandeis-Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices, and the highly lauded Fortas: The Rise and Ruin of a Supreme Court Justices (nominated for a Pulitzer Prize) and Wild Bill: The Legend and Life of William O. Douglas.
by BWG staff
Our interview subject this month has written a new intellectual biography of the most controversial Supreme "Anyway, that's my view. And it happens to be correct." So said Scalia in an interview in 2008. This fascinating read reveals why he is so certain about his views and so controversial as a member of the US Supreme Court. Scalia is known for his conservative views, "originalist" approach to decision making on the Supreme Court, and for his quirky, sometimes cantankerous, speeches, interviews, and court opinions, which make him an interesting subject. This highly researched, authoritative account brings into focus not just the "what" but the "why" of Scalia's behavior, and it's impact on the institutions of an increasingly politicized and polarized government.
Bethlehem Writers Group: Tell us about your most recent book, Scalia: A Court of One, which came out in June from Simon & Schuster.
Bruce Allen Murphy: This is a full biography of the most visible and most controversial member of the current Supreme Court, and one of the most controversial men to have ever served on the Court. The portrait is one of a man who was expected when he came to the Court in 1986 to galvanize the conservatives on the Court into a powerful voting coalition for conservative causes, but instead tried to prove from his first moments on the Court that he was the equal of justices decades older than him. Scalia decided cases, wrote opinions and dissents, and made comments that attacked his colleagues, driving them away from him and making it more difficult for him to amass five votes for his views. The book is also an intellectual biography of the major contribution that Scalia has made to legal theory, the “originalism” theory, by which he decides cases depending on how the people of the Founding era of the nation, from 1788 to 1791, interpreted the Constitution and the Bill of Rights. The book shows that Scalia for 19 years prevented his conservative colleagues from coalescing, and even now, as the conservatives under Chief Justice John Roberts have come together, Scalia is criticizing them from the far right for not going far enough in their decisions.
BWG: What are some of the surprises you uncovered when doing your research on Scalia?
BAM: What I have done here is research all of the material I could find on his early life, including a treasure trove of information in the Georgetown University archives, where he went to college, where I found a copy of the highly revealing valedictory address that he gave imploring his classmates to live a life devoted to proselytizing for their Catholic faith because they were “the chosen few.” I searched in three presidential libraries, the Nixon, Ford and Reagan libraries, where I was able to find a 26 page autobiographical personnel form that he filled out for the Reagan administration, seeking a Court appointment, in which he discussed events in his life that others had not discovered. Searches through the various collections of the papers of sitting justices in the Library of Congress and Washington and Lee law school helped me uncover private memos in which the law clerks discussed the judicial tantrums of the man they called “the Evil Nino.” In addition, Scalia has written nearly 700 opinions, nearly as many dissents as he has majority opinions, on the Court of Appeals, where the passionate and dedicated conservative jurist known as “the Ninopath” and later on the Supreme Court, tried to write his views into law. Luckily, in the digital age, everything that a visible public figure like Scalia says and does has been preserved. Finally, I have scoured the internet to find videos and transcripts of his scores of public speeches, and of his journalistic interviews. The “Google Alert” search function is the new research assistant of non-fiction writers, leading me to treasures such as a speech he gave at the University of Fribourg where he said he would not vote for terrorism suspects because his son had been shot at on the battlefield, and a BBC interview where he condoned “smacking” terrorism suspects in conducting interrogations.
BWG: Did writing this book change your view of Scalia?
BAM: I have learned in my career that writing biographies always changes your view of your subject and changes you in the process. I could not have written the Scalia book if I had not first done the earlier books, most especially the William O. Douglas biography. I was surprised how similar Scalia was, in temperament, and goals, to William O. Douglas and to Felix Frankfurter, both of whom were on the Court together and neither of whom liked or got along with each other. I am a different writer today for having written the Scalia book. I will approach my next book differently.
What surprised me most about Scalia is why he never adjusted to his role on the Court to become more successful. As smart as he is, and he may be one of the most intelligent men ever to serve on the Supreme Court, why did he not compromise a bit and try to amass a majority of five for issues of importance to him. The answer may be that psychologically he could not. He likes the personal attention on a group of nine, as Douglas did, and he does not have the patience to negotiate with his colleagues and find a common middle ground in the opinion writing process, also as Douglas did. I learned in my work on his college years that he was actually two people. He was the well liked, affable, charismatic actor in the “Mask and Bauble Society,” and was called “Tony” Scalia in the college newspaper. But as a championship college debater, and he may have been the best college debater in the nation of his era, he was a “win at all costs,” cutthroat debater, willing to use ad hominem attacks on his opponents, as all championship debaters do, and was known in the college newspaper as “Nino” Scalia. When Ronald Reagan appointed Scalia to the Supreme Court in 1986 he thought he was getting the affable “Tony” Scalia. Indeed, everyone predicted that Scalia would become the “William Brennan of the conservatives,” meaning that he would be like the affable liberal lieutenant of Chief Justice Earl Warren of the 1960s liberal, activist Court, who brought the liberals together, but Scalia would do so in forging the conservative Rehnquist Court into a powerful conservative voting coalition. But the man who showed up for that first judicial conference was “Nino” Scalia, trying to dominate oral arguments, steal judicial majority opinions from his colleagues, and antagonizing his senior colleagues. In driving the moderate conservatives away from him, Scalia became a “Court of One,” working for his place in history rather than trying to bring his conservative colleagues together.
BWG: What drew you to writing? Why did you choose to study Supreme Court justices?
BAM: My love of writing books dates back to my grandfather, a stock adviser for whom my middle name was given, who decorated his house with shelves of books. We would talk for hours about writing, and what it would take to be an author. I used to love to get on the public bus in Abington, Massachusetts and travel to nearby Brockton to walk up and down the aisles of the Lauriat’s bookstore, where I hoped one day to see my books on the shelf. (It never happened, since that store has been gone for decades.) So, I guess I always knew that I would one day write books.
The choice of topic, the Supreme Court, stems from my time as an undergraduate at the University of Massachusetts at Amherst, where I intended to prepare for law school. I ended up in a constitutional law class with a professor named Dean Alfange, Jr., who gave me a terrific education in the field and pointed me in the direction of a biography of Chief Justice Harlan Fiske Stone by Professor Alpheus Thomas Mason at Princeton. I was so captivated by that book, which was a full biography based on all of the Justice’s papers just as he left them when he died suddenly of a stroke in 1945, that I decided I would write for a general audience, teaching them about how the Supreme Court operated, and do so by exploring the lives of various justices.
BWG: What were your earlier books on the Court?
BAM: I became fascinated with writing about the notion of justices who were political actors from the bench, who engaged in extrajudicial activities to try to influence policy-making beyond their formal decision-making powers. My first book was on Justices Louis D. Brandeis and Felix Frankfurter, showing how Brandeis gave political assignments to Professor Frankfurter of Harvard Law School, so that he would not appear to be violating judicial ethics, and made money available for him to undertake these actions. Then, once he was on the Court, Frankfurter became one of the most active politicians on the bench of his time. My next book studied Justice Abe Fortas, who was denied the Chief Justiceship by the Senate in 1968 and then was the only justice to be forced to resign from the Court under pressure because of an ethical lapse that he made becoming involved with the foundation of a financier who was charged with stock manipulation. This led me a fifteen year journey exploring the life of Justice William O. Douglas, the iconic and controversial liberal justice of the 1960s and 1970s, who had four wives, three divorces and was threatened with impeachment several times. He was a visionary, lone wolf, on the Court who went his own way, wrote in his opinions about legal theories far ahead of his time, but was so unwilling to play the political game working with other justices and to carefully support his theories in his opinions, that much of what he did on the Court has since been wiped away by later conservative courts. After taking this journey from 1916 to 1975 through the biographies of these men, and enjoyed so much studying the controversial Douglas, I searched in my next book for the most controversial member of the current Court to finish my narrative of 20th and 21st century Court history and apply my research and writing techniques to a living justice dealing with current issues. Antonin Scalia was the perfect choice for that book, and the 8 year journey that I made to uncover him was endlessly fascinating.
BWG: What influences have been most important for your writing generally, or for some of your specific books?
BAM: I am afraid that part of my answer here is a very stock one—read everything, and learn how others do their craft. I read everything I can on the Supreme Court and analyze how other authors find their material and use it to craft their works. This way I can learn what is successful and what is not successful in such books. Beyond this though I will often look for material from other disciplines or fields that might be helpful in the telling of my story, as I see it, about the life of the Justice. For my book on Justice Fortas, half of which was on his failed Senate confirmation for Chief Justice in 1968, I learned from Allen Drury’s classic roman-a-clef about a failed Senate confirmation, Advise and Consent, how to tell that story as a mystery. And I learned from reading mysteries how to tell the story of the mystery of what ended Fortas’s career the following year—what evidence to give the reader and when, and what to hold back to be revealed later for maximum dramatic effect.
My classic example of this process of drawing paradigms from other fields was in the process of writing my William O. Douglas book, Wild Bill. A psychologist who heard one of my early talks on the subject led me to the life cycle social psychological works of Erik Erikson, and Daniel Levinson, explaining the evolution of a person’s life like the biological seasons of life. That insight became the key to unlocking how Douglas evolved on the Court over his record 36 ½ year tenure. My work on the Scalia book was aided by this life cycle analysis approach, as I was able to uncover the patterns of his life and his tenure on the Court. But this was the first time that I worked on a living subject, in my era, and it did have an impact on my analysis. I knew what it was to be a college debater, and had debated occasionally against championship level competitors and competitors from Georgetown. So I knew that world. I have been a college professor for nearly four decades, so I can understand that part of Scalia’s personality, as he, despite his formal judicial post, behaves more like a college professor when he is giving speeches. Unlike my earlier subjects, I could view a wealth of speeches and interviews on the internet and get a feel for my subject. Perhaps one of the most influential pieces of video evidence I found was watching the speech that he gave in Fribourg in 2006, where he took on an audience of 120 or so angry Europeans, and did not back down. All of these things helped me to write the book I did on Scalia, and helped me to uncover the man that I saw in doing so.
Do you have any advice for emerging writers? What is your process for writing?
BAM: Write for yourself. Don’t write what other people tell you to write. Don’t write for fame. Don’t write to satisfy critics. Write to please yourself. Writing is a solitary exercise, in which you struggle each day to get what is in your head onto your computer monitor. Don’t censor yourself. Don’t listen to the voices in your head that may be saying to watch out, or be worried, about what you write. Capture your thoughts on paper as best you can. I am the type of “free writer” who puts down everything I can, even if the initial drafts are far too long, knowing that I will then distill and edit them down to a better shaped narrative.
And then rewrite. And rewrite. And rewrite some more.
I have done 30 or more redrafts of many chapters. It is a process that I enjoy. I love to see how a piece is shaped and reshaped during this process. I generally will not show my work to anyone until it is the very best version of that work I can create.
And be prepared for what comes next. Your editors will not agree with you. Ever. And they will be correct. But when you are rewriting in response to those suggestions, you will be surprised how organic that process becomes. More often than not, I will not agree with all of the suggestions, but will learn what was not clear or wrong in my draft, and will create a third alternative to that draft.