Scalia

A Court of One

Bruce Allen Murphy

• Publisher: Simon & Schuster
• Year: 2014
• ISBN:
  9781451611465
• Topic: Law
• Subtopic: Law Biographies
• Index: Law

"[Murphy's] biography of Justice Scalia is patient and thorough, alive both intellectually and morally….Functions as an MRI scan of one of the most influential conservative thinkers of the twentieth century." ( The New York Times ): An authoritative, incisive and deeply researched book about of the most controversial Supreme Court justice of our time. Scalia: A Court of One is the compelling story of one of the most polarizing figures to serve on the nation's highest court. Bruce Allen Murphy shows how Scalia changed the legal landscape through his controversial theories of textualism and originalism, interpreting the meaning of the Constitution's words as he claimed they were understood during the nation's Founding period. But Scalia's judicial conservatism is informed as much by his highly traditional Catholicism and political partisanship as by his reading of the Constitution; his opinionated speeches, contentious public appearances, and newsworthy interviews have made him a lightning rod for controversy. Scalia is "an intellectual biography of one of [the Supreme Court's] most colorful members" ( Chicago Tribune ), combined with an insightful analysis of the Supreme Court and its influence on American life over the past quarter century.Scalia began his career practicing law in Cleveland, Ohio, and rose to become the president's lawyer as the head of the Office of Legal Counsel for President Gerald R. Ford. His sterling academic and legal credentials led to his nomination by President Ronald Reagan to the Court of Appeals for the DC Circuit in 1982. In 1986, he successfully outmaneuvered the more senior Robert Bork to be appointed to the Supreme Court.Scalia's evident legal brilliance, ambition and personal magnetism led everyone to predict he would unite a new conservative majority under Chief Justice William Rehnquist and change American law in the process. Instead he became a Court of One. Rather than bringing the conservatives together, Scalia drove them apart. He attacked and alienated his more moderate colleagues Sandra Day O'Connor, David Souter, and Anthony Kennedy. Scalia prevented the conservative majority from coalescing for nearly two decades.

CHAPTER 1

Pride of the Scalias

The Scalia family of Trenton, New Jersey, produced just one heir, but Antonin Gregory Scalia would one day make his family’s name famous. He was born on March 11, 1936, to Salvatore Eugene and Catherine Panaro Scalia. Following Sicilian tradition, they named him in honor of his paternal grandfather, Antonino, and as he grew everyone called him “Nino.”¹

The nine siblings in the Scalia and Panaro clans collectively produced only this one child, little Nino, who was treated by his aunts and uncles as special. The impact of that exalted status had a profound effect. “I was spoiled,” Scalia once said. “I had a very secure feeling. So many people who loved me and who would look out for me.”² Being the center of attention for so many people shaped his ego.

Antonin’s father, Salvatore, was born on December 1, 1903, in Sommatino, Sicily. Salvatore’s father, Antonino, was a mechanic in Palermo; his mother, Maria Di Pietra Scalia, was only twenty years old when Salvatore was born.³ He was reasonably well educated in the Italian system and in his youth he became something of a radical socialist activist.⁴ Years later, by then a traditional, “deeply religious” Roman Catholic and cultural conservative, Salvatore enjoyed telling colleagues the story of how he and several other teenagers had organized a demonstration on behalf of a socialist cause one day only to be thrown in the town jail for a few hours.⁵ “Anyone who knew him in his mature years,” wrote Professor Joseph F. DeSimone of Brooklyn College, “could easily see how poorly the term ‘radical’ suited him.”⁶

At age seventeen, Salvatore stood just four foot, ten inches tall when he arrived at Ellis Island with his family just before Christmas of 1920. Like his parents and sister Carmela, he was recorded as reading and writing Italian (although he also knew French and Spanish)⁷, and was described by the immigration officer as having a “dark” complexion with brown hair and eyes. His “calling or occupation” was listed as “labour,” while his father’s was listed as a “meccanic.” With those skills and their life savings of $400, the Scalia family set forth to build a new life.⁸

Despite the description of the immigration officials, “Sam,” as Salvatore was first called by bureaucrats at Ellis Island and later by his friends, set his sights on using his intellectual gifts more than his physical talents.⁹ After learning the language and culture of his new country, Sam became an outstanding student at Rutgers University.

He fell in love with Catherine Panaro, a public school teacher two years his junior. Catherine was a first-generation Italian American from Trenton. After a suitably long courtship, they married in 1929. Three years later, in 1932, with his bachelor’s degree in hand, Sam matriculated as a graduate student in Romance Languages at Columbia University.¹⁰ His excellent work there marked him as a man with a future career in academia.

In 1936 they were blessed with their only child. During the first few years of young Antonin’s life, he and his parents lived with the Panaro family in a series of row houses in Ewing Township, New Jersey, in what they called “the family homestead.”¹¹ Surrounded by extended family, young Nino had an aunt as a baby-sitter, a lawyer uncle who let him visit his law office, and a grandfather who taught him to shoot his prized L. C. Smith shotgun. He later remembered how he “would sit on the porch and aim at passing rabbits,” shooting the ones that were eating his vegetable garden.¹²

During this time, Scalia’s father established himself in the academic community. To complete his master’s degree in Romance Languages, Sam wrote an impressive thesis on nineteenth-century Italian poet and Nobel laureate Giosuè Carducci. Carducci was considered “the greatest Italian literary figure in the latter part of the nineteenth century.”¹³ Yet the translations of his work into English, Sam believed, were unfaithful to the text and style of the original. In his thesis, Sam retranslated Carducci for an American audience. The resulting work, Carducci: His Critics and Translators in England and America, 1881–1932, quickly found a publisher.¹⁴

It was in this volume that Sam, whose professional name became S. Eugene Scalia, first outlined his philosophy of “literalness.” He explained that an 1881 translation done by Francis Hueffer, a German music critic, “exhibit[ed] most of the mistaken criteria of aesthetic judgment” by writers who were translating Carducci’s work.¹⁵ S. Eugene’s facility with his new English language was evident in his summation of the errors made by Hueffer: “This introduction of Carducci to English readers [by Hueffer] is topped by the statement that he ‘is not a lyrical poet, and seldom touches the heart,’ which is not unlike saying that red is not a color and seldom ravishes the color-blind.”¹⁶

S. Eugene explained how his “literal” translation technique allowed him to reveal both the “lyricist” and “romantic” in Carducci. “A poem is a poem, not this plus that. It is begot, not built,” he argued. “A poet is not a cross between a lexicographer or encyclopedist and a metrician, hence the merit of his art cannot lie in the richness of his vocabulary or the vastness of his knowledge, nor in the variety of his meters. Words and meters he uses, but they form an integral part of his poem, just as body and soul are an integral part of man’s individuality and personality.”¹⁷ The trick, he argues, is in finding “a good translator” or one “who is a poet in his own right.” The task is to capture the meaning of the poet, in his own time, in his own geographical region, and observing the purpose of the poet: “[The translator’s] most eminent quality is the rare faculty of reproducing the lyric vision of a poet; he must always seek to transfer bodily the image from one language into another without sacrifice of glow or warmth, and not attempt to reconstruct it with dictionary in hand.”¹⁸ In other words, the images that the words convey to readers of the original poem should be conveyed to readers of the translation.¹⁹ For the elder Scalia, “The translator, far from being a literary hack, is a man of great poetic qualities,” meaning that for him a German music critic such as Hueffer was not qualified to translate the work.²⁰

Scalia then went on to describe in more detail the literal philosophy that guided his translation. “Literalness is, for us, one of the chief merits of a translation. . . . Literalness, in a work which purports . . . to be a guide to Carducci’s verse, is essential. Otherwise the translator, instead of aiding, hinders the reader not sufficiently familiar with Italian.”²¹

Scalia’s Carducci soon gained him a seat in Columbia graduate school to study for his Ph.D. While he took his classes there, Scalia worked with Professor Giuseppe Prezzolini to amass a bibliography of Italian literature and literary criticism between 1902 and 1942. This book, Repertorio Bibliografico Della Storia e Della Critica Della Litteratura Italiana, was later published in four massive volumes and became a staple for scholars. For his dissertation, which is designed to make an original contribution to one’s academic field, Scalia produced an impressive biography of Luigi Capuana, a prominent Italian novelist of the late nineteenth and early twentieth centuries. Capuana was one of the most prominent leaders of the iconoclastic verist literary movement in Italy, which sought to replace classical approaches to the arts with a more contemporary approach. Once more, Scalia relied on his “literalness” approach to produce a work of excellent scholarship, carefully analyzing Capuana’s life and work in order to assess his importance in the field. “For my part,” Scalia argued at the end of his work, “I have spared no effort in this work to avoid going down the easy path of vacuous generalities and pointless idealities.”²² Once again, the dissertation was so good that it was published as a book in 1952. Those published works, together with the large number of articles on literary criticism and his excellent teaching, assured S. Eugene Scalia’s academic career.

In 1939, Scalia moved his family to a middle-class immigrant neighborhood in Elmhurst in the borough of Queens, New York, where they lived in a second-floor apartment.²³ Unlike in Trenton, young Antonin now saw the world through the eyes of the wide variety of other immigrant families then trying to move into American society: “Queens in the neighborhood I grew up in was a fairly, very integrated community. I mean it wasn’t just an Italian neighborhood at all. It was Italian, Irish, Puerto Rican, [and] Germans. It was a wonderful sort of cosmopolitan, middle class, I guess lower-middle class community. I thoroughly enjoyed it.”²⁴ Scalia would later say of his childhood world, “It was a really mish-mosh sort of a New York . . . cosmopolitan neighborhood.”²⁵

Young Nino was very much a child of New York City. Years later, he would still recall with a shudder being in his room on the second floor “with the windows open, and you’d listen to the trolley going by and just lie there and sweat in the heat.”²⁶ Neighbors would later recall of Scalia that he came from a “very generous family” and he “knew his place . . . we never had a word out of tune.”²⁷

S. Eugene Scalia became a well-respected professor in the Italian division of the Department of Romance Languages at Brooklyn College.²⁸ He was described by his office mate, Joseph DeSimone, as “an excellent teacher, severe yet fair, pleasant in his dealings with students and colleagues, and . . . well liked by both. He was always available outside of the classroom for advice to students.”²⁹ Scalia was such a “dedicated teacher,” with a “strict sense of morality and decency,” his colleague recalled, that he almost never missed class, once having to walk for three or four hours from his home to his classroom in Brooklyn because a transit strike had shut down public transportation.³⁰

Despite the success of an immigrant Italian who could not speak a word of English when he arrived in America, but who rose to become a college professor, the teaching responsibilities of his job failed to fulfill S. Eugene’s intellectual needs. His son remembered, “He taught these Romance languages in the day when you had to have a foreign language to graduate, and he was quite exasperated to have to teach to a class that didn’t really care. They didn’t—they didn’t have the intellectual curiosity or any real—most of them—any real desire to learn—learn the language. So, you know, he would teach to the few students there that really were interested.”³¹ But there was another disappointment for the elder Scalia when he failed to be named the chairman of the Romance Languages Department, which he believed was due to his immigrant status.³²

Professor Scalia’s students never knew about his reservations and regrets. Rather, he became so respected and popular in his three decades of teaching that, after his retirement in 1969, the S. Eugene Scalia Memorial Library was established, consisting of more than nine hundred reference volumes, begun with the donation of his own personal library, and housed in the Center for Italian American Studies in Boylan Hall on the Brooklyn College campus.³³

Late in his life, in 1980, he would coauthor a masterful translation of the autobiography of Philip Mazzei, a close friend of many of the American Founding Fathers, including Washington, Jefferson, and Madison. A Renaissance man and something of a cultural diplomat, Mazzei traveled the world and cross-pollinated the American and European continents with the ideas of the other.³⁴ Through his literary translations and analyses, Professor Scalia had done the same.

But in those early years there was a price to be paid for the labor-intensive work required of a rising scholar to master his field. He could not spend as much time as he wished with his only son. Much later, Antonin Scalia would tell audiences that he had “a mother who was doting and a father who was stern.”³⁵ Scalia has always been careful to say that he was not some poor son of an immigrant who had to “lif[t] myself up by my bootstraps.”³⁶ To be sure, Professor Scalia was an immigrant, but his son made clear that the family’s life was not a prolonged economic struggle. “My father was very intellectual, a more intellectual man than I am,” Scalia would recall. “I mean, he always had a book in front of...

Table of contents

• Cover
• Dedication
• Epigraph
• Prologue: Scalia in Winter
• 1. Pride of the Scalias
• 2. The Chosen Few
• 3. The Harvard Hit Parade of the 1950s
• 4. Building a Résumé
• 5. The President’s Legal Adviser
• 6. Wildflowers Among the Weeds
• 7. It Isn’t Easy to Be Right
• 8. Terminology Is Destiny
• 9. A Court of One
• 10. Faint-Hearted Originalist
• 11. Losing the Middle
• 12. The Evil Nino
• 13. Master of the Barbed Opinion
• 14. War of the Words
• 15. Bush v. Gore
• 16. Scalia vs. the Pope
• 17. Quack, Quack
• 18. The Charm Offensive
• 19. The Dead Constitution Tour
• 20. Opus SCOTUS
• 21. The Rock Star of One First Street
• 22. King of the Originalists
• 23. The Methodology of Originalism
• 24. Kennedy’s Court
• 25. Roberts’ Rules of Order
• 26. Reading Law
• 27. Grumpy Old Justice
• Photographs
• Acknowledgments
• About Bruce Allen Murphy
• Short Titles Used in Notes
• Notes
• Selected Bibliography
• Index
• Case Index
• Copyright