Murphy is a law professor at Lafayette College in Easton, Pennsylvania, and the author of three previous books about the Supreme Court: The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices, and biographies of New Deal liberal William O. Douglas and LBJ nominee Abe Fortas.
I talked recently with Murphy about Justice Scalia, the Supreme Court, and his reaction to some pre-publication trash-talking about the book in National Review by former Scalia law clerk Ed Whelan.
Ed Whelan wrote in National Review “do not waste your time or money on this book.” He wrote in another National Review post that your “incompetence seems bias-driven and results-oriented.” Have you read that?
I’ve looked at it. I understood what I was getting into when I started this book on Scalia. I know that Scalia has devoted followers. I know that he has defenders of his faith. It’s part of the task and the job of a biographer to understand going into a territory that there are people who have carved out that turf and are willing to defend it vigorously, and that appears to be what [Whelan] has done. I fully expect that there will be others who will see it differently.
Do you view Justice Scalia’s decisions on the Supreme Court as results-oriented?
That’s a very interesting question. I think what readers will see in this book is that his theory and use of originalism evolve over time. It is partly a function of what happens on the Court when he offers his theories, tries to have others adopt those theories, and is not successful. Often he ends up dissenting. Every few years he will become frustrated with his fellow members of the Court and his position relative to them, and he will change his presentation of his theory—widening out the historical materials that he will now use to decide cases.
I think the biggest change happens after 2005 when he does not get the Chief Justiceship and he realizes that he is now approaching 70 years old: He is not going to be the Chief Justice; he is always going to be an Associate Justice. And he becomes, I think, more results-oriented in his approach. He will figure out how he wants to decide a case and then look for materials that will justify that approach.
I would think if I wrote a fairly cryptic text, the easiest way to determine the accurate meaning of it would be to ask me what I meant, right?
You would think so, except remember the state of historical materials that you have available to you: The best materials are the notes of the convention, which were re-edited by Madison decades later before they were actually published.
That’s where the debate is between the originalists—and they don’t even agree on what materials to use; Clarence Thomas looks to the Declaration of Independence—and they are debating the living constitutionalists. One group is trying to freeze the meaning of the Constitution in the founding era—what some people call the “Dead Constitution” approach and what Scalia calls the “Enduring Constitution”—and another group is trying to update the Constitution for a new era and a new generation of people.
Justice Scalia would say, wouldn’t he, that a Constitution unmoored by text and historical meaning leaves itself to the whims of five justices to decide the color of the sky?
Yes. When you look at what Scalia does, he reaches the results he wants to reach and makes a determination whether or not he will even use his originalism. If he can’t get where he wants to go, he doesn’t use his originalism theory. If he uses his originalism theory, there’s a wide variety of material and methods he can use to get where he wants to go.
If you look at the Second Amendment and the Heller case [which recognized a personal right to possess firearms], he can’t get where he wants to go using originalism alone. He has to use rather creative grammar. He has to make the first part of the Second Amendment, dealing with the militias and the security of the state, go away. Then he talks about the right to keep and bear arms. That will allow him to talk about the individual right of self-defense rather than, as John Paul Stephens writes, the collective right for which the weapons are used.
On the other hand—and this is one of the contributions of Scalia to the debate—if you look at what the living/evolving constitutionalists do, a great many of them use textualism and originalism as a touchpoint in order to get to their interpretation of the Constitution or the Bill of Rights. It becomes one of many methods to reach a determination of what the words mean.
Do you see Scalia preparing for a final act as sort of the Chief Justice he never got to be—a consensus-builder?
Just the opposite. I think the chance for Scalia to become the driving force on the Court—the leader of the Court—went away when John Roberts was chosen to replace [Chief Justice] Rehnquist, and almost immediately Scalia went off on an extended public appearance and speech-making tour and has written in his cases in a way that indicates to me that he is trying to speak to later generations.
He is trying to instruct them as to how originalism can reach these results and what views they should have on the Constitution and Bill of Rights. I think his hope is that a lot of these dissents and opinions will get into casebooks and educate future lawyers, and then maybe a generation of people down the road will look back and see that he had the right idea.
Scott Porch is an attorney and writer in Savannah, Georgia. He writes frequently about books for Kirkus Reviews, Salon.com, and Huffington Post, and he is writing a book about social upheaval in the 1960s and '70s.