Ethics & Public Policy Center

Murphy’s Law

Published in National Review on June 27, 2014



Scalia: A Court of One, by Bruce Allen Murphy (Simon & Schuster, 644 pp., $35)

Anything that can go wrong will go wrong: So goes Murphy’s Law. And so demonstrates another Murphy, Lafayette College professor Bruce Allen Murphy, in his new biography of Supreme Court justice Antonin Scalia (for whom I clerked more than two decades ago).

Murphy sets out to show how Scalia’s political views, religious faith, and personality have influenced his judicial decisions and speeches. But instead of the sophistication and nuance such an undertaking would demand, Murphy delivers a cartoonish and incompetent account.

For the most hilarious example, take Murphy’s stunning misuse of Scalia’s 2004 dissent in Hamdi v. Rumsfeld, a case that concerned the rights of an American citizen who was being detained indefinitely as an enemy combatant. Murphy spends two and a half pages arguing that Scalia’s dissent shows “his unwavering support for a powerful American presidency.” According to Murphy, Scalia argued “in favor of a ‘blank check’ on behalf of total presidential power” and opined that “whatever George Bush wanted to do in the ‘War on Terror’ should not be second-guessed by his judicial colleagues.”

Wrong on all counts. What Murphy somehow misses is that Scalia, joined by the liberal Justice Stevens, dissented from Justice O’Connor’s plurality opinion because he regarded it as too deferential to presidential authority. While O’Connor allowed the president to detain an American citizen indefinitely (and merely afforded the citizen the opportunity to contest the factual basis for his detention), Scalia read the Constitution as denying the president — yes, George W. Bush — that detention power. Far from arguing in favor of a “blank check” in wartime, Scalia emphatically rejected the principle that “liberty give[s] way to security in times of national crisis.” In sum, among the nine justices, he and Stevens adopted the position that was most restrictive of presidential authority.

It is astounding that a putative constitutional scholar could get Scalia’s dissent so wrong. But Murphy displays a dogged tendency throughout his book to contend that the evidence supports whatever thesis he is positing even when it plainly doesn’t.

I’ll note further that after reviewing the book galley, I highlighted Murphy’s massive blunder on Hamdi (as well as other bloopers) some seven weeks before the book’s release date. Yet, to their deep discredit, Murphy and his publisher didn’t bother to make a fix.

Murphy is equally obtuse, and even more outrageous, when he maintains, in one of his major theses, that Scalia’s methodology of originalism enables him to “accomplish as a judge all that his [Catholic] religion commanded without ever having to acknowledge using his faith in doing so.” There is a glaring defect in Murphy’s claim that Scalia’s originalism — which looks to the public meaning of constitutional provisions at the time they were adopted — is a cloak for imposing his “traditional Catholic values”: On the vast bulk of hot-button “culture war” issues — from abortion to marriage to obscenity — Scalia’s position is that the Constitution is, within very broad bounds, substantively neutral and instead leaves those issues to the democratic processes to be resolved one way or another. Scalia doesn’t read the Constitution to prohibit permissive abortion laws, to require that marriage be defined as the union of a man and a woman, or to bar obscenity. In short, he doesn’t read the Constitution to impose the Catholic position on these important matters (or any other matters).

Indeed, if Murphy were correct that Scalia believes that “his religion command[s]” him to impose Catholic values, he ought to be deeply puzzled that Scalia is an originalist rather than a living constitutionalist. On abortion, for example, a living-constitutionalist of a conservative bent would have no difficulty, given modern advances in embryology, in recognizing unborn human beings as “persons” for purposes of the Due Process Clause of the 14th Amendment.

In another of his major theses, Murphy contends that Scalia’s interpretive methodology has repeatedly changed over the years. According to Murphy, “any fair reading of his speeches and judicial opinions demonstrates clearly [that Scalia] became a strict textualist on the Supreme Court by the late 1980s, then evolved into a broader originalist by 1996, spoke as a Catholic on the Court in the early 2000s, became an even more partisan originalist by 2005, and was [in 2010] casting himself as the judge of the historians.”

Murphy’s contention and his labels are hopelessly confused. Murphy uses the term “strict textualist” to mean that Scalia supposedly used to base decisions solely on dictionary definitions. But Scalia never embraced the bizarre notion that textualism could involve nothing but dictionary definitions, and his broad originalism was clearly on display in his classic 1988 dissent in Morrison v. Olson (the independent-counsel case), at the end of only his second term.

In his impressive 2006 book on Scalia’s jurisprudence, Ralph Rossum concluded that Scalia “has been remarkably consistent in his approach to questions of constitutional and statutory interpretation.” (Murphy lists Rossum’s among the 150 or so books in his bibliography, but gives no signs that he ever read it.) To be sure, there may well be plenty of room for an intelligent scholar to identify changes in Scalia’s approach as well as inconsistencies in how he has applied his stated principles. But Murphy’s account of Scalia’s purported shifts is ridiculous.

Much of Murphy’s book is dedicated to a tedious and tendentious account of seemingly every speech or interview that Scalia has ever given (e.g., the “controversial television interview with Maria Bartiromo”). Murphy contends that Scalia’s “extrajudicial speeches and conduct . . . ventured far beyond those of any other justice, including Abe Fortas, who was forced to resign from the Court.” Further, according to Murphy, when Scalia began making speeches in his early years on the Court, he violated the “prevailing ethical norms of the Court against such extrajudicial speechmaking.”

Murphy’s claims are bogus. For starters, if there had been an “informal rule” against “extrajudicial speechmaking,” how is it that Justice William Brennan gave a speech in 1985 contesting the Reagan administration’s constitutional philosophy? Murphy also fails to distinguish away a handful of speeches by Justice Blackmun in the early to mid 1980s. Further, judicial-ethics rules expressly provide that, within broad limits, a judge “may speak, write, lecture, and teach on both law-related and nonlegal subjects.” Murphy himself, writing an encyclopedia entry a few years ago, referred to extrajudicial activities of justices that “can involve activities as innocuous as giving a speech.”

Murphy’s claim that Scalia’s speeches and conduct could even remotely be compared to Fortas’s is absurd. As one account puts it, Fortas helped LBJ “draft pieces of legislation,” “revise[d] State of the Union addresses in the Oval Office,” “served as Johnson’s secret emissary to the Dominican Republic during a 1965 coup,” discussed with LBJ “issues then under consideration by the Supreme Court,” and accepted payment for serving on a foundation funded by Louis Wolfson, whose appeal of his criminal conviction was pending in federal court. That, it turns out, is Murphy’s own account from his encyclopedia entry, but no one reading his charge against Scalia would learn those inconvenient facts from this book.

For a biographer, Murphy has remarkably little insight into the mind of his subject. Perhaps that’s because he evidently never interviewed Scalia (beyond one brief conversation at a party — Murphy reconceives his confused questioning as a gotcha moment) or his family members, colleagues, friends, or law clerks. Murphy’s ignorance, however, doesn’t prevent him from engaging in endless implausible psychologizing.

Murphy, for example, asserts that a 1996 Time magazine article that argued that Jesus was an “imaginative theological construct” so “unsettled” Scalia that he “decided to lash out against [its] anti-religion message” in a speech. Never mind that Murphy gives no evidence that Scalia ever read the article or referred to it in his stock speech. Never mind that Scalia was 60 years old, not six, at the time and had long been familiar with arguments of that genre. For Murphy, the mere fact that Scalia’s speech occurred a few days after the article was published is enough for him to assert that it “seemed to disturb Scalia profoundly.”

When convenient, Murphy frees himself from the minimal logical constraints that linear time imposes. It’s bad enough that he baselessly asserts that Scalia felt overshadowed when a pundit, in March 2008, proposed Clarence Thomas as a vice-presidential candidate for John McCain. (Murphy offers zero evidence that Scalia even knew of the pundit’s proposal.) It’s even worse that he claims that this supposed slight led Scalia to seek “a new media platform to restore his place in the conservative pantheon” and thus to travel to London in February 2008 — the month before the pundit’s proposal.

Murphy somehow imagines that Scalia was pleased to be the only originalist on the Court when he joined it, as he “would have the stage to himself, just as he liked it.” He even viciously insinuates that Scalia was happy that Judge Bork’s 1987 nomination was defeated, as “Scalia was now completely free of the intellectual shadow of Robert Bork” and “he and he alone would represent the original interpretation theory on the Supreme Court.”

Murphy’s book is rife with other witless errors, some rather striking. In the course of raising alarms over “a controlling majority of Catholic votes on the Court,” Murphy states that Chief Justice Roberts was once a member of the board of Feminists for Life. Really? In all the speculation during Roberts’s confirmation process over his views on Roe v. Wade, had everyone failed to notice that he had been on the board of a pro-life group? Fortunately, Murphy’s endnote cites his source for this surprising proposition, a Washington Post article that does indeed state that “Roberts instantly joined the [Feminists for Life] board.” Murphy misses, though, that the “Roberts” the article refers to is Jane Sullivan Roberts, the Chief’s wife.

Not everything in Murphy’s book is inept or unfair, and there are some chapters, especially on Scalia’s formative years and his career before joining the Court, that are interesting despite Murphy’s heavy-handed intrusions. But Murphy is such an unreliable guide that the reader will have no idea when he can be trusted.

– Ed Whelan, a regular contributor to National Review Online’s Bench Memos blog, is the president of the Ethics and Public Policy Center. This article originally appeared in the July 7, 2014 issue of National Review.

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