Thanks to his rant from the bench yesterday—about the Arizona immigration law, which the Supreme Court mostly struck down—Justice Scalia is back in the news. But where many on the left see Scalia as a partisan hack, who twists the Constitution into a pretzel to get the result he wants, I’m more impressed by the underlying consistency of his jurisprudence. That’s not to say he’s never inconsistent, but hackery is not his main problem. But to see the problem, you have to have a better sense of the man and his vision.
In The Reactionary Mind, I devoted a chapter to that question. Last fall, I excerpted the introduction to that chapter. Given all the attention now being paid to Scalia, I thought I’d continue providing some excerpts.
So today I’m launching a three-part series. Part 1 below provides some biographical details. Part 2, which will appear tomorrow, provides a close reading of one of Scalia’s lesser known decisions. Part 3, which will appear on Thursday, steps back to assess the overall vision and its relationship to liberalism on the Court.
If you want to read the introduction to the chapter, which gives you more sense of the man and his vision, start here.
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Antonin Scalia was born in Trenton, New Jersey, in March 1936, but he was conceived the previous summer in Florence, Italy. (His father, a doctoral student in romance languages at Columbia, had won a fellowship to travel there with his wife.) “I hated Trenton,” Scalia says; his heart belongs to Florence. A devotee of opera and hunting—“he loves killing unarmed animals,” observes Clarence Thomas—Scalia likes to cut a Medicean profile of great art and great cruelty. He peppers his decisions with stylish allusions to literature and history. Once upon a time, he enjoys telling audiences, he was too “fainthearted” an originalist to uphold the eighteenth century’s acceptance of ear notching and flogging as forms of punishment. Not anymore. “I’ve gotten older and crankier,” he says, ever the diva of disdain.
When Scalia was six, his parents moved to the Elmhurst section of Queens. His lifelong conservatism is often attributed to his strict Italian Catholic upbringing there; alluding to Burke, he calls it his “little platoon.” He attended Xavier High School, a Jesuit school in Manhattan, and Georgetown, a Jesuit university in Washington, D.C. In his freshman year at Georgetown, the senior class voted Senator Joseph McCarthy as the Outstanding American.
But Scalia comes to his ethnicity and religion with an attitude, lending his ideology a defiant edge. He claims he didn’t get into Princeton, his first choice, because “I was an Italian boy from Queens, not quite the Princeton type.” Later, after Vatican II liberalized the liturgy and practices of the Church, including his neighborhood church in suburban Washington, D.C., he insisted on driving his brood of seven children miles away to hear Sunday Mass in Latin. Later still, in Chicago, he did the same thing, only this time with nine children in tow. Commenting on how he and his wife managed to raise conservative children during the sixties and seventies—no jeans in the Scalia household—he says:
They were being raised in a culture that wasn’t supportive of our values, that was certainly true. But we were helped by the fact that we were such a large family. We had our own culture . . . . The first thing you’ve got to teach your kids is what my parents used to tell me all the time, “You’re not everybody else . . . . We have our own standards and they aren’t the standards of the world in all respects, and the sooner you learn that the better.”
Scalia’s conservatism, it turns out, is less a little platoon than a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance: his parents had only one child, and his mother-in-law often complained about having to drive miles and hours in search of the one true church. “Why don’t you people ever seem to live near churches?” she would ask Scalia and his wife. It is a conservatism of invention and choice, informed by the very spirit of rebellion he so plainly loathes—or thinks he loathes—in the culture at large.
In the 1970s, while teaching at the University of Chicago, Scalia liked to end the semester with a reading from A Man for All Seasons, Robert Bolt’s play about Thomas More. While the play’s antiauthoritarianism would seem at odds with Scalia’s conservatism, its protagonist, at least as he is portrayed by Bolt, is not. Literally more Catholic than the pope, More is a true believer in the law who refuses to compromise his principles in order to accommodate the wishes of Henry VIII. He pays for his integrity with his life.
Joan Biskupic, Scalia’s biographer, introduces this biographical tidbit with a revealing setup: “Yet even as Scalia in middle age was developing a more rigid view of the law, he still had bursts of idealism.” That “yet” is misplaced. Scalia’s rigidity is not opposed to his idealism; it is his idealism. His ultraconservative reading of the Constitution reflects neither cynicism nor conventionalism; orthodoxy and piety are, for him, the essence of dissidence and iconoclasm. No charge grieves him more than the claim, rehearsed at length in his 1995 Tanner Lectures at Princeton, that his philosophy is “wooden,” “unimaginative,” “pedestrian,” “dull,” “narrow,” and “hidebound.” Call him a bastard or a prick, a hound from hell or a radical in robes. Just don’t say he’s a suit.
Tomorrow: Justice Scalia vents his rage on a handicapped golfer, revealing his true inspiration is neither Catholicism nor the Constitution but Friedrich Nietzsche and Richard Rorty