Bloodless Coup

Margaret Talbot on Justice Scalia

Margaret Talbot’s article on Justice Scalia in the March 28, 2005 issue of The New Yorker brings several points to mind. Of course some of these deal with Scalia’s actions as a member of the Supreme Court. While Justice Scalia is usually consistent in holding to his principles, whether or not his approach to jurisprudence is appropriate remains far from clear. Originalism and textualism can lead to rulings that seem contrary to the spirit of the Constitution. And there are a host of lauded decisions like Brown v. Board of Education and New York Times v. Sullivan that would have presumably never been written if the Court had held to these principles.

[For a thoughtful commentary on Scalia's latest angry originalist dissent see this piece by Publius.]

But beyond these issues, Talbot’s article made me think about individual-level factors that may be important to consider when the next nomination for the Supreme Court is made. Scalia’s approach to the law is deeply linked to both his religious upbringing and how he thinks (as opposed to simply what he thinks). It may be hard to evaluate the latter in the context of a nomination to the nation’s highest court. But that doesn’t mean it might not be an important and highly informative endeavor. An interesting case is made in this article that the way this Justice approaches the cases before him is very closely tied to his personal perception of the world, the law, and the types of argument and debate that he believes are legitimate. This would suggest that a careful study of a nominee’s biography and the structure of his or her writing might tell us as much about the rulings he or she would make once sworn in as focusing exclusively on ideology or approach to the law.

In addition, both President Bush and the Senate may want to consider the “collegiality” issue. When Scalia was nominated it was expected by some that he would foster comity and get along well with his colleagues. That’s not been the case. In fact, it’s possible that his behavior has driven some of his colleagues away from him over time. Furthermore, his presence on the Court has greatly changed the nature of oral arguments. Justices today are much more active, even combative, from the bench than they were when Scalia joined the Court. Whether that, or Scalia’s frequently dismissive and annoyed interactions with the counsel before him, are positive changes is a matter of debate. Those involved in the confirmation process may want to consider the impact of these behavioral dynamics as they consider prospective nominees.

Finally, and on a very different subject, the profile discussed Scalia's years at school. If the “drama club” he belonged to at Georgetown was Mask and Bauble (as I presume it was since it's the oldest continuously running student theatrical group in the United States) suddenly my memories of the many M&B parties I attended during my years at GU seem to be cast in a rather peculiar light. But then I suppose many things were quite different at such affairs when Georgetown was an all-male school.