When I drive directly from my northwest Washington, D.C., home to the Supreme Court, without stopping at the office, I take North Capitol Street south toward the Hill. And when I’m just about a half mile from my turn off of North Capitol, I hit the spot where I first heard on the radio that fateful Saturday, December 9, that the Court had halted the Florida recounts in the presidential election of 2000.
An editorial assistant from Farrar, Straus & Giroux wrote last week to say he was clearing out old correspondence and drafts associated with American Original and to ask whether I wanted anything saved. With the Antonin Scalia biography securely in hard-cover and about to be in paperback (September 1), I said don’t bother. But, I said, if you come across the original Herblock cartoon I acquired for the photo insert, save it.
Justice Scalia was not on the bench last Thursday, when the Supreme Court, nearing the end of its term, handed down five decisions. When I inquired, I discovered that he had been at Langley High School in McLean, Va., to speak at the graduation of a grandchild. I was curious about his remarks, especially because I had just given the commencement address to graduates of the National Cathedral School in Washington, D.C.
My audience at the all-girl private high school was different from Justice Scalia’s and my approach more personal. I didn’t expect much overlap in the speech themes, yet I was curious about what Justice Scalia had said and the voices of wisdom he drew on.
As Supreme Court justices circulate draft opinions among themselves and respond to each other’s writing, no two justices engage in a tit-for-tat like Antonin Scalia and John Paul Stevens.
These defenders of conservatism and liberalism, respectively, disagree on big issues, of course, but they are also the two most likely to tussle down in the weeds — on the meaning of a statute, interpretation of precedent or nuances of a legal test. It is not unusual for Scalia to make some assertion that sets off Stevens, who then fires back in his opinion, which prompts Scalia to return the volley, which gets Stevens going again.
As legal analysts argue over the possible success of constitutional challenges to the U.S. health care overhaul signed today, I am reminded of how even conservative justices have disagreed through the years on how much the federal government should be involved in state activities.
Justice Scalia voted in the 1995 United States v. Lopez to overturn a U.S. law that regulated guns near schools because it encroached on state authority, yet voted in the 2005 Gonzales v. Raich to uphold federal drug law that voided California’s medical-marijuana policy, over protests from dissenters that the law infringed on the states. Scalia opposed the federal government usurping local handgun regulation but let it override state choices about drug laws.
I was reminded twice in the past week of the culture of notes and letters at the Supreme Court. When I spoke to a group of mid-career journalists at the National Press Foundation on Monday, a reporter asked who at the Court I would call or e-mail if I wanted to interview a justice. I said I often wrote a letter to the justice detailing my request. “A letter?” she said with disbelief and a tone of who-does-that-anymore? But this is an old-fashioned bunch and that is how they regularly communicate with each other and the outside world. Many of them e-mail and even text now, but they still write letters — handwritten letters on heavy, engraved stationery.
Justice Scalia has been voicing his disdain for legislative history for a quarter century now. Today we celebrate the latest case in point — and his birthday.
Scalia does not believe federal judges trying to interpret a statute should look to congressional committee reports, floor speeches and other artifacts of the legislative process. He says judges should look solely at the text of the law and related statutes to determine Congress’s intention.
“Have you ever heard a turkey gobble?” Justice Scalia asked me during a visit to his chambers. “It’s a very strange sound, like a wooden rattle. [You] hear that far away and then make sounds like a hen to induce [the turkey] to come closer and closer. Finally, he sticks his head over a log, and you have to take your shot, or else you’ve lost him. Turkeys are very wily creatures. They have superb eye-sight and they’re very cautious. You get one shot. If you miss, the whole day’s ruined.”
When I asked Justice Scalia in an interview last year about his combative style during oral arguments, he defended himself by making comparisons with other justices. “I don’t think it’s true that I am the most talkative,” he said, adding that such distinction would go to Justice Breyer, who asks long hypothetical questions. Then Scalia became more animated and said, “You ever hear Ruth excoriate somebody who is arguing a … case? She can be really tough.”
A professor at Gettysburg College last week said she had heard that the Justice Scalia had never hired a single female law clerk. On several radio shows, I’ve been asked about Scalia and Opus Dei. Then there’s the assertion I hear constantly that Justices Scalia and Clarence Thomas vote in lockstep.
On many controversies (duck-hunting with Dick Cheney, for example), Justice Scalia is guilty as charged. But not on those above:
1. Justice Scalia has, in fact, hired several women clerks over the years, some of whom have gone on to prominent positions in academia, such as Joan Larsen at the University of Michigan. It is true, however, that clerks for a majority of the justices, including Scalia, have been overwhelmingly male (and white) through the years.