The Lines of Shakespeare, Scalia, Stevens

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With the new round of questions about whether William Shakespeare was a literary impostor, brought on by the movie Anonymous, I thought it was time to go back and ask Justice Scalia what he thought.

Scalia, who uses literature and lyrics to make his legal points, often quotes from Shakespeare. I recall in his first term he invoked lines from Henry the Fourth, Part I, as he dissented in an affirmative action case from Santa Clara County, California:

 Glendower: I can call Spirits from the vasty Deep.

Hotspur: Why so can I, or so can any man. But will they come when you do call for them?

But Scalia has been among those who in the past voiced doubts that Shakespeare, with his limited schooling, could have produced such a great body of work. When I asked last week, Scalia was uncharacteristically reluctant to take up the subject. He begged off that he wasn’t an expert on the topic and didn’t have an answer. He would only say there was room for doubt.

When I asked about his favorite Shakespeare work, Scalia said Macbeth — because when he was in high school he got to play the lead. When he first told me years ago about that experience, he said he considered it quite a feat: “Do you know how many lines I had to memorize?!”

 On a related Scalia note, retired Justice Stevens captures the wise-cracking Scalia his new memoir, Five Chiefs. Stevens wrote that, “When the microphones are turned off, a justice will occasionally exchange a comment or two with his immediate neighbor. For most of our careers, Nino Scalia and I sat next to each other, and I was the beneficiary of his wonderfully spontaneous sense of humor. One morning when we heard a case involving a defendant who had refused to answer questions about the crime under the investigation but volunteered a long incriminating statement about a more serious offense and a second case in which the defendant had refused to sign a written confession while verbally describing inculpatory facts in great detail, Nino whispered to me that this must be our ‘dumb defendant day.’”

Last week when I interviewed Justice Stevens about the new book, he elaborated on his colleagues and Scalia’s name came up often. As he addressed recent calls by critics for changes in the Supreme Court’s rules on conflicts of interest, Stevens said he didn’t think any revisions were needed. (See story and comments about Justice Clarence Thomas) “I really don’t have any concern that people are failing to disqualify themselves when they should,” Stevens told me. He added that, “The closest, I suppose, was Nino and the vice president,” referring to a 2004 case involving then-Vice President Dick Cheney that arose soon after the pair had gone duck-hunting together. “But I’m sure that didn’t have any impact on his vote.”

I was so struck by the number of important decisions Justice Scalia wrote this term that I asked Justice Ginsburg about his record when I interviewed her this week. (Here’s the news story covering other topics.)

First, consider this: Scalia authored the decision striking down California’s ban on the sale of violent video games to minors and giving video games the kind of First Amendment protection granted books (Brown v. Entertainment Merchants Association). He wrote the decision throwing out the class-action sex discrimination lawsuit against Wal-Mart and setting a new standard for workers nationwide to bring such bias claims (Wal-Mart Stores v. Dukes). He wrote the ruling saying consumers can be bound by an arbitration clause in a cell-phone contract even when state law would permit a class-action claim (AT&T Mobility v. Concepcion). He also authored the decision that former Attorney General John Ashcroft could not be held liable for a post-Sept. 11 policy that led to the arrest of a Muslim U.S. citizen (Ashcroft v. al-Kidd) and the one upholding a Nevada ethics law that also declared voting by legislators not protected speech under the First Amendment (Nevada Commission on Ethics v. Carrigan).

So, I asked Justice Ginsburg whether she was surprised that he had prevailed so much.

She responded, “Is he prevailing more than the chief?” Her tone was sharp and it suggested she didn’t think Scalia was as influential as my question implied. And she was right: Scalia was not in the majority as much as Chief Justice John Roberts, or swing-vote Justice Anthony Kennedy. But Scalia did write opinions for the Court in the most closely watched cases. And the crux of my question had more to do with his history on the bench, which she – as a longtime colleague at odds with him on the law – knows well.

Scalia’s public profile arises from a conservatism that is not usually embraced by a majority (and that Ginsburg has told me she believes will never become the norm), along with a series of hyperbolic dissenting opinions. Think Romer v. Evans. Think Boumediene v. Bush. I also know that he was regarded as someone who could, more than other justices, lose a majority once he started drafting the opinion and expressing his legal rationale. But that has changed in recent years and clearly in the term that just finished up, Chief Justice Roberts had the confidence to assign Scalia several momentous opinions and Scalia held, at least, the requisite five.

When I laid all that out, Ginsburg said, “We’ll see how it is next term.”

A few weeks earlier when I was in Justice Scalia’s chambers, he didn’t want to talk about winning more and, in fact, was focused on the major California prison case, Brown v. Plata, that a few days earlier had not gone his way. The Court, in an opinion by Kennedy joined by Ginsburg and the other liberals, had found the overcrowded prison system unconstitutional and required reduction of about 30,000 inmates. In a dissent from the bench, Scalia declared that the Court was affirming “perhaps the most radical injunction issued by a court in our nation’s history.”

Now that I see that Brown v. Plata was an exception for Scalia this term, I cannot help but recall a conversation I had with him in summer 2009, right after District of Columbia v. Heller, when he wrote the opinion establishing individual gun rights under the Second Amendment. I observed then that he seemed to be in the majority more and getting to write more significant opinions for the Court. He brushed me off. “The wins,” he sighed. “The wins: Damn few.”

At the time, I wrote that Scalia might be at the apex of his influence. Now I’m wondering if he might be in a longer chapter and about to have more impact on the law than I ever would have imagined or that Justice Ginsburg ever would have wanted. Like her, I’ll wait for next term.

This weekend when I was clearing out book shelves, trying to make room for new volumes, I discovered a little book about Arizona’s distinctive state Capitol and copper dome. I had bought it years ago when I was researching Sandra Day O’Connor. I believed her tenure as a state senator in the 1970s was critical to understanding the justice who so skillfully counted votes among the brethren, and I had gathered all I could find about Arizona state politics and the legislature during her time there. I somehow found even the architecture of the Capitol intriguing.

I thought I had cleared out all the Arizona works as I later acquired books on all things Italian for my Justice Scalia biography. This weekend, I discovered a few of those books still on my shelves, too. One that I knew I had resisted packing up was Luigi Barzini’s consummate work on Italians, whose sweep included the importance of spectacle and power of the family. Barzini offered many insights toward my subject and when I came across this line — “The vigorous passions of a turbulent and restless people are always ready to flare up unexpectedly like hot coals under the ashes” – it was only a question of where in American Original I’d use it.

Now, I am in the middle of researching a book using Justice Sonia Sotomayor’s life as the scaffolding of a broader story about Latinos and the law. This will not be a biography as the O’Connor and Scalia works were, so it is even more important for me to understand the parallels of her life and those of a people. My shelves are filling with volumes about Puerto Rican history, Latinos and the law, and nomination politics. Among my favorites so far, however, have been works of Esmeralda Santiago, a beautiful writer who was born in Puerto Rico and came here when she was thirteen.

I had not read Santiago before and I find her memoirs deeply moving, independent of anything related to my research. Santiago’s life story mirrors some of Sotomayor’s, including methods for catching up in school. Toward the end of When I Was Puerto Rican, Santiago reveals that as she tried to get used to life in Brooklyn, “Every day after school I went to the library and took out as many children’s books as I was allowed. I figured that if American children learned English through books, so could I, even if I was starting later. I studied the bright illustrations and learned the words for the unfamiliar objects of our new life in the United States: A is for Apple, B for Bear, C for Cabbage.”

Sonia Sotomayor was born in New York, yet as a child of Spanish-speaking parents, she similarly struggled with English. When Sotomayor hit a wall on language and literature at Princeton, she did what Santiago did. She turned to grammar books, vocabulary builders and the classics that other students had read when they were young. A grade-school chum of Sotomayor, also of Puerto Rican heritage, told me recently that the same was true for him. He put in the extra time in college to compensate and catch up. He said there really was no choice: you sought out what you needed or you wouldn’t move ahead.

Some of that holds true for an author: You read up. You learn all sorts of new things. And the discoveries keep you going.

I got a message last week that said: “Antonin Scalia is now following you on Twitter!” Despite our many years of interaction, I suspected this Scalia wasn’t the real one. I know he has an iPad and is pretty digital for a 75-year-old who works in the cloister of the Marble Palace. But he’s no Justice Stephen Breyer, who has a Twitter account –although Breyer does call it the “tweeter thing”.

I confirmed with the Court that the Twitter-joining “Antonin Scalia” is not the opinion-writing one. And I couldn’t help but be reminded of other fake Scalias that have come my way over the years. There was the fish called Scalia that I learned about during research for a 2002 newspaper profile. A Louisiana State University student had named a pet fish after Scalia, but not with his well-known nickname “Nino.” Rather, the student named him “Justice Scalia” and went on to say that “Justice Scalia ate all the others” in the tank.

I discovered another pinching of the Scalia name when I was doing research on American Original and my father, a lawyer who played the ponies, saw a horse named Scalia in the Racing Form. My father observed that the sire was named Holy Bull and believed there must be a connection. When I asked Justice Scalia about it, he said he had never heard of the horse and doubted it had anything to do with him. Out of curiosity and as a nod to my late father, I followed up on that horse as I was finishing the book. I found the Lexington, Kentucky, breeder, who told me that the horse’s name was indeed a tribute to the justice. The breeder, it turned out, was especially pleased with result in Bush v. Gore. I don’t think this new “Antonin Scalia,” who’s been firing off some of his own tweets, is the same guy.

Justice Scalia lost it Monday in Michigan v. Bryant. As the majority ruled that a gunshot victim’s dying words to police could be used at trial against the alleged shooter, Scalia erupted. “[T]oday’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative … at least where emergencies and faux emergencies are concerned.”

The majority opinion, written by Justice Sonia Sotomayor, said the victim’s statements identifying defendant Richard Perry Bryant – as the victim bled in a gas station parking lot — were made in an emergency situation and not “testimonial.” So allowing them at trial did not violate the Sixth Amendment’s Confrontation Clause, which guarantees that a defendant may confront his accuser.

Scalia’s anger and frustration were palpable. That’s because this is one area where Scalia had made progress over the past decade with his originalist approach, to narrow the grounds for exceptions to the confrontation guarantee. In an important 2004 case, Crawford v. Washington, he wrote the Court’s opinion making it harder to bring into trial past statements of witnesses who could not be cross-examined (for example, because they had died or invoked a privilege) even when the statements seemed reliable.

Scalia protested any exceptions to a rule that he said reflected the Framers’ understanding: “testimonial statements of witnesses absent from trial (may be admitted) only where the defendant has had a prior opportunity to cross-examine.”

In my interviews with Scalia, he called the Crawford case “one of the ones I’m most proud of – bringing the Confrontation Clause back to what the people thought it meant when they adopted it.” Scalia, not typically a friend of criminal defendants, took pride in saying he could disregard the social policy consequences (i.e. critical testimony against the shooter is kept from trial) of his originalist view.  On Monday, he suggested the court lacked “the courage” to persist in an unpopular series of cases that conflicted with the justices’ “policy preferences.”

He wrote alone in the 6-2 case (Justice Elena Kagan recused). The only other dissenter, Justice Ruth Bader Ginsburg, said she agreed with Scalia that the majority was creating “an expansive exception to the Confrontation Clause for violent crimes.” But she aired her protest in a page and a half. Scalia took 17 pages, and as Orin Kerr observed Monday, Scalia’s dissent was “blistering even by Justice Scalia standards.”

Scalia, Stanley Fish and a Memorable Sentence

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In the first chapter of Stanley Fish’s new book, “How to Write a Sentence: And How to Read One,” he extols a sentence from Scalia’s dissent in Lee v. Weisman, the 1992 case in which the majority said prayer at a Providence, R.I., middle school graduation violated the required separation of church and state. Fish notes that the Court majority referred to the “psychological coercion” of students in attendance, and he continues, “This was too much for Justice Scalia, who, after citing a fellow jurist’s complaint that establishment clause jurisprudence was becoming so byzantine that it was in danger of becoming a form of interior decorating, got off this zinger: ‘Interior decorating is a rock-hard science compared to psychology practiced by amateurs.’”

Of those twelve words, Fish writes, “The sentence is itself a rock thrown at Scalia’s fellow justices in the majority; it is a projectile that picks up speed with every word; the acceleration is an effect of the two past participles ‘compared’ and ‘practiced’; their economy does not allow a pause or a taking of a breath, and the sentence hurtles toward what is both its semantic and real-life destination: the ‘amateurs’ who are sitting next to Scalia as he spits it out.”

Fish says his appreciation of Scalia’s sentence does not relate to the merits of the dispute. Rather, Fish writes, “It is the pleasure of appreciating a technical achievement … Scalia’s ability to load, aim, and get off a shot before his victims knew what was happening.”

And in the world of great sentences and neat coincidences, Fish notes, as an aside, that Daniel Weisman’s challenge – on behalf of his 14-year-old daughter Deborah — was to the same middle school Fish attended as a boy.

Antonin Scalia, past and present, had a starring role at today’s Supreme Court arguments in Federal Communications Commission v. AT&T. And I couldn’t help but be reminded of Scalia’s past views on the Freedom of Information Act, views definitely off-stage.

As I explain in this article, the FCC was appealing a lower court decision that would allow corporations to claim a “personal privacy” exemption under the FOIA law intended to make government more transparent. That exemption traditionally has been given only to individuals for potentially embarrassing situations.

In the government’s brief and at a couple of points Wednesday, the attorney for the FCC invoked a 1975 memo by former Attorney General Edward Levi (for whom Scalia worked in the mid-1970s) supporting the view that the disputed provision did not cover corporations. Scalia declared Wednesday that that view had stuck.

The FCC also in its brief had quoted then-Professor Scalia from 1981, testifying that FOIA’s exemption for unwarranted invasions of  “personal privacy” protects only individuals.

But what went unsaid — and wasn’t relevant to the case — was Scalia’s long-held opposition to FOIA before he became a judge. In the 1970s, he derided the law as costly and a distraction for government workers asked to fulfill public requests for information. He said the act’s flaws “cannot be cured as long as we are dominated by the obsession that gave them birth — that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press.” Scalia was among a small band of Ford administration officials, including Dick Cheney, who fought the FOIA amendments Congress adopted in 1974.

Years later at a congressional hearing, Scalia, as professor, explained his continuing opposition to FOIA by referring to a Peanuts cartoon that “one of the more philosophical” of his children had brought to his attention:

“A worldly wise and somewhat overbearing Lucy asks the good-hearted and somewhat naïve Charlie Brown, ‘Charlie, what would you rather do, be captain of the baseball team or marry the cute redheaded girl?’ And Charlie replies innocently, ‘Why can’t I do both?’ to which Lucy responds, ‘It’s the real world, Charlie Brown.’”

That was Scalia, aligning himself with cynical Lucy and telling lawmakers they were in the real world, which, he argued, “imposes choices, even ultimately upon a good-hearted and well-intentioned government.”

Same Old Scalia on Women’s Rights

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All week, since California Lawyer reported (and Huffington Post widely circulated) Justice Scalia’s remarks in an interview that the Constitution’s Fourteenth Amendment doesn’t protect women from discrimination, I’ve been getting calls from reporters and other Court watchers asking: Is this new? Are you shocked? The answers are no and no. This is vintage — archaic — Scalia. And it’s important to note that this is one area of the law in which Scalia has been unpersuasive and alone.

For decades and with votes by other conservative justices, the Supreme Court has said the Fourteenth Amendment’s guarantee of equal protection covers women. This is not a close call.

Yet Scalia has long rejected women’s equal rights, and in the most provocative terms. When the Court in 1996 struck down the all-male policy of the state-run Virginia Military Institute, Scalia was alone in dissenting and arguing that it should be able to exclude women. He praised “VMI’s attachment to such old-fashioned concepts as manly honor” and said “the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them.”

With his extreme views and flaming tongue, Scalia will always make news. On women’s rights, however, Scalia is old news.

Scalia Rebukes Judges on Death Penalty

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As criticism of capital punishment is up in some quarters and use of the death penalty continues to decline nationally, Justice Scalia remains a vigorous voice for carrying out state executions.

This week he dissented from a high-court order favoring an Alabama murderer whose death sentence had been set aside by lower federal courts. The justices by 6-to-3 rejected a petition from Alabama officials protesting a new sentencing hearing for James Charles Lawhorn, who with his brother had killed their aunt’s boyfriend in 1988, in exchange for $100 from the aunt.

Lawhorn had won the new sentencing — after many years of appeals – because his lawyer had waived his right to closing argument during the penalty phase. The Supreme Court on Monday let stand an appeals court decision that the move constituted ineffective assistance of counsel.

Dissenting from the order, Scalia, joined by Justices Clarence Thomas and Samuel Alito, observed first that Lawhorn was sentenced to death more than 21 years. Scalia spurned the various scenarios lower court judges had offered regarding closing statements Lawhorn’s lawyer might have made and how jurors might have been persuaded against the death sentence. “Alabama should not be barred from carrying out its judgment based on a federal court’s lawless speculation,” Scalia said.

Scalia then proceeded to a larger complaint about a system that he says too often blocks executions. Scalia’s remarks contrasted starkly with those from other justices troubled by the death penalty’s inconsistent imposition and lack of safeguards – most recently from retired Justice John Paul Stevens in this New York Review of Books essay. Two years ago, Stevens said he had come to realize that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”

Adopting an altogether different tone, Scalia wrote in Allen v. Lawhorn, “With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are contrary to … clearly established federal law, as determined by the Supreme Court of the United States. We invite continued lawlessness when we permit a patently improper inference with state justice such as that which occurred in this case to stand.”

Lawhorn’s situation notwithstanding, new end-of-the-year statistics will show that Alabama is one of the few states that have not seen a significant drop in executions in recent years to match the national downward trend.

Very few people have been able to convince Justice Scalia to buy a novel argument or take a new turn. Jim Lynn was one of them. I was reminded of that today when I saw the obituary for James T. Lynn in the Washington Post. During the Nixon administration, Lynn had been undersecretary in the Commerce Department and secretary of the Department of Housing and Urban Development. When President Ford took office, Lynn became director of the Office of Management and Budget. The Post described Lynn as having a “voracious appetite for work” and ”scalpel-sharp intellect.”

I interviewed Lynn at his Bethesda, Md., home in September 2007 as I was tracking down people who influenced the trajectory of Scalia’s legal career. Then 80, Lynn was remarkably energetic with a keen memory. He recalled how he crossed Scalia’s path nearly a half decade earlier.

Lynn, a Cleveland native who had gone to college at Case Western in his hometown and then Harvard Law School, was recruiting young associates for the Cleveland-based law firm of Jones, Day, Cockley and Reavis, where he had landed after Harvard. As Lynn was on a flight to Boston and looking over records of Harvard third-year students, “He leaped out at me. When I got there, I asked a professor, ‘What about this fellow Scalia?’ And he said, ‘No, no, he’s going somewhere else.’” Scalia, who earned his degree in 1960, was about to commit to a Philadelphia firm.

Lynn decided to find Scalia and make a pitch anyway. He found him at the Gannett House, where law students hung out after finishing in the library stacks. Lynn engaged Scalia in conversation about the law and made a point of dropping the names of former Supreme Court clerks who had made their way to Cleveland’s Jones, Day. (Scalia had no fondness for the Midwest. He had spent a summer at Foley and Lardner in Milwaukee and found it “too far off the beaten path.”) Around midnight, Lynn said, “You hungry?” and the two men walked over to the Hayes-Bickford cafeteria on Harvard Square for bacon and eggs. On the way back to the Gannett House, Scalia agreed to visit Cleveland.

 At a dinner party Lynn threw for Scalia, the prospective new associate made an immediate impression by arguing for “blue laws” that banned Sunday liquor sales. “They really put it to him,” Lynn said of his colleagues, “and (Scalia) handled it beautifully.” Scalia also found a fellow showman in Lynn, who (like the future justice) played the piano and sang. The Post said Lynn and Scalia even performed in a barbershop quartet. In time, Scalia would join Lynn in the Nixon and Ford administrations.

Back in 2007, after I recounted to Scalia what Lynn had told me of their first meeting, the justice said, “Jim Lynn could talk anyone into anything.”