I’d known from my research for American Original that the first big assignment of Assistant Attorney General Scalia in the Ford Administration in 1974 was an opinion determining whether Richard Nixon owned the tapes and documents sought by Watergate prosecutors. But I found on a recent trip to the Ford Library, where I obtained a declassified memo, that another early assignment was nearly as tricky.

In May 1974, U.S. Judge Gerhard Gesell, hearing the White House “plumbers” case, had ruled that the president lacks constitutional grounds to order break-ins without a warrant — arguably even for matters of foreign intelligence. Nixon administration lawyers had claimed a national-security exemption to the usual Fourth Amendment protection against such searches and seizures as they defended the 1971 break-in of the office of Daniel Ellsberg’s psychiatrist. This takes us all back to a tumultuous chapter in U.S. history, which led to the first-ever resignation of an American president. In this particular matter involving Scalia, the crucial element is that Gesell’s ruling challenged assertions by Nixon (and then Ford) about presidential power in national security and foreign affairs.

Scalia, nominated to be assistant attorney general for the Office of Legal Counsel by Nixon in spring 1974 and then approved by the Senate on Aug. 22,  just after Ford had assumed the presidency, was asked for an opinion about the effect of Gesell’s ruling on the administration’s warrantless wiretaps.

In his memo dated Sept. 17, 1974, Scalia concluded that warrantless surveillance was still lawful based on a continued foreign-intelligence exception to the Fourth Amendment.

“While warrantless trespassory electronic surveillance in foreign intelligence matters has not been explicitly sanctioned by the courts,” he wrote, “it has not been explicitly forbidden in holding, or by authoritative dictum, or by necessary implication from holdings in other fields.”  Scalia stressed that Gesell’s ruling did not outright eviscerate any foreign intelligence exception to the warrant requirement. And citing the views of recent former attorneys general and some congressional sentiment behind the 1968 crime bill, Scalia concluded, “it can reasonably be maintained that the President can authorize electronic surveillance in the conduct of necessary foreign intelligence operations, without judicial warrant even when a technical trespass is involved.”

Years later, Scalia told me in an interview when I asked him about the 1978 Foreign Intelligence Surveillance Act, which transferred secret wiretapping authority from the executive to a special court: “I had seen how [approval for secret wiretaps] worked under the executive, and it was not done irresponsibly.” He was against FISA but said, “given the times, it was inevitable.”

On the Watergate tapes question that Scalia first fielded, he wrote that the materials did indeed belong to Nixon. That was the view at the time of many Ford officials. As we know, however, Congress quickly reversed that opinion by passing a law to ensure that Nixon’s papers and Oval Office tapes were not turned over to him. The law directed the General Services Administration to take custody of the tapes and eventually open them to the public – which they have been now for years.

As legal commentators continue to debate last Thursday’s decision in Citizens United v. Federal Election Commission, I want to add a few observations related to Justices Scalia and Stevens. As Stevens read his poignant — sometimes halting — dissenting statement from the bench, he noted that the “seed that flowered” in the majority opinion had been planted by dissenters in the 1990 Austin v. Michigan Chamber of Commerce. In his written opinion Thursday, Stevens took specific aim at Scalia– an architect of the view that prevailed last week.

The majority decision was penned by Justice Kennedy, of course, yet Citizens United is another example of the success Scalia has enjoyed in recent years on the new Roberts Court. At one point, Justice Stevens wrote, “All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, ‘that there is no such thing as too much speech.’” That quote is from Scalia’s dissenting opinion in Austin. Stevens went on to say, “In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.” Stevens then said in a footnote of the notion of “no such thing as too much speech”: “Of course, no presiding person in a courtroom, legislature, classroom, polling place, or family dinner would take this hyperbole literally.”

I’m not sure Scalia wouldn’t.

I was also reminded as the Court majority gave short shrift to Congress of something Justice Scalia had said during oral arguments in the case last September and of his overall view of the legislative branch. “Congress has a self-interest,” he told U.S. Solicitor General Elena Kagan. “We are suspicious of congressional action in the First Amendment area precisely because we – at least I – I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.”

Well, maybe. Scalia cut his teeth in Washington in the Nixon and Ford administrations and, in the post-Watergate era, developed an antagonism toward Congress. He was constantly going up to the Hill to testify on behalf of executive privilege and against disclosure of White House documents. He sparred repeatedly with Sen. Edmund Muskie of Maine, U.S. Rep. Otis Pike of New York, and U.S. Rep. Father Robert Drinan of Massachusetts – all Democrats trying to pry information from the executive. I found in my research for American Original that Scalia’s experiences in the 1970s led him to enduringly value executive power and to consider Congress an adversary.

Finally, I’ve been asked for my take on some of the difficulty Justice Stevens’s had when he spoke from the bench last week. As he read excerpts of his dissent, going on for twenty minutes, he stumbled on some words. Tony Mauro wrote in the Legal Times blog that it was “painful” to hear Stevens speak, and Jan Crawford of CBS said she thought she was witnessing a “different” person. For my part, I thought Stevens’s mix of passion and weariness revealed his sense of the changed Court. As he began his remarks he observed that when he and Justice Sandra Day O’Connor jointly wrote a campaign-finance decision in 2003 (McConnell v. Federal Election Commission, rejecting a broad challenge to the McCain-Feingold law and the provision in dispute last week), they had begun with the belief that Congress could restrict corporate spending in elections. As Stevens spoke despairingly, he condemned the reversal of that notion. “The only relevant thing that has changed since Austin and McConnell is the composition of this Court,” he said in his opinion.

I know from my interviews with Justice Stevens that he considered retiring in the late 1980s, after he hit age 65. He stayed on the bench partly because of the role he thought he could play as the Court moved to the right with appointees of Ronald Reagan and the first President Bush. Stevens will be 90 in April. This time around, his options for the long-term are different.

The week is about to end without a ruling from the Supreme Court in Citizens United v. Federal Election Commission, regarding governments’ authority to regulate corporate and labor union spending in elections. Both sides have been anxiously awaiting a decision in the case that was argued last September and could affect big-money expenditures in this fall’s mid-term elections and all future races.

So sure were many campaign experts that the ruling was coming this week that they deluged reporters with notices of planned teleconferences and statements of how significant the decision was likely to be.

I cannot blame anyone for trying to predict the Court, especially when so much is at stake. But having gone through hundreds of once-private documents in judicial archives and seen how eleventh-hour switched-votes play out, I know how many factors can delay a case. A justice whose vote is crucial to the majority could be wavering. There could be an escalation in rhetoric between the majority and dissenting opinions. And those are just the predictable hold-ups.

I can recall numerous cases from my research on Antonin Scalia and Sandra Day O’Connor of flipped votes detected only after a justice’s private papers became public.

In the 1988 case of Bowen v. Massachusetts, between the federal government and states over Medicaid expenditures, Justice Scalia started with the opinion for the court but lost it when Justice William Brennan reconsidered competing legal rationales. One of the lawyers in the case told me recently that he wouldn’t have known that the outcome had changed if he hadn’t read about the behind-the-scenes maneuverings. Sometimes, there’s enough of a ‘we were robbed’ tone to the dissenting opinion to suspect that a justice changed his or her vote. But often the public opinions give no clue.

In the 1994 Holder v. Hall dispute over the scope of the landmark Voting Rights Act, Scalia started with the majority and the opinion for the Court, but then justices on his side began splintering off. Chief Justice William Rehnquist reassigned the opinion to Anthony Kennedy. That case, by the way, was argued on Oct. 3, 1993 and not decided until June 30, 1994. Could we be waiting for Citizens United until June?

I solved a mystery in the 1989 case of Wyoming v. United States, involving water rights for Native Americans on the Wind River Reservation, while I was doing research on O’Connor. The United States government, as a trustee for the tribes, had successfully contested a Wyoming state policy that voided the water rights. In its appeal to the Court, Wyoming claimed the rights had lapsed when the Indians failed to invoke them for irrigation or other projects. O’Connor was writing an opinion for a five-justice majority that sided with Wyoming and would deny the tribe water rights. As Justice Brennan began a draft of his dissent in the case, he referred to the Bible, “The Court might well have taken as its motto for this case the words of Matthew 25:29: ‘but from him that has not shall be taken even that which he has.’”

 But then suddenly everything changed. In late June, O’Connor sent a note to her fellow justices saying she had discovered her family’s Arizona ranch was named in a similar water-rights lawsuit, and she wanted to disqualify herself from the Wyoming matter. Without O’Connor’s vote, the Court was split 4-4 and the tie vote automatically affirmed the lower-court decision favoring the U.S. government as trustee for the tribes. The Court announced its resolution in one sentence. In private, O’Connor had closed her recusal note, which I first found in the papers of the late Justice Thurgood Marshall, with, “The unexpected has become the order of the day this term.” Maybe we’re in for another one of those terms.

When Citizens United finally is handed down, we’ll get some indication of what was happening. And then, years from now, if one of the justices makes his or her papers available – and if any of us are still around to read them – we’ll know much more. Those are big Ifs.

When I asked Justice O’Connor recently about when her archives might be available and if I might find some gems there, she said, “Don’t hold your breath.”

David Levine, Antonin Scalia, and Laugh Lines

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Over lunch last week, a friend mentioned the recent death of David Levine, the longtime caricaturist for The New York Review of Books, and we both immediately recalled Levine’s menacing portrait of Justice Scalia. Originally appearing in a June 1998 edition of the Review, Levine’s drawing shows the justice with a large square face, puffed out cheeks and bushy eyebrows. Scalia’s head is nearly overtaken by his black robe. Yet it’s not as scathing as, say, some of Levine’s versions of Robert Bork.

Levine’s caricature and other choice Scalia cartoons were on my mind (and, in some cases, taped above my desk) as I worked on American Original. A chapter, entitled “Quack Quack,” involving the controversy over Scalia’s hunting trip with Vice President Dick Cheney, ended up referring to several Scalia cartoons. One by Tony Auth of The Philadelphia Inquirer was captioned “Cheney and Scalia on the Hunt,” and the bubble over Cheney’s head said, “Ahh, Nino … Shooting ducks, Nailing Democrats… Life is good.” When the Sierra Club, a party to the then-pending case involving Cheney, asked Scalia to recuse, the Club pointed to the cartoons, along with other media reports, as evidence of an appearance of favoritism toward the vice president.

Scalia has been, as anyone can imagine, a regular source of material for cartoonists, and one by the late Herbert Block (better known by his pen name Herblock) made the book’s glossy photo insert. In the drawing, The Washington Post cartoonist targets Scalia for his religiously charged 1996 speech to the Christian Legal Society, when Scalia mocked the “worldly wise,” or as Herblock said, “worldly wise guys.”

One cartoon that didn’t make the cut and that I still have above my desk is topical today as we get ready for the upcoming gun-rights case, McDonald v. City of Chicago, to be argued March 2. The New Yorker cartoon by Michael Shaw ran October 13, 2008, a few months after Scalia had written the court’s opinion in a Washington, D.C. handgun case, District of Columbia v. Heller, finding an individual right to bear arms. In the rendering, a man asks a clerk in a gun shop, “What would Antonin Scalia pack?”

Justice Scalia appeared this month on “Mad About Music,” a Sunday night feature on WQXR, New York City’s classical music station. He and host Gilbert Kaplan talked about the roots of Scalia’s love of music and his opera favorites (among them Renee Fleming, Placido Domingo and Cecilia Bartoli).

The program was delightful, and comments from listeners on the “Mad About Music” web-site were interesting in their own way. Many people enjoyed the conversation, but a few chastised the station for giving Scalia a forum. Someone named Evan wrote: “I just turned off WQXR and not sure I want to listen again in the near future. How could WQXR present a platform to such a vile man?”

Catching up on the show reminded me of many Scalia classical-music moments, including:
1994 – when he first appeared as an “extra” at the Washington National Opera’s production of Richard Strauss’s Ariadne auf Naxos. Joined on stage by fellow opera lover Justice Ruth Bader Ginsburg, Scalia wore eighteenth-century costume — knee breeches, stockings and white powdered wig.
2008 – when at a Federalist Society conference, he was asked for his favorite opera and couldn’t stop at one. He began with Stauss’s comic Der Rosenkavalier, then Pucci’s tragic Madama Butterfly, then Verdi’s popular La Traviata. He then added, to the amusement of his conservative audience, “I like country music, too.”
2009 – when Scalia and Ginsburg again took bit parts in Strauss’s Ariadne auf Naxos, and an actress (not Ginsburg!) plunked down on Scalia’s lap. The moment was captured by a photograph that ran in the Washington Post. Scalia explained to Kaplan, “At one point a perky little participant in the opera — crazy opera that the nobleman has produced — comes and sits upon my lap. … I didn’t consider it my, you know, most notable theatrical performance. It didn’t take much talent. But I thoroughly enjoyed it.”

Scalia had told me about the early voice training of his father (a tenor) and appreciation for lyrics. He had told me of his own early piano-playing (Flight of the Bumble Bee was a favorite) and how he grew to enjoy singing chorale music. Host Kaplan drew out much more about his classical tastes and at one point asked whether “someone who is sensitive to classical music and opera might make … a better justice? Scalia answered no. When Kaplan asked about the newer justices’ music interests, Scalia said he wasn’t sure but then answered, “(Samuel) Alito is Italian; he must love music. How could he not?”

And one question gave way to a vivid image: 

“Are you an iPod type?”
Scalia said he, in fact, has an iPod: “When I go on airplanes and, you know, I have a chatty pair of adolescents behind me driving me nuts, I just put on my earphones and turn on some Baroque music that enables me to survive.”

The Comebacks Will Be Back

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At a December book event with Georgetown University law professor Pamela Harris, she asked whether I would have wanted to include in American Original Justice Scalia’s provocative remarks during the oral arguments in Salazar v. Buono, a case in which we are now awaiting a ruling. During those October arguments, which came just as the book was going to press, Scalia had challenged ACLU lawyer Peter Eliasberg about the symbolism of a Christian cross erected in the Mojave Desert to honor U.S. soldiers killed in World War I. Scalia questioned Eliasberg’s contention that the cross was a Christian symbol that did not honor all the war dead. “I have been to Jewish cemeteries,” Eliasberg said. “There is never a cross on the tombstone of a Jew.” As has been widely reported since, Scalia angrily retorted, “I don’t think you can jump from that to the conclusion that the only war dead the cross honors are the Christian war dead. I think that is an outrageous conclusion.” Another set of Scalia remarks that missed my publication deadline was raised, also at the Georgetown event, by Professor Stephen Bright, who specializes in capital cases. The matter involved Scalia’s dissenting opinion in the Troy Davis appeal of last August.  Scalia and Clarence Thomas were the lone public dissenters when the Court told a federal trial judge in Georgia to take new testimony in the case of Davis, sentenced to death for the murder of a police officer two decades earlier. Since the conviction, seven of the prosecution’s nine key witnesses have recanted testimony against Davis. Scalia lashed out at the Court majority for its action after “every judicial and executive body that had examined (Davis’s) stale claim of innocence has been unpersuaded.”

Scalia’s remarks in the cross case and in Davis’s claim of innocence are but two of many stand-out protestations. There were dozens before the book deadline, and there have been several since. I’ve found that everyone has a favorite (or especially abhorred) Scalia line—many of which simply could not make American Original. His phrases are singularly vivid. A friend in law school said for his constitutional law exam last month the professor listed quotations from cases and asked students to identify the author. The Scalia quotes were no-brainers. I recalled that when I was in law school and first doing Lexis-Nexis searches, I discovered that I could plug in just a few remembered words from Scalia and get precisely the opinion I was seeking.  “A sort of junior-varsity Congress” was his memorably derogatory phrase about the U.S. Sentencing Commission in his lone dissent to the 1989 Mistretta v. United States, which upheld the constitutionality of the commission and its sentencing rules. Former Scalia law clerk and U.S. solicitor general Paul Clement invoked other unforgettable Scalia lines during a 2008 tribute to his former boss, “Who among us would rather read about a three-pronged doctrinal test than about 60,000 naked Hoosiers [a reference to Scalia’s concurrence in the 1991 Barnes v. Glen Theatre] or even just nine people selected at random from the Kansas City phone book [from Scalia’s concurring opinion in the 1990 Cruzan v. Missouri Department of Health]?” Clement showcased the positive side of Scalia’s colorful use of language. Others, including University of California-Irvine law dean Erwin Chemerinsky, have contended Scalia demeans his colleagues and the Court with his retorts. Wherever one stands on the justice’s attention-getting prose, there will be more to debate. We are awaiting decisions from the most contentious cases argued in the fall. Only four signed opinions have been issued for the 2009-10 term. And in none of those four cases did Scalia write. There may be many comebacks and wisecracks in the works.

As we get ready to enter 2010, Supreme Court watchers – living in a tight and sometimes unhelpfully focused world (see 2005, below) — already have been considering who might be next for the Court. In the last two weeks, I have heard the question asked at holiday parties, during dinners and in private conversations. The most likely scenario is that Justice John Paul Stevens, who turns 90 in April, will announce his retirement in the spring, and that the Obama administration will work with a list that begins with the also-rans from spring 2009 and is expanded with other women and, likely this time, a few men. When Sonia Sotomayor was chosen last May to succeed David Souter, President Obama was determined to add a second woman justice to the nine-member bench and did not interview any male candidates. Some of the very premature discussion among Court insiders these days has centered on the current chances of candidates from the 2009 short-list: Would Homeland Security Secretary Janet Napolitano be a less likely choice because of fallout from the Christmas Day bombing plot involving a Nigerian student allegedly linked to al-Qaeda and her comment that “the system worked”? Have Solicitor General Elena Kagan’s arguments before the Court helped her chances? Would Appeals Court Judge Diane Wood, who turns 60 next July, be less likely now because of her age? Generally, I should note, President Obama has not been seeking younger candidates for the federal bench as GOP predecessors Ronald Reagan and George W. Bush did.

 I have found that all this preliminary speculation has taken a new twist, suddenly involving whether Justice Stevens would be the next to step down. I have long thought he would. When I interviewed him in October, he talked readily about his legacy and that he had not hired a full staff for the next term. When I asked him about media attention on the fact that he had not selected the usual contingent of law clerks, he said, “That can’t be news. I’m not exactly a kid.” While the justice would not confirm his retirement plans, it seemed to me his bags were all but packed. In recent days, however, a few Court watchers have been raising doubts about whether liberal Stevens would really be the next to go and whether a more likely possibility could be the retirement of one of the Court’s older conservatives. That would be far more consequential. If Obama were to replace a conservative justice on this closely divided bench, it would tilt the Court in a new direction and have a greater effect on the law of the land.

 As far as I can tell, none of this very mildly percolating speculation about a conservative leaving is rooted in reality, and I would throw water on all of it — if 2005 did not remain so vivid in my mind. That was when, as we all were watching for the retirement word from Chief Justice William Rehnquist, ill with thyroid cancer, Justice Sandra Day O’Connor announced her exit. I remember too well that July 1 day when she went public. I had been finishing up my biography of her and in denial about the effect of her husband’s Alzheimer’s disease on her plans. I had known for years of his illness, yet I had seen her conquer so much over the course of her pioneering life that I believed his situation would not lead her to leave. I was wrong, as were many of my veteran court colleagues (“Most in the Media were Blindsided by Justice” read a Washington Post Style-section headline). Several of O’Connor’s fellow justices were shocked, too. Justice Scalia told me later that July he had heard the news on the car radio as he was coming into work and nearly driven off the road.

 All this was in the back of my mind last night when a close friend and an astute Court observer asked what I made of some talk that a conservative justice, maybe even Scalia, might retire. The facts cut both ways: Justices Scalia and Anthony Kennedy, the eldest on the conservative side, will each turn 74 in the new year. That’s young in justice-years, although not for the usual worker. Because of generous judicial pensions, both men could retire and earn their salaries for life. Justice Stevens told me, “You think about retiring when you get to the point that you’re working for free” – even though that clearly did not make the difference for him in his 60s, 70s, or even 80s. Scalia and Kennedy have had some minor health problems through the years but appear in good enough physical condition. Scalia, who smokes, eats and drinks in great quantities, comes from long-living kin. Finally, I think about whether either would want to end his legacy now and give Democratic President Obama an opportunity to name a successor? I just don’t see it – especially in the case of Scalia.  So I told my friend that I’d still put my money on Stevens to leave first. Yet, as I cannot dismiss the events of 2005, I must add that if I suddenly heard Scalia was leaving, I wouldn’t drive off the road.

Scalia, Eggnog, and Christmas Party Chatter

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The Supreme Court’s Christmas Party is a lavish and festive affair, with bowls of eggnog, platters of shrimp, and a caroling session led by the chief justice. Held in the Great Hall, the party usually draws a majority of the justices, as it did this year, and most of the Court staff. 

When I saw Justice Scalia at this year’s party, it was the first time I had talked to him since American Original’s official debut. His first question: How’s it selling? I told him that he was beating out other bios of judges and legal figures, yet left in the dust of real celebs like Andre Agassi. He told me of various family doings, including that another grandchild was on the way. That would make thirty-one grandchildren for Scalia and his wife, Maureen.

 Friends (and talk-show hosts; see Mike Gousha’s WISN-ABC  program in Milwaukee; Diane Rehm’s WAMU-NPR show in Washington, D.C., for example) often ask what my subject thinks of the book. With Justice O’Connor and with Justice Scalia, I never asked and they didn’t tell. I presumed both found things to like and not to like. I wrote for a larger reading public and continue to – like my current subject – be more interested in how the book is selling to a broad audience. Coincidentally, when I first ran into Justice O’Connor after the fall 2005 publication of my biography, her first question was, “How are sales?” When I related the exchange to a friend and suggested the justice was showing a real interest in the book, he scoffed and said, “She probably wants to make sure it isn’t doing better than Lazy B,” O’Connor’s memoir of her ranch childhood. I thought my friend had a point. And that may be the case with Scalia, who is promoting his own book (on oral advocacy), too.  The word at the Court – and I didn’t ask about this over eggnog – is that Justice Scalia hasn’t given his approval for American Original to be sold in the book section of the Court gift shop. Maybe after the Christmas shopping season. Maybe not.

A Call From Renton, Wash., About Bush v. Gore

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It is a rare book signing or media appearance related to American Original that does not bring a question about the Court’s 2000 decision in Bush v. Gore. Yesterday when I was on the Diane Rehm Show, based in Washington, D.C., and broadcast on NPR, a woman named Janice from Renton, Washington, called in to say, “I resent Justice Scalia saying ‘Get over it,’ when we’re really talking about a coup d’etat by the judiciary.” She was referring, of course, to the 5-4 decision stopping the Florida recounts in the presidential election and ensuring George W. Bush’s victory over Al Gore. Half the country still seems angered by the decision handed down nine years ago this month.

Comments such as that from Janice highlight Justice Scalia’s singular role in the dispute, on which I elaborate below. Her remark also prompted me this time to check on how the decision has been faring in the case law. To my surprise, the decision that the justices wanted limited to the Florida case has now been cited in more than 200 federal and state court rulings. So as it lingers in the public psyche, Bush v. Gore remains a reference in the law, not just politics.

Scalia’s leading role came before the Supreme Court decided the merits of the dispute between then-Texas Gov. George W. Bush and then-Vice President Al Gore, when the justices by a 5-4 vote first shut down all recounts of Florida ballots. In that Dec. 9 order (three days before the Dec. 12 decision favoring Bush), Justice Scalia took it upon himself to defend the majority’s action. He wrote in a statement (signed by none of his colleagues) that letting the recounts continue would threaten the “legitimacy” of Bush’s election. “Count first, and rule on legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Scalia continued, ”the counting of votes that are of questionable legality does in my view threaten irreparable harm to [Governor Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” As I write in American Original, that was a surprising and dubious assessment of the situation. He was suggesting that if Bush were to win the presidency through a Court judgment that the recount was unfair, it would be better to have stopped the recount outright and avoided any tally that ended up favoring Gore. When challenged on the case during his own appearances on the road, Justice Scalia tells audiences, “Get over it.” And he complained in one our interviews, “I take most of the heat for that case,” suggesting he thought that simply was not fair. Janice would not agree.

 The recent comments from her and others – nearly a year after George W. Bush finished his two terms — led me to check on how Bush v. Gore was doing in the case law. When the five-justice majority ruled that the Florida standards for counting ballots varied too widely and failed to meet the constitutional equality guarantee, it said “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Law professors teach Bush v. Gore as one-of-a-kind decision, and the justices certainly have turned away from it. The high Court has not relied on the holding of Bush v. Gore for anything since December 2000. Yet I discovered that it has been cited in a couple hundred lower court rulings. It has endured — not with as much force as the political anger and likely not as the five-justice majority wanted it to endure. The 2000 ruling has enhanced the grounds for equal-protections challenges to unreliable voting procedures. As the U.S. Court of Appeals for the 6th Circuit wrote in a case last year, League of Women Voters of Ohio v. Brunner, “Although Bush [v.Gore] was necessarily ‘limited to the present circumstances,’ district courts have found its analysis applicable in challenges to voting systems.” The 6th Circuit relied on the case as it allowed the League of Women Voters and several individuals in Ohio to bring an equal-protection challenge to balloting practices during the 2004 Ohio presidential election. Among the claims, in the case recently settled, were that some voters had to wait up to 12 hours to cast a ballot and many disabled voters were turned away from the polls.

Solving A Problem Like Scalia

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Today at the Supreme Court I ran into a law professor who is working on a biography of another sitting justice and she mentioned she had seen American Original criticized for taking an objective approach to a justice who constantly generates fury. Jim Newton, in a review in the Los Angeles Times, had touched a bit on this when he wrote of the book, “It is scrupulously even-handed, which may irritate partisans on both sides of the Scalia divide — there are few fence-straddlers when it comes to him.” Then, later in the afternoon today, the question of partisan responses came up when I was a guest on Politico’s Arena, and moderator Fred Barbash asked how Scalia’s fans have responded to the book. I said some have wondered, of course, why I didn’t paint him as a saint. At the same time, a slew of folks on the other side have questioned why I didn’t make him out to be the devil. (More on the former later.)

So, why take a tempered approach to a hot-head like Scalia who inspires equally heated responses from those who love him and who hate him? I will admit that with a justice like Scalia, it might have been easier – and more marketable – to add one more harangue. But I, along with my editor, made conscious decisions at several points in the process not to ratchet up the rhetoric – to match his style – and to try to lay out in a more nuanced case for a broad readership. As a veteran journalist, that is my natural style. But my shrewd editor Sarah Crichton also thought that at a time of polarized politics and distrust for the news media, there was an advantage to offering readers an even-handed take and letting people draw their own conclusions from the evidence. Reviewers have done that. See, for example, Steve Weinberg’s review that ran in the Dallas Morning News and Chicago Sun-Times, and Claude Marx’s review in the Boston Globe.

As I told Politico today, one of my favorite responses-to-responses was from a lawyer friend who scoffed at those who wanted Scalia cast as the embodiment of evil or a saint. On the latter score, he noted, canonization requires two miracles and what Scalia pulled off in Bush v. Gore qualifies as only one.