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 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 Ginsburg’s Staying Power

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Justice Ruth Bader Ginsburg opened a speech at the American Bar Association in San Francisco this week by observing, “I have lived long enough to see great changes in our profession.”

A question I’ve heard many times in my travels this summer is how much longer Justice Ginsburg, age 77, a cancer survivor and now a widow, will serve. Watching Justice Ginsburg on Monday (see the ABA video here) and following her activities since the death of her husband, Martin, I believe she will not step down in the next two years and is ready for the long haul, eager to see more changes in the law and profession.

That means it is likely President Obama’s Supreme Court nominations for a first term are over and that, after four appointments in five years (John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan), we will see a new period of stability at the Supreme Court.

Justice Ginsburg has been saying for years (most recently in an interview this month with the Associated Press’s Mark Sherman) that she wants to serve as long as Justice Louis Brandeis. Brandeis, who sat 1916-1939, racked up nearly 23 years and retired at age 82. Now age 77 and a 17 year veteran of the Court, Ginsburg has survived two rounds with cancer, most recently pancreatic cancer in 2009. Through her treatments, she kept up an energetic speaking schedule and remained one of the most active justices on the bench.

At the ABA, she looked healthy and seemed as spirited as ever, despite the June death of her husband of 56 years. She addressed the great change in the profession since the 1960s with the influx of women, who are no longer rare “curiosities at the bar.” Ginsburg graduated from Columbia law school in 1959, after first attending Harvard 1956-58. (She transferred when Martin graduated and got a job in New York.)

In San Francisco, Justice Ginsburg referred to the support for her career that she received from her husband, who died June 27, the day before the last sitting of the Supreme Court’s 2009-10 term. Even in her grief, Ginsburg took the bench that last day. I could not help but recall all the other times she had been so tested in her family life. Her mother died of cancer the day before her high school graduation. And while she and Martin were at Harvard, he was diagnosed with cancer. She helped him complete his studies as he recovered. She was also caring for their infant daughter at this time.

As she received the ABA Medal, the group’s highest honor, Ginsburg noted that “my only sadness” is that Martin did not live to see the day. But the justice said that her husband had known of the award before his death and had said “he would be cheering for me.”

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. 

Justice Scalia opened with his signature brand of humor: “Giving a commencement address is not as safe an enterprise as it used to be. I am told that the graduating classes in some schools, to while away the time as the speaker drones on, have devised a kind of contest, with an appropriate prize, to see who can write out in advance the greatest number of the platitudes that the speaker will deliver.” He said the exercise has been likened to playing Bingo. 

Justice Scalia then sought to debunk several platitudes, beginning with that students today face “unprecedented challenges.” Not true, he said. Things have always been pretty bad. “Today, to be sure, we have the capacity to destroy the entire world with the bomb. I suppose you can consider that a new problem, but it is really new in degree rather than in kind. If you were a teenager graduating from the Priam Memorial High School, in Troy, about 1500 B.C., with an army of warlike Greeks encamped all around the city walls; and if you knew that losing the war would mean, as it did, that the city would be utterly destroyed, its men killed, its women and children sold into slavery – I doubt that that prospect was any less terrible to you than the prospect of the destruction of the world.” 

My remarks were specifically addressed to young women about to make their way in the adult world. I invoked the experiences of Justices Sandra Day O’Connor and Ruth Bader Ginsburg and other “firsts” I’ve known in law, publishing and academia. While I reminded the graduates of the sex discrimination that still exists even in 2010, there probably was little I said that would have been deemed cynical. (I have to admit that I did find a way to work in one of my favorite New Yorker cartoons, one that captures the zero-sum-game attitude of Washington. In it, one dog says to another, “It’s not enough that we succeed. Cats must also fail.” This, I heard later, amused the lawyer-parents in the audience.) 

Justice Scalia quoted English philosopher Lord Acton and, from the Federalist Papers, James Madison. I gave the most air time to some thoughts from the late lyricist and Broadway producer Oscar Hammerstein, whose essay from the original “This I Believe” series I’d recently heard on the radio. Hammerstein opened his essay this way: 

“I have an unusual statement to make. I am a man who believes he is happy. What makes it unusual is that a man who is happy seldom tells anyone. The unhappy man is more communicative. He is eager to recite what is wrong with the world, and he seems to have a talent for gathering a large audience. It is a modern tragedy that despair has so many spokesmen, and hope so few.”

Having experienced the death of loved ones and much despair about his work, Hammerstein said he could easily present a case to prove he was not happy.

“I could,” he said, “but it would be a false picture, as false as if I were to describe a tree only as it looks in winter. I would be leaving out a list of people I love, who have not died. I would be leaving out an acknowledgement of the many successes that have sprouted among my many failures. … I would be leaving out my faith that the goodness in man will triumph eventually over the evil that causes war.”

Hammerstein earned a law degree from Columbia University. But fortunately the man who went on to produce such shows as South Pacific, Carousel, and Showboat left the law for the theater. He gets the last word.

For years, Supreme Court justices, lower court judges and law professors have argued over the merits of Scalia’s approach to constitutional interpretation. Yet last weekend in a commencement speech at Harvard, retired Justice David Souter offered a powerful counterpoint to “originalism” that might eclipse those arguments by virtue of the setting and timing.

 “Even a moment’s thought is good enough to show why it is so unrealistic,” Souter said in his dry, direct manner. “The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. … But this explanation hardly scratches the surface.”

Speaking before thousands of graduates under a blue sky, he added that, “The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.”

It is precisely that tension that brings cases to the marble steps of the nation’s highest court. Scalia has always professed that his approach — tied to the 18th Century understanding of the text — is straightforward, even easy, because the answers are right there and judges’ values need not enter the mix.

Souter dismissed that out of hand and concluded: “The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. …. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”

Now, debate over originalism is hardly new. Justice Breyer wrote a whole book, Active Liberty (2005), countering Scalia. And two years ago, in a case testing whether the Second Amendment holds an individual right to bear firearms, District of Columbia v. Heller, originalism was the backdrop. Scalia prevailed with his reading for an individual right to handguns. In dissenting opinions, both Justice Breyer and Justice Stevens (from different angles) wrote at length against Scalia’s interpretation. Justice Souter, who was still on the Court then, dissented but did not write separately.

Yet now, retired and shed of his robe and the yoke of a particular case, Souter in a single speech may be more effective against Scalia’s originalism.

Washington Post columnist E.J. Dionne, who wrote admiringly of Souter’s Harvard speech, says it has received far too little attention. But I would bet that changes.

Souter’s timing seems just right. We are entering a confirmation season (Elena Kagan’s Senate Judiciary Committee hearings begin on June 28), and large constitutional questions will be in the air. We are also nearing the end of another Court term. Among the many awaited cases is one (McDonald v. City of Chicago) requiring further interpretation of the Second Amendment.

Souter’s sharp words, delivered while wearing a cap and gown, rather than a black robe, are likely to reverberate louder.

Rehnquist: Stopping to Smell the Roses

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After I wrote last week about the justices and graduation speeches, a longtime Supreme Court employee reminded me of the late Chief Justice William Rehnquist’s advice for graduates: Stop and smell the roses. “Do not let the law be too jealous a mistress,” he used to say. “You must give yourself time not only to do a variety of things, but to allow yourself time to appreciate and enjoy what you are doing.”

A leader of the Court’s conservative revolution, Rehnquist cut a stern, sometimes cold, figure in the courtroom. Yet he had plenty of friends, liberals among them, outside the marble columned building. He was a man of many interests, travels and recreational pursuits.

Some of Rehnquist’s best tales were recalled against the backdrop of a party, charade game or travel adventure. He told me that the offer to be an assistant attorney general in the Nixon Justice Department (the job that first brought him to Washington) was made by his old Phoenix pal Richard Kleindienst (deputy to Attorney General John Mitchell) at a Christmas party. One of Rehnquist’s favorite stories of time with Sandra Day O’Connor’s family arose from a shared two-week pack trip along the Gila River. The Rehnquists and O’Connors also played regular charades and bridge together in Phoenix.

In Washington, Rehnquist took up painting and once missed a State of the Union address because it conflicted with his evening art class. In 1995, when he had four gold stripes sewn on each sleeve of his black robe, he was copying a character in Gilbert and Sullivan’s “Iolanthe.” Rehnquist drew on a set of “Iolanthe” lyrics for one of his favorite quips, too: “I did nothing in particular, and I did it very well.”

Rehnquist, in fact, lived large and beyond his legal interests.

Earlier this month, NBC’s Norah O’Donnell asked me on the Chris Matthews’s show if I thought — as some critics did — that Elena Kagan was too “programmed,” too ambitious and calculating in her climb up the legal ladder. My response was that no one gets to the Supreme Court without ambition and that Washington is filled with such focused people who never step outside predictable lines. But in recalling Rehnquist, I’m thinking that maybe it wasn’t always that way.

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.

I was also reminded of the practice when I read Adam Liptak’s story last Tuesday in the New York Times about studies of oral dissents. In my research for the O’Connor biography, I was tipped off to the timing of her first-ever dissent from the bench (in 1991, a decade after being sworn in) by a personal letter she wrote to then-retired Justice Lewis Powell. I found it in his archive at Washington and Lee University. O’Connor had been the lone dissent in the case of Pacific Mutual Life Insurance v. Haslip, upholding a punitive damages award, and she let Powell know she was so disturbed she took the unusual (for her) step of reading portions of her statement from the bench. She lamented what she perceived as a lack of standards for such damages: “Rarely is a jury told anything more specific than ‘do what you think best.’”

To this day, Justice Ruth Bader Ginsburg is a prolific letter writer, as is Chief Justice John Roberts. The late Chief Justice William Rehnquist would often pen whimsical notes to colleagues as he sat on the bench, and earlier when he was an associate justice (1972-1986), he wrote letters to friends when oral arguments bored him.

One of my favorite Rehnquist letters was written to Powell when he was recuperating from cancer surgery:

“We have now finished our January argument calendar, of course, and I must say I can’t ever remember a less interesting or stimulating group of cases. If you had to miss one oral argument session, I don’t think you could have picked a better one to miss. Even the conference today got a little bit testy, as it does at times. Some of the Chief [Warren Burger]’s discussion is quite good, when he feels very strongly about something and when he feels he has a majority with him; but some of it can be singularly uninspiring. Sometimes when he runs out of things to say, but he doesn’t want to give up the floor, he gives the impression of a southern Senator conducting a filibuster.

“I sometimes wish that neither the Chief nor Bill Brennan would write out all their remarks beforehand and deliver them verbatim from the written page. Bill is usually thorough, but as often as not he sounds like someone reading aloud a rather long and uninteresting recipe. Then of course Harry Blackmun can usually find two or three sinister aspects of every case which ‘disturb’ him, although they have nothing to do with the merits of the question. And John Stevens, today, as always, felt very strongly about every case, and mirabile dictu had found just the right solution to every one. As you might imagine, my conference discussion was, as always, perfectly suited to the occasion: well researched, cogently presented, and right on target!”

In 1996, Justice Scalia wrote a particularly dispirited note to Harry Blackmun that I and other researchers have used over the years: “ … I am more discouraged this year than I have been at the end of any of my previous nine terms up here. I am beginning to repeat myself, and I don’t see much use in it any more.”

One particularly amusing personal note from Justice Scalia came in 2001, after I had switched from the Washington Post to USA Today. He was not happy with some of my coverage at the Post but said he wouldn’t hold it against me:  “Nursing grudges is a very Sicilian vice, but … not one of mine.”

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.”

Giving him “H”

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The late Chief Justice William H. Rehnquist could tell a good story. He once regaled the Supreme Court press corps with how his mother had insisted he change his middle name to Hubbs, so that he could have the initial H. This happened when Rehnquist, who grew up in suburban Milwaukee, was about 17 years old and after his mother had met a numerologist on a train ride. The man told Margery Rehnquist that young Bill would become a professional success if his middle name were changed and began with an H. Hubbs was a family name and easy enough to take on — although, as Rehnquist told it, his mother had to go to court to make it official. Rehnquist, as chief justice, seemed amused by the whole affair and a bit in wonder of whether the H had paid off.

At the Supreme Court yesterday, December 10, in an “Unveiling Ceremony” for the white marble bust of Rehnquist, who died in September 2005, his son Jim told an equally amusing story. He recounted how his father, a former assistant attorney general, was in the fall of 1971 on a Justice Department team screening potential nominees for two Supreme Court openings (caused by the retirements of Justices Hugo Black and John Marshall Harlan). The Nixon administration had run through several possible choices without success. One day Jim came home from school and found his father, as usual, downstairs watching TV while eating the standard fare of vanilla wafer cookies and apple juice. His father said President Nixon was ready to announce his two appointees the next day: Richmond lawyer Lewis F. Powell — “and me.”

            “And I said, ‘What?!’”

            “Yeah,” the old man said, “Do you believe it?”

            “And,” son Jim added at yesterday’s ceremony, “the rest is history.”