I received enough reaction from the post on that snowy February 10 regarding whether journalists should call law clerks for information that I have a sequel. (See “But Would the Supreme Court Law Clerk Have Taken My Call?”)

University of Texas Law Professor Scot Powe, who clerked for William O. Douglas during the 1970-71 term and whose latest book is The Supreme Court and The American Elite, told me that reporters called him on the direct line into his office at the Court. He was not sure how they got the number. Powe said the reporters sought clarification of an opinion, rather than gossip about behind-the-scenes maneuvering. He said he tried to help when he could, without compromising confidentiality. Other former clerks told me they might have taken a journalist’s call — not on the substance of cases but on some of the social dynamics at the Court, for example, from the clerks’ end-of-term skit or, more seriously, regarding ideological maneuverings by clerks. That latter theme of the late 1980s was brought out publicly by former law clerk Edward Lazarus (who worked for Harry Blackmun) in his book Closed Chambers. Some justices were furious about that 1998 book, which had the subtitle: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court.

In my earlier post, I referred to memos filled with apprehension and anger over The Brethren by Bob Woodward and Scott Armstrong. That 1979 classic relied on scores of law clerks and five of the justices for inside information. I’ve collected other internal memos through my years of research that show how intensely justices act in response to any report that lifts the veil.

Sandra Day O’Connor, who served 1981-2006, was among those who reacted most negatively to disclosures. She took the lead with then-Chief Justice Rehnquist in 1990 to try to get retiring Justice William Brennan not to turn over files to researchers. Three years later, she and Rehnquist were among the most agitated when the papers of Thurgood Marshall were opened at the Library of Congress. I was part of the Washington Post team that discovered the documents and used them for a four-part series published in May 1993. The stories about the once-private exchanges among the justices generally made the Court look good. We noted that, “The exchanges are serious, sometimes scholarly, occasionally brash and personalized, but generally well-reasoned and most often cast in understated, genteel language.” Yet the series also revealed internal deliberations, including O’Connor’s changed views and votes on abortion rights.

After the Post series began, Rehnquist drafted a letter to Library of Congress director James Billington that said, “I speak for all of the active Justices of the Court when I say that we are appalled by the Library’s decision to open to the public Justice Thurgood Marshall’s papers….” O’Connor echoed that sentiment in a memo back to Rehnquist and told him, “Perhaps the final sentence could state that the failure of the Library to consult with and to consider all the ramifications and effects of granting such an early release of confidential materials may discourage future grants of judicial papers to the Library of Congress.” Other justices, however, including Byron White and Anthony Kennedy, thought that the LOC had done exactly what Marshall, who died earlier in 1993, had wanted. Those justices would not endorse Rehnquist’s rebuke, and, in the end, the chief justice revised his letter to say he was speaking for only a “majority of the active Justices,” not “all of the active Justices.”

In 2004, the files of the Justice Blackmun were made public at the Library of Congress. They were exceedingly valuable to researchers because, as Linda Greenhouse wrote in her biography of Blackmun, he chronicled “his life and the world around him in astonishing detail.” He saved virtually every piece of correspondence he received — to the chagrin of some of his colleagues, whose personal thoughts can now be copied for 20-cents a page at the LOC. After that, O’Connor said it would be a long time before another justice’s files were open to the public.

Since then, some of the papers of Rehnquist, who died in 2005, have become available at the Hoover Institution on the campus of Stanford University. And as I noted in an earlier post, Justice O’Connor has warned about the opening of her files: “Don’t hold your breath.”

One final note on the subject of bypassing justices and trying to get current law clerks to talk: After my earlier post, I heard from reporters who said they were thinking about being more aggressive about calling clerks. Well, I wouldn’t want that! It goes without saying that I’m not trying to spur anyone to a more competitive advantage. And for any law clerks out there waiting for the call (as the professor who started all this was): Remember me, please.

I could write about great snowstorms I have known, from Chicago in 1967 to Washington, D.C., in 1996 (a journalistic favorite because Chief Justice Rehnquist insisted on starting oral arguments right at 10 a.m. before all justices had made it in) and then declare how these storms don’t hold a candle to what’s happening now in the nation’s capital. (A stunning 54.9 inches for the winter!) But everyone has a blizzard tale this week, so on to something from the law school circuit:

A former Supreme Court law clerk who is now a professor asked last week: Why don’t news reporters call law clerks and ask for information on cases? When he was a law clerk, he said to me and the listening students, no journalist ever telephoned.

Now, to anyone who has never been associated with the Marble Palace, this might seem a perfectly logical question. Reporters call people for information all the time, right? But this distinguished professor, who was a law clerk to Thurgood Marshall, knows about the usual code of silence among the clerks. He knows that clerks don’t like to be seen talking to reporters in the cafeteria, even about the snowfall. Yet, the essence of his question was serious: What kind of news hounds are you if you don’t even try to call the clerks? He also stated – correctly — that the Supreme Court press corps has traditionally been known for its legal analyses on the cases and not for investigative reporting on the justices.

Our press corps has taken hits through the years for not being more aggressive, and the professor had a point—to an extent. I call former law clerks all the time and have gotten valuable information through the years. But clerks still on the job, experience has taught me, are too anxious to talk. I admitted I hadn’t tested this view in years, but it’s partly because I’ve built up relationships with justices and am less likely to consider turning to current clerks.

Of course, no one can talk about clerks’ talking-out-of-school (and what a reporter might get) without considering The Brethren, the juicy behind-the-scenes account of Bob Woodward and Scott Armstrong that relied heavily on law clerks. When I was going through the papers of the late Justice Lewis Powell (a treasure trove at the Washington and Lee University law school) for research on Justices O’Connor and Scalia, I found how perturbed justices were with the clerks – and to a lesser extent themselves – when The Brethren came out in late 1979. The book offered an unprecedented view of the legal maneuvering and petty bickering of the justices on key cases in the 1970s, from abortion to the death penalty. Woodward and Armstrong said scores of law clerks and five of the nine justices had provided them with information.

“This whole episode,” then-Chief Justice Warren Burger wrote to Powell as pre-publication rumors were spreading, “illustrates why we … make a mistake in allowing staffers here to talk to anyone outside.” Each June, near the end of the term, Burger, who came off as particularly arrogant and petty in the book, used to remind clerks that they had an oath of confidentiality.

Because Woodward and Armstrong appeared to have obtained annual term “histories” written in the chambers of Justice William Brennan, Brennan wanted to make sure his colleagues knew he had not been a source for the book. He wrote Powell on January 3, 1980: “I have never met either Woodward or Armstrong. I have never talked to either of them, by telephone or in person. I have not personally delivered or authorized any person to deliver the histories or other materials to Woodward, Armstrong or anyone else. They could only have obtained them from some unauthorized person or persons, for example a faithless law clerk.”

The correspondence regarding The Brethren suggests that the justices who talked believed, at the time, they were conveying serious information to the authors on the Court’s workings. They thought it was the clerks who had traded in gossip.

Powell, who was among the five justices who gave Woodward an interview, wrote to his clerks on January 16, 1980: “I am sure you are concerned by the poor light in which the book places Supreme Court clerks. Much emphasis has been placed on the fact that the authors claim to have interviewed 170 clerks, with no identification of those who breached their duty of confidentiality. This casts suspicion on all of the 170. The same also can be said for the anonymous ‘reliance’ on five justices.

“I think most of you know that I talked to Woodward in September, 1977, when he stated, when requesting the interview and repeated when he arrived, that he was not doing investigative reporting. Rather, he planned a serious book on how power is exercised at the highest levels in the three branches of government. I understand this is now conceded to have been a deliberate (and false) cover plan.”

Woodward and Armstrong got the job done, and The Brethren is still in print. I should note that the 1979 book covered cases only through the 1975-76 term. So the authors relied mainly on former clerks for their investigation.

Last week, I concluded my answer to the law professor by asking him: If a newspaper reporter had telephoned while you were clerking, would you have taken the call? No, he admitted. But it still bugged him that no one had even tried.

Since I’ve been on the road talking about Justice Scalia, I’ve consistently been asked about the fact that six of the nine justices are Roman Catholic and about how that affects the Court’s opinions, particularly those of Scalia. I devoted a chapter to Scalia and religion — Passions of His Mind — and, despite how touchy the intersection of personal belief and judicial views can be, I am ready to field these questions.

Recently, however, I’ve felt a shift in the line of questioning, as happened this week at Yale, and it comes down to a query fraught with more hazards: Would it be politically difficult for the president to choose a Catholic for any new vacancy? And would it be almost as difficult to pick someone who is Jewish? Right now, serving with the six Catholics (Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, Sonia Sotomayor), are two Jewish justices (Ruth Bader Ginsburg and Stephen Breyer) and one Protestant. That one Protestant, Justice John Paul Stevens, will turn 90 in April and is likely to be the next to retire. I’ve heard a few professors say if Stevens steps down, it would be nearly impossible for Obama to chose a Catholic, or maybe even someone who is Jewish, because of the current court makeup.

I do not know how religion would affect the choice, but here’s some context from where I sit, along with the thoughts of two of my subjects:

The Supreme Court had long been dominated by Protestants, of course, like the White House and Congress. When Catholics became a five-member majority after the 2005 and 2006 appointments of Roberts and Alito, it barely made the news, however, because of faded anti-Catholic sentiment and evolving religious pluralism in America. After recent abortion-rights disputes, the religious backgrounds of the justices became a topic for discussion, but still with unease. As I’ve written, lawyers often express thoughts about how Catholicism influences legal opinions only privately, reflecting their discomfort with the suggestion that either Scalia is being disingenuous about how his beliefs influence him (he says they do not) or that serious Catholics cannot think nonreligiously about legal matters.

For his part, Justice Scalia has said he was “very pleased and sort of proud that Americans didn’t pay any attention” when the bench suddenly had a Catholic majority.

My earlier biographical subject, Sandra Day O’Connor, an Episcopalian, comes at it differently. And when I was asked about the justices and religion in New Haven this week, I found myself recalling something she said last fall. During a panel discussion, O’Connor emphasized the value of diversity on the bench — in sex, professional experience, geography and religion. “I don’t think we should have nine clones up there,” O’Connor said, primarily complaining at that point that all current justices had been elevated from lower U.S. appeals courts. When asked about geographical representation, O’Connor took the initiative to go beyond the question and declared, “I don’t think they should all be of one faith and I don’t think they should all be from one state.”

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.

Supreme Court Justice Samuel Alito considered his Senate Judiciary Committee hearings so painful that for months after his 2006 confirmation he would try to avoid the Hart building where the nomination hearings were held. “I cross to the other side of the street,” he said. “I quicken my step until I’m well past the building.”

It’s likely Justice Alito now feels that way about the Capitol, where his disagreement with President Obama on Citizens United v. FEC during the State of the Union was seen by a national television audience.

I was traveling when most of the criticism (some directed at Alito, some at Obama) played out in news reports and cable chatter, and I won’t echo that. I will only add what I know of Alito from my interviews with him. He has a quiet demeanor yet a definite contrary streak.

While the TV audience saw Alito mouth what appeared to be “not true,” Justice Sonia Sotomayor next to him apparently heard nothing. On the video, she doesn’t respond in any way. He may be a constant grimacer (he didn’t look happy at last year’s Obama Inauguration either), but Alito is simply not a talkative sort. He likes to work at home alone, especially when he is writing opinions. On the bench during arguments, other justices sometimes turn to a colleague to whisper a comment or wisecrack. Not Alito. He is in his own space. Some White House aides who accompanied him on courtesy calls to senators before his hearings said they had trouble making small talk with him.

I’ve found Alito relatively easy to talk to – yet also ready to voice the kind of contrary view the nation saw Wednesday night. When I interviewed him for my Scalia biography, Alito said he admired Scalia but found his originalist approach at times lacking. “To say that you’re an originalist doesn’t really decide the case. Originalism gives you a principle to apply. Very often, particularly in areas where things have changed so much, identifying the principle doesn’t really decide the case.” An example of where their originalism diverges: Alito and Scalia disagree on the Sixth Amendment, specifically on what it dictates about judges’ power in criminal sentencing and on the reach of defendants’ right to be confronted by the witnesses against them.

Alito, who like Scalia is a consistent conservative, took offense at media commentators of years back who dubbed the then-appeals court judge “Sc’Alito.”

“I was insulted by it,” Alito told me, “in the sense that I knew the only reason it was done was because of the fact that we were both Italians. I was flattered if people thought I wrote like him or thought like him. But just sort of lumping the two Italians together, I thought, was not appropriate.”

On the personal side, Alito made clear he is no Scalia, who is known for living large (duck hunting with Dick Cheney, the opera with Ruth Bader Ginsburg) and is definitely not a stay-at-home-alone guy. Justice Alito said he didn’t like to play poker or bridge and tended not to socialize much. “I am a very boring person,” he quipped. Well, as of now, three days after the State of the Union speech, the recorded “views” on YouTube of Alito’s response to Obama are in the hundreds of thousands.

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.

When Clarence Thomas Does Speak

| | Comments Off

Justice Clarence Thomas has not spoken from the bench in nearly four years, and his silence regularly leads to questions from the public. When I’m asked, as happened twice last week, I usually repeat some of the reasons Thomas has given, including (as he told C-SPAN in 2009) he would rather let the lawyers talk on and explain their cases. Then I add that in interviews I’ve had with Thomas he has been unusually candid in his assessments of colleagues and open about his views. He provided some of the more vivid descriptions of Justice Scalia and Justice O’Connor, and he offered impressions of the confirmation process for Sonia Sotomayor last summer.

As we approach another anniversary of Justice Thomas’s silence on the bench (in February), here are two comments that I thought revealed as much about Thomas as the justice we were discussing:

When I spoke to him about the then-pending nomination of  Judge Sotomayor, I noted that she had been subjected to some inaccurate and rancid stereotyping. Thomas experienced some stereotyping, too, when he was nominated in 1991. I asked whether that caused him to have some sympathy for Sotomayor. In response, Justice Thomas focused on the fact that many of her liberal supporters had been his critics. “I don’t know her,” he said. “I had dinner with her once. She was nice to me. … I’ve always found it fascinating that people get upset with me because they think that because I’m black I have to have a particular point of view. But the people who have presumed that about me cannot now object if the same thing happens to Sotomayor. You see what I’m saying? A bigot cannot yell too loudly about bigotry.”

When I asked Thomas years earlier about Justice O’Connor, he openly recalled their differences in his first term on the Court, particularly in Wright v. West, the 1992 case regarding procedures for prisoners seeking a federal hearing. He wanted to go much further than O’Connor in curtailing the writ of habeas corpus. O’Connor made clear, behind the scenes and then in a published opinion, that she believed Thomas was misconstruing precedent. Thomas told me: “At first I thought, ‘Whoa, she’s a tough cookie.’ … But they had been working on these [habeas corpus] problems for years and I come marching in like this.” Thomas pumped his arms aggressively for effect. “I was the new kid on the block. I was brash…. I just took it like the rookie football player who gets clobbered by the linebacker: ‘Welcome to the NFL.’”

Makes me wonder what he was thinking during last week’s oral arguments in American Needle v. National Football League.

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

| | Comments Off

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.”