ACSblog recently caught up with Joan Biskupic, who has covered the Supreme Court for 20 years, including for The Washington Post and USA Today. Biskupic kindly discussed her latest work with ACSblog, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, about which Harvard Law's Laurence H. Tribe said, "Joan Biskupic has done it again. Having hit a home run in her fine biography of the quintessential centrist justice, Sandra Day O'Connor, Biskupic has now hit it far out of the park with her elegant, insightful, and eminently readable account of the life and constitutional views of the most colorful justice on the Supreme Court's right wing. For anyone who wants to understand the most influential and interesting voice of the most powerful movement in contemporary American law, this book is a must read."
ACSblog: Did your research for American Original yield any surprises?
Joan Biskupic: I found surprises both in the justice's personal background and in his professional life. On the personal side, I had always known that he was an only child who went on to have nine children. But I hadn't known that he was also the only offspring of his generation from two striving Italian immigrant families. That made him a center of attention but also put a burden on him to perform. He never felt that his father was satisfied with him. I was also surprised to find some of the disappointments of his early life. Scalia did not get into Princeton as he had wanted. Later on, he was bitterly disappointed when he was passed over for the U.S. solicitor general job in Ronald Reagan's first term. I became aware of how these setbacks lingered and drove him.
On the judicial front, he really is what he appears to be -- but even more so. He was passionate about his views during our interviews and never pulled back from anything controversial. He nearly came out of his chair as he talked about abortion rights and how he believes some of his critics are wrong to chalk up his opposition to Roe v. Wade to his Catholicism. You'll see some of that controversy in the chapter called "Passions of his Mind."
He also takes intense pride in the line of Sixth Amendment cases he has helped steer, the Apprendi series that has changed sentencing rules and the Crawford line that involves the right to be confronted by the witnesses against you. "I led the charge," he said at one point about the recent cases that ended up gutting federal sentencing guidelines and giving juries the exclusive power to determine the facts of a case that can boost a defendant's sentence.
ACS: What were some of the more intriguing insights about Scalia that you learned in writing this book?
JB: I think his family background produced some of the tensions you see in him today. His mother's and father's sides had two distinct personalities. The mother's family was filled with storytellers, people who lived large and worked in sales, in politics, and fully embraced life. His father was more scholarly and always had his nose in a book, according to relatives. He had come from Sicily as a teenager and knew no English. It was family lore that he would not speak English in public until he had mastered it. He went on to earn a Ph.D. in Romance Languages at Columbia University. Scalia's father did not like jokes or any silliness and tended to be more demanding. I write in the book that these dueling family forces produced a man who was at home with tension and confrontation - and readily generated it. I see him broadly defined by family, tradition and heritage. I also think he was imbued with an Italian sense of spectacle, too. Even in a black judicial robe, he exudes color, zest, fury. And, of course, you have the familiar Sicilian chin flick, which some of his friends from the Nixon administration said he was prone to do back then.
ACS: How does Scalia address the criticism of his originalism as conservative judicial activism?
JB: Scalia has been a leading proponent of the notion that judges should adhere to the original understanding of the Constitution at the time of its adoption when deciding the breadth of rights and liberties. Some of his critics believe he talks a good game on originalism until it fails to get him what he wants as a policy matter. That criticism has emerged in the federalism area. I brought up in one of our interviews a pair of cases that often are targeted: his 1995 vote in United States v. Lopez and his 2005 vote in Gonzales v. Raich. When Justice O'Connor was still on the Court, she declared these two Scalia positions -- forbidding the federal government to regulate handguns near schools in the states but letting the federal government override state choices about drug laws - "irreconcilable." Scalia could be quite defensive about claims that he was inconsistent. Of his position to allow government interference with state medical marijuana policy, Scalia insisted, "The regulation of commerce to achieve what the federal government considers to be moral aims goes back a long way."
ACS: Was he amenable to working with you - interviews, recommending others talk with you?
JB: He was surprisingly receptive - but only after time. Initially, he said he would encourage colleagues and family members to talk to me but that he did not want to sit for on-the-record interviews. So, in the early months, colleagues such as Justice Ruth Bader Ginsburg and relatives, such as Justice Scalia's son, Gene (a lawyer in Washington), shaped my understanding of Justice Scalia.
But then the justice himself entered the picture for my research. I ran into him at the wedding of mutual friends and told him about all my trips to Trenton (where he was born) and Queens (where he grew up). I think he realized that I was finding out things about the family that he did not know. I filled him in on other parts of my research, from work at presidential and judicial archives. I think he felt that, with all the time I was spending trying to get his story down, he might as well help out. I ended with a dozen interviews. Those interviews made this book.
ACS: How was this different from your first subject, Justice O'Connor?
JB: Justice O'Connor's life was much more straightforward, so the story was overall less complicated and controversial. She was a pioneering figure, she was a politician. She came to Washington knowing how to count votes and that helped her influence the law over her time on the Court. Scalia's trajectory was much different, and he was much more a product of the conservative counter-revolution. These two important figures are opposites on the law and in life. In fact, in the first book, I had a chapter called "Scalia v. O'Connor." That was before I thought I'd ever do a book on Scalia.
The fact that Scalia is such a polarizing figure presented more of a dilemma for me, too. At every turn, I needed to include how his views affected others. Finally, because Justice Scalia constantly generates controversy at the Court and beyond the marble walls, I had to make many more choices about what material fit the narrative of my story. So many Scalia stories, so little time!
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