Sunday, February 14, 2016

Margaret Talbot's 2005 profile of Antonin Scalia

After I heard the news yesterday that Antonin Scalia had passed away, I immediately thought of Margaret Talbot's 2005 profile of the Justice for the New Yorker. It was one of the first pieces of profile journalism that I ever really loved: smart, vivid, and simultaneously respectful and critical. This was before William Rehnquist died, before O'Connor, Souter, and Stevens retired, before D.C. v. HellerCitizens United, and Obergefell v. Hodges—and reading it now really is like stepping into a time machine. There are some remarks that seem prescient:
Over the years, Scalia has become an increasingly frustrated and unheeded voice. For those who helped to pick him for the Court, his failure to persuade his brethren has been a big disappointment. Douglas Kmiec, a former Reagan Administration official who worked on judicial appointments, says, “Sometimes one wishes that Justice Scalia’s computer came with a delayed ‘Send’ button, so he could read some of his footnotes the next morning and see if they were worth the carnage.” His champions did not take into account that charm does not make a consensus-builder out of a person who doesn’t particularly value consensus.
Her characterization of Scalia's style as a writer has stayed in my memory for more than a decade—in particular, the part here about the Peace of Westphalia:


[quoting Scalia in Planned Parenthood v. Casey:] "But to portray Roe as the statesmanlike “settlement” of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since. And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption rather than of any Pax Roeana that the Court’s new majority decrees." 
In stressing the need to cling to Roe “under fire” and in the face of “great opposition,” the Court’s position smacked of “czarist arrogance,” Scalia railed. “We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change.” He even insinuated that the majority opinion smacked of fascism, projecting nothing less than a “Nietzschean vision of us unelected, life-tenured judges, leading a Volk.” 
Scalia has a distinctive writing style—lucid, sarcastic, peppered with hyperbolic analogies (Cossacks, Nietzsche), offhand historical references (Peace of Westphalia), belittling dismissals of the majority opinion (“ludicrous,” “preposterous,” “appalling”), and occasional allusions—not too specific or up to date—to popular culture.
But other remarks seem odd, if comprehensible, now, as when Talbot speculates that then-President Bush might elevate Scalia to Chief Justice on the retirement of William Rehnquist. Still, it is remarkable that Talbot's profile is just as compelling to read now as it was then.


Back then, when I was fourteen, it was the glamor and the intellectual sophistication of the judiciary and the Supreme Court in particular that fired my imagination. Now that I realize I'm unlikely to ever go to law school, but spend increasing amounts of time writing, it's Talbot's ease, conviction, and insight here—as well as the exemplar of what old-fashioned reportorial detachment can support, as opposed to the kind of profile that inserts the reporter as a first-person narrator ("I am sitting on a Monday morning when Justice Kennedy walks in...") or the practiced proximity offered by Larissa MacFarquhar-like application of free indirect speech to the subject's words.

It's all the more impressive now, because there are three or four visions of Scalia jostling for attention in the wake of the Justice's passing, and Talbot manages to capture nearly all of them. There is Scalia as affable colleague; Scalia as cantankerous and dismissive; Scalia as genius, endowed with formidable intelligence that demands respect even from his greatest adversaries; and last of all, the Scalia who will go down in history for those opinions, majority and dissenting, many of which have happened since 2005—opposed to gay marriage and equal pay on the basis of separation of powers, and opposed to the D.C. handgun ban, campaign finance limits, and the Roe decision through highly particular originalist readings of what constitutes Constitutionally protected rights. Scalia always said his views on the law forced him to make decisions that he didn't himself like. But in the end, so many of his readings on the most consequential and visible cases lined up so neatly with his own political beliefs about what the world should look like that—if he was correct—it is remarkable that the law itself should agree with him so often. 

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