This episode of Hub Dialogues features host Sean Speer in conversation with James Rosen, a journalist, historian, and best-selling author, about the first book in his two-volume biography of former U.S. Supreme Court Justice Antonin Scalia entitled, Scalia: The Rise to Greatness, 1936 to 1986.
You can listen to this episode of Hub Dialogues on Acast, Amazon, Apple, Google, and Spotify. The episodes are generously supported by The Ira Gluskin And Maxine Granovsky Gluskin Charitable Foundation and The Linda Frum & Howard Sokolowski Charitable Foundation.
SEAN SPEER: Welcome to Hub Dialogues. I’m your host, Sean Speer, editor-at-large at The Hub. I’m honoured to be joined today by James Rosen, the chief White House correspondent at Newsmax, an historian and bestselling author whose latest book is the first in a two-volume biography of former U.S. Supreme Court Justice, Antonin Scalia. The book, Scalia: The Rise to Greatness, which covers the period up to his appointment to the top court in 1986, draws on extensive interviews and primary research, including unpublished documents, to piece together Scalia’s formative years as a judicial thinker and scholar. I’m grateful to speak with James about Scalia’s intellectual influences, the role of his faith, and how he thought about his role in the conservative judicial revolution. James, thanks for joining us at Hub Dialogues, and congratulations on the book.
JAMES ROSEN: Well, thank you, Sean, and it’s great to be with you and your audience in Canada. My brother, way back in the last century, attended McGill University, and I went up there to visit with him and had so many great experiences in Montreal. So greetings to all my friends in Canada.
SEAN SPEER: For our younger listeners. Let’s start with a basic question, James. Who was Antonin Scalia, and what’s his significance? Why does he justify two-volume biography?
JAMES ROSEN: Well, again, thanks for having me, Sean. Antonin Scalia is one of the most important Americans of the last hundred years. He was a Supreme Court justice. He served 29 terms on America’s highest court, and his jurisprudential legacy touches the lives of every single American. But he wasn’t just a very important and consequential justice. He really is one of the most important Americans of the last hundred years. My new book, Scalia: Rise to Greatness, 1936 to 1986, just released, tells the story of the first 50 years of Antonin Scalia’s life. And it ends with him taking his seat on the Supreme Court. What I found is that there were already two existing biographies of Antonin Scalia out there. Both of them were published while he was still alive.
One of them he cooperated with extensively, the other not at all. And yet both of them turned out in pretty much the same place, which is, to say, fairly open in their hostility to Justice Scalia, his conduct, his jurisprudence, and his legacy. And so my book, Scalia: Rise to Greatness, is the first attempt at a biography undertaken since the Justice’s death in 2016. It draws on a vast array of new documentary and personal sources that were either overlooked by or were unavailable to the previous hostile biographers. And I like to say that it’s the first accurate biography of Antonin Scalia for the very simple reason that it’s the first admiring one.
SEAN SPEER: Yeah. Let’s take up your comment that the book, in a way, is in something of a dialogue with these previous attempts at defining Scalia’s life and its placed in modern American history. What did these biographies get wrong, and what have you sought to correct in your own book?
JAMES ROSEN: These earlier biographies, which were written by liberals, as I say, were open in their contempt for Justice Scalia, what he stood for, and how he conducted himself. What they get wrong is not only the large picture of his legacy and what it means for every American and why he was so important, but even very basic details. So, for example, the first biography published in 2009 stated that Scalia moved from Trenton, New Jersey, where he was born in 1936, to Queens, where he grew up, when he was six. The second biography published in 2014 identified the age of when Scalia moved when he was three. One of the sets of documents that my book, Scalia: Rise to Greatness, makes use of that has never before been published is a secret oral history of his own life that Justice Scalia conducted in his chambers at the Supreme Court in 1992, seventh term on the court, when he invited a female attorney he had known for almost 20 years at that point into chambers to serve as his interviewer for a proper oral history.
It runs several dozen pages. It’s a really important document of Scalia describing his own origin story, if you will. And it wasn’t released until 2018. But in that document, he states flatly that the Scalias moved when was five. So that’s just one example of how my book serves as a corrective to the previous literature. There were whole episodes and forces in Scalia’s life that are either treated in the most tendentious light, overlooked entirely, or treated cursorily. And so this book, Scalia: Rise to Greatness, is really the book that Scalia fans and students of American law and history who are interested in an accurate record of our times have been waiting for.
SEAN SPEER: Scalia had a reputation for being combative and not suffering fools, but he was also remarkably liked across the intellectual and political aisle. He was, in other words, a happy warrior, a breed that seems less present in public life today. Where does that come from within Scalia?
JAMES ROSEN: Well, he was an only child, and he was doted on endlessly by a rotating cast of aunts and uncles. His birth was something of a miracle because, when you looked at both sides of Scalia’s family tree, his mother’s family and his father’s family, you had seven siblings there. All of whom could have gotten married and produced children, but Scalia was the only child produced amongst those nine siblings. And so his only-ness was a factor in his personality from the very beginning. He used to say, “There’s a reason I’m the way I am.”
Scalia was a product in large historical terms of the immigrant experience here in the United States. His father came to the United States from Italy in 1920, passed through Ellis Island. His father had $400 in his pocket at that time, spoke not a word of English, and made of himself a renowned professor of romance languages. Scalia’s mother was herself the daughter of Italian immigrants. Herself school teacher. They were devout Catholics.
And from those three influences, his mother, who venerated form and composition, made sure that young Nino Scalia stayed on straight and narrow path and hosted the Cub Scout meetings in their own home for that reason; from his father, who was character but who had an extraordinary work ethic and who warned in his own academic writings of the perils of the original meaning of a sacred text being distorted by a dishonest translator or interpreter. And from the sacred foundational texts of the Catholic Church, the liturgy of the Catholic Church—from these three influences, young Nino Scalia emerged with a profound reverence for the inviolability, the immutability, of sacred original texts. And he carried this forward with him, obviously, through his work as a judge and ultimately as a justice on the Supreme Court.
SEAN SPEER: James, that’s a good segue to my next question. As you say, Scalia’s Catholicism is core to his identity. He famously wrote, “Be fools for Christ and have the courage to suffer the contempt of the sophisticated world.” How did he come to his faith, and how did it influence his life?
JAMES ROSEN: I like to say that Scalia’s Catholic faith was the rocket fuel for his rise to greatness. Of course, his parents were great parents and in their different ways and encouraged him to be a hard worker. And he had a capacity not only for hard work but a penchant for excellence. And not just for excellence but for perfection. And where his Catholicism was concerned, he attended, for high school, a Jesuit school, Xavier High School, where he was valedictorian. Xavier was a very unusual institution because it was both a Jesuit private school and also a military academy. Scalia would commute on the subway train from Queens to Manhattan dressed in uniform and with his .22 rifle casually slung over his shoulder, and nobody batted an eye on the subway back in those days. He loved to tell audiences about that.
And then, of course, he continued on with Jesuit education at Georgetown University, where he was also valedictorian. And his son, who became a Catholic priest, Father Paul Scalia, who I interviewed for this project, memorably stated at his brilliant homily for his father at the memorial service in 2016 that “Jesus Christ is the same yesterday, today, tomorrow.” And again, Scalia’s Catholicism reinforced the strict textualism that his father was already teaching him at home. And at Xavier High School, Scalia had an experience that he recounted for the rest of his life to audiences. He called it “the Shakespeare Principle.” There was a fearsome Irish Jesuit priest, elderly and scary, who spoke with a thick Boston brogue, who terrified the students there. And he had a great impact on Scalia. His name was Father Tom Matthews.
And there was an instance where the class was studying Hamlet, and some wise guy in the class, not Scalia, pipped up with some sophomore comment about the play. Father Matthews glared down at the offending wise guy and said to him, “Mister, when you’re reading Shakespeare, Shakespeare is not on trial; you are.” And Scalia called this the Shakespeare principle. It, again, was the lesson that there is something that William F. Buckley Jr., someone else I’ve written about, called “the patrimony.” This was the inheritance of received wisdom through the ages. And part of that patrimony, that inheritance, was that you don’t monkey with sacred texts, and whether it’s Shakespeare or whether it’s scripture. And again, Scalia carried all of this forward into his work as a jurist, but I’ll close with this. He was very careful, and he always made a point of saying that he would never raft his Catholicism onto his work as a judge or a justice. His job as a judge or a justice was to interpret the meaning of a given provision of the Constitution or a given statute. And when a close friend of his, in the early 2000s, published an op-ed accusing Scalia of writing his Catholicism into his opinions, it caused a rift between them that endured for five years before they reconciled. The way Scalia would put it was, “There’s no such thing as a Catholic hamburger.” He said, “The closest you could come to there being a Catholic hamburger would be a hamburger that is made perfect.”
SEAN SPEER: After he leaves Georgetown, he goes to Harvard Law School. I was surprised to learn in the book, James, that many of his professors in the mid-1950s were still proponents of judicial restraint, that, in other words, the influence of the Warren Court and the rise of living Constitutionalism was still nascent. Do you want to talk a bit about his experience at Harvard and the ideas that he discovered there?
JAMES ROSEN: In my effort to determine what the prevalent legal theories were on the campus of the Harvard Law School at the time that Scalia attended there in 1957 to 1960, I discovered that with as with a lot of things that I encounter as a working reporter, it may well depend on whom you ask, and so liberal scholars and lawyers who had attended Harvard at the same time as Scalia told me one thing about what was prevalent on that campus at that time. And conservatives who were more in a Scalian mold tended to echo what he thought were called the predominant legal theories on the campus at the time. So, for example, Scalia and Larry Silverman, who also became a very important judge and probably Scalia’s best friend, recalled, as you say, the judicial restraint and the application of neutral principles in the central business of interpreting the meaning of a law or a statute, that that’s what prevailed.
And that really, if you applied principles of law neutrally to the cases and without regard for who the litigants were, you’d be a more honest judge because you weren’t concerned so much with the outcome as you were with the process. And that’s exactly what Scalia brought to bear on the federal bench. One liberal contemporary of Scalia’s told me that, no, what was prevalent on the campus of Harvard Law in those years was the belief that legislatures sometimes make mistakes or succumb to sloppiness when they draft their laws and that it was the job of the courts and judges to assist the legislative branch by interpreting what the legislative intent had been as long as they weren’t distorting things to the outer limits of semantic possibility. And that’s the exact phrase that was used with me—one that Scalia would’ve found abhorrent, of course.
You mentioned the Warren Court. This is the Supreme Court under the direction of Chief Justice Earl Warren, who was appointed to the court by President Eisenhower, a Republican president, but who became, in his chief justiceship, a sweeping liberal force in the law and, of course, presided over such landmark decisions as Brown v. Board of Ed., the 1954 ruling that made it unlawful for school systems to discriminate on the basis of race. He presided over the Miranda ruling in 1966, which required police officers, when arresting suspects, to advise them of their constitutional rights to an attorney, and so on. The person who succeeded Warren or Earl Warren as Chief Justice of this United States was Warren Burger, also appointed by a conservative, President Richard Nixon.
And the Burger Court, in the eyes of movement conservatives, hardly distinguished itself from the Warren Court because it’s from the Burger Court that we get Roe v. Wade in 1973 and the Bakke case in 1978, which legalized the use of affirmative action in university admissions programs, and so on. When Scalia came to the federal bench, he was a professor of law at that point. He had served in the Nixon and Ford administrations, each with different jobs that are fascinating, and I hope he got a chance to discuss his work in the Nixon and Ford eras. But he was appointed to the court of appeals for the District of Columbia Circuit, which is one rung below the U.S. Supreme Court and often described itself as the second-most powerful court in the country. He was appointed there in 1982 by President Reagan. It was four years later that President Reagan appointed Scalia to the Supreme Court.
But those four years on the D.C. Circuit, I cover as the final material in my book—and boy, what a murderer’s row judicial town serving on that court at that time. You had Robert Bork, Ruth Bader Ginsburg, Antonin Scalia, Kenneth Starr, Larry Silverman; these are all titans of American law from different jurisprudential points of view. But when Scalia ascended to the federal bench in 1982, they prevailed in American law, a theory which you’ve alluded to called “the living Constitution.” And this was a liberal notion that the meaning of the Constitution should expand like a living organism might to account for phenomena that the founding fathers of the United States could never have envisioned, such as nuclear weapons or the internet. And in order to breathe this expanded new meaning into the Constitution and its provisions, or into any statute passed since then. Liberal judges would bypass the text of the Constitution of the law and they’d look to something that they called legislative intent, what was said in all of those House and Senate floor debates. What was printed in all of those committee reports that were generated as a given measure sneaked its way through the process?
Scalia stood up to all of this. And there were others who came before him, such as Robert Bork and Edwin Meese, who pioneered the idea of originalism and who were the first really to speak out against what they saw as the excesses of the Warren and Burger Courts. But Scalia drew the sharpest point on it and honed it down to what he called original meaning. And also he had the most forceful and affable, and telegenic personality in order to be able to spread this gospel. But Scalia’s idea was that nobody voted on a committee report, and nobody voted on a floor debate. A legislature voted on a given text, and a president signed that into law. And so Scalia’s idea was that when judges are engaged in their central business, which is to interpret the meaning of the Constitution or a given statute, they should adhere to the original meaning of that provision or that statute. Which is, to say, the meaning it enjoyed and was widely understood to have at the time that it was enacted, and how best to discern the original meaning of a constitutional provision or a given statute. Scalia said, “The text looks no farther, generally speaking, than the text.”
And so I say, the textualism in this Scalian construct is like the metal detector that we use to find the original meaning. All of this was considered radical and counter-revolutionary when Scalia took to the bench. By the time he died, no less a figure than Supreme Court Justice Elena Kagan, an appointee of Barack Obama, had proclaimed that, in effect, as a result of this revolution by Scalia, which shaped forever not only the way that lawyers argue the law before judges and justices and not only the way that judges and justices craft their opinions of the law—which again touches every area of every American’s life, but even the way that lawmakers draft and write their laws—as a result of all of this, Justice Kagan said, “We’re all originalists now.”
SEAN SPEER: I just say in parentheses, James, that the Kagan quote in the book is really extraordinary precisely because she recognized that what Scalia and others had done was to establish a credible, intellectually rigorous alternative to the living constitutionalism that had prevailed for the previous decade. So even if her and others might disagree with them, they had to take seriously the ideas and the intellectual underpinnings of the jurisprudence that he came to personify.
We’ll come to his record on the D.C. Circuit Court. But before we get there, I want to talk a bit about his decision to first go to Washington. After he graduates from Harvard Law, he spends some time in private practice in Cleveland and then, as you say, goes to Washington to serve in the Nixon and Ford administrations. What brought him there, James? Was it a political affiliation or intellectual curiosity or personal relationship, or some combination thereof?
JAMES ROSEN: You mentioned earlier, Sean, that Scalia served 29 terms on the Supreme Court. There was plenty of controversy associated with him for various reasons across that span, but there was no hint of scandal. He and Maureen Scalia, his wife of 55 years, mother of their nine children, lived exemplary Catholic lives. And this is preserved in the hundreds of FBI pages of his FBI file, which I’m the first researcher to make use of. Where they fanned out agents four times within 14 years as Scalia rose through the executive branch to conduct background checks on him, four of them in 14 years. Sometimes sending agents across the country to interview people who had known Scalia since he was 13 in 1949. And page after page after page of these FBI files show the agents being told the same thing again and again, hundreds of pages of this, that not only is this the most honest man I’ve ever met, this is the most brilliant man I’ve ever met. This man is not just qualified for a federal judgeship, he’s the most qualified man you can imagine for a federal judgeship.
But there was one person that was never interviewed by the FBI and had never been interviewed by anybody about his relationship with Antonin Scalia, which extended for decades. And this gets to your question about why he went to Washington. When we say there was no scandal associated with it, that’s true. But there was one enduring mystery about Justice Scalia that existed at the time that I set out on this book, and which I think my book definitively answers. I, in December 2020, interviewed at length a man still with us named Father Robert Connor, who is an Opus Dei Catholic priest. He’s one of three people still alive that I can locate who was a surviving member of the graduating class of Xavier High School, 1953, when Scalia was valedictorian.
And the first thing I asked Father Connor was, “Have you ever been interviewed before about your friendship with Antonin Scalia?” “No.” “What about by the FBI?” “No, I think I’d remember that.” And Father Connor told me a very important story that gets to your question about why Scalia wound up in Washington. The enduring mystery here was how early in life did the ambition to serve on the Supreme Court begin to burn within Antonin Scalia. And Scalia’s most ardent defenders—his family, his clerks, certain people in academia—have always been leery of attributing this desire to him too early in life lest they contribute to the so-called careerist narrative that is promulgated in the two previous hostile biographies, which posits that Scalia’s rise to the pinnacle of his profession was not the result of his genius, his capacity for hard work, his affability, his faith, or the sacrifices of Maureen Scalia, but was rather the product of a cunning careerism on his part, which led him at different points to tailor his legal opinions to suit more powerful figures who could advance his rise.
But Father Connor, who is still sharp in his mid-to-late ’80s now and still actively preaching and blogging about Opus Dei, told me that he was very close to Antonin Scalia, Nino Scalia in Xavier High School. They were in the marching band together. They shot hoops together. Young Nino Scalia set Bob Conner up on a date. They brought girls to dances together. Scalia was well known in the Conner family home, which was located on the south side of Downey Road in Jamaica, Queens. And in fact, Scalia was such a gifted debater from such an early age that he made several appearances on television and radio as a teenager in the 1950s. Unfortunately, these were student quiz programs and debate shows, none of those recordings survive, although newspaper accounts of them do.
And Father Connor told me that his own dad, Jim Connor, would watch Scalia on television, and when his son came home, he’d say, “Did you see Scalia on the tube?” And he would say, “No.” And he’d say, “Oh, you should’ve seen it. Scalia really gave it to him this week.” Okay? So this is a young man who had fans as early as in his teenage years. And so comes the point when they’re 23 years old. We’re talking about late June, early July 1959, at which point Scalia just completed the second year at Harvard Law School. Bob Connor makes the decision to drop out of med school and travel to Rome to study Opus Dei. Mrs. Connor, his mother, is distraught over this and fears that her son is throwing his future away. So she summons to the home two men whom she thought might be able to persuade or at least talk sense into her son. One was a Jesuit priest who came and went, and the other was Nino Scalia.
As Father Connor recounted this previously unreported story to me, again, I consider him an unimpeachable source, and I consider that his account is definitive on this question of when Scalia first began to yearn to serve on the Supreme Court. When he himself would be asked, even after he joined the Supreme Court or when he joined the federal bench, “Did you ever want to be a judge?” He would say, “No, no, not until I was offered it.” But this turned out to be less than candid. Bob Connor, at that point, he’d become an ordained priest in 1964. This is early summer 1959, is stunned when he’s sitting in his brother’s room on the second story of the Conner family home on the south side of the street of Downey Road in Jamaica, Queens, to see Antonin Scalia walk into his brother’s room.
Scalia turns his palms upwards, summoned by the mother, and says, “What are you doing?” And Father Connor recounted the story for me. I said, “I’m going to Rome to study Opus Dei.” I said, “Devout Catholic, as he was, did Scalia envivce any knowledge of what Opus Dei was?” And he said, “I had to explain it to him that we in Opus Dei find the sanctity in everyday life and everyday things.” Scalia nodded and said, “Sounds pretty good to me.” And then this had never been reported before. Connor said to his friend, Scalia, “What do you do?” And he said, “I’m going to the Supreme Court.” And Bob Connor said, “How are you going to do that?” And he said, “James, he had a job lined up already with some law firm in Ohio.” I said, “Yes, Jones Day in Cleveland, Ohio,” which is where, in fact, after graduation from Harvard Law, Scalia spent the first six years of his professional life in personal practice.
He said, “Yeah, that’s it. Jones Day was in Cleveland.” He said to me, “They have a Washington office. I’ll be sent to Washington, and I will rise.” Said to Father Conner, “Did it strike you as fanciful or comical that he should say such a thing? I’m going to the Supreme Court.” He said, “Oh, no, no, no, no.” He said, “Nino was driven.” I said, “Do you think he felt it as a divine call?” He said, “I bet.” And what Father Connor—the way he described it to me—was—this was a convergence of two transcendent moments for two young men setting out on their life’s path to come face to face with each other and say, “What are you doing?” And one says, “I’m going to God in essence.” And then says, “What are you doing?” And the other says, “I’m going to the Supreme Court.”
This settles this enduring mystery for us, I think definitively, and there is no dishonour in Scalia’s having an early vision of where he wanted to go. Some people, Sean, as you know, are blessed to know where they want to go early in life. Charles Schulz, the creator of Peanuts, Charlie Brown, and Snoopy, later said he knew from the age of five that he wanted to be a cartoonist. And so all Americans who consider themselves the beneficiaries of Scalia’s towering jurisprudential legacy, which should be all Americans because we’re all the beneficiaries of his legacy, should be grateful that he had that vision.
SEAN SPEER: That’s a fascinating historical insight, James. Thanks for sharing it. And as you say, for finally clearing up this enduring debate about Scalia’s ambitions to ultimately sit on the bench. You argue in the book that it was during this stint in Washington that his legal philosophy really began to take shape. How did it come about? Besides Shakespeare, what were his other influences?
JAMES ROSEN: Well, he had had a professor at Harvard Law named Clark Byse who practised the Socratic method, and Scalia became a great champion of that in his own work as an academic. We should point out that he went from Jones Day Cleveland to the University of Virginia Law School and spent four years there. Again, treated very cursorily—just a few sentences in the previous biographies. And then he took the job in the Nixon administration, which we’ll come to. But the Jesuits were another important influence on him. We mentioned Father Tom Matthews and the Catholic Church. The insistence on originalism, the inviolability of that which is the same yesterday, today, and tomorrow. The Federalist Papers were a major influence on him. And Scalia later told one of his fellow professors that he would teach continuing legal education courses within exotic locales each summer when he was on the Supreme Court. He spent 30 years teaching with a professor named John Baker.
And Baker asked him, “When did you first get interested in the Federalist Papers?” Because Scalia used to terrify his students, and as a justice, these audiences where he would teach these courses in the summer by asking them, “How many of you have read the Federalist Papers? And a smattering of hands would go.” He said, “I mean, every one of not just number 70 or the famous ones, how many of you read the entire Federalist Papers?” And the hands would shoot down. And this was appalling to him. And finally, Baker did ask him, “When did you first read?” He said, “I got into it when I was in the Ford Administration.” And he served as the Assistant Attorney General for the Office of Legal Counsel. Now, I interviewed his colleagues from the Department of Justice from that three-year period where Scalia had that very important position and made an enormous contribution to American law and society in those years. And they told me that at that time, Scalia was not impressing upon his subordinates that they needed to take an originalist or textualist line in their court filings and such. He was not impressing on them what he later became famous for. But that was when really his originalism started to take shape. But as I’ve tried to make clear, it had earlier antecedents in his faith and in the nature of a Jesuit education, which was very rigorous in those years.
SEAN SPEER: He took seriously his role as an intellectual fountainhead for this new and emerging alternative to the prevailing living constitutionalism. You note in the book, for instance, he became actively involved in the nascent Federalist Society and was soon amongst its most popular speakers and debaters. Talk, if you will, about his self-awareness as a key catalyst for this new intellectual legal movement.
JAMES ROSEN: Scalia was a showman. And in fact, I begin this book with a quote from my interview with his youngest daughter and youngest child, Meg Scalia Bryce. I thought there was some poetic justice in the last child opening up the book; “The last shall be first”. And it’s an excerpt from the transcript of my interview with Ms. Bryce where she said to me, “After he died, when people said that he was larger than life, he really was. And he was that way to us.” And I said, “And he was cognizant that he was that way, right?” And she said, “Oh, yes. Oh, yes.” She said, “He was putting on a show, but it was a great show.” This is a man who would think nothing of commandeering a piano in someone’s house with shameless but endearing grandeur and appealing grandeur and just start belting out show tunes and Christmas carols for 50 people.
So he also acted frequently in high school and college productions. And so he had a theatrical flare, and he was very well aware of it. And in terms of becoming a leader in an intellectual movement, he was very cognizant of his role in that light. He was a brilliant debater. He continued to appear on television frequently throughout his service in the Ford Administration and then as an academic. And when he was with the think tank AEI, the American Enterprise Institute, he appeared on a lot of PBS programs, debate programs, and he took gusto in performing with relish in these settings. And we have the transcripts and photographs in the book from some of these televised debates about the Imperial judiciary and whether there should be a constitutional convention in the United States programs that aired in 1975, ’77, ’78, such that by the time he ascended to the federal bench, there’s no question that Scalia had logged more time on television as a performer than all of his other colleagues on U.S. Supreme Court combined.
And there’s a decisive moment in his intellectual formation and in the nascent conservative legal movement, which is June 14th, 1986, a Saturday when the Attorney General under President Reagan, Edwin Meese himself, one of the architects of originalism, held a conference at the Department of Justice on the subject of economic liberties. And Robert Bork, who was, for most of this time, the more dominant figure in the conservative legal movement than Nino Scalia. Scalia was almost like a kid brother to Bork in the movement. And at various key junctures at the Justice Department, at AEI, at the D.C. Circuit, it’s Bob Bork who gives Scalia a hand up. By the 14th of June, 1986, when both Scalia and Bork are judges on the D.C. Circuit and their names are raised in tandem in public so often, they blended into one proper noun, Bork and Scalia, so frequently were the two of them discussed as potential candidates for the Supreme Court.
By that point, in that crowded conference room at the Department of Justice on that Saturday, where Bork had a speaking role but Scalia was now the keynoter, there were only two men in the room who knew that two days thereafter, on June 16th, 1986, Antonin Scalia was going to be in the Oval Office with President Reagan and probably to be offered a Supreme Court justiceship, which he was. Those two men were Scalia and Ed Meese, who was one of the people overseeing that selection process. Now, given that you’re going to be meeting with the president in two days, and here you are addressing Ed Meese and this large, distinguished group, the safest course for you would be to acquit of yourself a few words here and there, keep it light, and get off that stage and wait for your meeting with the president in two days from now.
That wasn’t Scalia’s style. He gave the speech that he prepared and that he intended to give, which was a dramatic laying down of the marker, complete with some ribbing of Meese and Bork by name, where he took issue with their formulation of originalism, which was original intent that judges should be guided by the original intent of a law. And Scalia here said, “I wouldn’t care and shouldn’t care if tomorrow some historian should discover a secret note in the handwriting of the framers that tells us what their secret intent was behind the Constitution. Their intent was what they wrote and what was enacted.” And therefore, Scalia, here in this moment on that Saturday, championed original meaning. And he couldn’t have laid down that marker with the risk that it posed to him to do so at that particular moment in time, were he not keenly aware of his ability as a leader of this movement help frame the terms of debate, which he was seeking to do.
SEAN SPEER: Let me ask a question that I wasn’t going to put to you, but I’d be remiss in light of your last answer if I didn’t. I’m afraid, James, that I didn’t know about the rupture in the personal relationship between Scalia and Robert Bork in the mid-1980s. What happened? How did they grow apart after Scalia had been a groomsman in Bork’s wedding and, as you say, so closely associated with him as key figures in this intellectual movement?
JAMES ROSEN: Bork really was the godfather of the legal conservative revolution that started to take shape in response to the perceived excesses of the Warren Court. And Bork had already ascended to the number three position in the Justice Department, solicitor general of the United States, when Scalia was still a general counsel to the White House Office of Telecommunications Policy under the Nixon Administration, an important job. But it was through Bob Bork that Scalia got to make his one appearance before the Supreme Court as an advocate in 1976. It was partially through Bob Bork that Scalia wound up at AEI. And this story had never been reported until now, but it was through Bob Bork that Scalia was able to overcome internal opposition from someone else in the Reagan administration to take a seat on the D.C. Circuit.
So at three critical junctures, there’s Bork giving Nino Scalia a leg up. Gene Scalia, the Justice’s son, his eldest son, himself a prominent attorney, his own right, a former Trump cabinet official told me that after one party at the Scalia’s home, when everyone had left, his dad wheeled around and said to him, “That’s why you study hard in school and you work hard so that you can grow up and have friends like Bob Bork.” Such was the admiration. By the time the two of them were judges on the D.C. Circuit, Bork authored a majority opinion on a First Amendment case, a defamation case involving some prominent columnists here in the United States, Evans and Novak, in which Bork said, in essence, that in order to take account of modern phenomena in the field of libel law that judges and justices should give expanded meaning certain to provisions of the First Amendment, that there should be an evolutionary content of the provisions of the First Amendment. Even as Bork wrote, even if this meant admitting an element of subjectivity into the judging process.
Now, to Scalia—this was 1984; two years earlier, he had been a groomsman in Bork’s wedding—this was heresy. This was the stuff that could have come from the lips of Justice William Brennan or one of the other architects of the living Constitution. So Scalia undertook to write a very sharply worded concurrence in that case, the only concurrence in the case that took direct aim at Bork’s opinion. And this so stung Bob Bork that five years later, by which point Scalia was now on the Supreme Court, Bork had suffered through this miserable, bitter, acrimonious, partisan Supreme Court confirmation process in 1987 that ended with his rejection. Politics and fate had settled with cruel finality the friendly rivalry that had existed between them. Then-retired Judge Bork published a book called The Tempting of America, in which he returned to that case, Ollman v. Evans and Novak.
And he didn’t mention Scalia by name, but he mentioned the concurrence. There was only one concurrence in the case authored by Scalia. He said, in essence, “That anyone who would promulgate the views that were contained in that concurrence had no business being a judge or even a law professor.” What’s remarkable about this too is that at the precise moment that these cracks formed in the bond between these two men, that’s when Scalia started to take up the deep and enduring friendship with Ruth Bader Ginsburg, which lasted for the rest of Scalia’s life. And we’ll say Robert Bork Jr., whom I’ve known over the years and who I interviewed for this book, wrote to tell me that he learned a lot about his dad’s relationship with Antonin Scalia from my book. I took that as a very high compliment. And he also told me that at Bork’s funeral, which was 2012, four years before Scalia died, he could see Justice Scalia weeping.
SEAN SPEER: For those familiar with the current contention over judicial appointments, they’ll be surprised to learn that Scalia was confirmed 98 to nothing, or 98 to zero, in his Supreme Court confirmation hearing. Why don’t you talk a bit about the process and the role of current President Joe Biden?
JAMES ROSEN: Well, the slight imperfection of a 98-to-0 vote bothered Justice Scalia, for the rest of his life, the book opens with him being informed of the 98-to-nothing vote by someone who’s well familiar to contemporary followers of politics, John Bolton, formerly President Trump’s White House National Security Advisor, formerly ambassador to the United Nations under the Bush-Cheney administration. He was a Justice Department official in 1986 at the time of the Scalia confirmation, and called Scalia up on the phone, arranged to bring him to a phone at a black tie function, and told him, and Scalia was incredulous. And he said, “Who were the two senators who didn’t vote?” And when Bolton told them, both of them pretty reliable votes for a conservative. And Scalia said, “Well, you mean to tell me we couldn’t get Barry Goldwater and Jake Garn?”
And what happened was, first of all, Goldwater went home sick, and Garn was in the hospital donating his kidney to his daughter. And Scalia’s nomination had been paired with another nomination to the Supreme Court: the elevation by President Reagan of William Rehnquist from Associate Justice to Chief Justice. Now, Rehnquist had been on the Supreme Court 15 years at that point. He was a lone conservative voice, and he was so frequently in solo dissent that his clerks gave him a Lone Ranger doll. And so Bill Rehnquist had a very conservative record on the Supreme Court. So when he was elevated the chief justiceship, the Reagan administration knew that the Rehnquist hearings were going to be bumpy because they’d already been bumpy back in 1971, when he was first appointed, and they only grew bumpier and more nasty. And they were so nasty that they were dubbed the requisition.
In the end, he was confirmed 65 to 33. And at that time, 33 votes was the highest negative tally ever reported by a confirmed nominee to the Supreme Court. Today, you’d look at a 65-33 vote as positively bipartisan. But so nasty and bitter was the process for Rehnquist that the Democrats were pretty well exhausted by it. And Scalia, of course, stood to be and was the first Italian American on the Supreme Court, which is an important political constituency in the United States. And of course, he was toweringly well qualified for it and rated as such by the American Bar Association, so that he sailed through. And the question was raised as to whether or not Scalia would’ve—or whether Robert Bork, if he had been paired with Bill Rehnquist, would’ve skated through and had less trouble than he did when Bork was nominated the following year. And had it been Rehnquist and Bork, would Bork have been confirmed? And then Scalia, with his affability and his ethnic heritage, he would’ve skated in 1987?
It’s not clear; that that plunges us into what historians call the counterfactual. So because it was 98 to nothing, nobody ever really has gone back. And because of the attention paid to the Bork hearings and the Anita Hill he had the Clarence Thomas hearings, in which two cases by that point, the chairman of the Senate Judiciary Committee was Joe Biden. During this Rehnquist/Scalia process in ’86, Republicans held the gavel, and Joe Biden was merely the ranking member on the committee. For these reasons, no one’s ever gone back and really looked closely at Joe Biden’s performance in the Scalia process. And I did. And I covered Joe Biden as president every day as White House correspondent for Newsmax. But I don’t think, as a matter of object, that I’d be violating the principles of objective reporting by sharing, as I did with my readers, the results of my historical inquiry into his performance in 1986.
And the fact is that Senator Joe Biden embarrassed himself repeatedly during the Scalia process. At one point he said to Scalia during the hearings, when Scalia was in the witness chair, “Judge, forget about the Constitution. Let’s talk politics.” Which is advice that no nominee for a Senate-confirmed position for anything, let alone a judgeship or a justiceship, should ever follow. There were points where Biden wasted the time of the entire committee on areas that no other Democrat felt worth pursuing. There were points where he had to withdraw his questions, where he had to apologize to Scalia. At one point, Senator Biden proclaimed that, as far as he could see, Antonin Scalia, as a justice, would be no further to the Right than Warren Burger had been, whose retirement occasioned the elevation of wrinkles. And that was directly contrary to the opinion expressed by every single law professor who had been quoted in the press on this matter for the past 90 days. It staggers the imagination to think that the ranking Democrat on the Senate Judiciary Committee would not understand what the entire academy understood about where, respectively, Warren Burger and Antonin Scalia stood on the jurisprudential spectrum.
And today, as president, Biden has said and done a number of things that show that his grasp of these principles may still be lacking, I’ll give you one example. After the confirmation of Ketanji Brown Jackson as associate justice to succeed Stephen Breyer, who retired last year, a big rah rah event was held on the South Lawn of the White House with Justice Designate Jackson standing with the president and the first lady, her family in attendance. And it was a celebratory event, as we’ve seen presidents from both parties increasingly hold. And when President Biden got up to speak, I’m paraphrasing now, but pretty closely, Sean, he said, “There are times when you can look back in history and you can see a pendulum shift, and you can see an extraordinary shift in policy.” Now, maybe he was he was committing the classic Washington gaffe, Joe Biden susceptible to a wide variety of different kinds of gaffes. But maybe he was committing the cardinal Washington gaffe of speaking the truth of saying out loud, which you’re not supposed to say.
But in identifying the confirmation of Ketanji Brown Jackson as a historic moment when policy was going to shift, exposed the plain truth that liberal politicians, Joe Biden among them, for 50 years, had been using the selection and confirmation processes for judges and justices on the federal bench to try and achieve policy objectives, when in fact their job is to interpret the law. But here, he said it out loud, and it struck me as redolent of his conduct in this Scalia process when he would be asked, “Why are modern confirmation processes for Supreme Court justices so bitter and so awful, and so acrimonious?” Justice Scalia had a ready answer for that. And he said, in essence, what I just said, which is that, “Look, the American public has awakened to the game here.” Which is to say, if you’re going to use judicial appointments as a way of securing policy preferences, then they’re going to fight like hell over who gets to have those positions because they’re going to want, just as politicians are going to want, these candidates for judicial office to reflect their own preferences. And that’s why the fights have become so intense.
SEAN SPEER: James, you’ve been so generous with your time. I just have a couple of final questions for you. The first is, why don’t you talk a bit about Scalia’s legacy? Who are some of the judges, politicians, and thinkers who were influenced by Scalia’s life and his body of thought?
JAMES ROSEN: We need look no further to find evidence of Scalia’s continuing legacy than the decision that was handed down by the Supreme Court in June of last year, Dobbs V. Jackson Women’s Health, which overturned Roe V. Wade and which sent shockwaves across the United States and around the world. And the legal reasoning on display in Justice Alito’s opinion was precisely along the lines that Justice Scalia had articulated as a Supreme Court Justice for many years. And that’s just example; Scalia’s rulings as a Supreme Court justice are still with us. So his most famous majority opinion would be D.C. versus Heller, which conferred constitutional protection on the ownership of a handgun in the United States. And for example, his rulings in another area of criminal law, the Sixth Amendment, which guarantees that the accused shall have the right to confront their accusers, or the Fourth Amendment, which protects Americans from unreasonable searches and seizures by police.
Scalia had rulings in all of these areas that are still the law of the land today. And which, as I say, touched the lives of every American. But it was his impact on the way that lawyers conceive of the law that really changed American life, and law, and society forever. And we talked about that earlier, but just to recap it briefly, in persuading fellow judges and justices and law professors and law students, and lawmakers that they should be concerned with the original meaning of a law. That the original meaning of any law or the Constitution does not expand or contract over time, that is such a profound revolution in the way that the law is considered in this country, and that’s really why he is one of the most important Americans in the last hundred years.
SEAN SPEER: You knew Antonin Scalia. What did you learn about him in working on this extremely well-researched book that you didn’t know before you started?
JAMES ROSEN: Well, I knew him cursorily, I would say, but I was privileged to get to know him. One of the first things I did when I came to Washington as a young Washington correspondent in 1999 was to write to Justice Scalia and seek an interview. I did this because I’d seen him on television when I’d been in high school in the 1980s and found him fascinating. He didn’t participate in these debates and these roundtable programs the way the others did. He was humorous and caustic, and he spoke in a way that non-lawyers could understand, which I came to learn is very important. So I had a lot to learn about him when I started work on the book, but that letter to him commenced an unusual and frequently amusing correspondence between us that spanned two years and from which I hope to go in to when I cover his Supreme Court tenure.
We had a pair of lunches one-on-one each time, just the two of us, the contents of which will remain off the record, but we drank wine together, he made me eat off his plate. I said, “Mr. Justice.” I could say, “Come on, come on, come on.” So now I’m shovelling vegetables off of Justice Scalia’s plate into my mouth, and he gave me rides back to my office on both occasions. And Sean, I can confirm for you from my research that, having interviewed students, classmates of his who had travelled with him for debate tournaments all the way back in the 1950s, up through Supreme Court clerks of his in the 21st century, that being a passenger in a car driven by Antonin Scalia was as unnerving experience for them as it was for me.
And I will tell you one amusing story about our first lunch together. We went to, at his insistence, his favourite place, which doesn’t exist anymore; it was called the A.V. Ristorante Italiano. And it was a very modest Italian restaurant in what was then a fairly sketchy part of Washington, D.C. It’s a dark sort of shabby, gentile place, let’s say. And I got there first, and it was a long hallway, and sunlight was flooding through the front door, and suddenly there’s a silhouette, portly and jaunty, strolling vigorously through that front door and at me, and it’s Justice Scalia. And he sits down, and it’s a whirlwind; just his presence was an occasion of commotion. And he takes the menu from our waiter, who’s a young guy, true Italian, barely spoke English. And he says, “polpo? What is polpo?” He looks up at the waiter, and the waiter says, “Octopus.” And he says, “Octopus?” Said, “I’ll have the pulpy.” And he hands the menu to the waiter.
Now, I have little rules I follow, Sean, when I’m eating and when I’m trying to impress someone; nothing that requires me to eat with my hands, nothing that could splash or splatter like spaghetti sauce or what have you. Just something easily manipulable with a knife and fork. And I come from Staten Island, New York, which is at least when I was there was 66 percent Italian. So I’m well familiar. So I ordered what I thought was the perfect choice, and I said “Veal Parmesan.” And the guy’s writing it down, and Scalia says to him, “No, no, no. Give him the rabbit.” And the waiter and I look at Scalia in unison, and we both say the word in unison, “Rabbit.” He says, “Yeah, you’re going to like it—give him the rabbit, give him the rabbit.” And the guy takes the menu and he disappears. Now, I had never had rabbit in my life. I didn’t want rabbit. Okay? I was grossed out by the thought of it. Okay? And without it casting aspersions on hunters or anything, but just personal preference. What you had here, Sean, was nothing less than the country’s foremost opponent of judicial activism overruling my lunch order. Not even Mrs. Rosen does that. And tell you the truth, I haven’t had rabbit since, and I haven’t had anyone do that to me since. But anyway, he was a force, and as his daughter told me, when people said that he was larger than life, he was.
SEAN SPEER: Well, this has been a fascinating conversation about a fascinating man and a fascinating book. The book is Scalia: Rise to Greatness, the first in a two-volume biography by James Rosen, the Chief White House correspondent at Newsmax. James, thank you so much for joining us at Hub Dialogues.
JAMES ROSEN: Sean, it was a pleasure for me as well, and hello again to all of my Canadian friends.
