As the final act of A Court of One approaches and events that happened a short time ago trigger easier recall, Bruce Allen Murphy stumbles. The accumulation of Dahlia Lithwick and Linda Greenhouse columns and allusions to the New York Times editorial board’s doing its shaking-their-sad-heads are tedious enough, but Murphy commits a fatal mistake. 2004′s Hamdi v. Rumsfeld, in which a majority of the Court supported the detention of enemy combatants even if they were American citizens so long as the federal government didn’t deny them due process, marked one of the few times in the last two decades when Justice Antonin Gregory Scalia protested the executive branch’s exertion of its war powers. Suspend habeas corpus and hold them indefinitely, he argued, but don’t hold these Americans in legal limbo:
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.
It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.
Given his career of assaulting the integrity of his colleagues, I found the penultimate adverb in the first excerpt a delicious stroke. Written in muscular English like few legal opinions are, this dissent could not be clearer about what was at stake. Murphy, however, comes to the opposite conclusion:
Based on his originalist understanding of an all-powerful chief executive during times of crisis, and his unwillingness to have the federal courts second-guess the military during wartime, Scalia argued in dissent in favor of a “blank check” on behalf of total presidential power.
Insofar as Scalia believes in a “blank check” the executive branch needs to write and sign it first. As I indicated, this cripples Murphy’s tome, casting doubt on his scholarship and of course, just as grievous, represents a triumph to which Scalia’s claque can point and gloat. See? He does study the Constitution and reach decisions that offend his personal ethics. This could not have been Murphy’s intention.
To have erred like this in the smart phone age is an example of the cunning of history, for a biographer to wag a finger at a Supreme Court as technophobic as this (he shares tidbits about justices learning to play violent video games after arguments for Brown v. Entertainment Merchants Association to understand the case) must surely know the proofreading must be unassailable. A shame. Otherwise the first two-thirds of A Court of One posit that Scalia’s purported fidelity to the Constitution as ratified in 1789 — a “dead Constitution” he says with glee — has had far-reaching consequences that reach into the Court itself. “We are all Keynesians now,” Richard Nixon is said to have said. With retired justices David Souter larding even “living” Constitution endorsements with historical references and John Paul Stevens countering Scalia’s trove through eighteenth century ratification documents with his own allusive dissent in Heller v. District of Columbia, we are all formalists now. In a career-long attempt to be the last constitutionalist standing, Scalia has devoted hundreds of thousands of words to distinguishing his approach from Robert Bork’s; with Bork dead two years, Scalia has absorbed his position. Starting as a conservator of executive power in the Nixon and Ford Justice Departments and defining himself as a “faint-hearted originalist” for most of his tenure on the DC Circuit Court of Appeals, he eschewed legislative intent and stuck to the words on the page. That this approach produces results which cramp rights and privileges to people whom the Framers didn’t recognize and coincides with most conservative positions on privacy, access to safe and legal abortions, and gay rights should surprise no one in 2014, although it produces the odd blow for free speech such as striking down a statute criminalizing flag burning in Texas v. Johnson and the recent dissent in the DNA case Maryland v. King (he was also once strong on search and seizure cases.
Murphy’s assembling oral arguments, opinions, and his own commentary is impressive; it shrivels Joan Biskupic’s 2009 Scalia biography into pedantic on-the-one/on-the-other-hand journalism. But about a hundred pages devoted to whether he should have recused himself from this or that case because of his off-court antics amount to “well, it’s not wrong but it looks bad,” an invitation for more scoffing from Scalia’s fervent cult. As suggested above, Dahlia Lithwick is a delicious observer, but Murphy reduces her to a person who collapses on a fainting couch whenever Nino whips out his pen (Richard Posner’s recent criticism is discussed at length though). Then the copy editing errors multiply, like mushrooms on a lawn: repetitions on slang and introductory phrases separated by a couple of paragraphs, typos like “the the” (Matt Johnson would have no standing). The many good things in A Court of One