Scalia’s Aria of Betrayal

“Every court has its diva. Silvio Santamaria, 250 pounds, gel-slicked-back jetblack hair, former boxer, Jesuit seminarian, father of thirteen children, Knight of Malta, adviser to the Vatican on international law and even occasional guest advocatus diabolic in canonization cases….He was brilliant, with a wit as caustic as drain cleaner; good company if you were in his camp and look out if you weren't. Silvio Santamaria didn't take yes for an answer. He didn't disagree—he violently opposed. Didn't demur—he went for your throat. Didn't nitpick—disemboweled you and flossed his teeth with your intestines. First-timers appearing before the Court for oral argument had been known to wet their pants and even faint under his withering questions and commentary. His written dissents were of the type described by the press as ‘blistering’ or ‘stinging’….He gave fiery—and rather good—speeches that had his audiences stomping on the floor and standing up on their chairs calling for—demanding!—a new Inquisition.”— Christopher Buckley, Supreme Courtship (2008)

Sure, Hatchette Book Group included in this novel one of those pro forma “any resemblance to actual events, persons,” etc., disclaimers to ward off litigious objects of fictional derision. But really, can there be any doubt whom master satirist Christopher Buckley had in mind in his acidic portrait of Associate Justice Silvio Santamaria? I can’t remember him leaving such unmistakable clues to any other real-life counterpart. (Even in No Way To Treat a First Lady, he gave his assertive, high-decibel First Lady with a wayward hubby—“Lady BethMac” to the tabloids—looks that inspired comparison to Catherine Zeta-Jones.)

But that “diva” line alone is a dead giveaway that Buckley has within his sights Antonin Scalia, who shares with fellow Supreme Court justice Ruth Bader Ginsburg a love of opera—and, as far as ideology goes, very little else.

These days, Scalia appears ready to break out at any minute into a number from Verdi’s Otello—“Dio! mi potevi scagliar tutti i mali!” ("God, you could have thrown every evil at me”) — in which the title character, in the midst of torment, asks the Almighty why he is being afflicted in this manner.

Pointed dissents can be excellent means for some justices to achieve immortality, as the cases of Justices Oliver Wendell Holmes Jr. and John Marshall Harlan. But Scalia’s dissents can only be measured on a different order of magnitude: the Richter scale. They create not footsteps in the sand for later justices to follow, but entire craters where working relationships and conservative influence crumble.

You don’t win friends and influence people—prerequisites to writing majority opinions—if you essentially publicly call out colleagues on the high court as idiots—especially in decisions that will be read by hundreds of thousands of lawyers worldwide for generations to come.

As the latest term of the Supreme Court of the United States (SCOTUS) ends, Scalia sounds not merely encircled but friendless and hysterical. The 5-4 majority that sanctioned same-sex marriage in Obergefell v. Hodges, he proclaimed, amounted to a “judicial putsch.” Not done with invidious comparisons with Nazis, he went after the decision’s style, which he pronounced “as pretentious as its content is egotistic.”

Justice Anthony Kennedy, author of the majority opinion, surely felt his ears burn when he heard this footnote read in Scalia’s dissent: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”

Give Scalia this: that sentence from Kennedy’s opinion does slip, slide, and flop around some. But Kennedy, for all his offenses against sound and meaning, also learned a skill in elementary school that has eluded Scalia in three decades on the high court: how to get to five, the magic number needed to achieve a majority.

Chief Justice John Roberts has learned not only this elementary arithmetic, but also astronomy, the more advanced discipline of bringing distant objects into close view. He may not have turned out to be the honest umpire he cited as his ideal at his Senate confirmation hearings, but he has shown definite signs of knowing how far he can go before the legitimacy of the court’s rulings is questioned.

This long game is lost on Scalia. Oddly enough, one of America’s most famous opera buffs is politically and personally tone deaf. It seems never to have occurred to Scalia that, far from buckling under to a solid liberal wing of the court, Roberts might be jumping aboard the majority express, only to hijack it for his own purposes.

The chief’s initial preservation of Obamacare back in 2012, for instance, was built on the premise that the health care individual mandate was a tax—a notion that the administration was not keen on accepting. Moreover, by refusing to strangle it while still in its toddling stage, he gave the President time to proceed with the rollout of the program’s Website, a disaster that damaged Obamacare’s reputation and Obama’s approval ratings.

But Scalia could see none of this, implicitly taking his boss to task in a dissent for saving the controversial legislation by transforming it through reinterpretation: “We should start calling this law SCOTUScare.”

These are just the latest in a series of splenetic sputterings about colleagues’ opinions. There’s a whole Website devoted to these “Scalia-Isms,” in fact—and I believe it gets nowhere close to the full number. That’s because Scalia is to judicial invective what Niagara Falls is to water.

After awhile, the name-calling begins to blur together, in a crazy kind of way. In fact, Tim Murphy of Mother Jones invented a “Scalia Insult Generator” that allows readers to mash these up and create new ones of their own.

Right-wingers, enthralled by the tenor booming out these insults, have lost sight of how deeply counterproductive these are. It’s one thing to write, as Scalia did a few years ago about a Sixth Amendment majority opinion by Sonia Sotomayor, that she had rendered the high court “the obfuscator of last resort”—she was, after all, appointed by a liberal Democrat and has voted in a way that could hardly have ever displeased the President.

But it’s another thing to go after fellow Republican appointees. Roberts chuckled for the cameras when Scalia read aloud the ‘SCOTUScare” barb. But other justices tapped for the court by conservative GOP Presidents have not been as equanimous.

The most consequential was Sandra Day O’Connor. Prior to the 1989 Webster case involving abortion, she had written critically about Roe v. Wade. The particular circumstances of Webster, she noted in the majority decision, did not warrant a more definitive ruling at that point, but there would be time for such a reconsideration.

Annoyed that she had not taken the bull by the horns immediately, Scalia, in a separate opinion, assailed O’Connor’s position as “irrational” and one that “cannot be taken seriously.” As Linda Greenhouse demonstrated in a blog piece for The New York Times four years ago, the court’s only female justice at the time--and the one whose swing vote would later devolve upon Kennedy--showed what she thought of that remark three years later in Planned Parenthood v. Casey, when she provided the critical fifth vote to leave Roe undisturbed.

For the sake of a couple of peevish one-liners, Scalia had alienated the justice who could have overturned a decision that had been coming under increasing political and intellectual assault. He had lost a critical battle in the abortion battle he cared so much about. 

Kennedy is another matter. His stances on abortion and gay rights notwithstanding, there is very little else separating his conservative opinions from Scalia's. (Gays and lesbians better not cheer that loudly for Kennedy's latest opinion on same-sex marriage--if they yell too vigorously, they'll be breathing some of the air likely to increase in the wake of the justice's vote with--again!--a 5-4 majority to strike down the Environmental Protection Agency's national standards for mercury pollutants from power plants.) 

It shouldn't take that much to turn Kennedy. An example of how Scalia could have done so was provided by his onetime Court colleague William Brennan. Even when Richard Nixon, Gerald Ford and Ronald Reagan turned the Supreme Court decisively away from the liberal rulings of the Warren Court with new appointees, Brennan continued to cobble together improbable majorities through legendary persuasive powers.

Yet Scalia remained unchastened by his defeats. As New York Magazine’s Jennifer Senior noted recently, “the more isolated he gets, the more extravagant his rhetoric becomes.”

Roberts seems to want to become a 21^st-century counterpart to John Marshall, a Chief Justice who, through intellect and power of personality, aims to block a President of a different party who does not share his view of the role of the federal government. In his health-care rulings, Roberts has also absorbed one of the principal lessons of the career of that wily predecessor: pick your fights when it matters most, and only then, lest you threaten the legitimacy of the court of last resort.

Scalia, on the other hand, seems to be taking the path trod by Samuel Chase, Marshall’s fellow Federalist appointee to the bench. The blunt Associate Justice, dismayed by the election of Thomas Jefferson, gave a Scalia-like warning that America was descending into “mobocracy.” For these and other pronouncements less judicial than political, Jefferson encouraged Senate impeachment of  Chase. 

While Chase survived the maneuver, his reputation did not. He is now known to history as an intellectually gifted justice who spoiled his legacy through nakedly partisan stances and intemperate language.

Sound familiar?

Book Review: Christopher Buckley’s “Supreme Courtship”

Confirmation hearings for the new administration are rolling out, and a predictable pattern is emerging: some nominees waltz in (welcome to the lovefest, Tom Daeschle!); some face embarrassing questions on the way through (Tim Geithner); and some are hustled out the door even before they face the microphones and inquisitorial opposition lest they damage the new President, John Tower-style (adios, Bill Richardson!).

But the real battles, the Thrillas in Manila of confirmation, if you will, lie in the next Supreme Court nominations. And you know one is coming, because several justices have been itching for years to say sayonara, but have been holding on for dear life lest they afford George W. Bush and/or a GOP-controlled Congress an opportunity to tilt the balance of the court. So they risked danger to their spirits and bodies, like William O. Douglas in the Seventies and Thurgood Marshall a decade later.

For a significant part of the high court, then, happy days are here again with a new, Democratic, liberal administration. From what I’ve read, don’t be surprised if the following vacancies occur, and soon:

* John Paul Stevens –he’s nearly 90 years old and has been on the court since Gerald Ford was President. Assuming he stays healthy, the only other reasons he’d want to remain longer would be to beat the court records for a justice’s age (held by Oliver Wendell Holmes Jr.) or longevity (Douglas). Assuming he achieved both records, he could retire by 2012, still within the first term of Obama.

* Ruth Bader Ginsberg—she’s the second oldest judge, turning 76 in March, on the court 15 years already and rumored to be in shaky healthy. She might decide that it’s best to go while there’s still a Democratic President and Congress to assure a liberal replacement.

* David Souter—under 70 and reportedly in good health, but supposedly he’s pining for the quiet, restful rural New Hampshire environment he left for more turbulent Washington—a disposition not likely to be improved in the wake of a mugging he suffered four years ago.

The lifetime tenures (barring misconduct that could start the admittedly unlikely event of impeachment) that justices receive guarantee that they’ll be around to do mischief (at least as far as critics believe). Conservatives like to believe that confirmation fights became particularly nasty following Robert Bork’s failed nomination late in Reagan’s administration.

A little longer historical perspective, however, shows that the whole ball of wax probably started 20 years before that, when Republicans dragged their heels on Lyndon Johnson’s elevation of Abe Fortas to Chief Justice and Homer Thornberry to replace him as Associate Justice. The GOP gambit succeeded, as LBJ was forced to withdraw the Fortas promotion and Thornberry had nowhere to go. (Two years later, Fortas resigned over ethical issues and Richard Nixon named his replacement.)

Before you start following the media’s speculation about the next nominee, put yourself in the right frame of mind: Turn off your favorite ideological cable TV news station (I can’t hear you, Fox/ MSNBC/CNN!), pour a nice cup of tea or coffee, and sit back in a comfy chair these cold winter nights with a copy of Supreme Courtship, by Christopher Buckley. But make sure the walls of your home are thick and soundproof, because neighbors, wondering why you’re laughing so hard and so long, might send visitors ready to fit you with straitjackets.

Christopher Buckley comes by his wickedly funny worldview not just by lineage (his late father, of course, was William, the founder of the modern American conservative movement) but by extensive experience in Washington (he served as a speechwriter during the Vice-Presidency of George H.W. Bush—or, as Buckley calls him, “The Good Bush”).

All of this has given him a chuckling affection for all the folkways and institutions of our nation’s capital. Witness, for instance, in this book, the opposition researchers known as “The Wraith Riders” (nicknamed after the remorseless hobbit pursuers of The Lord of the Rings), a group that can turn up something on even the most seemingly saintly person up for a judicial nomination.

Fact and Fiction (A President From Wapakoneta, Ohio????)

Buckley’s novel, published amid the last Presidential race, was hailed as unexpectedly topical because of its central character: a folksy, photogenic woman as handy with a firearm as with her mascara, plucked from outside the Beltway—way outside—and nominated for one of the most important offices in our country, then subjected to endless carping about her lack of qualification for the post, along with revelations about extremely colorful members of her family.

Sarah Palin, bless her heart, hails from Alaska; Buckley’s character, Pepper Cartwright, comes from Texas. Both reality and fiction feature an aging male politician who thrusts a woman toward greatness.

Like John McCain, Buckley’s President Donald Vanderkamp figures he has to do something to upset the reigning political calculus, particularly after the opposition has upended his last choice for the high court over a film review written as a 12-year-old after seeing To Kill a Mockingbird: “Though the picture is overall OK, it’s also kind of boring in parts.”

Pepper is not only not a politician but not an orthodox judge – she plays one on the nation’s most popular reality TV show, Courtroom Six. I don’t think the Founding Fathers had this in mind: when the judicial robes are off and this TV judge is down to her undergarments, “it was a sight to induce infarction in the most hardened of male arteries.” Think Judge Judy crossed with Heidi Klum.

(Reading the foregoing, my faithful readers are likely to believe that Buckley’s narrative is nonfiction. Nothing could be further from the truth. Exhibit A: President Vanderkamp is a product of Wapakoneta, Ohio. Having a sister-in-law from the same community and having actually visited it myself on the same day she married my brother and thereby began a far more complicated life as the member of our family, I can personally attest that Wapakoneta is not a breeding ground for Presidents.)

Back to reality—or, in this case, reality shows. (Not, believe me, the same thing.) Buckley’s insight is that the seemingly inexperienced Pepper is far more suited to her new role on the high court than might appear at first, because politics itself has become a reality show.

Very literally so. Pepper’s chief obstacle to winning nomination is Dexter Mitchell, chair of the Senate Judiciary Committee, a fixture in the upper chamber who’d love to graduate to the White House but can’t make it out of the primaries even after losing millions of dollars. He commutes from DC to his home constantly by railroad, has had some cosmetic enhancements, and is burdened by “epic loquacity.” Gee, I don’t know anyone like that, do you?

Mitchell receives a job offer for his own reality show from Pepper’s ex-husband, who is still aggrieved that the nomination has deprived him of his gravy train. The Senator will come closer than he ever has before—heck, he thinks it’ll boost his candidacy toward—the role to which he’s aspired nearly his entire adult life: President. The climax of each show, just when he faces another military crisis: “Send in the Nimitz!”

(Irony of ironies: After delivering up this wicked sendup of a would-be President, Buckley got himself practically read out of the conservative movement his father reinvented by endorsing the Democratic Presidential ticket this year—not just Barack Obama but his VP choice, Joe Biden. At least the latter will help keep him gainfully employed these next few years as an inspiration for future comic hijinks!)

When it comes to juicy targets, Buckley is squarely in the best tradition of bipartisan, post-ideological satire. Once confirmed, Pepper’s principal adversary on the court is Silvio Santa Maria, an Italian-American arch-conservative who plays with a toy guillotine on his desk when he’s not firing off brilliant but sarcastic dissents. More than a few readers will be reminded of Antonin Scalia.

Small but notable pleasures exist along the way, too, including what has become something of a Buckley trademark: words or phrases marked by asterisks that are defined, in most un-Webster-like style, in arch terms at the bottom of the page (e.g., “pollsters” are defined as “Overcompensated and usually self-regarding political functionaries who instruct leaders what to do, based on the biases of a largely uninformed electorate”).

Buckley on Film

Reading Supreme Courtship got me wondering who would play Pepper if the movie were ever cast. Let’s see: it would have to be an actress who could convey sex, sass and savvy in equal amounts—not always an easy combination to pull off.

These musings, in turn, led me back to memories of an encounter with Buckley at the Barnes & Noble bookstore near Lincoln Center, where he was signing books on the occasion of the release of the film adaptation of Thank You for Smoking, starring Aaron Eckhart.

After his talk about the latter film, which had surprised and delighted him, I asked Buckley, as he was autographing my copies of his books, if any other adaptations of his works were planned. Not at that point, he said. No Way to Treat a First Lady, for instance, had attracted little if any interest from Hollywood since word had gotten around that the central character was based on Hillary Clinton.

What about his newest book, Florence of Arabia? I asked. Who would he cast as the female lead, if he had the choice?

Buckley pondered the question for a few seconds. “Jodie Foster,” he answered. Her name hadn’t sprung to mind as I read the book, but the more I pondered the fierce intelligence and moral passion of the protagonist, the more I felt that there could hardly be a better fit.

I hope Tinseltown gets around to making that film eventually, though it would require a screenwriter and director of unusual skill to adapt the Buckley novel with the greatest extremes of hilarity and tragedy.

In the meantime, another Buckley book may land on the silver screen first, if all the planets align: Little Green Men. If you’re wondering what on earth that title could connote—well, think about what would happen if a George F. Will-type of DC pundit believed he had been kidnapped by aliens. Imagine the possibilities!

Director Whit Stillman already has. The last I read on the blogosphere, he was attached to the project as a director but not screenwriter, marking something of a departure for someone who’s directed his own screenplays for Metropolitan, Barcelona, and The Last Days of Disco.

I’m not sure I like the idea of a different screenwriter besides Stillman—though some of his prior work (notably Metropolitan) suffers from pretentiousness, that same quality is absolutely made to order for the media maven protagonist at the heart of Little Green Men.

Stillman has also mentioned Greg Kinnear in connection with the project. Well, we shall see…