Yet Scalia is taking it to the streets this month to promote his new book, “Making Your Case: The Art of Persuading Judges,” coauthored with professional wordsmith Bryan Garner. “Making Your Case” is a how-to manual for attorneys, as Scalia emphasized in an MSNBC interview last week with Tim Russert. It’s not a book about legal philosophy. But Scalia used that sit-down—and several other unprecedented interviews this month—to pitch his constitutional theories. This is extraordinary exposure for Scalia, who has always been more comfortable lobbing his intellectual grenades in closed speeches, written opinions or inimitable comedic performances at the court’s oral-argument sessions.
Scalia’s timing couldn’t be better. Last Tuesday, presidential hopeful John McCain served up a stemwinder about judicial philosophy that amounted to a familiar rant about the imagined dangers of secretive “activist judges.” The war on judges is hopelessly 2006—even Scalia has dismissed the words “activist judge” as a meaningless “conclusory” label. But McCain spent a morning demonizing the judiciary, simply because judges never fight back; they rarely speak. Which makes Scalia’s willingness to chat on TV about his wife and grandchildren so welcome.
Scalia unplugged reveals a mound of contradictions: charming and warm in person, he wields a wicked pen. He once wrote of Justice Sandra Day O’Connor’s position in a case that it “cannot be taken seriously.” Scalia’s writing style is a disarming mix of lowbrow and lofty. He recently served up the Supreme Court’s first citation to Oscar the Grouch. Yet he demands lawyers avoid contractions, which he deems inappropriate efforts to be “buddy-buddy” with judges. And Scalia, a devout Roman Catholic and admitted social conservative, insists his personal politics have nothing to do with his constitutional methodology. As he repeated last month in an interview on “60 Minutes,” his method of “originalism”—strict adherence to the original text and meaning of the Constitution—is perfectly value-neutral. He rejected criticism that he seeks to “drag us back to 1789”: “I’m not saying no progress; I’m saying we should progress democratically,” he insisted. It’s for legislators, not judges, to adapt to evolving standards.
That’s quite a sales pitch from a justice who has long taken the position that he bears no burden of persuasion. He told Russert last week that the justices’ formal case conferences are “not an exercise in persuading one another.” In response to a question from Lesley Stahl about his inability to sell his colleagues on originalism, he insisted his brethren are unpersuadable: “I’m not going to change their basic philosophy. These people have been thinking about the law for years.”
Some of his colleagues still believe in intellectual influence. In a debate against Scalia last year, his more liberal colleague Stephen Breyer said with a laugh that after writing his own dissents, he invariably proclaims to his wife that “this time it will really persuade them!” But Scalia has always seemed more comfortable marinating in his own rightness.
Perhaps Scalia rejects the burden of winning over his colleagues because he came to the high court in 1986 weighted with the expectation of conservatives who saw him as the antidote to then-justice William Brennan—who schmoozed his way from one liberal triumph to another in the 1960s and early ’70s. But Scalia never managed to glad-hand his way to a conservative counterrevolution. Some commentators believe his slash-and-burn approach was responsible for pushing Rehnquist Court moderates leftward.
Even at 72, Scalia seems not the least bit bothered by his inability to persuade his colleagues to embrace his constitutional viewpoint. While he may not have converted his brethren, the court has moved dramatically to the right, with the appointment of two new conservative jurists. And as they have embraced his politics, if not his methodology, he’s dusted off the old charm to sell the rest of us—guys to whom he would refer when teaching law school as “Joe Sixpack”—on the elegant simplicity of originalism.
Scalia’s persuasiveness about his own constitutional world view benefits from near radio silence from the court’s liberal wing. His enormous intellectual selfconfidence has allowed Scalia to eschew persuasion, waiting more than two decades until “Joe Sixpack” was ready to hear him out. And without a compelling competing legal theory from the court’s liberals, it was virtually guaranteed that once Scalia uncorked his considerable charisma, his views would appear as charming as he is. Scalia has mastered the art of persuading by simply being. If that isn’t a chapter in his new book, it should be.
