JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL by Richard A. Brisbin, Jr. Baltimore: The Johns Hopkins University Press, 1997. 474 p. Cloth $39.95.
Reviewed by David Schultz, Department of Political Science, University
of Wisconsin, River Falls.
Even after approximately a decade on the Supreme Court, Antonin Scalia continues to draw significant scholarly attention. Efforts to explain the Justice's decision-making and influence on the Court remain as diverse as both the field of public law scholarship and the sum of those who write on Scalia. Attitudinal, jurisprudential, institutional, strategic, and even biographical in scope, Scalia scholarship has described the Justice as a guardian of the Supreme Court; as leader of the conservative judicial revival; as driven by policy outcomes; and as governed by neutral rules principles of law and interpretation.
Brisbin's book on Scalia draws upon all of these traditions and more, aspiring to be a comprehensive almost biographical effort to explain the elements influencing the Justice's decision-making and the make-up of his political vision. Rich in voting data and inclusive in discussing Scalia's most important Court of Appeals and Supreme Court decisions, the book offers many fine arguments and observations. Yet it breaks little new ground from either earlier books by Schultz and Smith (1996) and Smith (1993) or even from the many articles on Scalia that Brisbin had previously written. In the end, Brisbin neither really explains Scalia's decision-making process nor fully reconciles the diverse contexts upon which he draws. The author does not seem sure whether his Scalia is the heir to Felix Frankfurter, an outcome-orientated Justice, a mixture of both, or is rightly understood through the lens of Postmodernism.
Brisbin opens his book by detailing the context of conservatism into which he first places Scalia. Here, Brisbin contends that the contemporary conservative movement contests many of the values of pluralist politics and the New Deal. Specifically, three problems are noted. First, conservatives criticize the expansion of bureaucracy and bureaucratic power in terms of untrammeled discretion. Second, they criticize expanded pluralism as it threatens vested interests. Third, they criticize the moral discord of contemporary society that has challenged the political order and stability of the regime. Overall, Brisbin describes these three issues as also central to Scalia's conservatism and he thus first places Scalia the conservative into this political context, describing the Justice's "political vision" as a discourse about the American regime and how it ought to be ordered. Subsequent chapters provide analysis of how his Supreme Court decisions reflect these themes.
A second Scalia emerges after the first three chapters describe Scalia's life, career, and education. Here, Scalia's upbringing as a Catholic and as the son of a professor of literature are noted, yet little of this is used to provide insights into Scalia. These opening chapters substantiate that Scalia's conservative views were prominent in his legal and teaching careers and working for the government. Brisbin also does an excellent job demonstrating Scalia's conservative voting record on both the Court of Appeals and the Supreme Court. Overall, these chapters document Scalia's conservative bent. However, the most important part of these chapters is the argument that Scalia is the heir of Frankfurter and Hart and Sachs. This is the Scalia who is the student of "Reasoned Elaboration" jurisprudence.
Reasoned Elaborationists, for Brisbin, saw the role of law as coordinating society, providing clear rules to address conflict through the employment of reasoned and principled judicial decisions. In effect, Scalia the Reasoned Elaborationist believes that the law can solve the threats of moral discord, bureaucratic excess, and pluralism by providing formal, clear, and sharp rules that draw limits to power. Hence, by the end of chapter three, Brisbin thus describes the key to explaining Scalia's political vision as understanding the linkage between the Justice's conservative votes and his modification of Reasoned Elaboration to serve his conservatism.
Brisbin thus applies his description of Scalia the conservative and Scalia the Reasoned Elaborationist in chapters four though nine. Here, the author covers ground covered elsewhere by others, discussing Scalia's views on the institutions of American government, equal protection, freedom of expression, crime, property, and abortion. The discussion here is tedious, yet amply documents the conservatism of Scalia and how he uses Reasoned Elaboration to reach his decisions.
The final two chapters introduce the third Scalia, one seen through a Postmodern lens. Here, Brisbin indicates that the Justice's decisions often cause "violence" to defendants and that his use of Reasoned Elaboration serves conservative ends and is also quintessentially modern in that it displays a faith in rationality and order. Overall, the Scalia that emerges by the end of the book is one who believes in clear crisp rules of law that define how society and the American political regime should be ordered, yet it is also a Scalia who uses these rules to further his conservative vision of what a well-order society and political freedom should look like, and it is also a Scalia whose decisions often threaten the rights of minorities and those who are disadvantaged.
As noted above, there is much to be praised in this book and many elements of Brisbin's book are insightful. Yet if explaining judicial behavior is a primary goal of public law scholarship, then the book falls short. Ultimately the book is confused and unable to reconcile the many visions of Scalia that the author proposes. At times, Brisbin wishes to make Scalia into a conservative who is results-orientated, using the law and Reasoned Elaboration instrumentally to serve his ends. At other times, Brisbin seems to describe Scalia's decision-making as an interplay between Reasoned Elaborationism and his conservatism, producing a specific political vision, of which the book tries to define. The third Scalia is the Reasoned Elaborationist whose decision-making is conservative but not intentionally so.
These three explanations thus produces views of Scalia that see his conservatism as (1) controlling, (2) as something that reacts with his jurisprudential values, (3) or as simply the result of following a specific jurisprudential model of decision- making. These three arguments are clearly different and are equally found in the book, without the author recognizing that the three are present and at odds with one another. Hence, on one level, Brisbin has failed to produce a coherent explanation of Scalia's decision-making, even though he may correctly be describing the various forces present in the Justice's thinking.
On another level, the book demonstrates this confusion in its "kitchen sink" approach to Scalia. Brisbin covers almost everything one would want to know about Scalia, but the reader is often left wondering how the Justice's family background, religion, and experiences as a teacher, lawyer, and in politics help us to understand him. This material is thrown at the reader, suggesting that it is important, but one is not told how or why. Similarly, the conceptual framework that is articulated in the first three chapters really is not essential to the description of Scalia's Court opinions in chapters four to nine, with these chapters really offering up no more than detailed points on what Scalia said in specific cases. Moreover, the Postmodern gloss that appears in the final two chapters comes out of nowhere, and it offers little of value to understanding Scalia except in the most trite sense of saying that adverse holdings hurt or cause violence to defendants' interests.
Finally, while the book's title indicates that it is a book about Justice
the conservative revival, almost no attention is given to an analysis of Scalia's interaction with other members on the Court or how successful he has been in securing or leading this revival. Hence, the book misses an important political dimension to understanding Scalia's behavior and decision-making.
Overall, Brisbin's book is not the first on Scalia (it is the third) and it will certainly not be the last. There is no question that Scalia watchers and students of the Supreme Court should read this text. However, one would have hoped that this would have been a book that offered a clear and consistent contrast to the earlier Scalia scholarship. Instead, the book is mainly derivative of earlier research, unable to reconcile divergent claims and treatments of Scalia.
Schultz, David A. & Christopher E. Smith. 1996. THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA. Lanham: Rowman & Littlefield Publishers, Inc.
Smith, Christopher E. 1993. JUSTICE ANTONIN SCALIA AND THE SUPREME COURT'S
CONSERVATIVE MOMENT. Westport: Praeger Press.