Albert Mohler:
This is Thinking in Public, a program dedicated to intelligent conversation about frontline theological and cultural issues with the people who are shaping them. I’m Albert Mohler, your host and President of the Southern Baptist Theological Seminary in Louisville, Kentucky. James Rosen is the Chief White House Correspondent for Newsmax, as well as a celebrated journalist and bestselling author, a graduate of Northwestern University, Mr. Rosen has written for the New York Times, the Wall Street Journal, the Washington Post, the Atlantic, and National Review, among others.
Prior to serving as a Chief White House Correspondent, Mr. Rosen served for two decades as a reporter at Fox News. He’s produced several books, including A Torch Kept Lit: Great Lives of the Twentieth Century, which spent five weeks on the New York Times bestseller list. But his most recent book, Scalia: Rise to Greatness, is the topic of our conversation today.
James Rosen, welcome to Thinking in Public.
James Rosen:
Well, thank you, Albert. I’m not sure there are many more dangerous activities than Thinking in Public, but I’m willing to chance it with you.
Albert Mohler:
Well, yeah, let’s do that together. I’ll tell you, it’s a risk more people ought to take, as a matter of fact.
James Rosen:
Agreed.
Albert Mohler:
But among those who prized thinking, the thinking of someone like the late Justice Antonin Scalia is certainly worthy of our attention. And you have started us along the way in particular in what I think is the first volume of what will be at least a two-volume work. Is that right?
James Rosen:
That’s correct.
Albert Mohler:
So, tell me how you decided to write on Antonin Scalia. There are a couple of works out there already about the late Justice, and there are a few people who’ve attracted more media attention in terms of their role in the Supreme Court than the late Justice. How did you decide to write this and go about it?
James Rosen:
Well, first again, Dr. Mohler, thank you for having me. I actually knew Justice Scalia a little bit. I had the privilege of having lunch with him one-on-one, just the two of us, twice. One of the first things I did when I came to Washington as a brand-new Washington correspondent at the age of 30 back in 1999 was to write to Justice Scalia to seek an interview. And the reason for that was because a good 15 years before that, I had seen him on the PBS program, The Constitution: That Delicate Balance.
This was a program that had a panel of eminent thinkers and eminent minds joined together in a sort of theater in the round setting before a live studio audience with a moderator leading them through the paces of a hypothetical situation that had constitutional dimensions. The moderator was usually Fred Friendly, a former president of CBS News, and you would see on that panel people like Dan Rather and Sandra Day O’Connor and Gerald Ford and Antonin Scalia. And as a high school student watching this in the 1980s, Scalia instantly struck me as unlike any of the other panelists.
He was, although of course, obviously a brilliant jurist, someone who spoke in terms that a lay member of the audience such as myself could readily understand. He was humorous, even sometimes to the point of sarcastic. And so, when I came to Washington in 1999, I wrote to him seeking an interview. This commenced between us a lengthy and often amusing correspondence that spanned about two years. And it led to this pair of lunches that I mentioned, just the two of us each time, one-on-one. And we drank wine together, he made me eat off of his plate.
I said, “Mr. Justice, I couldn’t.” He was like, “Come on, come on, come on.” So, now I’m shoveling vegetables from the plate of Justice Antonin Scalia into my mouth at AV Ristorante Italiano, which was a very modest Italian restaurant. It was his favorite spot in the world. He’d been going there since the 1950s when he was a student at Georgetown. It was located in what was then a fairly sketchy neighborhood in Washington. And he even drove me back to my office on Capitol Hill both times in his car.
And I was able to confirm, Albert, in my research interviewing students who had traveled with Scalia to debate tournaments back in the 1950s, all the way through Supreme Court clerks in the 21st century, that being a passenger in a car driven by Antonin Scalia had been as unnerving an experience for them as approved for me in the 21st century. But he was so kind and generous to a young reporter back then that I resolved that one day I would write about him.
As you noted, there are prior to this book, Scalia: Rise to Greatness, which just came out, two existing biographies of the Justice, both of which came out while he was alive, one of which he cooperated with extensively the other, not at all. And both of those books came out in pretty much the same place, which is to say openly hostile to Justice Scalia, and his conduct, and his jurisprudence, and his legacy. So, this is the first biography of him published since his death. It is the most comprehensive in scope, and I like to say that it’s the first accurate biography of the man precisely because it is the first admiring one.
Albert Mohler:
Yes. Well, you’re speaking to someone who’s a deep admirer of the late Justice. I got to be in his presence twice and both times was struck by the fact that he is, or was, in personality a force of nature. And one of the things I so appreciate about your book is how you demonstrate the human side of him that in many ways are just not expected. I guess one of the least expected developments of Supreme Court history, at just a personal level, was the relationship between Justice Scalia and the late Justice Ruth Bader Ginsburg. And of course, you detail even some of the comments they made to one another there in the DC Circuit when they were both on that court and then later shared the Supreme Court together.
He was a man in full, as the British would say. It had to be a fascinating story to tell. I would’ve thought that one volume biography of Antonin Scalia might be an easy sell to a publisher, but a two-volume, and two volumes in which we’d have to say the first volume would be the more difficult sell, I think. I just want to tell folks listening, this is a first volume about the Antonin Scalia you don’t know but would want to know.
James Rosen:
So, thank you for that. This book, Scalia: Rise to Greatness, 1936 to 1986, tells the story of the first 50 years of Antonin Scalia’s life. It ends with him taking his seat on the Supreme Court, and so, if not before then, Albert, I hope to be back with you in two or so, two and a half years, to discuss volume two, which will cover the Supreme Court years 1986 to his death in 2016.
Albert Mohler:
Just don’t turn into Robert Caro.
James Rosen:
Yeah, no, I actually intend to finish this.
Albert Mohler:
We need this finished.
James Rosen:
Yes. And I also, I don’t work on typewriters, and I don’t have 30 typewriters on hand in different states of disrepair so that I can cannibalize parts for the one working typewriter, but we wish Robert Caro well, and-
Albert Mohler:
Absolutely, I want that fifth volume.
James Rosen:
His multi-volume biography of Lyndon Johnson.
And yes, Antonin Scalia was a man in full. The substantive conversations we had in those pair of lunches together will remain off the record. I do hope in volume two to be able to quote some excerpts from the letters that we exchanged back and forth, which as I say, were often amusing. But this was a man who was a presence when you were with him. And I can tell you that when I arrived at this restaurant first, and it was a fairly dark place, the sunlight was streaming in through the front door. It was November of 1999, and suddenly a sort of portly, jaunty silhouette appears and strolls right toward me.
And there’s Justice Scalia and he sits down. The waiter we had was a young guy. He was genuinely from Italy. He barely spoke English. And the Justice sits down, and he looks at the menu and he says to the waiter, “Pulpy, what is Pulpy?” And the waiter says, “Octopus.” And he says, “Octopus, I’ll have the Pulpy.” And he hands the menu back to the waiter. Now, I have certain rules about what I eat when I’m trying to impress people, and nothing that requires me to eat with my hands, nothing that has splashy things like marinara sauce or spaghetti, things that are easily manipulable with a knife and fork.
And I, coming from Staten Island, which used to be 66% Italian when I grew up there, I knew exactly what to order. I said, “I’ll have the Veal Parmesan and the guy’s writing it down and Justice Scalia interrupts. He goes, “No, give him the rabbit.” And the waiter. And I turn in unison to Scalia, and we both say, “Rabbit?” He says, “Yeah. He’s going to like the rabbit, give him the rabbit.” And the guy takes my menu and walks off. Now, Albert, I had never had rabbit in my life. I didn’t want rabbit. Here was an example, nothing less than the country’s foremost opponent of judicial activism overruling my lunch order.
Albert Mohler:
It was evidently quite a proponent of menu activism.
James Rosen:
I haven’t had it happen to me since, not even from Mrs. Rosen. And I also have to tell you that I haven’t had rabbit since, but this was a man who was known to commandeer a piano in someone’s house and just with a sort of shameless but endearing grandeur, just belt out show tunes or Christmas carols and singalongs for 50 people. He just was a larger-than-life presence. And in fact, the very first quote in this book is from his daughter, the youngest of the Scalia’s nine children, Meg Scalia Bryce, who said to me in an interview in 2017, “After he died when people said that he was larger than life. He really was. And he was that way to us.” And then you see the transcript of me saying, “And he was cognizant that he was that way, yes?” And she said, “Oh, yes.” Oh yeah, he was putting on a show, but it was a great show.
Albert Mohler:
And actually, it was quite an honest show. For example, the first time I saw him in person, he was already associate justice at the Supreme Court, and he came to speak to an elite group of lawyers. I am not a lawyer, but I was invited by these lawyers to be a part of this event. And it was fairly hostile to everything in terms of originalism and strict constructionism and textualism associated with a conservative revolution in jurisprudence and on the court. But I think Justice Scalia, understanding exactly where he was and to whom he was speaking, he relished the opportunity. By the end of his address, he had the entire group emotionally with him, if not intellectually with him. He had a very rare gift. He was a titanic personality and a non-titanic frame.
James Rosen:
Well, he had a constellation of gifts, really, but these gifts extended beyond his own personality and capacities to include the gifts of his parents, the gift of his faith, which I call the rocket fuel for his rise to greatness. And it must be said, the gift of Maureen Scalia.
Albert Mohler:
Absolutely.
James Rosen:
I’ve been very pleased that in the reviews for this book so far, at least two of them have said that where Antonin Scalia is the star of this book, the hero of the book is Maureen Scalia. Those two previous biographies, which were hostile really did not treat in any depth at all in some cases, or only in cursory fashion, key episodes, events, and figures in Scalia’s life. And these include his faith and the extraordinary role of Maureen Scalia in raising the nine Scalia children, largely by herself as the Justice always said, with very little assistance from him. And so, all those of us who count ourselves the beneficiary of Antonin Scalia’s towering legacy in the law, which affects every American and every corner and area of American life, really owe a debt of gratitude also to Maureen Scalia.
Albert Mohler:
Well, it’s a good record to set straight, and it is also a testimony to the gift of marriage and family. And so, I very much appreciate that. I want to get us into two areas of fairly deep water and pretty quickly because I think the two most interesting parts of your book have to do with two conflicts. And the first of them is basically a conflict in how any text is to be read and interpreted. And this directly applies to courts and to the text as the law and the Constitution. And Antonin Scalia, I think as someone who pays attention to ideas, you trace that pretty early and it actually starts in one way with Shakespeare. Is that right?
James Rosen:
Okay. So, yes. First of all, I think we are well advised to root Antonin Scalia’s life story and his rise to greatness in the immigrant experience of the 20th century. His father came to the United States from Sicily in 1920 with $400 in his pocket, not speaking a word of English, and made of himself a renowned professor of romance languages. Scalia’s mother was the daughter of Italian immigrants, and she became a schoolteacher. They were devout Catholics and from these three influences: his mother who venerated form and composition, and who made sure that young Nino Scalia stayed on the right and narrow path, hosted the Cub Scout meetings in her own home; from his father who was a sterner character and who warned in his own published academic writings of the perils of the meaning of a sacred original text being distorted by a dishonest interpreter or translator; and from the sacred foundational texts of the Catholic Church and the liturgy of the Catholic Church, Antonin Scalia emerged with a profound reverence for the inviolability of sacred text. And this was hammered home to him still again when he was a student at Xavier High School in Manhattan. He wound up being the valedictorian there as he was of Georgetown University. Both of these were Jesuit institutions, but Xavier, which is still there in New York City, he commuted from Queens to Manhattan every day to attend Xavier. Xavier was at that time a very unusual place. It was both a Jesuit private school and a military academy. And Scalia as Justice, delighted in telling audiences about how he used to commute back and forth from Queens with his .22 rifle casually slung over his shoulder and no one raising an eyebrow about it.
But there was a teacher at Xavier who was a profound influence on young Antonin Scalia. He was an Irish Jesuit priest, fearsome and elderly spoke in a thick Boston brogue. His name was Father Tom Matthews. And the class one day was reading Hamlet by Shakespeare and a wise guy in the class, not Scalia, piped up with some sophomore comment about the play. And Scalia never forgot what happened next. He called it, in fact, the Shakespeare Principle, and he referred to it in speeches for the remainder of his life. Father Matthews glared down at the offending wise guy and said with his thick brogue, “Son, when you are reading Shakespeare, Shakespeare is not on trial; you are.”
And it was for Scalia another reminder as with his parents and with the Catholic Church, that certain texts are inviolable. And they form what William F. Buckley used to call the patrimony, the inheritance of received wisdom through the ages. And so, Scalia carried forward this reverence for the inviolability of text of sacred text, such as the Constitution or a given statute into his work as a judge and then later as a justice.
Albert Mohler:
Several years ago, I was the recipient of the Robert Bork Award for originalism. And that has to do with, I think, a lot of the public work I was doing and also for my work at the intersection of law and theology. And the text is at the center of that intersection, whether the text is the Scripture, the Bible on the one hand, or any text you might say that has binding authority and then to a lesser degree, the United States Constitution. And then beyond that, the body of written law. And the point is that the rules are basically the same, and this is why you have theological liberalism and ideological liberalism.
They both have to find a way to free themselves from the constraint of a text. And so, in other words, the intellectual pilgrimage of Antonin Scalia on his way to becoming a justice of the United States Supreme Court is in many ways just parallel to my own intellectual pilgrimage in having to come to terms as a Christian with the authority of text, the relative authority of text. I’m not putting the Constitution and the Scripture on the same level, but the principles of interpretation are exactly the same. And that statement that Scalia would name the Shakespeare Principle, I mean, frankly, it is a conserving principle regardless of the text in question.
James Rosen:
We might not see fit to place the Constitution on the same level with Scripture, but it is safe to say that violating either one will probably and very swiftly get you into trouble. This gets to the heart of the Scalia legacy and why he is, as I say, not just one of the most consequential justices in recent times, but really one of the most important Americans of the last 100 years. When Scalia came to the federal bench, he was appointed to the Court of Appeals for the District of Columbia Circuit by President Reagan in 1982. The DC Circuit is one rung below the Supreme Court, often described as the second most powerful court in America.
Albert Mohler:
Often described as the waiting room.
James Rosen:
Yes, so many future justices come from the DC Circuit. And at the time that Scalia served there, 1982 to ’86, just before President Reagan then elevates him to the Supreme Court, there was a real murderer’s row of judicial talent serving as judges on that appellate bench. You had on this one court, Robert Bork, Ruth Bader Ginsburg, Antonin Scalia, Kenneth Starr, Larry Silverman, titans, all. But when Scalia got there in 1982, there prevailed in the law a liberal notion called the living constitution. This is the idea that the meaning of the Constitution should expand with the times like a living organism would in order to account for a phenomenon that the founding fathers could never have envisioned such as nuclear weapons or the internet or what have you.
And in order to breathe this expanded meaning into the Constitution or into any given statute enacted since then, liberal judges would bypass the text, as you say, and they would look instead to what they call the legislative intent behind a law, 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 snaked its way through the process. Scalia stood up to thwart all of that. His idea was that when judges and justices are engaged in their central business, which is after all to tell us, to interpret what the meaning is of the Constitution or of a given statute, that they should be bound by the original meaning of the Constitution or that statute.
Because as Scalia would say, “Nobody ever voted on a floor debate, and nobody ever voted on a committee report that most members of Congress never probably even read. What they voted on was the text of a given, proposed law.” And that’s what a president signed into law. And so, how best to discern or divine the original meaning of a constitutional provision or a given statute, Scalia’s answer was the text, not to look back at some ex post facto legislative intent that somebody cooked up, let’s look at the text. Their intent was the text. And so, I call Textualism the metal detector used to find the original meaning.
These were considered radical or counter-revolutionary concepts when Scalia first began articulating them. But before he died, he lived to see no less a figure than Supreme Court, Justice Elena Kagan, an appointee of Barack Obama proclaimed that in effect as a result of this revolution by Scalia, which has impacted how lawyers argue before judges and justices, how judges and justices craft their opinions in the law and even how lawmakers craft laws. And therefore, again, as I say, it has touched every corner of every American’s life. Justice Kagan said, quote, “We are all originalists now.”
Albert Mohler:
Right. In some sense. And that was a remarkable intellectual turn, almost a reverse Copernican revolution in one sense. And a part of the necessary background to that is this progressivist understanding of the law that radically, historically preceded Antonin Scalia. It even emerges before the end of the 19th century. But in the 20th century between people like Woodrow Wilson and Louis Brandeis on the court and so many others, James, one of the most interesting things is that by the time you get to the 1970s, basically there’s no distinction between conservatives and liberals in terms of their rather progressivist understanding of the law.
And so, on the conservative side, it wasn’t so much that Scalia led a recovery, he along with others and just a few others, as a matter of fact, I would mention Robert Bork and Edwin Meese as two seminal figures. They’re not exactly in the same place, that’s the second conversation I want to have with you.
James Rosen:
Okay.
Albert Mohler:
But nonetheless, it required a conservative revolution, but it’s really beyond refutation because as they made very clear if the text means whatever you say it means, and if every text is indeterminate, then there we have no constitution. All we have are judges.
James Rosen:
That’s precisely correct. But to put this in terms perhaps that a liberal or a modern progressive might better comprehend, imagine you are someone who approves of a measure that President Biden signed into law last year. Let’s say the measure that conferred enduring legal protection on same-sex marriages. How would you feel if 10 years from now or 50 years from now or 200 years from now, an unelected judge or justice could come along and say, “Well, we understood what the original meaning of that law was back in 2022, but we think it should be expanded to mean this now.” You wouldn’t like it.
And this is my words, not Justice Scalia’s words, but when we allow a judge or a justice to interpret the text or the meaning of a constitutional provision or a statute enacted since then, in a way that enables them, in essence, to graph their own latter-day policy preferences and sensibilities onto that original meaning or text, in essence, what you’re doing is you’re traveling back in time and you’re robbing an entire generation of their democratic self-governance because they voted for specific representatives who voted on a specific text, and a president signed that specific text into law. And if somebody has the power, later on, to come along and say, “Well, that text actually now means this,” that’s a very dangerous thing for a constitutional republic.
Albert Mohler:
But that was the trajectory since the opening of the 20th century. Woodrow Wilson, long before he was elected president, was making the argument that the country had outgrown the Constitution, that the constitutional text was too limiting. By the time you get to the 1960s, you have liberal academics making the argument that the entire enterprise is an exercise in repression and that the Constitution, or for that matter, the statutory law, is deeply infected with prejudice, has to be overcome.
And of course, the argument was not, “We need to change the Constitution, we need to amend the Constitution. We need for that matter, even to go back and reset a lot of statutory law.” The argument was, the way out is the courts. And the courts were complicit in that. And as I say, it’s just amazing, you mentioned the statement by Justice Kagan that we’re all originalists now. Well, of course, that’s a parody of Richard Nixon saying, “We’re all Keynesians now,” speaking of economics. But the point is that the judges appointed by conservative presidents or Republican presidents I should say, and democratic presidents, they didn’t differ all that much. And they were all committed to this progressivism.
James Rosen:
This was not just the handiwork of liberal academics. Yeah, this was the practice of the Warren Court and, to a degree dismaying to principled conservatives, of the Burger Court as well. It was the Burger Court that gave us Roe v. Wade and Bakke the affirmative action case. And in any case, I like your turn of phrase, a Copernican revolution in reverse perhaps. But again, this is the key to understanding why Antonin Scalia is so important. And even beyond, of course, his time, is that it changed the way that people argue about the law, write the law, and decide the law. And again, that has impacts for every living American.
Albert Mohler:
Well, there’s one sense in which you can do this trajectory study biographically as you’ve done so well here of Antonin Scalia, his first 50 years. And I guess there were a few surprises that I would mention to you, and one was to be reminded of how interested Antonin Scalia was in administrative law because that is not what you would predict would be the way into the kind of constitutionalism for which he is famous. But on the other hand, it fell into place for me because Scalia’s dealing with the very fact that you do have an administrative state which is producing this massive amount of regulation and policy with the effective law.
And he really does believe that the only limitation on that are the original statutes passed by Congress and signed into law by a president. And so, in other words, it’s a practical issue. It’s not just a theoretical issue of hermeneutics or interpretation. It’s a practical issue, what’s the authority of the government to promulgate what’s basically a new policy with the force of law?
James Rosen:
So, you’re correct that Antonin Scalia loved administrative law and he sort of cut his teeth on administrative law. He was, in essence, a member of the administrative Leviathan in his very first government job when he was hired in 1970 to serve as the general counsel to a brand-new agency created by the Nixon administration called the White House Office of Telecommunications Policy. And I’m very proud of this-
Albert Mohler:
That sounds like a direct launching pad to the Supreme Court.
James Rosen:
Not typical. But his work there was fascinating. And I’m the first researcher to really dive deeply into Scalia’s papers from his time as general counsel when he was in his early 30s for the White House Office of Telecommunications Policy. He was brought to that job by someone who deserves their own biography, a genius and a visionary from Kansas named Tom Whitehead. And Tom Whitehead convinced the Nixon administration of the need for such an office because he understood that telecom policy in the early 1970s was, or at the dawn of the decade, was spread across a riot of inter-agency tangles, the State Department, the FCC, and so on, and needed to be consolidated under administrative control at the White House.
And so, they let Tom Whitehead, who was only 32 at the time, but who had advanced degrees from multiple universities and institutions, to run this agency. And the Whitehead/Scalia policy was to, and they had to sort of overcome the bureaucratic resistance within the federal government to do this, and they did, was to apply free market principles to the central business of the launching of domestic space satellites. Instead of only one firm, which was a quasi-public monopoly called COMSAT being allowed to launch domestic space satellites into space they wanted any firm with the requisite technical prowess and capital reserves to be able to do it, and they succeeded at that.
And this turbocharged the telecom revolution, and there are papers that Scalia worked on, he composed one paper that was called The Computer Society, this was 1971, and he predicted that in the future, users of computers at remote terminals would not only have access to hundreds of different TV channels but would do their banking from these terminals and would be able from these terminals to retrieve information from any library in the world. In essence, Scalia predicted the internet in 1971. He also predicted the intended privacy concerns it would raise, but also the huge financial impact that it would have.
But Scalia’s great love was one that superseded administrative law and that was separation of powers. And he believed that the design of the Constitution was really what enables our freedoms. It’s not the Bill of Rights. He used to say that every tinhorn dictatorship in the world has an even more lavish bill of rights than we do. What guarantees our freedoms is the structure and design of the Constitution and his views on agency deference, the amount of deference that courts should exhibit when considering federal agency decisions by administrative agencies, that changed over time. And that’ll feature prominently in volume two, where I discuss how he came to have different views about that. But it’s important to root, to place his love of administrative law in the context of his larger and greater love for the separation of powers.
Albert Mohler:
Yeah, giant intellectual issues here. And there’s so much in the fascinating life of Antonin Scalia. It’s hard sometimes just to not want to talk about every twist and turn. He practices law with a very prestigious law firm in Cleveland. He eventually joins the faculty University of Virginia Law School. He also spends a year at Stanford University. He’s at the University of Chicago. Fascinating, fascinating figure. He spends time with different administrations involved in very important positions, mostly in the Department of Justice, I think of as being germane to the concern here. But he rises to national attention.
And by the time you get to the early ’80s or even the late ’70s, he’s on the list of the potential nominees to the United States Supreme Court, but he doesn’t get there that quickly. His first appointment is to the DC Circuit. And by that time, he had a pretty well-developed philosophy that you would call original meaning. In other words, he at least has a methodology in place for how he’s going to function as a judge.
James Rosen:
That’s right. And again, most judges might not be so eager to provide a ready scorecard by which to judge them and how they are applying the law. And Scalia was always the first to admit that he might not have been perfect in his application of original meaning, but at least he gave you some means by which to evaluate how consistent he was being. Briefly, I want to mention one of the jobs he held in this rise to greatness, and that was you mentioned the Department of Justice in the Gerald R. Ford administration. This was the mid-1970s, the post-Watergate era.
Scalia held the job of Assistant Attorney General for the Office of Legal Counsel at the Department of Justice. It’s the same job that William Rehnquist had held when President Nixon placed him on the Supreme Court. It’s a very important job. Basically, anyone from the president on down in the executive branch can ask the Assistant Attorney General for the Office of Legal Counsel to provide a binding legal opinion on whether it would be lawful to do X or Y. And that was Scalia’s job. And in it, he accomplished three major things.
One is he, along with some other conscientious conservatives who were less tied to the lost cause of Richard Nixon than they were to the Republic, they understood that when Watergate and its subsidiary scandals faded from the headlines, the country would still need a strong executive. And yet, in the aftermath of Watergate and all those subsidiary scandals, a lot of reckless and greedy ideas were flying around on Capitol Hill and in the news media aimed at emasculating the presidency and the intelligence community. And Scalia fought hard both privately and in front of the cameras to preserve the powers of the presidency. And he succeeded.
He also participated in what I call the great reformation of the intelligence community. After all of these abuses of the past 30 years came tumbling out and were published on the front pages. It got to the point, however, where Scalia, who at this point was only 40 years old, was placed in charge of providing legal approval or legal authorization for all covert operations at the time. And he wondered to himself, “How did I, this kid from Queens, suddenly find myself someone who was a lawyer and a brilliant one who graduated from Harvard Law School, top five in his class, but still, what am I doing standing astride the American intelligence Colossus?”
But it got to the point where they wouldn’t undertake covert operations without his legal approval. And one story told in this book for the first time is that on the afternoon of April 30th, 1975, the Fall of Saigon, Scalia got a call from the Ford White House saying, “We need an opinion by you in the next few hours as to whether it would be lawful under the War Powers Act to evacuate our personnel from the roof of the Saigon Embassy using US military helicopters.” Scalia provided that authorization, but he said, and this was never quoted elsewhere until now, “What if I hadn’t given that authorization? Would they cancel the evacuation operation on advice of counsel? What is this world coming to?”
So, he exercised a profound influence on many areas of American life, politics, and government, even before he became a judge and became a Supreme Court justice.
Albert Mohler:
Political opportunity is a very precious commodity. And there’s a sense in which a couple of times it appeared that Antonin Scalia had missed his opportunity for eventual appointment to the Supreme Court. He does get appointed to the DC Circuit, and in such a way that it’s now quite possible to imagine that he will be on the Supreme Court eventually, but also on that DC Circuit is Robert Bork and someone else I got to know him only for a very brief period of time in person just meeting him at some meetings. But a formidable figure, and I need you to help unpack some of this because I think a part of the unique value of your book in this first volume is that you really detail an intra-conservative argument about how to read the Constitution.
And so, I think on the left, people would say, you take Ed Meese, I mean primarily known for original intent. And then you take Robert Bork in terms of textualism and originalism, and you take Scalia. I think the left just sees them as one thing. And yet you unpack the fact that as much as there was this great intellectual battle between how to read the Constitution between the left and the right, between progressives and conservatives like Scalia, there’s also a battle for how in the world to define this on the conservative side. And so, there was a major ideological, but also personal rift between Antonin Scalia and Robert Bork and I think that’s a very important part of the story.
James Rosen:
Well, I had the privilege of meeting Judge Bork. I interviewed him in his home, I want to say in 2008. That was about four years before he died. I had not envisioned a book about Antonin Scalia at that time. So, I regret I didn’t ask Judge Bork about Antonin Scalia at that time. But it was great to get to know him. I did interview his widow and his son, Robert Bork, Jr. for this book. Robert Bork Jr. has posted comments on Facebook saying how much he learned from this book.
Albert Mohler:
Mary Ellen Bork has been a very gracious person.
James Rosen:
Yes, she is. And in fact, Mary Ellen Bork, the judge’s widow, allowed for me to not only to interview her but to publish in the photograph section of this book, photographs from her wedding album to Judge Bork, where Antonin Scalia was one of the groomsmen. But what we’re talking about here is kind of doctrinal skirmishing, if you will, between people who are largely in agreement about the law, but it’s bound up in a personal friendship. And at various points in his rise to greatness, Antonin Scalia received a hand up and a leg up, if you will, from someone who preceded him at each stop along the way. And that’s his friend Bob Bork.
It’s thanks to Bob Bork that Antonin Scalia got to participate in his long oral argument before the Supreme Court as an advocate, which took place in 1976. Bork proceeds Scalia to AEI and their friendship fosters more there. And in fact, Gene Scalia, Justice Scalia’s eldest son, a noted attorney in his own right, former Trump administration cabinet official, told me that one time the Scalias threw a party. And when everyone had left, his father wheeled around and pointed at him and said, “That’s why you work hard, and you study hard in school so you can grow up and have friends like Bob Bork.”
So, there was a great, deep, reservoir of affection between them. And of course, Bork proceeded Scalia to the DC Circuit. There’s a story in the book about how Bork actually smoothed the path for Scalia to join the DC Circuit because the Attorney General at the time who was in charge of such nominations kind of had it out for Antonin Scalia. And Bork kind of worked to smooth that out. Their friendship develops a rift in 1984 when a First Amendment case reaches the DC Circuit. And Bork, in his majority opinion, starts to say things that sounded like complete heresy to Antonin Scalia, who was almost a protege of Bob Bork’s and about the need for there to be evolutionary decision-making by judges where the First Amendment is concerned in order to account for modern phenomena in libel law, even if this risks the admission of judicial subjectivity into the law.
This was heresy to Scalia’s ears, and he penned a very sharp concurrence in that case for the specific purpose of taking aim at Bork’s opinion. Bork was so stung by this that many years later, 1989, after which of course politics and fate had settled with cruel finality, their friendly rivalry. And Scalia was on the court, and it was clear that Bork never would be. Bork published a book The Tempting of America in which he returned to this specific First Amendment case. Now, without mentioning Scalia by name, he mentioned the concurrence. And there was only one concurrence in the case written by Scalia. And Judge Bork said that anyone who espoused the views on display in that concurrence had no business being a judge, let alone even a law professor.
And the slight irony here is that at the time that these cracks developed in the Scalia, Bork relationship, perhaps also a function of the fact that they both came to realize that they were in competition for a Supreme Court seat, that’s precisely when Scalia’s deep friendship and enduring friendship with Ruth Bader Ginsburg began to form. But Robert Bork Jr. told me one thing I want to share with you, Albert, which was that at his father’s funeral, he could see Antonin Scalia weeping.
Albert Mohler:
The contribution of a book like this first volume of your work on Antonin Scalia, part of the contribution is for those who feel that you know the subject very well, you’re introduced to something you didn’t know. And I guess even more profoundly, a lot of dots are connected. So, in terms of my own intellectual engagement with these issues, and as I said, I’m proud to have an award named for Edwin Meese, and a lot of people forget the contribution that Edwin Meese, who was counsel to the President and then assistant to the President, and then later Attorney General of the United States, he pressed for the appointment of judges that held to strict constructionism. And it was a radical idea.
James Rosen:
Let me say this though, that Scalia rejected that term, strict constructionism.
Albert Mohler:
We’re going to get there.
James Rosen:
Okay.
Albert Mohler:
We’re going to get there. We’re talking about Edwin Meese who did not withdraw from that statement, but that’s just indicating the fact that there are many people who are contributing to this movement and to a revolution in how the Constitution and statutory law are to be read and how judges are to operate. And so, I have to give credit to someone like Edwin Meese who had an enormous influence on Ronald Reagan in terms of his own understanding of these issues. So much so that Ronald Reagan will later give speeches that sound as if they were written by a constitutional attorney because he frankly had someone behind it. But Edwin Meese, who by the way, is still alive.
James Rosen:
I interviewed him twice for this book, yes.
Albert Mohler:
And an amazing man, very gracious to me. He’s not the biggest intellectual figure. The biggest intellectual figure, at least in the beginning, is Robert Bork, and Robert Bork’s articles going all the way back to the 1960s, the 1970s, where he’s kind of building the case, and then along comes Antonin Scalia. And they’re not saying exactly the same thing, but I have to tell you, in terms of a movement, they’re all together. But in terms of the energy within the movement, I would argue, and I think you demonstrate this, that there’s an enormous shift from Bork to Scalia by the time you get to the mid-1980s.
James Rosen:
Yes.
Albert Mohler:
You read it the same way?
James Rosen:
Yes. But the truth is that even as late as 1986 when Scalia was nominated, Bork was still the odds-on favorite to be nominated. And people still contemplate how history might have turned out differently if the nomination of William Rehnquist to be elevated from associate justice to Chief Justice to succeed the retiring Warren Burger would’ve been paired instead of as it was with the nomination of Antonin Scalia, to take the Rehnquist seat. If it would’ve been paired with Robert Bork to take that seat where Rehnquist was known to be a lightning rod for controversy, perhaps all the fury would’ve been expended on him, and Bork could have sailed in with greater ease.
And then Scalia being charming, being the first Italian American to be placed on the court and so on, when the next vacancy arose a year later, probably also would’ve won confirmation anyway. We’ll never know, it plunges us into what historians call the counterfactual, the game of what if. But it is a tragedy that Robert Bork never made it to the Supreme Court because he was supremely well qualified, and the hearings that ended with his rejection were a disgrace.
Albert Mohler:
Absolutely. But you’re also looking at the reality that you have more differences than just ideology or ways even of interpreting the Constitution. I only was in the physical presence of Robert Bork a couple of times, but in both cases, he was a brooding figure.
James Rosen:
Scalia was a sunnier figure. Scalia was nine years younger. Scalia was in better health, and that consideration definitely played a part. But President Reagan just liked Scalia better. There was something of a charm deficit. But [inaudible 00:44:17] said, because Judge Bork died in 2012, and Justice Scalia died in 2016. An interesting revelation from one of the White House counsel attorneys who worked on the Scalia nomination when Bork was evaluated and rejected at that time, told me that he ran into Justice Scalia near the end of Scalia’s life and told him something that Scalia said he was stunned to hear that he had never heard before, which was that President Reagan came very close to nominating Antonin Scalia to serve as Chief Justice, and again, to play the counterfactual game of what if, how might history be different if the United States had witnessed the advent of the Scalia Court in 1986?
Albert Mohler:
Yes. I want to get to the big ideas here, just a little bit of history is necessary. You detail that President Reagan, or at least his advisors, thought that William Rehnquist might decline the nomination or elevation to be Chief Justice. He evidently had no intention of doing that. And so, he did attract all of that controversy and deservedly so in the sense that when you look at someone who was operating as he did within the Nixon administration, you can pretty much predict that. And that’s also, I mean, it’s hard to imagine pairing Rehnquist’s nomination as Chief Justice given his role in the Nixon administration with of all people, Robert Bork, the left would never forgive Robert Bork for his role…
James Rosen:
Saturday Night Massacre.
Albert Mohler:
Right. For his role. I mean because it was not only principial, it was to the left, very personal. And so, in that sense, the reality is that for all kinds of reasons, Ronald Reagan nominates Justice Scalia or the man who became Justice Scalia. And what I want to ask you to do here is take this conservative understanding of how to read the Constitution, which by the way is, and there’s no pun in this, is actually based in many ways and Scottish common-sense realism. In other words, the text is the text. You apply common sense to read the text. The words mean what the words meant, but it’s not exactly the same thing.
When you put, say Robert Bork and Antonin Scalia on one side, you still have a debate between them. And I just want to ask you to summarize the distinction between their two forms of what I’ll just call originalism.
James Rosen:
And again, this gets us into a sort of doctrinal skirmishing. When I asked General Meese to distinguish between the terms originalism and textualism, he told me that he was using them interchangeably. But the difference between Judge Bork and Judge Scalia, as let’s say 1986 dawned, was the difference between original intent and original meaning. And in fact, two days before President Reagan summons Antonin Scalia to the White House to offer him a seat on the Supreme Court, Scalia, Bork, and Meese and others were present at a luncheon held on a Saturday at the Department of Justice on the subject of economic liberties.
And as a measure of the shifting fortunes between the two men, Bork, who was the godfather of the conservative legal movement, who had waged a lonely war against the Warren Court when Scalia was still at the Office of Telecommunications Policy in the early ’70s as a measure of their shifting fortunes, Bork had a speaking role at this conference, but it was Scalia who was the keynoter. And Scalia gets up there, and now he could have just acquitted himself of a few words knowing that he’s got this, in the room, he and Meese alone knew that Scalia was due in two days’ time to meet with President Reagan.
Albert Mohler:
So, he is taking a political risk.
James Rosen:
Yeah. A more cautious man would’ve just said a few nice words and gotten off the stage. Scalia takes the opportunity to poke a little fun at Robert Bork, and he uses this occasion to lay down a marker to say that original intent is inadequate, and that original meaning is what judges and justices should adhere to. And the basic idea here was that, as Scalia would put it, “I don’t care if a historian should uncover tomorrow some secret letter from the founding father saying that their actual intent was to do something differently with the Constitution. Their intent was the final ratified document. And so, original meaning is the better guide for judges when they’re interpreting the Constitution and given statutes,” Scalia argued, “because it is closer to what was actually enacted at the time, rather than some vague as ascription of somebody’s intent.” And where original meaning is concerned Scalia’s idea was, the meaning is the meaning that the document was widely understood to have at the time.
Albert Mohler:
Yeah, and I appreciate that, and I actually think that’s a necessary clarification. And I think Judge and later Justice Scalia was right. I think it’s also important to say that just in terms of the history of ideas and the history of law in the United States, judges were actually using all kinds of material, sometimes referred to as dicta, these massive piles of say, legislative proposals, congressional memoranda, and all the rest. And I appreciate the fact that Justice Scalia said, “Look the law is the law. The law is what Congress passes and what the President signed to the law.” That’s the law, all the various stuff. And the left was playing havoc with this because they would go and find whatever they wanted to find in order to make the argument they wanted to make about the meaning of law at the expense of the actual law.
James Rosen:
Let me say that it was even more sinister a conspiracy in this sense that lawmakers such as someone like Senator Ted Kennedy, they would know in advance that they could not secure passage on the Senate floor for a given provision that they wanted to be in the law because it was just too far left or too unpopular or unthinkable for one reason or another. So, they would sprinkle throughout the so-called legislative process, and the legislative history indications that this was really their intent, but it wouldn’t be in the final text.
Albert Mohler:
Conveniently enough.
James Rosen:
And they were confident that liberal judges when interpreting this given statute would take their strolls through the garden of legislative intent and find these little seeds that had been planted and say, “Ah, well, we see that the legislative intent was really this, so forget what was the actual text. We know what their intent was, that’s what we’re going to put into effect on the streets.” And again, it was a dishonest process.
Albert Mohler:
We have to come to the end of the first volume. And like I say, I eagerly await the second volume, and I think that’s where most Americans think they know Justice Scalia as Justice Scalia. Your first volume here I think may be more important in one sense, in setting this record straight, when I heard Justice Scalia speak the first time in person, and I wish I had a transcript of it, I do not, but he was a raconteur, I mean, he could tell a story like very few people. And he told the story, and he is speaking to lawyers, very elite lawyers. I just happened to be invited in. And he was talking to them, and he said, “Here’s how it worked when I was nominated to the Supreme Court,” he said he had said goodbye to his wife, and he had gone there to the DC Circuit to his chambers when he got a call from the White House.
And it was more or less, “We need you to come, we need you to come right now.” And we now know in retrospect, it was because the White House politically understood that they were about to lose control of the story. And so, the White House actually moved up its announcement process, and Judge Scalia, Justice Scalia speaking of himself as Judge Scalia said that he barely had time to call his wife and say, “You need to put on a nice dress because the things are about to roll very quickly.” This is a political context. Politics is not just a combat of ideas, it’s also an intersection of history. It’s an ongoing narrative. It’s a contest of political parties. The nomination of Antonin Scalia to the court was not just something that was absolute to be counted upon, but there was a lot of speculation that Antonin Scalia really wanted to sit on the US Supreme Court.
James Rosen:
Well, he did. And this book answers, I think, definitively what probably was the lone mystery surrounding Antonin Scalia’s life, which was how early on in his life there began to burn within him this ambition to sit on the Supreme Court, the Justice’s most ardent defenders, his family, his clerks, some in academia have always been leery of ascribing this ambition to him too early in life because they felt that it contributes to a false narrative of his life that is promulgated in the two hostile biographies that we mentioned earlier. I call this the careerist narrative, that his elevation of the Supreme Court was the result not of his Catholic faith, the influence of his parents, his extraordinary capacity for hard work, his genius, his affability, or the contributions and sacrifices of Maureen Scalia, but was rather the result of careerist, cunning and naked machination.
The fact is that I was able to interview one of the last surviving members of Scalia’s graduating class from Xavier High School in 1953, a priest and Opus Dei priest who’s still with us and still active in blogging and preaching, who I contacted in 2020 and interviewed at length and who told me about a moment shared with young Antonin Scalia when they were 23 years old in the summer of 1959, at which point they had known each other for quite a while at that point, 10 years. And they were very close. They played hoops together they were in the marching band together. Scalia set Bob Connor up with a date at one point. They would go take these girls to dances together.
Bob Connor decided when he was 22 that he was going to drop out of medical school and go to Rome to study Opus Dei. Mrs. Connor, his mother, was distraught thinking her son was throwing away his future. So, she summoned Antonin Scalia to the Connor Family home on the south side of Downey Road in Jamaica, Queens on that sunny, summer day in June or July of 1959 to talk sense into her son. And Bob Connor was sitting in his brother’s room on the second story of that home as he recounted it to me. And in walks Nino Scalia. And he was kind of surprised to see him. And according to Father Connor, this is how the conversation went. And I regard Father Connor as an unimpeachable source, and I believe his account is definitive.
Scalia turns his palms upwards and says, “What are you doing?” And Bob Connor explains to him, “I’m dropping out of med school. I’m going to go to Rome. I’m going to study Opus Dei.” I asked, “Did Scalia,” who was already a very devout Catholic by that point, “envivce any knowledge of what Opus Dei was?” Father Connor told me, “Well, I had to explain to him that we, in Opus Dei, find the sanctity in everyday life, in everyday things.” Scalia sort of nods and says, “Sounds good to me.” And then this has never been reported before. And Father Connor had never been interviewed by anyone about his decades-long relationship and friendship with Antonin Scalia, not even by the FBI, who conducted four background investigations on Antonin Scalia within 14 years, and which were comprehensive dragnets that spanned the whole country and delved increasingly into computer data banks and so on.
Father Connor told me that he then asked Antonin Scalia, “What are you going to do?” Scalia was in between his second and third year at Harvard Law. He had just accepted a position at a Midwestern law firm for the summer. And Father Connor said, “What are you going to do?” And Scalia said to him, “I’m going to the Supreme Court.” Connor says, “How are you going to do that?” And he said to me, “James, he had lined up a job after he got out of Harvard with some law firm in the Midwest in Cleveland or Ohio.” So, I said, “Yes, Jones Day. That’s where he practiced for the first six years of his professional career.” He said, “Jones Day was it.” He said to me, “This law firm has a Washington office. I will be sent to Washington, and I will rise.”
And I said, “Did it strike you as fanciful or comical that he would say such a thing to you? I’m going to the Supreme Court, I’ll be sent to Washington, and I will rise.” He said, “No, no, no, not at all. Nino was driven.” I said, “Did he seem to regard this as a divine calling?” And he said, “I bet.” And the way Father Connor described it to me was as a convergence of two transcendent moments. Here you have two friends at the dawn of their adulthood, and one says to the other, “What are you doing?” And he says, “I’m going to God.” And the other says to him, “Where are you going?” And he says, “I’m going to the Supreme Court.” The fact is that there are people in life, Albert, and I’m sure you know this, who are gifted or blessed to know very early on in life what they want to do with themselves.
Charles Schulz, the creator of Peanuts, who by either monetary terms or in terms of eyeballs that gazed upon an artist’s work is the most successful artist in the history of America. Charles Schultz, the creator of Peanuts, said that he wanted to be a cartoonist, and he knew it from the age of five onward. Antonin Scalia very early on knew what the Supreme Court was and why he belonged there. And despite the leeriness of ascribing this ambition to him too early on the part of his family and his friends and his clerks, the fact is that he understood where he wanted to go, and we are all better off including those ardent defenders that Scalia had this vision.
Albert Mohler:
One final area I want to ask you about, and that’s really the conclusion of your book and in particular the Senate Judiciary Committee hearings. And that committee was basically worn out by the consideration of Rehnquist’s nomination to the Chief Justice seat, but nonetheless, they reserve some of their fire for Antonin Scalia. You’re looking at people who are really sparring increasingly before a national audience with television cameras and all the rest. And I think of the exchange in particular between Democratic member Senator Joe Biden and then Judge Antonin Scalia, you considered it so important that you actually put some fairly significant block quotations from that exchange in your book.
James Rosen:
Yes. There were a number of exchanges over the course of the daylong hearing for Judge Scalia to be on the Supreme Court. And no one really has ever gone back until now and conducted a critical examination of Joe Biden’s role in the Scalia confirmation process. A lot of attention has been paid to Joe Biden’s role in the Bork process. And of course, in the Clarence Thomas process, he was the ranking Democrat on the Senate Judiciary Committee at the time, and therefore, in essence, the leader of the opposition, what opposition to Scalia existed.
You’re correct to note that the hearings for the elevation of William Rehnquist to the Chief Justiceship turned out to be so bitter and partisan and nasty that they were called the Rehnquisition. Right. And in the end, Rehnquist was confirmed with what was then the highest tally ever of negative votes for a confirmed nominee to the court, which was 65 to 33. Today we would call a 65 to 33 vote…
Albert Mohler:
Landslide.
James Rosen:
And Scalia ultimately was confirmed 98 to nothing, which is one of the reasons why probably not much academic attention has ever focused on Joe Biden’s role in that process. But the truth is that Senator Biden embarrassed himself in the Scalia process. He was forced to withdraw questions, to apologize at different times.
Albert Mohler:
And to say as Americans now want to expect him to say, “I’m not kidding.”
James Rosen:
No joke. I’m not kidding. I’m not being a wise guy, always proffered, I think more to reassure himself than his listeners. But at one point, Senator Biden stated publicly that he didn’t think that Antonin Scalia was going to prove to be much further to the right than Warren Burger. And of course, that not only proved to be false but was contradicted by the public statements in the press for the past 90 days by every scholar quoted on the matter. It’s hard to imagine the Senate, the ranking Democrat on the Judiciary Committee not grasping that. At one point he says to Judge Scalia during the hearings, “Forget about the Constitution, let’s talk politics.” And of course, no nominee for any Senate-confirmed position is ever well advised to follow that advice.
Albert Mohler:
Well, I mean, you underplayed that. To put it more strongly, that would be a violation of the entire process and its integrity.
James Rosen:
Yeah, nobody would take that advice. It was improper for him to say. And of course, Judge Scalia was smart enough not to follow that counsel. But I think it’s worth looking back at Joe Biden’s role in the Scalia process, particularly in light of his Presidency and in particular, one event to which I want to draw your attention, and that is the sort of rah, rah rally that was held the South lawn of the White House in April 2022, I believe, after Ketanji Brown Jackson had been confirmed by the United States Senate to succeed Stephen Breyer on the US Supreme Court and with Justice designate Jackson standing there on the White House grounds President Biden said, I’m paraphrasing, but fairly closely, “There are moments where you can look back in time. There’s sort of paradigm shifts where you can see a major shift in policy.”
And he was in essence saying that this is one of those moments. The problem is that in essence, Joe Biden told the truth out loud here, which was that liberal politicians had been seeking since the ’60s to use the courts to use the appointments for the federal bench and to the Supreme Court to advance liberal policy rather than to apply the law. And here no one in their right mind would, with the Justice designate standing right there fresh off of confirmation in the United States Senate, identify this as a moment where policy shifted. But that’s clearly the frame in which President Biden viewed this appointment, and therefore we should look back on his role in the Scalia process and the subsequent ones involving Bork and Thomas, in that light, I think.
Albert Mohler:
James Rosen, it’s been a privilege to discuss your work on the life of Justice Antonin Scalia and only Justice Antonin Scalia in the final pages, which makes me very much look forward to the second volume. And I’m thankful you promised that within, I think you said two or three years.
James Rosen:
That’s the hope. Yes. There was one person who was not pleased by the extension of this book into a second volume and with it the extension of Justice Scalia’s lease on the life of the Rosen family, and that’s Mrs. Rosen. So, I do have good impetus to finish it swiftly.
Albert Mohler:
Well, I fully understand that as both author and husband, and I can also say that I think there’s a benefit whether you’re William Manchester or Robert Caro or James Rosen to writing a two-volume work there. Even in this first volume, you pointed to so many different books and volumes that could be written about the twists and turns in this story, but get that second volume to us, we’re going to receive it very eagerly.
James Rosen:
You’re very kind, Albert. Thank you so much for what was a very thoughtful discussion.
Albert Mohler:
Author James Rosen, thank you for joining me for Thinking in Public.
Many thanks to my guest, James Rosen for thinking with me today.
If you enjoyed today’s episode of Thinking in Public, you could find more than 150 of these conversations at albertMohler.com under the tab Thinking in Public. For more information on the Southern Baptist Theological Seminary, go to sbts.edu. For Informational Boyce College, just go to boycecollege.com.
Thank you for joining me for Thinking in Public, and until next time, keep thinking.