17th Oct 2017 by PhillipTaylor

BOOK REVIEW THE UNEXPECTED SCALIA A Conservative Justice’s Liberal Opinions By David M Dorsen ISBN: 978 1 10718 410 7 CAMBRIDGE UNIVERSITY PRESS www.cambridge.org __________________________________________________ CLEAR AND CRISP WITH THE BIOGRAPHICAL GRAVITAS EXPECTED OF SUCH AN IMPORTANT LEGAL FIGURE WHO WASN’T REALLY “A LIBERAL” An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, “The Barrister” This is a particularly fascinating insight into the life of an important legal figure in the USA, Justice Antonin Scalia. We were privileged to meet Scalia and his wife, Maureen, in London not long before his death in 2016. One never forgets meeting certain people and we shall remember our encounter with Scalia as a man as well as his position as an enduring and substantial figure in American jurisprudence. It is very clear that Antonin Scalia was one of “the most important, outspoken, and controversial Justices in the past century”. This touching and detailed biography is long overdue. David Dorsen’s meticulous work describes Scalia’s endorsements of “originalism”, which means the requirement to decide cases as they would have been decided in 1789, and “textualism”, which limits judges in what they could consider when interpreting text, thus causing major changes in the way the Supreme Court decides cases. Dorsen’s description of what “a liberal” is, contained in the introduction, is most useful although readers will arrive at their own opinions! Of course, a number of Scalia’s views are not shared by that many people in the United Kingdom. He is described by Dorsen in the following way as “a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammeled gun rights, political expenditures, and the imposition of the death penalty”. In fact, quite an exhaustive list of all the most controversial issues of our contemporary times… and not at all “liberal”! What we found refreshing is that Scalia often “followed where his doctrine would take him, leading him to write many liberal opinions” according to Dorsen. The key to Scalia’s approach is why did he write so many liberal opinions. His answer was that “his legal philosophy compelled him to do so”, otherwise as he said, “he would have been inconsistent or worse”. And that is the answer in the book! As a close friend of Scalia, David Dorsen is placed in a very strong position to explain what he describes as “the flawed judicial philosophy of one of the most important Supreme Court Justices of the past century”. But it does, of course depend on your own point of view which is why this biography is such an important publication on both sides of the Atlantic. It was a privilege to meet him. One always has some anecdotes which are quite personal when meeting the opinion-formers and deciders of our time, and Scalia was no exception. We were not expecting to like him very much but we found him charming. And, as with all biographies, it is so useful to read about important figures like Scalia because there is so much that one finds out. The question I asked him (I couldn’t resist it) was on American Realism. “What”, I said “did you have for breakfast this morning?” “Boiled eggs”, he replied, with his wife enthusiastically agreeing, “and they were very nice”. And, as you can guess, he was charming throughout and knew exactly why I had asked the question… I wonder how often he had been asked that before, but I didn’t get an answer. So American Realism is alive and well, and we do know what judges have for their breakfast and that it doesn’t cloud their judicial thinking. Thank you- we did not agree with all his views but we have lost a towering American legal figure, but we do have this excellent biography from David Dorsen to remember him. The book was published on 2nd February 2017.

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