‘Lion of the Law’: How Justice Scalia Transformed The Supreme Court

Summary

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Federalist Radio Hour

Episode: ‘Lion of the Law’: How Justice Scalia Transformed The Supreme Court

Date: February 20, 2026
Host: Sean Fleetwood
Guest: James Rosen, Chief Washington Correspondent at Newsmax and author of Scalia: Supreme Court Years 1986-2001

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Overview

In this episode, host Sean Fleetwood interviews James Rosen about his latest book, Scalia: Supreme Court Years 1986-2001, covering the formative first half of Justice Antonin Scalia’s Supreme Court tenure. Rosen discusses Scalia's legal revolution, his distinctive personality, and complex relationships with colleagues, offering both behind-the-scenes anecdotes and sharp analysis. The conversation explores Scalia’s philosophy of originalism, misconceptions perpetuated by earlier biographers, and the enduring legacy Scalia left on American jurisprudence.

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Key Discussion Points & Insights

1. Motivation & Research for the Biography

[02:29–12:18]

• Rosen details how his fascination with Scalia started in his high school years, drawn by Scalia’s unique debate style on PBS television.
• Personal recollections include a correspondence with Scalia that began when Rosen was a young Fox reporter and Scalia’s rare admission, “you are right,” about the irony of his PBS appearances despite a no-TV interview policy.
• The book grew from a concise biography into a multi-volume project, becoming the first written after Scalia’s death and utilizing previously unavailable materials, such as a 1992 oral history interview.
• Rosen’s focus: To correct previous misconceptions and provide context lacking in prior biographies.
• Notable anecdote: Lunches with Scalia at a modest Italian restaurant where Scalia insisted Rosen try rabbit, overriding his own order—a metaphor for Scalia's assertive approach.

Quote:
"I take care of the Constitution and Maureen takes care of everything else." – Justice Scalia, as recounted by James Rosen [04:00]

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2. Scalia’s Originalism vs. The “Living Constitution”

[03:04–12:18, 16:40–23:21]

• Scalia’s legal revolution: He single-handedly shifted American law away from the “living Constitution” philosophy, which treated the Constitution as evolving, to the doctrine of originalism—interpreting statutes according to their original public meaning.
• Impact: Lawyers arguing before the Supreme Court now start with the text; appeals to legislative intent have virtually disappeared.
• Justice Elena Kagan’s summation after Scalia’s death: “We are all originalists now.”
• Scalia’s integrity: He stood by the text even when it produced results at odds with his own policy preferences.
• Notable cases: Sometimes, his originalism aligned him against law enforcement in criminal procedural matters, to the surprise of traditional conservatives.

Quote:
“Sometimes, [originalism] will go against the grain of the judge. And that's how you know you've got an honest judge on your hands.” – James Rosen [06:30]

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3. Correcting the Record: Responding to Earlier Biographies

[12:18–15:48]

• Rosen deliberately contrasts his work with past biographies, many written by authors hostile to Scalia or fixated on careerist narratives.
• Rosen’s style: Methodical point-by-point rebuttals to earlier misrepresentations and contextual misreadings—even in passages where narrative flow paused for this purpose.
• Example: Previous errors about Scalia’s early life details and mischaracterizations of his personality and judicial philosophy.

Quote:
“I proceed from the point of view that he was great...these other books always took the most tendentious construction on whatever he was doing at that point in his life.” – James Rosen [13:43]

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4. Adjusting to Life on the Supreme Court

[15:48–23:21]

• Scalia joined the Court with expectations of robust debate and collegial back-and-forth, similar to his experience on the D.C. Circuit Court of Appeals.
• Reality: The Supreme Court was more isolated, with little informal interaction; most communication occurred through formal memos.
• Disappointment: Scalia lamented the lack of open exchange during conferences, which were tightly run and brisk.
• Outlet: Oral arguments became his stage, where Scalia became the most active questioner and frequently prompted explosive laughter.
• His approach diverged from Justice William Brennan, who shamelessly played for five votes; Scalia had “nothing to trade” because of his originalist philosophy.

Quote:
“Like a mighty river redirected, Scalia turned his attentions…to oral argument—and swiftly, with that law professor's relish, he started asking more questions than any justice.” – James Rosen [18:53]

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5. Scalia’s Relationships with Fellow Justices

[23:55–36:15]

a. Sandra Day O’Connor

[24:49–29:55]

• Their relationship was contentious and defined by jurisprudential differences: O’Connor took a more case-by-case, less consistent approach (“swing justice”), while Scalia sought rigid, bright-line rules.
• Key rupture: Scalia wrote that O’Connor’s writings “cannot be taken seriously” (Webster v. Reproductive Health Services, 1989).
• Notable anecdote: At a PBS-theater panel, Scalia, frustrated, said to Judge Napolitano, “You see what I have to put up with with this woman?” Yet, in crisis (O’Connor’s cancer diagnosis), he was the one colleague she called in tears.
• John O’Connor’s diary: Sandra Day O’Connor “could unload all of her emotions” on Scalia.

Quote:
“Scalia was determined to call out the first female justice in American history for what he considered muddled thinking in her opinions.” – James Rosen [26:45]

b. Ruth Bader Ginsburg

[29:55–36:15]

• Their bond transcended legal and personal differences—in Rosen’s term, a “trans-ideological friendship.” They spent every New Year’s Eve together, donned costumes for the opera, and even rode elephants in India.
• Scalia respected that Ginsburg’s philosophy, though opposed, was principled and consistent, unlike the moderate, variable approach of O’Connor.
• With the exception of Clarence Thomas, Scalia was often more irked by Republican-appointed colleagues than by the liberals.
• Discovery: Contrary to what Scalia believed, Brennan privately considered him a “detrimental influence” (correspondence from Brennan to a reporter found in archives).

Quote:
“They were dear, dear friends...the country had never been treated to such a fine example of a friendship, what I call a 'trans-ideological friendship'…” – James Rosen [31:37]

Quote:
“[Brennan] regarded that Scalia was a detrimental influence on the Court...buried in the Library of Congress...was what Justice Billy Brennan really thought of Antonin Scalia.” – James Rosen [34:54]

c. Clarence Thomas

[36:15–37:56]

• Deep, almost fraternal relationship—perhaps closer than with Ginsburg.
• Both bonded over shared originalist convictions despite profoundly different biographies and life experiences.
• Rosen recounts an interview with Justice Thomas:
  • They both credited Catholic school nuns for shaping their worldview.
  • Humorous exchange: Scalia, a New Yorker, tried to coax Thomas (from the rural South) to hunt; Thomas declined, joking, “Where I come from, I've learned nothing good comes from being in the woods.”

Quote:
“We blamed it on the nuns because they both had experience with Catholic education.” – Justice Clarence Thomas, as recalled by Rosen [37:27]

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6. The Enduring Legacy of Justice Scalia

[38:05–40:02]

• Scalia, as the child of Italian immigrants, became the embodiment of the American dream and a central figure in 20th and 21st-century American law.
• His influence now permeates American legal culture—restoring “separation of powers” by keeping judicial policymaking in check.
• Emphasis that Scalia’s legal revolution and quirky personality make Rosen’s biography accessible and engaging for both legal experts and lay audiences.
• Key takeaway: To understand how America’s legal system became what it is today, one must grasp Scalia’s story.

Quote:
“Scalia's legacy really touches every American today because of his rulings on so many areas of the law...But as I said earlier, by reorienting American law towards an originalist understanding rather than the living Constitution construct, it restored the separation of powers.” – James Rosen [38:37]

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Notable Quotes & Memorable Moments

• “He single-handedly changed the way the law is drafted, enacted, debated, argued and decided...” – James Rosen [04:08]
• “When lawyers get up before the justices … they start with a text and you don’t hear so much about legislative history anymore.” – James Rosen [06:17]
• “Lunches were off the record...but what's most striking about this is that here you have the justice...overruling my lunch order, okay? Which not even Mrs. Rosen does.” – James Rosen [10:58]
• “I'd rather stay with Bill Brennan on row number one than heap error upon error and try some rickety new version of row two here.” — Summarizing Scalia’s internal memo in the Webster case [25:46]
• “They [Scalia and Ginsburg] spent every New Year's together...the country had never seen depictions of such a close relationship between two justices of the Supreme Court.” – James Rosen [31:23]
• “Where I come from, I've learned nothing good comes from being in the woods.” – Clarence Thomas, as recalled by Rosen [37:53]
• “He is the embodiment of the American dream. The son of an Italian immigrant and a first generation...American whose hard work and, and Catholic faith vaulted him to the pinnacle of his profession by the time he was 50.” – James Rosen [38:31]

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Timestamps for Key Segments

• 02:29 – Rosen recounts how he came to write on Scalia and early correspondence
• 06:00–08:40 – Explaining originalism vs. living Constitution
• 12:18 – Approach to correcting the record in his biography
• 16:40 – Scalia’s disappointment with the decorum of Supreme Court conferences
• 18:53 – Oral arguments as Scalia’s outlet and his comedic presence
• 24:49 – The “contentious” relationship with Sandra Day O’Connor, new stories and insights
• 29:55 – On O’Connor’s reliance on Scalia for emotional support; contrasting the Ginsburg friendship
• 31:04 – Ginsburg-Scalia deep friendship; revelations about Brennan’s real opinion of Scalia
• 36:15 – Clarence Thomas and Scalia: origins and shared ideology
• 38:29 – Scalia’s legacy and what it means for America today

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Final Thoughts

James Rosen’s in-depth, candid, and entertaining account of Scalia’s transformative impact on American law is both accessible and richly detailed. Drawing from new sources, personal interviews, and revealing anecdotes, the episode highlights Scalia’s revolutionary legacy, human quirks, and the nuanced dynamics within America’s highest court.

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Transcript

[James Rosen]

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[Sean Fleetwood]

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[James Rosen]

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[MacKenzie]

My name is MacKenzie, and I started to go gofundme for the adoptive mother of a nonverbal autistic child. The mother had lost her job because she wasn't able to find adequate care for this autistic child. So she really needed some help with living expenses, paying some back bills. So I launched a GoFundMe to help support them during this crisis. And we raised about 10, $10,000 within just a couple of months. I think that the surprising thing was by telling a clear story and just like really being very clear about what we needed, we had some really generous donations from people who were really moved by the situation that this family was struggling with.

[James Rosen]

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[Sean Fleetwood]

We're back with another edition of the Federalist Radio Hour. I'm staff writer Sean Fleetwood and your host for today's episode. As always, you can email the show at radiohefderalist.com follow us on xderalistfdrlst. Make sure to subscribe wherever you download your podcast into the premium version of our website. Today I'm joined by James Rosen. James is the chief Washington correspondent at Newsmax. He also previously covered the White House and State Department for Fox News. And today he's here to talk to us about his latest book, which is out now, called Scalia Supreme Court years 1986 to 2001. James Rosen, welcome to the Federalist Radio Hour.

[James Rosen]

Thank you for having me, Sean.

[Sean Fleetwood]

Yeah, and I know a lot of our listeners are probably familiar with your work, both at Newsmax and at Fox, but it's also true that you're an exceptional author, and this book about Justice Scalia, certainly no exception to that. I know that this book that we're talking about today covers the first half of Justice Scalia's Supreme Court career. The first edition of this, which covered his early life and years up to the Supreme Court, came out a few years ago. But before we kind of delve into the specifics of this second one, can you kind of talk to our audience about what made you want to write this book in the process of all the research that went into it?

[James Rosen]

Sure. Well, again, thank you for having me here on the Federalist Radio Hour. I have lots of friends over the Federalist, and I'm thrilled to be with you. This book is called Scalia Supreme Court years 1986 to 2001. It is out as of last week. And as you say, it covers the first half of Justice Scalia's nearly 30 terms on the Supreme Court. And in fact, February 13th of this year marked the 10th anniversary of Justice Scalia's death. He was, was sitting seated on the Supreme Court at the time of his death, which took place on a hunting trip out in West Texas. And it came as a great shock to many Americans and he was just shy of his 80th birthday. Justice Scalia is not just one of the most important Supreme Court Justices, but he's really one of the most important Americans of the last hundred years. And the reason I say that is because he personally almost single handedly changed the way the law is drafted, enacted, debated, argued and decided, interpreted and decided by the courts in America today. And he did that through the force of his personality and his genius, his literary gifts, his affability of the sacrifices of Maureen Scalia, which cannot be underestimated. Having raised nine children more or less on her own, as he used to put it, the justice used to put it, I take care of the Constitution and Maureen takes care of everything else. And but through all those means, he, he affected a kind of revolution in the law. When Justice Scalia came along to the federal bench, there was a notion in America that prevailed, which was a liberal notion called the living Constitution. This is the idea that the, the meaning of the Constitution or the meaning of any law that's been enacted ever since should be interpreted in such a way by today's judges to be malleable to, to expand like a breathing organism, if you will, to account for phenomena that the founders anticipated, such as nuclear weapons or the Internet. And in, in order to have that latitude to interpret the black and white words of the text of the Constitution or any law in such a broad, elastic way, these latter day judges who believe in the living Constitution construct, mostly liberals appointed by Democrats, believe that you didn't really have to pay so much attention to the text. You could look for the intent behind the law. And how did you find the intent behind the law? The lawmaker's intent? Well, went back to the legislative process, and you looked at the floor speeches in the House and Senate floor and committee reports that were generated and so forth, and all that would give a judge an idea of what the lawmakers intended the law to say and therefore what a judge today can read into the law, so to speak. Scalia stood a thwart all that. His idea was original, meaning he was an originalist, which meant that he didn't care what the intent behind a law was. The intent was embodied in the text that the vote, the lawmakers voted up or down and which a President of the United States signed into law or the same on the state level. And he felt that the law should be interpreted by judges, which is, after all, their central business, deciding what a law means according to the original, meaning that that law or that constitutional provision had at the and was widely understood to have at the time that it was enacted. And by the time he died, Justice Scalia was pronounced by no less a figure than Justice Eleanor Kagan, who was appointed to the Supreme Court by Barack President Obama. She pronounced that in effect, as a result of this revolution by Antonin Scalia, we are all originalists now. And now when lawyers get up before the justices in oral argument before the Supreme Court to argue what a law meant, they start with a text and you don't hear so much about legislative history anymore. And that's a profound change and that's a structural change in addition to Justice Scalia's individual rulings on specific topics. So for example, he was originalism as a philosophy will produce outcomes that the the judge himself or the justice doesn't particularly like that don't align with his own personal politics. But if you're interpreting the law according to what the text actually meant at the time it was enacted, sometimes that'll go against the grain of the judge. And that's how you know you've got an honest judge on your hands. And so, for example, in criminal sentencing or the the rights of criminal defendants, Scalia often came down with that horrified the police and law enforcement champions, but it spoke to his intellectual integrity. And so he had a great impact on various all aspects of the law, in addition to the overarching impact that he had on the way the law is drafted, argued, interpreted today. I decided to write about him because way back in high school, way back in the last Century Sean. I used to watch him on these PBS debates with your sort of theater in the round setting with a live studio audience where they would convene eminent minds to tackle hypotheticals from their respective disciplines. And so you'd hear the announcer say with us this evening, Dan Rather, Sandra Day o', Connor, Gerald Ford, Alexander Haig Hamilton, and Scalia. And Scalia's performance in those, those settings was so different from all the other, all the other eminent minds convened for these hypotheticals. Of course, he was born in New Jersey, but he moved to Queens at the age of five. And he considered himself an outer borough New Yorker at heart. And that's what I am. I was born in Brooklyn and raised on Staten Island. And that sort of in your face sarcasm, that chip on your shoulder, that kind of outer borough sensibility, I could see it from a mile away. By the time I came to Washington in 1999 to begin my career as a Washington correspondent with Fox News, at that time, they had no one covering the Supreme Court. So I wrote to him on Fox News stationary, this is 1999, and I'm not a lawyer. I'm still not a lawyer. And he wrote back and he said, I'm a fan of the Fox News Channel. This was on Supreme Court stationary. I can remember showing it to Brit Hume, who was my boss at the time. And we were both just knocked out that here a Supreme Court justice had said he was a fan of Fox News because at that time the channel was only two and a half years old. We were still frequently confused with Fox 5, a local Channel 5 affiliate in Washington. And we had trouble getting credentials at events and things. Our ratings, their ratings dominance over CNN at that time was still about two years away. And Scalia declined my request for an interview, saying he had a policy as a judge not to make a spectacle of himself by doing television interviews. And I wrote back and I said, well, what other than a spectacle would we call it when a sitting Supreme Court justice is convened in a theater in the round setting with television PBS cameras present to debate hypotheticals with the likes of Alexander Haig and Dan Rather? And he wrote back on Supreme Court stationary and he said, you are right, which right there was like, you know, a really unprecedented concession from Antonin Scalia. You know, probably there were clerks of his, probably children of his, who've never heard those three words from him. He said, I probably should not have done the Constitution, that delicate balance on pbs, despite the importunings of the moderator who had been a friend of his. So he agreed to get together for lunch, and we got together for two lunches over two years time. And we kept up this kind of very amusing correspondence. There's a chapter in the new book called the Rabbit, and this chapter recounts my lunches with Antonin Scalia, and my. My correspond with him. And the lunches were off the record. Even though we discussed many fascinating things with the dispensation from the Scalia family, I'm able to report just some of the atmospherics surrounding the lunch. And the reason that chapter is called the Rabbit is because we went to this modest Italian place that had been his haunt for 25 years. It was really modest. There were, like plastic grapes on the wall, and it was in a not so great section of Washington. And, you know, I'm 30 years old, I'm not a lawyer. We're breaking out wine. I'm in way over my head. But I had some rules about how to meet with powerful people. Don't eat anything with your hands. Don't. Don't eat anything that. That might splash on you or your lunch companion. And I come from Staten island, so I figured I knew what to order. And I said, when it came to my turn, I said, I'll have the veal parmesan. And the waiter, who. Who only spoke broken English, was real Italian, is writing it down. Justice Scalia says, no, no, give him the rabbit. And the waiter and I look at the justice in unison and say, rabbit? He goes, yeah, he's gonna. You're gonna like the rabbit. Give him the rabbit. And the guy walked away with the menus. Now, I did not want rabbit. I was grossed out by the thought of having rabbit. I haven't had rabbit since, and I got through it. But what's most striking about this is that here you have the justice who is the country's foremost opponent of judicial activism overruling my lunch order, okay? Which not even Mrs. Rosen does. I knew from those encounters that someday I would write about him. I had no idea it would go on. This project began as a concise biography of Antonin Scalia. We're now about a thousand pages in, and we've got halfway through his tenure on the Supreme Court. So you, Sean, and our listeners, and certainly Mrs. Rosen can all attest that I don't do anything concisely, but that's how we got to where we are.

[Sean Fleetwood]

I'm so glad that you wrote about it and expanded into multiple books, because he was a larger than life figure, and it's only right that you give him a More bigger than normal biography, I guess we should say. But one of the things that you do, particularly that I love in these books, is that you will take certain passages or characterizations of events from prior biographers of Justice Scalia, People who aren't necessarily, I guess, fans of him is the best way to say it. People like CNN's Joan Piskupic. And you will take those different framing of events or descriptions, and you'll say, okay, this is what these biographers say, but here's what happened. Here's actually what happened. Here's the full context of what was going on during this certain event. Was that a style choice that you knew that you wanted to adopt early on, or was that something that kind of came about later in the writing process?

[James Rosen]

Having read the previous biographies of Justice Scalia, it was clear to me that I would need to correct the record in my biographical account. To some extent. There were two biographies of Justice Scalia published prior to mine. Both of them appeared during his lifetime. With one of them, he and his family cooperated extensively. With the other, not at all. And both of them wound up in pretty much the same place, which is to say open hostility toward Justice Scalia, his personality, his philosophy, his conduct, his. His jurisprudential legacy. And so I like to say that my book is not only the first comprehensive biography of him. Some of these earlier biographies gave very short shrift, like a couple of paragraphs, to key episodes in his life, such as his teaching at the University of Virginia law School from 1967. Not only is mine the first to be authored since his death, opening up a lot of materials that weren't available to previous authors, such as an oral history of his life that Justice Scalia conducted with an attorney as his interviewer in supreme court chambers in 1992, which took him up to about the age of 40 and which enabled me to correct a lot of errors that had appeared in the previous biographies, which had, for example, misidentified how old he was when he moved from Trenton to Queens, but mine is the first biography about Justice Scalia written by an author, author who has his head screwed on straight, because I proceed from the point of view that he was great. And these. These other books always took the most tendentious construction on whatever he was doing at that point in his life. And everything that he did, according to these previous authors, they advance what I call the careerist narrative, which. Which is to say that if Scalia came out in favor of X, they would say, well, that was a calculated ploy. On Scalia's part to appeal to President Reagan, to get him to him and advance him. Or that was a calculated ploy to appeal to Chaney and Rumsfeld in the Ford administration, and that's just not who the man was. Now, I will tell you, I'm interested that you brought this up, Sean, because even from some friendly reviewers, even from people who were clerks of Justice Scalia's, I received a lot of criticism when the first book came out for pausing the narrative action, so to speak, periodically to examine how these previous biographies covered the same events or episodes. Episodes and rebutting them. But I considered it essential to the record. And there's. There's some more of that in volume two, Perhaps not as much as in volume one, but I don't shrink from it.

[Sean Fleetwood]

Yeah, I'm glad you don't. I think, you know, history is history, the facts are facts, and you got to let them speak for themselves, whether it casts someone in a positive light or a negative light. And I think that your biography of Justice Scalia certainly does that. More specifically to this second book, though, again, that's Scalia Supreme Court years 1986 to 2001. It picks up where the last biography left off, right, which is Justice Scalia's ascending to the Supreme Court. He's now there. And one of the things that I found pretty compelling was that when he got there, it was kind of a little unexpected. You know, he had certain preconceptions and, you know, I guess, ideas of how the Court operated, and he thought that there was going to be a little more, I guess, debate. You know, he's someone who loves debate behind the scenes in conference and things like that. Could you maybe expand upon that a little bit and how not everything that he thought it was going to be lived up to standard, essentially.

[James Rosen]

It really was a kind of a disappointment for Justice Scalia when he got to the Supreme Court. It was a lifelong dream of his. He said that it was a culmination of a dream when he stood on the White House press briefing stage alongside President Reagan at his nomination in June 1986. But he was disappointed when he got there. This is chiefly because, first of all, Justice Scalia was one of the. Probably the first law professor appointed to the supreme court in some 50 years. He loved to argue. He relished arguing and debating debate. And his. His. His sons told me that if he should have wandered into the room where they were watching a football game and he had no idea who was playing for either team, if he just discerned that his sons were rooting for one team, he would start loudly and animatedly clapping and cheering for the other team just because he loved that kind of conflict. When he served as a judge on the Court of Appeals for the District of Columbia circuit, so called D.C. circuit Court of Appeals, that's one rung below the Supreme Court. It's often described as America's second most powerful court court because its docket so often shapes the work of the Supreme Court and because so frequently the justices are plucked from the ranks of the D.C. circuit. When Scalia was a judge on the D.C. circuit from 82 to 86, he sat alongside such names as Ruth Bader Ginsburg, who would eventually follow him to the Supreme Court. Robert Bork, who tried and did not follow him to the Supreme Court. Larry Silberman, Kenneth Starr, James Buckley. This is a kind of a murderer's row of judicial talent. And on the D.C. circuit Court, there's 12 judges, but the cases are decided by groups of three judges and they issue a ruling. And if the person who loses or the party that loses doesn't like that, they can ask for an en banc hearing and maybe they'll get it and maybe they won't. Non bank means all 12 judges sit on the case and review it freshly, but most of the time it's just three judges. And that was very intimate and he liked it. And Scalia found he could just waltz down the hall at the D.C. circuit Court and show up at the chambers of somebody who had been appointed by President Carter, such as Ruth Bader Ginsburg or Abner Mickey. And he could kibitz with them and get into the cases and sort of josh around with them and maybe influence them one way or the other. When he gets to the Supreme Court, he told a friend, actually Bill Bennett, the former Secretary of Education, that he found the place to be a locked vault. He was made to understand in no uncertain terms that he wasn't welcome to stop by the chambers of his colleagues and just shoot the breeze or kibbutz with them and try and influence them on cases. If he had anything he wanted to communicate, it was expected that he would communicate through writing, through memos and, and draft opinions that would be delivered by clerks or messengers to the other chambers. And most disappointing to him was what took place at the conference. The conference is the meeting that takes place behind closed doors in the conference room of the Supreme Court, just the nine justices. No one else is allowed in the room. The junior justice who's the justice who's been appointed and seated on the Supreme Court most recently is responsible for answering the door, passing notes, and filling the water of the other justices. And at those conferences, they usually take place two days after the justices have heard oral argument in a case. That's where they decide how they're going to vote. Now, the Chief justice at the time that Scalia got there was a brand new Chief justice just like he was a new justice, William Rehnquist, who had been seated on the court for 15 years as an Associate justice and was elevated by President Reagan. Scalia took Rehnquist's old seat as an Associate justice. For those 15 terms, Rehnquist chafed under what he considered the long winded perorations of the Chief justice in that era, which was Warren Berger, who went on and on, as Rehnquist put it, like a southern novel. And so Rehnquist was determined when he was Chief justice and he was going to run these conferences. They're going to be done very briskly. We're going to go around the room and we're going to say, how are you voting on the case at hand? You have two to three lines you can tell us to give us a sense of your thinking, and we're going to keep moving. And Scalia couldn't believe it. And when he got back from his first conference, he told his clerk, who I interviewed for this book now the Chief Judge in Minnesota, Patrick Schiltz, that he couldn't believe that there was no give and take and that there was no argument between the justices. And so, like a mighty river redirected, Scalia turned his attentions to the next. The only phase of the work that the Supreme Court justices do that is open to the public public, and that is oral argument. And swiftly, with that law professor's relish, he started asking more questions at oral argument than any justice. And in fact, by an overwhelming margin, if you look at all the transcripts of all arguments for the 19 for the 29 terms that he was there, 29 and a half terms, it's not even close. Studies have shown that he was, I think, by 75% most frequently the justice who prompted, quote, in brackets, laughter in the court. And if you listen to those oral arguments, if you listen to the recordings of them the Supreme Court itself makes, which they've been doing since 1955, the laughter that Scalia engenders in these situations is not like polite congressional hearing laughter. This is like explosive laughter, comedy club laughter, where people clap and it goes on for 15 seconds. And Scalia pro that he Was knows to sort of pause before he continues. So he matched his personality to that part of the process. And in the end, he re. He defied expectations. People thought at the beginning of his tenure that he would be the conservative Bill Brennan. William J. Brennan was the longest serving justice when Scalia got there. He'd been appointed by Eisenhower, but he became very liberal in his time on the court. And he was one of the seven justices who voted for Roe versus Wade, for example. And Billy Brennan, as he was called, used to sort of wiggle his fingers, his five fingers at somebody like Justice Scalia and say, you know what this means, Nino? And what it meant is all I need are five votes. And Brennan was famous like a ward politician for just trading a clause or liberty here or there to get that fifth vote. Whereas Justice Scalia's philosophy of originalism, I'm bound by the original meaning of this text, gave him nothing to trade. And he wound up not becoming the conservative Bill Brennan despite his affability and charm and dazzling literary gifts. Gifts because originalism bound him to hew to the law as it was, not as he would like it to be. But in the end, even though he was mostly on the losing end of cases, Scalia, as I say, changed the way the law is written, debated, interpreted in this country through the force of his dissents and through the force of his personality.

[Chris Markowski]

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[Sean Fleetwood]

And I think that that's a good place to kind of jump off into our next area. I kind of want to take our conversation. You mentioned William Brennan, and I wanted to talk more about Justice Scalia's relationship with his new colleagues on the Supreme Court. Particularly, I wanted to get your take on his relationship with Justice Sandra Day o'. Connor. You have a whole chapter there devoted in the book to what is very much a contentious relations, Justice Scalia and Justice o'. Connor. And it seemed in part to stem kind of from from those ideological philosophical differences where Scalia was this strong originalist in his view of what a judge's job is supposed to be and Justice Oconnors was more seemed to be kind of like a case by case basis. There wasn't a whole lot of consistency there. Could you maybe talk about that relationship and how those differences kind of drove a wedge between them in some ways?

[James Rosen]

Ways, sure. And I want to say at the outset of this answer, Sean, that this book, Scalia Supreme Court years 1986 to 2001 is not just for lawyers. I've deliberately written in a way that anyone can understand. I'm not a lawyer. And I tell you when I read it back, because it takes you about two and a half years to write one of these things and that's as a part time job. When I read it back, I found myself cracking up a lot because Scalia himself was so funny and so witty with a sometimes fiendish sense of humor that I find myself cracking up all the time reading this. And I know our readers when our listeners will as well. And yes, there's, there's a lot in here besides just the cases and the case law, as important and profound as that is. And that's where the heart of Justice Scalia's legacy resides, of course, is in his rulings and his opinions on the law and the way he shaped the law. There's a lot here about his, his human qualities and the human qualities of, of his colleagues. And in, in the Webster vs. Reproductive Health Services case out of Missouri, the Justices were asked to examine whether a whole set of abortion restrictions passed in the Show Me State were constitutional and they had the majority necessary by that point to overrule Roe versus Wade. But Chief Justice Rehnquist recoiled from doing that. And in the end, in the Webster case, the Justices effectively gutted Roe, but allowed it to stand land and in effect invited other state legislatures to craft their own restrictions on abortion to see if those would pass constitutional muster. Scalia was agog at all that he felt we should just simply be overruling Roe versus Wade. And in one of the private memoranda that's published in this book where he was addressing his colleagues, the other Justices on the Supreme Court, he essentially said at one point, I would rather stay with Bill Brennan on row number one one, then heap error upon error and try some rickety new version of row two here. And as part of his writings in that case, he said that Justice Oconnors writings quote, cannot be taken seriously. And that opened up really a permanent rupture between them. And of course it's been well known since, since that opinion came out in 1989, that, that, that, that, that Scalia and O' Connor were not getting along. Let's say there's a photograph in this book that's never been published before. It was taken on Halloween, 1986. So really only about 25 days into justice Scalia's time on the Supreme Court. And it shows the two of them at the Supreme Court. He's in a suit and tie and she's in professional attire, but he's wearing a big clown's bulbous red nose on his face with a big smile. And Justice o' Connor's got one of those groucho nose and glasses with a big smile on her face. And as I say in the caption to that photo, it went downhill from. Because Scalia was determined to call out the first female justice in American history for what he considered muddled thinking in her opinions. He felt that her writings didn't even match up with her own previous writings. And he felt as well that that's, that's typical of someone whom we might describe, who was often described as a swing justice. The way you get to be a swing justice, which is to say the justice whose vote decides, decides where the case goes, which is a lot of power, is by ruling on it, on case by case circumstances. Well, in this case, there were five of six circumstances present. In this case, there were four of six. So we ruled this way in the first case and that way in the second case. And Scalia thought that that does not give guidance to the lower courts. It does not help everyone understand the law. You need bright line rulings. And so they have very different ideas of judgment, judging. But it got so bad between them at one point. There's a story in this book that's never been reported before. It comes from my friend and fellow Newsmax employee Judge Andrew Napolitano, who found himself seated between Scalia and o' Connor at one of those PBS theater in the round sessions where he was on the panel with them. And the two of them, he described it to me, started arguing with each other about some arcane point. And it became clear to Judge Napolitano at a certain point that they were really using him as a kind of medium through which to carry on their argument. And it got heated and he wondered if the, if the, the microphones for that PBS program were picking it up. And at one point, Scalia says to Judge Napolitano angrily, you see what I have to put up with with this woman? And that's the name of that chapter, this woman. And nonetheless, there was respect between them. I describe in the book how when Justice o' Connor learned she had breast cancer, the only justice she called up on the ph opened up to and broke down in tears with was. Was Justice Scalia. But it's as I say, this book is not just for lawyers. There's a lot of humanity in it, including in the relationships and including the one you asked about.

[Sean Fleetwood]

Yeah. And you reported in the book some of the writings From Sandra Day OConnor's husband John. In his diary, he said that Scalia was the only justice that OConnor could unload all of her emotions on when she was most devastated, which I thought was very fascinating, given and that friction between the two of them. And how do I want to ask this? It's almost like you look at Justice Scalia's relationship with Ruth Bader Ginsburg, for example. Very different approach to cases. One's an originalist, one's a left wing progressive, but it almost seems like, you know, Justice Scalia and Ginsburg, they had this very cordial, professional, personal relationship, but he could at least respect that. Okay, she's a left wing progressive, but she has this defined approach. She has a consistent approach that I can at least somewhat respect, even though I don't disagree with it, where with o', Connor, it was more like your jurisprudence is all over the place and there isn't that consistency that I can sort of, you know, give that at least some deference and respect to. Is that a fair characterization of that relationship there?

[James Rosen]

The only correction I would make to what you said, that I would venture, is that the relationship between Justice Scalia and Ginsburg went beyond cordial and professional. They were dear, dear friends and they spent every New Year's together and their. Their spouses did the cooking. And, you know, we have photographs in this book that show Scalia and Ginsburg in operatic costumes from the occasion when they served as supernumerary actors in Strauss opera for the Washington Opera Company at the Kennedy Center. And then three weeks later, they were photographed riding an elephant in India together. And the country had never seen depictions of such a close relationship between two justice of the Supreme Court. And at that moment, when the polarization of the country was already a subject of wide Discussion in the 1990s, the country had never been treated to such a fine example of a friendship, what I call a trans ideological friendship that overcame gender differences, ideological differences, jurisprudential differences, ethnic differences. And it was really a wonderful thing for the country I think you're right in this, and this point will be made more firmly in the third and final volume. Scalia had no problems and got along great with the liberals because by and large they behaved as they were expected to behave. But the Republican or conservative Justices, with the exception of Clarence Thomas, with whom he had a really deep bond, perhaps even closer than his relationship with Justice Ginsburg, with the exception of Clarence Thomas, he felt that the other Republican appointed Justice Justices were kind of always sticking their finger in the wind and, and trying to determine how the New York Times would, would review their conduct. And there'll be more detail on this in volume three. But yes, he, he felt that, that Justice o' Connor was more prone to acting like a politician. She had, after all, been the state Senate Majority Leader in Arizona, than acting like a judge. And one other element, one other point on this, since we're talking about the sort of trans ideological relationships that he had on the court. Everyone who knew Justice Scalia well, his family, his clerks, his most ardent defenders, told me that he had a great and warm relationship with Justice Brennan, who was, you know, sort of the playmaker of the Warren Court. But my research, including trawling through some 1100 boxes Justice Brennan left to the, to the Library of Congress, uncovered one signal piece of evidence that showed that Scalia was mistaken in believing that he had that kind of warm friendship with Justice Brennan. And I consider this one of the revelations of this book. For one thing, I interviewed a Supreme Court reporter at the time for the Wall Street Journal named Paul Barrett, who's now a professor at NYU and who covered the Court for five terms for the Wall Street Journal and who told me that he had and enjoyed off the record sessions with all of the Justices, Scalia included, that some of them were more at home around reporters than the others. He said Chief Justice Rehnquist liked to have a cigarette and a burger and a beer and wanted to hear about politics and what's going on, where he just liked chatting with reporters. Sandra Day o' Connor very much not the case. And that was my own experience in two interviews that I had with her. She was very brittle. Scalia, he, he said, tried to always sort of impress upon whoever he was with that he was the smartest guy in the room. This, Paul, was Barrett's experience, but he said that Justice Brennan told him directly that, that he, Justice Brennan held Scalia's role on the court in, in a dim light, that he regarded that Scalia was a detrimental influence on the Court. And then when I was Going through Justice Brennan's correspondence, I found an exchange of correspondence between Justice Brennan and Paul Barrett where Barrett had written a somewhat unflattering profile of Justice Scalia in 1992, by which point Justice Brennan was two years retired and they had had lunch, it looked like, and he had asked Paul Barrett, please send me the Scalia article. And Barrett does. And I found he wrote on a Wall Street Journal stationary with a, with a, with a, a Magic Marker. I would have been a little more formal and type the thing out in 1992, but, you know, here's the article you asked me to send you. It was nice to see you for lunch. Let's get together again sometime. And Justice Brennan replies to Paul Barrett, thank you for sending Scalia the article. It says what so many think. And that was dated July 21, 1992. And there, buried in the Library of Congress in these 1100 boxes, was what Justice Billy Brennan really thought of Antonin Scalia. And the. The sadness of this is that my book also has all these previously unpublished notes from Scalia to Brennan expressing his outsized admiration for him, inviting him to, to part parties, congratulating him on his 30th anniversary on the Court and, you know, well into the 21st century, Scalia could be seen on the Charlie Rose show professing that Justice Brennan was the most influential Supreme Court justice of the 20th century. But we now know from my research in the Library of Congress that that admiration was not returned.

[Sean Fleetwood]

And Justice Scalia definitely is this outgoing Persona seemed like someone who really did want to be friends with everyone. Obviously, that wasn't necessarily the case on Bill Brennan' things. But you had mentioned one justice that Justice Scalia had gotten along famously well with, and that is Clarence Thomas. And I have to bring him up as a big fan of his. But I have to ask you, because here are two men, two Justices who come from completely different backgrounds, completely different lived experiences, yet arrive at the same point with the same jurisprudence. That is original journalism. How do we make sense of this and how that, you know, strengthened the relationship that they had, both professionally and personally.

[James Rosen]

So I know you have the opportunity to edit this, so I'm just going to say I have to go it in the next two and a half minutes. I'm afraid to go do tv, but. Well, I had the opportunity to interview Justice Thomas for this project. We spent about two and a half hours together in his chambers in 2017. It was one of the highlights of my career. And I asked him, how did two men who came from Such divergent backgrounds arrive in the same place. It was something they used to ask each other. And I said, when you say the same place, do you mean the Supreme Court or do you mean ideologically? And he said, ideologically. I said, and did the two of you ever arrive at some satisfactory answer to that question? And Justice Thomas told me we blamed it on the nuns because they both had experience with Catholic education. The other funny part of it is that Scalia was always trying to, to get a Clarence Thomas to go hunting with him and he couldn't. And Scalia would say, I'm from Queens, okay, and you're from the rural south and I go hunting and you don't. Clarence, how could that be? And Justice Thomas would say back to him, nino, where I come from, I've learned nothing good comes from being in the woods.

[Sean Fleetwood]

Awesome. And I know that you have to run here soon, but just kind of as a closing question you'd mentioned earlier when we're, the day that we're recording this several days ago, Justice Scalia marked the 10 year anniversary of his passing. Could you maybe talk about, you know, as we're looking back on his life and career, what kind of a legacy he left behind for America and what we as Americans should take from that?

[James Rosen]

Absolutely. In order to understand modern America and how we got here, you, you can read the story of Antonin Scalia and it really illuminates the American story. He is the embodiment of the American dream. The son of an Italian immigrant and a first generation Asian American whose hard work and, and Catholic faith vaulted him to the pinnacle of his profession by the time he was 50. Scalia's legacy really touches every American today because of his rulings on so many areas of the law. From criminal procedure to the regulations of our federal agencies to the rights under of enemy combatants and so forth. He touched every area of American life. But as I said earlier earlier, by reorienting American law towards an originalist understanding rather than the living Constitution construct, it restored the separation of powers. It made it so that judges can't just graft their own latter day policy preferences onto the law, onto the text of the law. And so that is something that every American benefits from today. And as I say, this book is not just for lawyers. Scalia Supreme Court years 19862001 will take you behind the scenes as this extraordinary and very funny man comes to the Supreme Court for his first day of work. At one point he said that when they were going around the conference and it was his turn to speak. He felt like a character in a Woody Allen movie. And this will give you a sense of how we got to where we are in modern America today.

[Sean Fleetwood]

Awesome. Again, it's a great book. Everyone should go check it out. It's Scalia, Supreme Court years 1986-28, 2001. James also has a new great column out in the New York Times about Richard Nixon that I encourage everyone to go check out. Again, James, thank you so much for your time. And thank you, our listeners, for tuning into another edition of the Federalist Radio Hour. We'll be back soon with more. And until then, be lovers of freedom and anxious for the fray.

[James Rosen]

It round.