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Foreign. From the historic campus of Hillsdale College.
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In Hillsdale, Michigan, where the good, the true and the beautiful are taught, nurtured and honored. This is the Radio Free Hillsdale Hour, bringing the activity and education of the college to listeners across the country.
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The country had never seen anything like this. The idea that the presidency of the United States is going to be litigated to determine who gets to be president and moreover, that it's going to be decided on the basis of a number of votes, the same number of people that could be fit inside a Texas roadhouse on a Friday night.
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This is your host, Scott Bertram. Welcome to the Radio Free Hillsdale Hour, part of the Hillsdale College Podcast Network. That was James Rosen, author of the new book Supreme Court years 1986 to 2001. We'll go in depth with James about this great biography of Antonin Scalia. Also later on in today's program, Dr. Matt Meehan from Hillsdale in D.C. will talk about Restoring America's Founding Imagination. First, we're joined by James Rosen, the great chief Washington correspondent at Newsmax. You can find him on X amesrosentv. And he has a new book out, the second in a trilogy on the life and legacy of Supreme Court Justice Antonin Scalia. The first book was Scalia Rise to Greatness. The new one is Scalia Supreme Court years 1986 through 2001. James, thanks so much for joining us again.
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Scott, it's an honor to be back with you. And all my friends at Hillsdale.
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People can go back into our archives, find our conversation about the first book if they wish. But you can jump right into book two if you want. Early in this new book, James, you have a quote from an acquaintance of of Antonin Scalia who says at main justice, he did damn near everything and he did it well. So book two starts the Supreme Court years. At this stage in his life, at this stage in his professional career, how does Antonin Scalia continue performing at a high level? How does he keep his skills sharp?
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Well, Scott, first of all, thanks again for having me. This new volume, volume two, Scalia Supreme Court Years 1986-2001, covers the first half, half of Justice Scalia's nearly 30 terms on the Supreme Court. And it ends roughly at the halfway point with the completion of the national trauma of the case of Bush v. Gore, which decided the 2000 presidential election. There is some material at the very beginning of the book about Justice Scalia's first days on the Supreme Court. And in fact, the entire book begins with A quote from Justice Scalia's wife, Maureen Scalia, who made tremendous sacrifices in order for him to reach the pinnacle of his profession. And I had asked her in an email exchange in 2024, whether he was nervous when he first began, et cetera. And in the very opening quote that you'll see in the book, the front epigraph, it's Mrs. Scalia saying, in essence, that right before he went into his first conference with the other Justices, he thanked her, he expressed his gratitude to God. There was some expression on the part of the justice of uncertainty as to whether he was up to this. But then he headed straight in, and I found previously unpublished letters written by Justice Scalia in those early days on the Supreme Court to priests, in fact, where he asked them, please pray for me. And in another instance, he disclosed to somebody he was writing to that he feared that he was already, at that point, at the dawn of this extraordinary tenure on the Supreme Court, which had such a momentous impact on American law, society and history. He feared that he was running on the basis of fumes, intellectually, on the basis of intellectual energies already expended, in essence, that he might have run out of gas. And this was just as he was beginning this extraordinary and historic tenure, so there was humility. But I would tell you, Scott, that the very qualities and attributes that propelled Scalia to the pinnacle of his profession, to the marble temple of the Supreme Court, were the same qualities that enabled him to thrive and succeed there, even in dissent. And those include his innate gifts, his genius, his literary gifts, his wit, his affability, his tremendous capacity for hard work, his devout Catholicism, and, as I mentioned before, the extraordinary sacrifices of Maureen Scalia, who raised nine children while Nino, her husband, was busy climbing the ladders of law, academia and government.
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James, let's talk about that first term, surprises and disappointments for Antonin Scalia. One disappointment is that these conferences among the Justices were devoid of give and take. And I wonder if that's one reason why, perhaps just one reason, why the oral arguments became such a showcase for him. He couldn't satisfy those intellectual battles among the Justices. And so he took it, not took it out on, but took those discussions straight to the lawyers involved.
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So long before Antonin Scalia became a famous person or even became an appellate court judge. Prior to his tenure as a Supreme Court justice, as a student, high school student in the 1950s in New York, he appeared on a number of TV and radio programs, quiz shows, debate programs. No recordings of those appearances survive, but newspaper articles from the Time recorded that Scalia often stole the show with his witty banter and his, his screen presence, if you will. And in fact, one of his childhood friends told me, and this appeared in the first book, that he would not see these on television or listen to them on the radio, but he'd come home and his father would say, oh, you missed Scalia this time. He really gave it to him this time. So by the time he was a teenager, Scalia had fans out via electronic media by the time he becomes a justice, a Supreme Court justice, in the fall of 1986. There's no question that Scalia, as a student and then as a professor who appeared on a lot of AEI debate shows that were aired frequently on PBS stations across the country in the mid-1970s, there was no question that he had logged more time on television and radio than all the other justices combined, his eight colleagues. And so he had a natural flair for showmanship. And in fact, he had been a student actor in high school and then in college. And so it was inevitable, I suspect, Scott, that Scalia's personality, his relish for debate, his instinct for showmanship and for the penetrating one liner would have made him, would have led him to be a central, if not dominant force in oral argument to the Supreme Court. But as you astutely mentioned, Scalia was very frustrated by the way that Chief Justice William Rehnquist ran the conferences, which are the closed door meetings attended only by the Justices, where they announce how they intend to rule on specific cases, usually about two days after they've heard the oral arguments in those cases. And Scalia got to the Supreme Court at the same time that Rehnquist had been elevated from Justice, Associate justice to Chief Justice. So Scalia never knew at that time anything but the Rehnquist Court. And having been a judge on the D.C. circuit Court of Appeal, the one rung below the Supreme Court, and often described as the second most powerful court in America because its docket so heavily shapes the work of the Supreme Court and because Judges from the D.C. circuit are so often chosen to become Justices there, judges heard cases in three judge panels. And occasionally after those three judges would issue a ruling, there would be a demand for the circuit court to sit en banc, which is a French term that means the entirety of the court, so that maybe you'd get 12 judges sitting and then reviewing the, the ruling of the three judge panels. But those three judge panels on the circuit courts are, are quite intimate. And Scalia got used to just walking down the hall of the circuit Court to his colleagues, the other judges, people who were appointed by President Carter, such as his colleague Ruth Bader Ginsburg, for example, or, or Robert Bork, who sat on that court and others, and, and, and just kibitzing with them in their own chambers and talking about the cases. When he gets the Supreme Court, he finds none of that takes place. There is none of that easygoing collegiality. And Chief Justice Rehnquist, who had spent 15 terms on the Supreme Court as an Associate justice, felt oppressed by the long winded perorations that began conferences under the tenure of the previous Chief Justice, Warren Berger. And when he got to be Chief Justice, Rehnquist was determined to do it very differently. So he kept the conferences moving very briskly. And Scalia was devastated to find that in these conferences, differences where he expected the same kind of give and take that he'd enjoyed on the Circuit court with the judges there, that there was none of that with the other justices. And indeed, clerks from Scalia's first tenure, first term on the Supreme Court, told me that he learned the hard way that you couldn't just walk down the hall and knock on the chambers of another justice and discuss the cases. They expected you to do this by memoranda in writing that were carried around by messengers and clerks. And all of this was kind of really deeply upsetting to Scalia. He loved debate. He wanted to get into the cases. He didn't necessarily go into the conference or even oral arguments with his mind made up, but there was none of that. And he wrote privately about his disappointment about this. And those letters, also previously unpublished, appear here in volume two.
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James Rosen, with us, the book Scalia Supreme Court years 1986 to 2001. On that first term, there's some liberal writers who are watching and saying, hmm, Scalia too loud, too ambitious, too aggressive. Are Scalia's bad manners turning his colleagues against him? And you're reporting in new documents. New research in Scalia Supreme Court year shows there's actually this clique inside the Supreme Court who are gunning for Scalia. What did you find?
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This was really extraordinary, Scott. I'm glad you brought it up. And I have to credit the researcher who's an accomplished lawyer in her own right, who found these particular documents for me in the papers of the late Supreme Court Justice Harry Blackmun. Her name is Andrea Picciotti Bayer. But what she found was that before the Supreme Court decides to hear a case, they can't just choose any old case out there that they want to, that they they, they want to entertain a case has to be presented to them a petition for, for the Supreme Court to grant certiorari, which is abbreviated Latin term known as cert. When the Supreme Court grants certificate, it means we're going to take the case that you're appealing from the lower courts. But they can't. One of those appeals, one of those petitions has to come to them. And the way they decide, and so many petitions come to them that they delegate to the clerks the mechanics of sifting through all the petitions seeking cert and which one should be granted, which one. And in order for a case to be heard by the Supreme Court, the tradition is that at least four of the justices have to agree to grant cert. And in the back and forth between the clerks and between the different chambers where they decide which cases they're going to take. This researcher found that in the papers of Justice Blackmun, who was a liberal Supreme Court justice appointed by President Nixon, but who did a pretty hard 180 and ultimately became the author, for example, of Roe vs Wade. Someone who had no love for Scalia when Scalia joined the Supreme Court. Because Scalia as a professor had been so critical of Roe v. Wade in public, on television, in writing, Justice Blackmun and his clerks were taking notes on the the cert pool memoranda being circulated by Justice Scalia's clerks. And they were using almost like a branding technique or a scarlet letter. Anytime one of those clerks belonged to the what was then a reason, a fairly new group called the Federalist Society. The Federalist Society was founded with Scalia's help in the early 80s when he was a professor, to establish chapters at different law schools of conservative students because they were so rare and they felt the need to band together. And of course, today, as we know, the Federalist Society is probably the most powerful group of lawyers in America. And for the three Supreme Court appointments that President Trump made in his first term, they were all effectively selected by the Federalist Society. But Justice Blackmun and his clerks hated Scalia, hated the Federalist Society. And in their memoranda, back and forth, the clerks with Justice Blackmon, they are insulting the Scalia clerks by saying, member of the Federalist Society. And not only does Justice Blackmun not ask them to stop doing that, he encourages it with snide little comments in his own handwriting that he's making on these documents. And this continued for years, years. And some of the people who were clerks of Scalia's who've gone on to very prestigious office or academic positions, people like John Manning of Harvard Law School, people like Christopher Landau who is now the Deputy Secretary of State. They were the targets of this kind of written invective that was flying back and forth between Justice Blackmun and his clerks. And none of this has ever been revealed before until now in the pages of Scalia's Supreme Court years.
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JAMES Even early on during his time on the court, Antonin Scalia doesn't like losing and he's tired of losing these cases to the more liberal majority on the Supreme Court. A friend and acquaintance, Jeff shepherd, talks to him and says, you know, your vote is great. We love that we have your vote on the Court, but we also expected you to perhaps influence these other justices on the Supreme Court. Later in Scalia, Supreme Court years, you talk about o' Connor and Kennedy and then suit her and describe them as becoming problems that they are not becoming closer to Scalia in terms of ideology. Why was it that Scalia was less successful in either influencing or holding them closer to his point of view on some of the more high profile cases?
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So first of all, Scalia was predicted when he sailed through Senate confirmation for the Supreme Court in 1986 by a vote of 98 to nothing, that he would become a conservative version of the Supreme Court Justice. Who was the most senior justice at that time? The liberal Justice William Brennan. And Brennan was adept at building coalitions, securing a fifth vote to place himself in the winning side of cases. And Scalia, with his gregariousness, the fact that his Democratic colleagues on the lower court spoke very highly of him and enjoyed his company, it was suggested that he will become a conservative Bill Brennan, he will be able to, he will be a consens. And that didn't turn out. And when Scalia would be asked about this in later years, his answer was, of course I wasn't going to change the minds of Bill Brennan and these other people on the Supreme Court, Lewis Powell or Sandra Day o', Connor, these are Thurgood Marshall, these are people who had been practicing the law and had been or sitting judges for years and years and years. And they had very elaborate thoughts about the law. And it wasn't as if I, Nina, with my great charm was going to come along and change their, their views on the law. They've been ruling on these very issues in various permutations for, for decades. But the truth was too that yes, Scalia's personality might have turned off some of the justices. The eagerness with which he took to oral argument, the fact that he soon became even As a freshman justice, the most prolific contributor to oral argument, that rubbed some Justices the wrong way. But really what prevented him from, from, from building coalitions with the Justices who, who were there when he got there was because he subscribed to a very different philosophy. And it's important that we've gotten to this point in our discussion, Scott, because what we're talking about right now, this is really why Antonin Scalia was not just one of the most important Supreme Court Justices, but really one of the most important Americans of the last hundred years. When Scalia arrives at the Supreme Court in 1986, there is Prevale in American law a theory or a point of view that basically comes from the Warren Court, which was a very liberal court and it's called the living Constitution. This is the idea that the Constitution and its meaning should be something that judges today can expand as they see fit, like an accordion, almost like a breathing organism, in order to account for newer phenomena such as the Internet or nuclear weapons that the founders never could have envisioned. And in Scalia's view, this idea of a living Constitution whose meaning can be expanded by judges at their discretion really is just a judicial power grab. It is a means for which latter day judges, particularly liberals citing this living, expanding, breathing Constitution, can modify the meaning of the Constitution or amend it to suit their latter day policy preferences. Scalia's idea was that the Constitution is neither living nor dead. Rather it was a legal document and the terms that were enacted under it, as with any law enacted ever since, don't change. The words had meaning when they were adopted and that meaning doesn't change over time. And if you want to account for newer phenomena such as nuclear weapons or the Internet, then you have a vehicle for doing that that's called a legislature. And you can enact new laws and you can repeal existing ones, but you can't just say, well, that law meant X when it was enacted. Now 10 minutes later or 10 years later or 100 years later, I, unelected judge, am going to tell you it means X plus Y, because I think it should. And at the time originalism was a very lonely position on the philosophy on the Supreme Court. And that's the real reason why Scalia wasn't able to build consensi and to build coalitions because as he put it, someone like Bill Brennan felt that he could trade a clause here and a clause there, a liberty here or right there, in order to reach that, that all important fifth vote. But Scalia couldn't trade. Scalia couldn't he on his interpretation of the law. In his view, the law meant what it meant, and the intent behind the law was irrelevant. The intent of the lawmakers is embodied in the text that they voted up or down and that a president of the United States signed into law. And so that was the real reason why he couldn't build consensus or build coalitions and trade here and there to get a fifth vote the way that o' Connor and Brennan had, because he subscribed to such a starkly different philosophy by the time Scalia Scalia died in 2016. It's worth noting that even a justice such as Elena Kagan appointed by President Obama could say that as a result of Scalia's work, often achieved in dissent not by winning being on the winning side of cases, but through the force of his personality, his dazzling literary gifts, he made it so that the text became the first stop in the way people argue and decide the law. And as Kagan put it, we are all originalists now. That is the heart of Antonin Scalia's greatness. That is why it is important to remember him and his legacy and to learn about him.
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That's James Rosen, chief Washington correspondent at Newsmax and author of the new book Supreme Court years 1986 to 2001, the second of his three part biography of Antonin Scalia. More with him in a moment. I want to make sure you are aware there is a brand new Larry Arn show now available via the Hillsdale College Podcast network. You can find it at YouTube. You can find it wherever you find your audio. The guest for this episode is NFL star, former NFL star Jared Veltier. He's a Hillsdale College graduate, played offensive line here at Hillsdale, drafted in the third round of the NFL draft, played for the Raiders, the Cardinals, the packers, the Colts. Dr. Arn talks to him about his time in pro football, his many ventures as an entrepreneur, and oh by the way, you might see him now on the current season of Gordon Ramsay's next level. And if you ever wanted to hear Dr. Arn talking about a defensive line stunting, this is the show for you. Check out the new Larry Arn show with Jared Veld here right now at YouTube or wherever you get your audio. More with James Rosen. His new book Scalia Supreme Court years 1986 to 2001. He's also Chief Washington correspondent at Newsmax. The first book in this trilogy, Rise to Greatness. We talked about it with him him a couple of years ago here on the program. James, your quote in the book If I'm not mistaken, Antonin Scalia did things not because he wished to be seen doing them, but because he believed in them. I want to use that quote to springboard into this relationship between Antonin Scalia and Sandra Day o'. Connor. A very complex relationship. Would you say they were frenemies? Do you think Antonin Scalia. Scalia thought that Sandra Day o' Connor did things to be seen doing them.
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So the quote that you've just read of my writing saying that Antonin Scalia did things not because he wished to be seen doing them, because he believed in them, and that his deeply held philosophies were not costumes which he donned for PR purposes in order to establish himself or to be seen as the leader of the Court intellectually. All of that was responding to a harsh and false portrayal of Justice Scalia. In one of the two previous biographies prior to mine that were published of him, there were two different biographies of Scalia. They were both published in his lifetime. He cooperated extensively with one of them, not at all, but the other, and they both wound up in pretty much the same place. Open contempt for Scalia, his personality, his conduct, his philosophy, his jurisprudential legacy. And a lot of my book is given each of the first two volumes. I spent some time correcting the record and correcting the falsities presented in those earlier biographies. And one of those biographers, Bruce Allen Murphy, a liberal law professor, had said that Scalia had faulted Scalia for not moderating his views, not trying to be more like Sandra Day o'. Connor. Joan Biskupic, the author of the first biography, likewise compared him or contrasted him unfavorably with Brennan and o', Connor, and that instead of aligning with a more senior justice moving to the center of the Court, he seemed determined to press his ultra conservative views and to. To lay down markers to show that he was the. The most aggressive or the most conservative justice, and so that he could be seen, and it's never specified seen by whom, as the intellectual leader of the Court. And all of this was more or less a way of satisfying his. His avaricious desire for public attention. All of that is false. False. And as I say, he didn't hold these philosophies or lay down markers to be seen as more conservative or to be seen as the intellectual leader. He wrote what he wrote because that's the way he interpreted the law. And he felt that a judge was bound to interpret the law according to the text as it was enacted. You asked about the relationship between Justice o' Connor and Justice Scalia. So Justice o' Connor was President Reagan's first, first nomination to the court. Scalia was his second. O' Connor was the first female on the Supreme Court. Scalia was the first Italian American. And initially Sandra Day o' Connor tried to sort of, she was a former ranch hand, as you know, in Arizona, and she tried to corral the bull early. She took notice of Scalia when he was an appellate court judge, the sharpness of his opinions, his insistence on textualism over the use of legislative history to decide the intent of a law. And she tried to sort of co opt him by arranging social gatherings that didn't go so well. Nino and Maureen Scalia actually found they didn't like Sandra Day o' Connor very much. They thought she was bossy, at least in the beginning. And the, the real rupture between them. And it's funny because this book Scalia Supreme Court years 1986 to 2001. In the photo section, there's a previously unpublished photo that it's just priceless. It's taken On Halloween night, 1986, only about 25 days into Scalia's tenure on the Supreme Court. It's taken inside the Supreme Court and it shows Scully in a suit and tie standing next to Sandra Day o', Connor, who's also in a kind of a professional looking lady suit. And he is wearing a big bulbous red nose and she is wearing Groucho nose and glasses. And it was taken on Halloween and the two of them are smiling. And really, as I say in the caption to that photograph, their relationship went downhill from there. The real rupture begins in 1989 with the first abortion case on which Scalia got to sit, and that's Webster v. Reproductive Health Services. And in that decision, the Court basically allowed Roe versus Wade to stand, but gutted it in large measure. And Scalia favored simply overturning it. And he wrote a concurrence, which is where a judge or a Justice says, I agree with the outcome of the case, but I don't agree with the reasoning. And he made the case that Roe was bad law and simply should be overturned. And he adduced all the reasoning that we later saw in Justice Alito's decision in Dobbs in 2022, which ultimately overturned Roe. But where Sandra Day Oconnors, writing in the Webster case, was concerned in 1989, Scalia thought that it was muddled. He thought it was contradictory of her own previous rulings. And he thought that there was a craven element to it, really. And he said that her writings qu Cannot be taken seriously. And that stung, and it caused, I would say, a permanent rupture in their relationship. Now, when Justice o' Connor discovered that she had breast cancer and needed to be operated on, and a surgery that she survived, and ultimately she returned to the court, her husband's diaries record that the justice to whom she really opened up with her emotions and broke down and cried on the phone was Nino Scalia. So there, there was, I think, think begrudging respect between them over the years. But ultimately, Justice Scalia didn't think that Sandra Day o' Connor was a very good judge. He thought that she was still behaving like the politician she had been in Arizona, where she had been the. The majority leader of the State Senate. He, he did not think that she. That she brought the analytic prowess necessary to be a good judge. Justice o' Connor was a very powerful justice. Why was that? She was the swing justice. Her way of approaching a case was to say, well, you've factors present. These factors are not present. So on this case, I think we'll rule this way. But that doesn't provide a bright line ruling that gives guidance to the lower courts. So it means that more cases come back up through the courts and to the Supreme Court. And guess who enjoys the power? The swing justice who says, well, this time these six conditions are present and these three are not. So this time we'll rule this way. Scalia didn't think that that was the appropriate way to be a judge or to be a Justice. He favored bright line rulings. He thought that these three pronged tests, tests that Justices were devising, were really elaborate engines or vehicles for the. For justices, and particularly living constitutionalist Justices to engineer their preferred outcomes. It's not to say that that the two of them hated each other, but there's a priceless scene in the book, previously Unreported, where the two of them appeared on a TV soundstage together, separated by my friend Judge Andrew Napolitano, who is my colleague at Newsmax today, where they were kind of arguing at each other through Andrew Napolitano. And it got to the point where Scalia says, do you see what I have to put up with with this woman? So frenemies might be a good term, even if it's not a legal term.
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Scalia, yes. James Rosen, with us, the book Scalia Supreme Court years 1986 through 2001. We move forward in time a bit. The 95, 96 term on the Supreme Court was very tough for Antonin Scalia. A lot of losses during the 95, 90 term. A particular case, the VMI case, he was very upset about. And you report in the book that he was seriously thinking about retirement at the age of 60. And there's also this possibility that in my research I find that John Boehner leaked around 10 years ago, but I did not hear about it at that time, that Antonin Scalia was at least approached. Asked to think about being Bob Dole's running mate way back in 1996, how close did we come to losing and Taden Scalia on the supreme court in the mid-90s?
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I think we came closer to losing Justice Scalia from the Supreme Court on the basis that he was bored and dispirited and was already 10 years on the great mahogany bench, believing as though he were repeating himself in his dissents than we were to losing him. Because he felt inclined to accept the Dole team's offer of the number two spot on the presidential ticket that year. He considered it it, and he ultimately consulted with his, what I call his Jewish consigliere. That's Judge Larry Silberman, who was his dearest friend over 40 years, who hired him at the Department of justice in the 70s, represented him when he was up for Supreme Court confirmation hearings. And Silberman says to Scalia, would you like to return to the practice of law or to teaching Nino? And he goes, no. Why do you ask that? He says, because Dole is going to lose, and if you serve as his running mate, that's what you're going to wind up doing. Silberman could speak in a very direct and unvarnished way to Scalia that nobody else could. He would sometimes address him as you dummy. And I interviewed him extensively for this book. But yes, around the time of 1995, 96, you mentioned the VMI case. That was the case where the court held that the Virginia Military Institute could no longer ban female cadets from attendance and enrollment there. Scalia had dissented against that decision. He. He felt dispirited. And of all the people to write to him, a little note to try and cheer him up was Harry Blackm, who had retired from the Supreme Court by that point and as I say, kind of had it out for Scalia. And so this book, Scalia Supreme Court Years, contains previously unpublished, the response that Scalia sent to that nice note from Harry Blackmun. But I got to meet Scalia when he was 63, I should point out, and retirement was already a consideration early on, when he first got there in 1986, he said, I'll do this about 10 years or so because after that I'll be working for free. He could never really figure out what he would do next, and that's why he never retired.
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I want to ask actually about. You mentioned Blackmun, but his relationship with Justice Brennan, in which Justice Scalia seemed to very much appreciate respect and wants the respect returned from Justice Brennan. And you've uncovered a lot of correspondence in Scalia Supreme Court years that says Justice Brennan never really felt that way at all about Justice Scalia.
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This is revelation in this book, in all the interviews I did for this book. And There are over 100 of them with members of Scalia's family, seven of his nine children, members of what he called the clerk errati. These are the people, the 100 or so people, maybe 200 who served as his clerks, people who are friends of his. And all of them would say would cite his relationship with Justice Paul Brennan as being of a piece with his relationship with Justice Ginsburg. That here is a liberal on the court. And here's an example of the Scalia's great capacity for what William F. Buckley Jr. Used to call trans ideological friendship. And I had members of Scalia's family tell me about extol the warmth of his relationship with Justice Brennan and members of the clerk of RAI and others who were ardent defenders of Scalia. But I came across in the 1100 boxes of papers and that Justice Brennan donated to the Library of Congress one piece of paper, one letter exchanged between Justice Brennan and a reporter for the Wall Street Journal who had written a critical profile of Scalia talking about how he didn't wind up as the conservative Bill Brennan. He turned out to be a loner and he's ticking off his colleagues and he's more often in dissent than on the winning side of cases. And Justice Brennan asked this reporter, Paul Barrett, then of the Wall Street Journal, to, to send him the article, which he did. And he wrote back to Paul Barrett. And again, this letter had never been published before. It's from 1992. And he states to the reporter Paul Barrett that his article, quote, says what so many think. And it's an extraordinary document because it shows that Justice Brennan, as Paul Barrett told me, based on his off the record conversations with Justice Brennan, took a very dim view of Scalia's role on the Supreme Court, considered it destructive, regarded Scalia's entire ascension to the Supreme Court as a juggernaut that had one goal in mind. And that was the undoing of Bill Brennan's legacy. So that's a revelation from this book that Justice Brennan never quite returned the admiration, the outsized admiration that Scalia had for Bill Brennan, which he was expressing in all these letters to Bill Brennan, which are published here in this book as well.
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James Rosen with us. The book Scalia Supreme Court years 1986 to 2001. We have time for one more question. I have to ask about where the book ends, which is the Supreme Court action surrounding the presidential election in 2000, Bush v. Gore. And this is something where Scalia reminds us in your pages that he's somewhat amused by all the kerfuffle about this because as he says, look on the merits, the case wasn't close. It was 7:2 on the merits of the case. But he took a lot of heat, external heat, for the Supreme Court. And what they did in Bush v. Gordon Gore, your reporting shows that it was actually Kennedy, if I'm not mistaken, who was leading the charge on a lot of these matters inside the court. How would you describe and define Antonin Scalia's role in the Supreme Court action surrounding the 2000 election and Bush v. Gore?
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So Bush v. Gore came to the Supreme Court twice in a very compressed timeframe in December of 2000. One case was called Bush v. Palm Beach County Canvassing Board. And they were oral arguments, arguments before the court and a decision. That decision was really to send the case back to the Florida Supreme Court for additional action. And then the Florida Supreme Court issued a ruling that showed in essence that they took no heed of what the Supreme Court had said and established more recounts that were beneficial to the Gore campaign. And so the Bush attorneys, led at the time by the former Secretary of State, James A. Baker iii, filed another emergency appeal to the Supreme Court. And that case went to the Supreme Court as well for oral argument was Bush v. Gore. And at all points along this process, Justice Anthony Kennedy was taking the lead behind the scenes in keeping the other justices informed of what was bubbling up through the the court system in Tallahassee and what was likely to arrive at the door of the Supreme Court. And he really fashioned the substantive arguments that were present in the final ruling by the Supreme Court, which halted the recounts in Florida and ended the litigation right then and there. A effectively granted the presidency to George W. Bush, who had had a lead in Florida of 537 votes. The country had never seen anything like this. The idea that the presidency of the United States is going to be litigated to determine who gets to be president and moreover, that it's going to be decided on the basis of a number of votes, the same number of people that could be fit inside a Texas roadhouse on a Friday night. And Justice Scalia, his role behind the scenes was that he felt that the Florida Supreme Court should be rebuked for ignoring the the remand the Supreme Court had sent down after the first case. Nobody took that idea up. But ultimately it was Justice Scalia who issued a statement when the Court decided to take up the Bush v. Gore case and hear oral arguments. He stated that the only reason this case would be taken, the only reason the justices would grant cert is because there is a substantial probability that the Bush team will win here at the Supreme Court. And when that statement went out, a lot of people who were angry about the ultimate verdict were inclined to treat Scalia like he was the driving force behind it. But in fact, he, he didn't care much for the reasoning that was ultimately used in the, in the Supreme Court's decision in Bush v. Gore, he used an epithet, called it, he said behind the scenes in Brooklyn we would call this a Pisa, you know what? And, but because he had been the intellectual leader of the conservatives for so long, it was just assumed out there by the public at large, by editorial cartoonists, writers, by scholars that he had to have been the driving force behind the scenes, and he really wasn't. But the reaction to Bush v. Gore was so controversial around the country that it changed forever the way Antonin Scalia was seen, and it changed forever the way the Supreme Court was viewed. Of course, in retrospect, after January 6, the Hoo Ha surrounding Bush v. Gore seems rather quaint because after all, the verdict of the Supreme Court was accepted without any violence around the country, etc. But around that time, Scalia was walking through a tennis and golf club and somebody interrupted him as he was walking just to say, to thank him for what he did in the case. And this is actually the ending of this book of volume two, Scalia Supreme Court years 19862001 he says, back to this person, just a lawyer doing his work.
- [39:15]
B
The book is out. Scalia Supreme Court years 1986-2001 James Rosen, the author, chief Washington Correspondent, Newsmax, also the author of the first part of this trilogy, Scalia Rise to Greatness. And he will be the author of the third part of the trilogy. You can find him on X amesrosentv. James, thanks so much for joining us here on the radio. Free Hillsdale Hour.
- [39:39]
A
You're so kind. Thank you, Scott.
- [39:42]
B
Up next, we talk with Dr. Matt Meehan from Hillsdale in D.C. about restoring America's founding imagination. Imagination. I'm Scott Bertram. This is the Radio Free Hillsdale Hour.
- [40:00]
C
Hi there. It's Bill Gray from Hillsdale College. Before you skip ahead, can I ask you a question or two? If you could teach 50 million Americans one thing, what would it be? Would you teach our great American story that this nation is unique, founded on self government and individual liberty? Maybe you would teach the truth about free enterprise, how hard work and opportunity allow anyone to rise? Or would you teach the gospel and the Christian faith that helps us live good and meaningful lives? At Hillsdale College, we're doing exactly that. Teaching the best that's been thought and said. Through our free online courses, K12 programs, Imprimis, podcasts and more, we reach and teach millions every year with the principles of liberty that make America free. And with your help, we can reach even more. Your tax deductible gift today will help us teach millions more people to pursue truth and defend liberty. Just text the word give to 7 1844. You'll get a secure link to make your donation in seconds. That's give to 718 44. Thank you for standing with us. Now back to the show.
- [41:14]
B
Classical music is one of the greatest achievements of Western civilization. It took 2,000 years and the work of the greatest philosophical, scientific, political and religious minds to properly tune the piano and make great music possible. But classical music can be intended intimidating. In Hillsdale College's new free online course, the History of Classical Music, Chopin through Gershwin, you'll learn how to appreciate humanity's greatest musical accomplishments in the history of classical music. Concert pianist and Hillsdale College Distinguished fellow Hyperion Knight explains how music has developed and what distinguishes the greatest musical achievements of Western civilization. To enroll today and secure your spot in this completely free online course, visit Hillsdale. Edu Network. That's Hillsdale Edu Network. Welcome back to the Radio Free Hillsdale Hour. I'm Scott Bertram. Check out the Hillsdale College Podcast Network at podcast hillsdale. Edu or wherever you find your audio, including YouTube. We're joined by Dr. Matt Meehan. He's Associate Dean and Associate professor at the Van Andel Graduate School of Government at Hillsdale in D.C. Dr. Meehan, thanks for joining us.
- [42:50]
D
Thanks for having me, Scott.
- [42:52]
B
Talking today about some work you wrote for for Heritage.org, restoring America's founding imagination. It's part of their First Principles series and I know part of this was in preparation of a new book that's coming out later this year, the American Book of Fables that you have written. So looking back at the founding imagination and I guess the American part of it and the American part of the book, what makes a fable American and where do we see that inside those stories? And maybe that's something we'll talk about later when we talk about, about the book. But let's start there with this conversation too.
- [43:26]
D
It's actually a great question and the paper does sort of try to think that through. And it's, it's almost like a good mixed drink, if you will. Like there's a sort of mixology to the American fable and it has component parts. It's biblical, right? It's or at least has a kind of echo effect of Christianity. Like even if it's not directly about biblical stories, there's a kind of oh, that's reminiscent of and deliberately laced in art. Echoes of scripture and the Bible. There's a very funny democratic wit where high things are brought low through humor and presuppositions are second guessed and voices of correction come from all locations. Sometimes an ant on the floor before a bull or sometimes a bull will crash into a frog's life and stomp it and say no. But there's this sort of upending of, of hierarchies or something democratic and witty, right? This sort of clever low comedy to it. And then there's something, what I refer to as a kind of baptized stoicism, this very tough American sense that we are all going to die. And that means that we only have a certain amount of time to get after it. But it also means that because we're all mortal, we're all equal. And because we don't know when our end is, we must always be preparing. And that you see in the fable and the storied tradition of the Founders in a way that is kind of amazing and with a, with a sort of hilarious use every part of the Buffalo discipline, it's present in almost everyone, even I, I, I in the, in the paper I actually take up the New England primer and it's Alphabet and you can see it's just very disciplined doing this work.
- [45:19]
B
Is understanding the Founders imagination different than just understanding their ideas or their other principles? Political principles, yes.
- [45:32]
D
So ideas are required, but every idea has to be implemented. And so there has to be a practice axis, a practical implementation of it and the way in which winds up being very important part of what a principle is. Right? Because I could say we're all equal. Like, well, the Marxists say that too, right? So it actually matters. Oh, but there's a principle of nature. It's like, okay, but how do we, how do we implement these? How do we, how do they come into being?
- [46:00]
B
Right.
- [46:00]
D
And part of that's through law, but part of it's through custom. And so there's a kind of way in which, and one thing I learned from this study is how absolutely indebted the American way in which you do these things, you implement these principles is Roman republican in character. It is fundamental and foundational to everything they did. Their stories are rife with it, quotations. It was the custom of the founding fathers in speeches and stories, stories in their literature. They would not quote Senica and Cicero because it would have been g. It would have been like say, may the force be with you. That's episode four, minute 27. You know, you just know. It's known. So much so that I think their imagination, their heroes were Roman Republican most of the time. And then there would be Greek additions, Greek enrichments, but it was fundamentally a kind of Roman republican imagination.
- [47:02]
B
You talk in this work about how Shakespeare and fables and stories help to give color to the, to the virtues and vices in our lives. What happens to a society if it loses those shared moral images?
- [47:17]
D
The short answer is they become moral infants. There's not moral agents anymore. What Shakespeare does, in a certain sense, he combines all of these, these things and I do think he's our national poet. People say America doesn't have a national poet. It's like we do. Actually it's Shakespeare because I do think and I, I would, you know, this is a much. I'll just open a can of worms and throw them on the floor and we can stomp them later. But the Shakespeare is a Republican thinker. Shakespeare is trying to build up citizen wit for self government. It's one of his deep projects for the English speaking people. And we are the self governing citizen republic Republic that I think he was educating towards. And so we are in his debt as a poet that helped give the praxis that backs up and supports the principles that our founding fathers put forth and declared 250 years ago. And it's no mistake that right next to the Library of Congress and right next to SCOTUS to the eastern back of the Capitol is the Folger Library. And that's not a government building, but it's actually the people's poet that we put forward, raised the money and have Shakespeare shown on Capitol Hill every night of the week. I mean, just all the time as a regular thing. And that is, I think, a testament to Shakespeare. What Shakespeare offers is the kind of witty, wise account of self government and tyranny. No one shows us more exquisitely, more clearly, with more depth and texture. Both the evils of tyranny seem to Macbeth the complexity of tyranny through law, see all's true, or see Henry V or see Julius Caesar even. But Julius Caesar is a special case because it also shows that even honorable people who are seeking liberty and self government can destroy it. And that's Brutus at Tu Brute. Right. If he had not broken trust with Julius Caesar and remained patient and kept the Senate honest, straightforward, candid, moral and law bound, then what was Julius Caesar's option? Slaughter them all and become an absolutely grotesque and distasteful tyrant and thus set the stage for an overthrow and a revivification of the Roman republic. Instead, those who were supposed to be candid, lawful and trustworthy, the Senate murdered him. At Tu Brute is the death knell of fides which Cicero and the Deofikis are on duties taught the American founding fathers and the whole generation and generations thereafter taught them. That is the foundation of all justice is if you say what you do and you do what you say, then we can have a relationship, we can have business, we can have law, we can have peace. Right. And it be ruled and limited. And I don't have to fear you because we can actually love one another in that complex of charity, et cetera. So I think Shakespeare is sort of. It's a. He's a godsend for the American Republic.
- [50:22]
B
Talking with Dr. Matt Meehan from Hillsdale College about his work over@Heritage.org on restoring America's founding imagination. You highlight something in here I think we've talked previously about on the show called Republican Republican wit. Why was that so important to the founder's vision of citizenship?
- [50:40]
D
So I mentioned wit and wisdom, which is a phrase that is in one of Shakespeare's plays. It is also. I don't think Ben Franklin got a week of writing done without saying wit and wisdom in a pair. Like, he loves that combination. He understands it. It's almost embedded in common sense. Meaning like the commons are shifting for themselves and working their way up in the world and sense wisdom. Right. So wit is in a certain sense, the power to rise and shift for yourself through adroit and savvy prudence. It's not prudence itself. Right. Because prudence really is a kind of combination of wit and wisdom to understand first principles, understand there are things higher than the moment, right. Have an eye to the divine and. And history. Wit is. There's more than one way to skin the cat. Use every part of the buffalo below. It's that sort of mobile and quick mind that can see the uses of things, right. That nimbleness struck me as like, yeah, that's great Shakespeare to Ben Franklin. It's really good wit. And then I started realizing how important it was to so many republican thinkers. And Terence, the great Roman poet, which all the founding fathers read and kept recommending to everyone. You got to read Terence because he trained your wit. You have to be clever enough to see a hawk from a handsaw to quote Shakespeare. Then I noticed it's actually on the pediment on the staircase up into the capital. It's literally there before the house on the eastern pediment. So the staircase from we the people are. Represent the capillary where our representatives go in to make law. The pediment up there, the central figure is lady demonstration democracy protecting a little child. And it's called the genius of democracy. Well, genius or genium, that's the Latin Roman word from Cicero for wit in English. So then you go, what is this thing? Well, it turns out it is the citizens cleverness to be able to govern his own affairs, right? It's that part of prudence that is that active, energetic. We Twain gets at this. It's sort of like clever, like Tom Sawyer clever. He's not just like good, and he is good in his way, like. But he's clever. And there's that. There's that sort of low democratic aspect where people need to be clever and funny, right? And shrewd about things that are almost out of their ken. That is to say, they sort of grasp. I don't know what's going on over here, but I don't like it. You know, like I. I've seen. I've seen very, I think un American and aristocracy democratic souls mock this American wit on Twitter where someone's like, something's wrong over there.
- [53:22]
B
Yeah.
- [53:23]
D
And I know enough to not want that. And now I'm going to go busy myself with something useful and like. Well, he doesn't even understand what that thing is. He can't even articulate what's wrong with it. It's like he might not be wise, but he is witty. Right? There's that common sense and it's very important. And you don't want to make too many laws such that you strangle it, right? And you want to make laws that protect it. And that's what they thought was the guiding image for lawmakers at the House was protect that republican wit.
- [53:51]
B
The founders drew from Bible and Greek and Roman history. Shakespeare, as we talked about fables. Do we have anything comparable today that's shaping the imaginations of young Americans?
- [54:04]
D
So there's, right now it's basically a kind of, kind of Byzantine cathedral, right? There's all kinds of art, but it's all sort of niched and alcoved. The national art, the popular national art is very poor. There are little elements like you could say, like try the Marvel Comics superhero universe, right? The, the, the Avengers, Captain America has some aspects of, you know, the old America and Civic etc. But it's kind of like you need to be updated. Like it's maybe a little, you know, not quite sufficient to the task, etc. So there's, there are aspects interwoven into the wider pop culture. But generally speaking, what I'm seeing, and it's, it's actually a big concern, that's why I'm writing this book, the American Book of Fables. There is a lack of attention to the kinds of, of imaginative, formational images and ideas that basically commend republican self government to the hearts of men. That's missing. And instead you get a worship of people that frankly icons and, and role models that the founders would have found abhorrent. Like the meme plex now for young teenage men is Alexander the Great, Achilles, Julius Caesar and Napoleon. All people that are founding fathers and most free peoples of middle earth would have said no. Those are the bad guys. They're the baddies. They crushed free peoples. They sacked Ravenna, they murdered many thousands of their fellow Christians in foreign countries they did not belong. They dominated and destroyed many cities and then left their empires to bleed and die. They're not good people. They are glory hounds that are not healthy, not holy and not prudent. And we need Cincinnatus. We need Camillus, we need Publius, public Cola. We need Scipio, we need Cato, we need Cicero. We need those great heroes that are restrained, powerful, excellent, long suffering, prudent, thoughtful and lawful. And did I say lawful twice? I meant to.
- [56:22]
B
Right.
- [56:23]
D
It's really important that we revivify our moral imagination with the right kind of sort of idealized heroes.
- [56:31]
B
If it's not the American Book of Fables by Matt Meehan, is there something else or some things else that we should be looking at to help reform this healthy civic imagination and and find that that founding imagination, once again, a.
- [56:48]
D
Lot of good books that, that are sort of early imagistic versions. The. What is it, the Action Bible. Yes.
- [56:57]
B
My son just devours it all of my kids.
- [57:00]
D
It's phenomenal. Right? Like, there's, there's so much good in that book, you know, and like everyone's faith tradition might want to take an eye and filter. Like, I don't know if that's exactly right. But, but basically, like, yeah, grow up. You can do that with your kids. Just mind it. But it's a great book. I think that there's a lot of repackaged, like Tintin's Back.
- [57:19]
B
Yeah.
- [57:20]
D
The Hardy Boys are back, the old ones that didn't get sort of weirdly sort of mopped up into the sort of teen sensuality. There's a lot of representations of the old Mother Goose editions. So there's a lot of good. But it does take some discerning to find it these days. And I think the answer is be very choosy. Pick people, people who filter these things carefully as your reviewers. I like, I like the children's book review reviews at the Federalist, I think are very discerning. Our colleague Molly Hemingway, they're, they're quite good and they, they point us to good books. But it does require some labor these days in a way that it ought not.
- [58:03]
B
Dr. Matt Meehan is associate dean and associate professor at the Van Andel Graduate School of Government in Hillsdale in D.C. he's the author of Restoring America's Founding Imagination over at part of their first principle series, and the upcoming book, which we'll talk about soon, the American book of fables. Dr. Meehan, thanks so much for joining us here on Bo Radio Free Hillsdale Hour.
- [58:28]
D
Thank you very much, Scott.
- [58:29]
B
That will wrap up this edition of the Radio Free Hillsdale Hour. Our thanks to James Rosen, his new book, Supreme Court years 1986 to 2001, and Dr. Matt Meehan from Hillsdale in D.C. remember, you can hear new episodes every week on this station. You also can find extended versions of some of our interviews, like James Rose and this week or listen anytime to the podcast. Find it at Podcast Hillsdale. Edu or wherever you get your audio. Until next week, I'm Scott Bertram, and this has been the Radio Free Hillsdale Hour.