Murphy’s Hamdi Botch

Last month, a tweep asked me what I thought about arguments made by the National Review‘s Ed Whelan about Bruce Allen Murphy’s new Scalia bio. I had forgotten to look into it, but taking some time to finish the book I came across a dumbfounding passage that I immediately knew must have been the one under discussion.

As many of you already know, Scalia’s dissent in Hamdi v. Rumsfeld is one of his finest hours on the Court, the bizarro version of his Bush v. Gore stay opinion. Scalia, joined by Stevens, argued that as an American citizen Hamdi had habeas corpus rights unless the writ was suspended, a power Scalia’s opinion locates in Congress. That Scalia wrote an opinion cutting against his both his general ideological and partisan preferences because he believed the law bound him to do so in this case was admirable, and the dissent is therefore both interesting in itself and an opinion that anyone writing about Scalia’s jurisprudence needs to pay careful attention to.

Murphy, however, portrays Scalia’s dissent as arguing “in favor of a ‘blank check’ on behalf of total presidential power.” According to Murphy, for Scalia “Hamdi was a traitor who was working with the enemy in times of war, and thus was not afforded [habeas corpus] protections.” (Both p. 319 in my uncorrected proof; apparently, this argument hasn’t been modified in the final version.) Whelan has further grim details, but…it’s every bit as bad as he says. We all make mistakes, but this is like saying that Dred Scott found all state slave codes to violate the 5th Amendment or that Lawrence v. Texas reaffirmed Bowers v. Hardwick. It’s mystifying. (When I read the “blank check” sentence my first thought was that Murphy was confusing Scalia’s Hamdi dissent with his Hamdan dissent, but he quotes from the former directly so that can’t be it.) It’s the kind of mistake that forfeits a reader’s trust.

I didn’t encounter another mistake of this magnitude, but in an extreme form it illustrates why Scalia: A Court of One is a major disappointment as a follow-up to the excellent Wild Bill. Murphy’s Douglas bio had two major advantages: 1)the subject lived an unusually interesting and eventful life for a Supreme Court justice, and 2)we have a lot more access to the inner workings of the Courts Douglas served on that we do of the contemporary Court. Dealing with a subject whose personal life isn’t particularly interesting, a lot of the book is taken up with Murphy’s analysis of what Scalia contributes to the United States Reports, and this really isn’t Murphy’s strong suit. Again, the hash be makes of Hamdi seems to be an outlier, but he’s sometimes shaky on basic concepts (“the Court defers to a state’s laws because a rational person would agree with them” isn’t really what the “rational basis” test means) and even when his doctrinal analysis is unobjectionable it’s pedestrian. So what you’re going to get out of the book depends on how interested you are in Murphy’s extensive discussion of Scalia’s Catholicism and its impact on his jurisprudence, and for me a little goes a long way. It’s a book I expected to be a lot better.