Justin Driver's TNR Review of Murphy's Scalia screed

The New Republic is running a book review by Justin Driver of Bruce Allen Murphy's book about Justice Scalia. Titled "How Scalia's Beliefs Completely Changed the Supreme Court ... and therefore, the country," the review combines appreciation for the impact of Justice Scalia's beliefs about interpretation (and the role of Justices in oral argument) with criticism of Murphy's "vituperative attacks on Scalia's character and even on his religion."

Driver's appreciation of Justice Scalia's impact is far from uncritical. The review concludes: "If legal liberals are going to prevail in the long run, they must comprehend that the many profound problems with Scalia's views are not characterological or ecclesiastical; they are jurisprudential." But Driver's criticisms of Scalia are not the main feature of the review. His criticisms of Murphy are. And those criticisms are deserved. So, too, are Driver's criticism of reviews like Dahlia Lithwick's. After outlining problems with Murphy's treatment of Justice Scalia's Catholicism, Driver writes:

These deficiencies in Murphy’s approach may seem glaringly obvious, but his book has received a surprisingly warm reception in some estimable quarters. At least one reviewer has even showered praise on Murphy for his brave, penetrating insights into Scalia’s religion. Writing in The Atlantic, Dahlia Lithwick commended Murphy as “a timely and unintimidated biographer” who “refuses to be daunted by the silence that surrounds most discussions about religion and the Court.” In Lithwick’s view, “Murphy’s conclusion—at once obvious and subversive—is that Justice Scalia is very much a product of his deeply held Catholic faith.” Failure to acknowledge the ample flaws in Murphy’s treatment of religion is a dereliction. But celebrating the biography for its bold willingness to speak truth to power is perverse.

Driver describes as "indefensible" the idea that "the issue of religion should never be broached when it comes to assessing justices." Indeed, he says that "[i]n the particular case of Scalia ... it would be irresponsible for any biographer to avoid discussing his religion at some length." But Driver objects to treatments like Murphy's that use tactics whose "impudence is enough to make practitioners of guilt by association blush with embarrassment." 

I wish Driver were correct that Murphy's "hatchet is so crude and so wanton that it falls well short of achieving its intended effect." But the set of readers "who are unsympathetic to Scalia's legal vision," but nevertheless "find themselves leaping to his defense, supplying the counterarguments, explanations, and qualifications that Murphy too often disregards," must be very small. It is to Driver's credit that he is one such reader. But Driver is almost certainly atypical, at least outside the legal academy.