David Dorsen Publishes Timely Book, “The Unexpected Scalia”

Sedgwick News
March 2017

Sedgwick Washington, D.C., of counsel David Dorsen’s book, The Unexpected Scalia: Liberal Opinions by a Conservative Justice, was published by Cambridge University Press on February 24, 2017. The book, which Dorsen wrote with the blessing of his friend Supreme Court Justice Antonin Scalia, has gained unanticipated attention with the unlikely series of events that have positioned Scalias potential successor Judge Neil Gorsuch to begin confirmation hearings before the Senate Judiciary Committee less than one month after the publication of Dorsens book. 

Antonin Scalia and Dorsen first met as students in 1958 when they both were editors on the Harvard Law Review. At that time they were a year apart in school and acquaintances only, not forming their substantial friendship until 2002. The two seemed like an unlikely pair, with Scalia known for his conservative beliefs and Dorsen, an unabashed liberal, seeming his polar opposite. But the two enjoyed and supported each other, getting together frequently to socialize along with their wives.

When the Scalias and Dorsens would get together, they often drank wine and had friendly arguments. Dorsen remembers the first time he invited Scalia, known to his friends as “Nino,” to his house to watch presidential election returns. “Nino joked, ‘Gee, I think I would rather spend it with people I agree with,’ but he came over anyway,” Dorsen says. “We made it a tradition from then on to spend presidential election evenings together, watching the results come in.”  

When Dorsen approached Scalia about writing a book on his judicial philosophy, Scalia, who was a fan of Dorsen’s first book on the prominent U.S. Court of Appeals judge for the Second Circuit, Henry Friendly, Greatest Judge of His Era, was intrigued and agreeable. After several months of research for the book, Dorsen realized that Scalia had authored more liberal opinions than the public may have recognized. So Dorsen suggested to Scalia that he could write a book on Scalia’s liberal judicial opinions. 

“He loved that,” Dorsen says. “Nino felt that the picture of him was somewhat distorted when he was portrayed as an unmitigating conservative. I respected his convictions, but found his originalism an intellectual disaster. Naturally, Nino disagreed. The truth is, he tended to follow his philosophy to wherever it would take him. He could separate his personal conservative beliefs from his professional opinions on the Constitution.” 

When Dorsen started writing the book in 2011, he could not have foreseen the unexpected death of Scalia in February of 2016, nor the Republican-held Senate’s refusal to appoint a Supreme Court justice nominated by President Obama, nor the election of President Trump and his current choice to replace Scalia on the Supreme Court. As the goal to find a Supreme Court justice as conservative as Scalia has been reiterated many times, a goal that has meant leaving Scalia’s Supreme Court seat empty for over a year now, Dorsen’s book puts into question if the perception of Scalia this goal is based on is an accurate one. “Gorsuch seems considerably more conservative than Scalia,” Dorsen comments.

In addition to being an attorney with Sedgwick LLP, Dorsen served as an Assistant U.S. Attorney in New York under Robert M. Morgenthau, and later as Assistant Chief Counsel of the Senate Watergate Committee under Senator Sam Ervin. He has represented such clients as General William Westmoreland, John and Maureen Dean, and the Hunt brothers as well as taught at Duke University, Georgetown University Law Center, and George Washington University Law School. His book Henry Friendly, Greatest Judge of His Era (with an introduction by Judge Richard A. Posner) won the Green Bag Award for Exemplary Legal Writing.