Lining up to hear a Supreme Court Justice speak is more like lining up for a rock concert than you might think. This is especially true if the speech is on a college campus and the speaker in question is Justice Antonin Scalia. Ruth Bader Ginsburg is a favorite on the feminist lecture circuit; Clarence Thomas has vivid stories of growing up as a “nappy-headed little boy running barefoot” around Pinpoint, Georgia; Sandra Day O’Connor is the preferred Justice at awards luncheons where crystal figurines are handed out. But Scalia is the most likely to offer the jurisprudential equivalent of smashing a guitar onstage. He might present a scorching opinion that will get him in trouble back in the Court—as he did in January, 2003, when he lambasted judicial efforts to eliminate the phrase “under God” from the Pledge of Allegiance. (Later that year, the Court agreed to take on the issue, and Scalia had to recuse himself.) Or he might stun a pompous liberal with a bearish verbal swat; recently, when a questioner criticized Scalia’s judicial approach by invoking Alexander Hamilton, Scalia retorted, “Hamilton, sir, was writing the Constitution, not interpreting one.” He will be funnier, more sarcastic, and more explicit about his beliefs than most people expect a Supreme Court Justice to be. And curiosity about him—what he will say or do next—has only grown now that there is talk that he could become Chief Justice, replacing William Rehnquist, who is suffering from thyroid cancer. President Bush has said that, of the current Justices, he admires Scalia and Thomas the most, and Scalia, who is sixty-nine, is recognized, even by his ideological opponents, as the singular conservative mind of the Rehnquist Court.
On a damp, cold afternoon in November, Scalia spoke at the University of Michigan Law School. Two hours before the lecture, the line extended down the steps of the school’s auditorium. Many in the crowd were liberal students—this was Ann Arbor, after all—who were nursing a grudge over Scalia’s snappish minority opinion in Grutter v. Bollinger, a 2003 case in which the Court upheld an affirmative-action program at Michigan Law School. The school had argued, and the majority had agreed, that having a “critical mass” of minority students offered an “educational benefit”—an improvement in “cross-racial understanding.” But Michigan’s “mystical ‘critical mass’ justification for its discrimination by race challenges even the most gullible mind,” Scalia wrote in his dissenting opinion. “The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.” Moreover, he went on:
Outside the auditorium, a dozen or so students marched in a ragged oval, chanting, “Two, four, six, eight, separation of church and state!”—not the most original of slogans but one that they thought appropriate for a Justice who so often stresses the deep and redeeming religiosity of the American people. One student had drawn a poster of Scalia as Oscar the Grouch. Such mockery does not seem to bother Scalia; his certainty runs so deep that he views detractors with mild amusement. And he revels in intellectual combat. Every year, he hires at least one liberal clerk, to give him somebody to spar with. Sister Helen Prejean, the anti-death-penalty crusader, recalls in her recent book, “The Death of Innocents,” that she once approached Scalia in the New Orleans airport to say that she was planning to attack his views in print. “I’ll be coming right back at you,” he said, jabbing his fist in the air.
At 4:30 P.M., Scalia strode heavily to the lectern, his head thrust forward. He has a square, ruddy face; thick black hair with a patent-leather sheen; gold-rimmed glasses; and an almost daunting air of vigor. He began by explaining that, as a jurist, he is an “originalist”—or, as he put it, in his habitual tone of pugnacious beleaguerment, one of “a small hearty minority who believe in a philosophy called originalism.” This cohort was so small, he said, that you could “fire a cannon loaded with grapeshot in the faculty of any major law school”—an experiment that Scalia might enjoy trying—“and not hit an originalist.”
Originalists, he went on, feel that judges should adhere to the precise words of the Constitution, and believe that the meaning of those words was locked into place at the time they were written. Scalia likes to say that a Constitution is about “rigidifying things,” whereas elections introduce flexibility into the system. Although proponents of originalism claim that it is a politically neutral method, in Scalia’s hands it usually leads to conservative results—at least on social issues like abortion, capital punishment, and gay rights.
The philosophy that an originalist sets himself against most firmly is that of the Supreme Court Justice William Brennan, who, in 1985, argued that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems.” Scalia sees this approach as an expression of judicial arrogance that all too often leads to the “discovery” of bogus new rights—such as the “right to privacy” that undergirds two decisions that Scalia loathes, Roe v. Wade (1973) and Lawrence v. Texas (2003), which declared unconstitutional a law forbidding homosexual sodomy. In his speech, Scalia noted derisively that, in a recent case, his fellow-Justices had opted to leave open the question of whether there is a “right to die.” Adopting the orotund voice of a newsreel announcer, he joked, “Stay tuned! In the fullness of time, a beneficent Court will give the people this new right.”
Scalia said, “People ask me, ‘When did you first become an originalist?,’ like they’re saying, ‘When did you first start eating human flesh?’ ” But originalism used to be orthodoxy, he said. Only in recent times, he added, have judges become enamored of an approach based on—“Oh, how I hate the phrase!”—a “living Constitution.” Scalia uttered these last words with exaggerated disdain, as if he were holding up some particularly noxious leftovers extracted from the back of the fridge.
Originalism wasn’t quite as unchallenged a doctrine as Scalia claims—even before the “living Constitution” approach emerged. In fact, arguments about the proper sources for judicial interpretation go back to the earliest days of the Supreme Court. In a 1793 case, one Justice suggested that American judges take into account both “general jurisprudence” and the “laws and practice” of other “States and Kingdoms,” while another Justice favored basing decisions exclusively on the words of the Constitution. Hugo Black, a liberal who served on the Court from 1937 to 1971, advocated a literal reading of the Constitution—setting himself against colleagues who, in his view, interpreted its words too wishfully. (Black famously objected to busing because he couldn’t find the word “bus” in the Constitution.) Black did not found a school of thought, however. As a named doctrine, originalism didn’t fully emerge until the nineteen-seventies, with the work of Robert Bork, then a Yale law professor, who wrote, “There is no other sense in which the Constitution can be what article VI proclaims it to be: ‘Law.’ This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones.”
A “living Constitution” approach, Scalia said, gives a judge far too much interpretive latitude. When the method is applied, for example, to the Eighth Amendment’s ban on “cruel and unusual” punishment, judges must consider “the evolving standards of decency that mark the progress of a maturing society.” This line comes from a 1958 decision, Trop v. Dulles, which declared that stripping a deserter of his citizenship was unconstitutional; the Court has since cited the phrase in a 2002 decision barring the execution of the mentally retarded and in a decision this term banning the death penalty for juveniles. Scalia recited the words in the honeyed singsong voice of a well-indoctrinated child, then offered this mocking gloss: “Every day in every way we’re getting better and better. Societies only mature.” He paused. “They never rot.”
Jolly and gregarious though he is, Scalia does not have a sanguine view of human nature or much confidence in social progress. A few years ago, in the Catholic journal First Things, he wrote that capital punishment is easier for American Christians to abide than for secular Europeans, because Christians tend to “regard punishment in general as deserved” and consider death “no big deal.” His writings are salted with allusions to sin and human fallibility. Scalia despises Utopian thinking. Inequality and unfairness can’t always be fixed, he believes; the best you can do in a democracy is try, through the parry and thrust of electoral politics, to bring the majority around to your point of view.
As he spoke, Scalia often sounded exasperated but not weary—his cadences are marked by can-you-believe-this-stuff exclamation points. “You think there’s a right to suicide? Do it the way the people of Oregon did it and pass a law! Don’t come to the Supreme Court!”; “In 1791, the death penalty was a punishment for a felony. It was the only punishment for a felony! It was the definition of a felony! . . . It was legal for two hundred years and nobody thought it was unconstitutional!”
Scalia has a narrow view of what judges ought to be trusted to do; since he fervently insists on these limitations, the effect is one of bellicose humility. “If the Constitution is an empty bottle into which we pour whatever values—the evolving standards of decency of a maturing society—why in the world would you let it be filled by judges? I don’t know what the standards of decency are out there. I’m afraid to inquire!” Scalia got a big laugh. “Why you would want to leave these enormously important social questions to nine lawyers with no constraints, I cannot fathom.”
Scalia tends to lampoon his enemies. A “ ‘living-Constitution’ judge,” he explained, is a “happy fellow who comes home at night to his wife and says, ‘The Constitution means exactly what I think it ought to mean!’ ” By contrast, Scalia said, he was sometimes forced by the rigors of originalist methodology to make decisions that lead to consequences he finds repugnant. He noted that in 1989 he voted to strike down the conviction of a man who had burned the American flag, on the ground that the First Amendment protected such symbolic acts. “Scalia did not like to vote that way,” he said, slipping into the third person, as he often does during comic riffs. “He does not like sandal-wearing bearded weirdos who go around burning flags. He is a very conservative fellow.” Although originalists are not supposed to care about the outcome, an originalist’s wife, evidently, might sometimes consider this a crock. Scalia went on, “I came down to breakfast the next morning, and my wife—she’s a very conservative woman—she was scrambling eggs and humming ‘It’s a Grand Old Flag.’ That’s a true story. I don’t need that! A living-Constitution judge never has to suffer that way.”
After his talk, Scalia jousted with a long line of questioners. A young man brought up affirmative action: Scalia went to an élite law school; wasn’t it important for minorities to have a similar experience? “I didn’t go to an élite law school because I was an Italian-American,” Scalia replied. “I met the intellectual standards.” It was wrong to assume, he said, that “it helps minorities to go to an élite law school. It harms people to push them into an environment that’s too fast for them. You simply assume it’s going to do them good, because it makes you feel good.”
Another audience member asked, “There are those who think the 2000 election was stolen. Could you explain why that’s wrong?” Scalia growled, “I am inclined to say, four years and another election later, ‘Get over it!’ ” He waited for the boos and the applause to die down. “The only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world,” he said. Besides, he asked, how could the Court have declined to hear the case? “On what grounds?” he asked. “That it’s not important enough for us to trouble ourselves with?” The prestige of the Court is “not something you put up on the mantel and admire,” he said with pride. “It’s there for use in battle.”
Scalia was born in 1936 in Trenton, New Jersey, and was reared, first in Trenton and then in Elmhurst, Queens, in a household that was Catholic, patriotic, and intellectual. Scalia’s father, Eugene Scalia, immigrated from Sicily as a teenager. He earned a Ph.D. at Columbia and became a literary translator and a professor of Romance languages at Brooklyn College. Scalia’s mother, Catherine Panaro Scalia, the daughter of Italian immigrants, was an elementary-school teacher. Antonin was their only child.
Last May, at a speech before the National Italian American Federation, in Boston, Justice Scalia said, “My father was a much more scholarly and intellectual person than I am. He always had a book in front of his face.” Professor Scalia was a stickler for grammar who reminded his son “to use the subjunctive” when he wrote his opinions for the United States Court of Appeals for the Washington, D.C., circuit. (Both of Scalia’s parents died about six months before he was nominated to the Supreme Court, in 1986.) “Even on his deathbed, he was still reciting ‘Elegy Written in a Country Churchyard,’ ” Eugene Scalia’s sister-in-law told the Washington Post. In his Boston speech, Scalia recalled his father teaching him that “all Americans would love their country more if they had lived abroad for a while.”
Despite his own devotion to scholarship, Eugene Scalia told his son that neither education nor intellect was the most important thing in life. “Brains are like muscles—you can hire them by the hour,” he would say. “The only thing that’s not for sale is character.” During his speech to the Italian American Federation, Scalia, who has nine children, said that one thing he “regretted about his own success” was that his children hadn’t had the experience of “having relatives who were not great minds.” He recalled a Sicilian-born uncle who had pressed clothes for a living; he was “a decent, lovely man, the salt of the earth,” who taught him that “you don’t have to be successful, you don’t have to have a lot of money to be good.” In speeches, Scalia urges fellow-Catholics to “have the courage to have your wisdom regarded as stupidity,” as he told a meeting of the Knights of Columbus in January. That meeting was at a Holiday Inn in Baton Rouge (an unusual venue for a Justice). “Be fools for Christ,” he told the crowd. “Have the courage to suffer the contempt of the sophisticated world.” Scalia considers himself an interloper in the sophisticated world—a blunt-spoken, rules-are-rules jurist and traditional Catholic in a secular world made wobbly by moral relativism.
In a 1990 Yale Law Journal article, “The Constitutional Catechism of Antonin Scalia,” George Kannar, a scholar at the University of Buffalo law school, argues that Scalia’s Catholic upbringing and his exposure to his father’s exegetical passions profoundly influenced his approach to jurisprudence. When judging a case, Justice Scalia will consult a dictionary if necessary to find out what a statute means, but he does not consider the legislative history of the statute, and he makes no attempt to divine the intent of the legislators. This rigorous formalism, and his emphasis on finding the plain meaning of the text, is a habit of mind, Kannar writes, that runs “deeper than his specifically political convictions.” Scalia’s originalist method echoes the scholarly sensibility of his father, which was in the spirit of the New Criticism, a school of interpretation that disparaged readings informed by the writer’s biography or a text’s historical background. (As the elder Scalia once put it, “A poem is a poem, not this-plus-that.”) Scalia’s mind also reflects his Catholic education, which emphasized learning the catechism by rote and accepting its rules as absolutes. In a 1972 essay, Garry Wills wrote that growing up Catholic before the reforms of Vatican II meant growing up in “a world of quaint legalisms,” where “to know the terms was to know the thing, to solve the problem.” As Kannar puts it, the Church promoted “a particular literalistic view of what one does with texts.” Scalia ultimately developed into a jurist who does not show literal fealty to what the Church says—he rejects the Pope’s teachings against the death penalty, for instance—but he certainly pays close attention to the text of statutes and the Constitution.
As a teen-ager, Scalia attended Manhattan’s Xavier High School, a Jesuit military academy on Sixteenth Street that had been educating the sons of Irish and Italian immigrants since the mid-nineteenth century. (The school no longer has a military focus.) Scalia was on the rifle team, and he rode the subway from Queens carrying a .22 carbine. One of his school friends, Thomas Campion, now a lawyer in New Jersey, remembers that the Xavier boys wore uniforms—“a brown khaki jacket with brown pants four days a week and then, on Friday, a blue uniform.” He recalls, “We marched in lots of parades. Once a week, we’d do a drill at an armory on Fourteenth Street.” Scalia was an excellent student, a debate champion, and an enthusiastic actor. (He played the lead in “Macbeth” and the angel Gabriel in “The Green Pastures,” which a school publication described as “a humorous characterization of the Negro interpretation of the Bible.” Another student was “De Lawd.”) He played the French horn in the marching band, and was, as the school newspaper put it, “no stranger to the bright world of television,” having been “a panel member of the popular Sunday show ‘Mind Your Manners,’ where he displayed to the best his fine traits of character.” The paper continued, “His keen, sensible answers, well seasoned with a bit of humor, stole the show again and again.”
The Xavier boys were taught primarily by Jesuit clergymen who offered what Campion calls “a very, very classical education.” He says, “We had four years of Latin, Caesar to Cicero to Virgil and the poets. And then three years of Greek—Homer, more Homer, Aeschylus, and Euripides.” Campion recalls that he and Scalia had an English teacher, a priest named Vincent Taylor, who was a big influence on them both. “He made us read, read, read, even had us read Graham Greene—‘The Power and the Glory’ and ‘The End of the Affair.’ ” Another teacher, Father Matthews, told a brash student who offered his own criticism of “Hamlet,” “Mister, when I teach Shakespeare, he’s not on trial: you are!” Matthews’s remark stuck with Scalia, as a way of thinking about the law.
Scalia, who is known to friends as Nino, continued his Catholic education at Georgetown University. He joined the debate team, the Virgil Academy, and the drama club. To this day, he exercises his theatrical side, entertaining guests at parties by singing and playing the piano—most recently, he sang “God Bless America” for a hundred guests at a birthday party in Bethesda, Maryland, for the Republican lawyer and former prosecutor Joseph DiGenova. Scalia is such an opera fan that he took a part as an extra in a 1994 Washington Opera production of Strauss’s “Ariadne auf Naxos.” While he was at Georgetown, he also discovered A.V. Ristorante, a dim, wood-panelled Italian place—it’s still on New York Avenue, still serves garlicky pizzas and pastas, looking fundamentally unchanged since the fifties, and Scalia still goes there.
Scalia graduated in 1957, first in his class. He delivered a rather purple valedictorian’s address that contained hints of the hyperbolic and resounding style that marks his Court opinions. “Our days were spent in hunting; but our prey was more elusive and more valuable than any forest deer or mountain bear or prairie buffalo,” he said. “For we were seekers of the truth. Truth has no bones, no flesh, no solid earthy form. You cannot hear her creeping through the forest glades by night; you cannot see her running through the forest paths by day; you cannot watch your arrow speeding straight to thud into her heart. For those who seek her, she is everywhere; for those who do not love her, she is nowhere.” If he and his fellow-graduates—the future “leaders of a real, a true, a Catholic intellectual life”—allowed “the cares of wealth or fame or specialized career to stifle our spirit of wonder, to turn us from the hunt, to kill in us what was most human, then we shall have betrayed ourselves, our society, our race.”
For Scalia, who had made his greatest mark as a ferocious debater, Harvard Law School was a logical next step. Scalia’s law-school classmate Daniel Mayers, a corporate lawyer in Washington, recalls that Scalia seemed conservative—but not in a way that made him stand out. “We were a very traditionalist group of people,” he said. “Many of us had done two years of military service before going to graduate school.” Another friend, Frank Michelman, now a professor at Harvard Law School, remembers that his peers were “very much anchored in the fifties” and that they shared “the attitude that there was truth, and method, and enlightenment to be gathered from this educational experience.” Michelman and Scalia both became editors of the law review. They wore ties to class and edited articles late into the night. Scalia used to bring cannoli from a Cambridge bakery to the office, and eat them hunched over his desk.
Mayers recalls that in 1959 he and his classmates attended a lecture given at Harvard by the Columbia professor Herbert Wechsler, who argued that judges could avoid turning the Supreme Court into a “naked power organ” by conducting a “sustained, disinterested, merciless examination” of litigants’ arguments. “We all were very struck by this argument that there were neutral principles of law which, if you really disciplined yourself, you could apply without regard to your own political preferences,” Mayers said. In the end, he said, Scalia was the only one of the law-review crowd—at that time the top twenty-five students in the class—who became a political conservative. Mayers recalls “conversations with him—not intellectual conversations, more like what you’d talk about drinking beer at night—where it was clear that he believed there were more important things in life than to go out and struggle on behalf of the poor, and that God or somebody had ordained there were inevitably going to be a lot of poor people in the world, and there wasn’t much to do about it.”
After graduating from Harvard, Scalia visited Europe on a fellowship and then returned to join a white-shoe corporate law firm in Cleveland: Jones, Day, Cockley & Reavis. By then, he was married to the former Maureen McCarthy, a Radcliffe English major and an Irish-American doctor’s daughter, whom he had met in Cambridge. (Maureen, a strict Catholic, is not particularly interested in the law; she has done volunteer work at an anti-abortion counselling center, and also at churches and hospitals.) His colleagues considered Scalia brash, energetic, and voluble. At a party, he argued against eight of them at once, defending a law-review note that he had edited supporting blue laws—statutes banning alcohol sales and other worldly pleasures on Sundays. “He has those bushy eyebrows that furrow up when he’s concentrating, and for forty-five minutes on end he had that furrowed look,” James Lynn, then a partner at Jones, Day, told the Legal Times in 1985. “It never bothered him that everyone was on the other side.”
In 1967, Scalia joined the faculty at the University of Virginia law school. Four years later, he took a legal job in the Nixon Administration, and, in 1974, Nixon nominated him to oversee the Justice Department’s Office of Legal Counsel. By the time he started the job, Nixon had resigned. On Scalia’s first day, he was given the task of deciding who owned Nixon’s tapes and papers—the American public or Nixon. Scalia drafted a memo supporting Nixon. “To conclude that such materials are not the property of former President Nixon would be to reverse what has apparently been the almost unvaried understanding of all three branches of the government since the beginning of the republic,” he wrote. Congress rejected Scalia’s argument—it seemed likely that, given the chance, Nixon would destroy vital materials—and enacted the Presidential Records and Materials Preservation Act. Scalia later defended his position before a Senate subcommittee, invoking an analogy both homely and extreme: “Anyone saying a few kind words about executive privilege after the events of the last few years is in a position somewhat akin to the man preaching the virtues of water after the Johnstown flood, or the utility of fire after the burning of Chicago. But fire and water are, for all that, essential elements of human existence. And executive privilege is indispensable to the functioning of our system of checks and balances.”
Scalia continued to move between government and the academy, teaching at the University of Chicago, Stanford, and Georgetown. In the nineteen-eighties, while at Chicago, Scalia contributed to Regulation, a magazine then published by the conservative American Enterprise Institute. He wrote jaunty attacks on government regulation, with titles like “Guadalajara! A Case Study in Regulation by Munificence”; in one article, he described the Freedom of Information Act as “the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored.”
Such polemics attracted the attention of the Reagan Administration, which was attempting to recast the judiciary branch in its image and was picking the universities clean of young, conservative legal academics. Reagan cared intensely about the judiciary—he liked to tell stories from his governorship about judges who were too easy on criminals and too hard on business owners—but the young conservatives around him cared even more. In their view, the prime enemy was the Supreme Court under the leadership of Earl Warren, which, its critics believed, had flouted judicial restraint in the service of an egalitarian agenda. For the Warren Court, and the liberals who embraced its decisions advancing the rights of criminal defendants, dismantling segregation, and protecting minorities, “judicial restraint” was hardly a gleaming principle. Warren, upon his retirement, in 1969, claimed that judicial restraint meant “that for a long, long time we had been sweeping under the rug a great many problems basic to American life.”
Warren was interested less in legal niceties than in getting to a just result, and his opinions frequently invoked a basic, even intuitive, sense of fairness. In 1954, he presented Brown v. Board of Education to his colleagues in the most fundamental terms: either they believed in the inherent inferiority of blacks or they did not, for segregation could be upheld only if they did. “Opposition based on the hemstitching and embroidery of the law appeared petty in terms of Warren’s basic-values approach,” Justice Abe Fortas told the historian Bernard Schwartz, and the result was “the most profound and pervasive revolution ever achieved by substantially peaceful means.” The Warren Court not only laid the groundwork for the civil-rights movement with its desegregation rulings; it also expanded the rights of the accused, ratifying, for example, the Miranda warnings and the right of indigents to counsel. And in Griswold v. Connecticut, a 1965 case involving contraceptives, the Court recognized a right to privacy for the first time.
When Nixon appointed Warren Burger Chief Justice in 1969, conservatives hoped for a reversal of the Warren Court’s trajectory. In the event, the Burger Court continued many of the trends that the Warren Court had inaugurated. William Rehnquist, whom Nixon appointed in 1971, firmly opposed judicial decisions that, he said, “make an end run around popular government,” and he became the Court’s sole dissenting voice so often that he earned the nickname the Lone Ranger. Indeed, in 1973 the Burger Court made the ultimate activist decision: Roe v. Wade. Even liberals like Ruth Bader Ginsburg have criticized Roe for prematurely foreclosing a matter that could have been left to the legislatures. And, as far as the Christian right was concerned, Roe turned the federal judiciary into a wicked phalanx of activist judges bent on thwarting the popular will. By the nineteen-eighties, conservatives were galvanized against the Court. Bork was issuing influential critiques of the Court’s “counter-majoritarian,” even tyrannical, power. In 1985, Edwin Meese, Reagan’s Attorney General, gave a speech urging the Court to adopt a “jurisprudence of original intent.”
Around this time, the Reagan Administration began “breeding” Supreme Court Justices—placing possible candidates on the courts of appeal to test them for philosophical consistency. Reagan appointed Bork, Scalia, and Richard Posner, another intellectual writer-jurist, to federal judgeships. Posner, who revealed a libertarian streak on privacy issues, soon fell out of the running. Scalia fared better. The scholar David Yalof, in his book “Pursuit of Justices,” observes that a “thorough search of Scalia’s record uncovered not a single opinion in which either the result or the ground of decision seemed problematic from a conservative point of view.”
In 1986, Burger retired, and Reagan named Rehnquist Chief Justice. There was now a vacancy on the Court. Who would be nominated first, Bork or Scalia? A working group set up by the Administration identified Scalia as “especially creative and successful in transforming the common intuition that ‘courts are running the country’ into a set of coherent principles about what courts should not do.” Moreover, Scalia was, at fifty, nine years younger than Bork; he was far more charming; and he was Italian-American. Scalia got the nomination, and sailed through his confirmation hearings unopposed.
When Scalia took his place on the Court, the word was that he would be a consensus-builder. Daniel Mayers, the Harvard classmate, remembers telling people at the time, “If you’re worried about his political persuasion, you should really worry because he has such a wonderful personality—so jovial, full of good fellowship, no rough edges—that he will be very persuasive and build a following on the Court.”
It didn’t work out that way. Scalia’s opinions have certainly won him adulation from the right—there are Web sites called Ninomania and The Cult of Scalia, and Regnery Press recently published a collection of his opinions called “Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice.” Yet, especially on critical matters such as abortion, his arguments have not won over the swing voters on the Court, Justice O’Connor in particular. In a new book, the legal scholar Mark Tushnet argues that the key split on the Rehnquist Court is between two types of Republicans: the moderates, exemplified by O’Connor and Anthony Kennedy, and the post-Reagan-revolution types (Scalia, Thomas, and Rehnquist), with the liberals (Stevens, Breyer, Ginsburg, and Souter) “happy to pick up the victories they could gain when the Court’s Republicans divided.” In the end, “the Court’s divisions meant that conservatives prevailed—more or less—on issues associated with the Republican Party’s efforts to scale down the size of government, while losing rather consistently on the social issues—abortion, gay rights, and affirmative action—that animated an important part of the party’s base.”
Over the years, Scalia has become an increasingly frustrated and unheeded voice. For those who helped to pick him for the Court, his failure to persuade his brethren has been a big disappointment. Douglas Kmiec, a former Reagan Administration official who worked on judicial appointments, says, “Sometimes one wishes that Justice Scalia’s computer came with a delayed ‘Send’ button, so he could read some of his footnotes the next morning and see if they were worth the carnage.” His champions did not take into account that charm does not make a consensus-builder out of a person who doesn’t particularly value consensus. Scalia disparages compromises and balancing tests and incremental, one-time-only solutions of the kind that Sandra Day O’Connor, for instance, is famous for.
Scalia’s interactions with lawyers are notoriously aggressive. He told one lawyer who was frantically riffling through papers in search of an answer to a question, “When you find it, say ‘Bingo.’ ” During arguments for Bush v. Gore, when a lawyer kept calling Justices by the wrong names—referring to Souter as “Justice Breyer” and to Stevens as “Justice Brennan”—Scalia growled an unprompted “I’m Scalia!” He bluntly dismisses arguments he doesn’t like. “Your principal position asks us to play games with the word ‘facts,’ ” he chided a lawyer this term. In November, the Court considered whether someone who had been convicted of a crime in another country could own a gun here. The lawyer arguing against a ban invoked the spectre of a political prisoner—Alexander Solzhenitsyn, perhaps—being victimized by such a policy. Scalia shot back, “Which would you prefer—that Solzhenitsyn not be able to have a gun or that the worst kind of violent criminal convicted and imprisoned and escaped from a foreign country who manages to get into this country can go in and buy a gun? . . . I’d say, Well, you know it’s tough on Solzhenitsyn that he can’t own a gun, but he’ll probably get over it.” Scalia also has a habit of telling lawyers whose position he agrees with how to make their arguments; this term, his guidance prompted one lawyer to say, “Thank you for throwing me the life preserver.” He often hustles these lawyers roughly through their paces, like a bodyguard pushing a client through a roiling crowd. “That’s your strong point,” he will say, or “I don’t know why you give that one away.”
Scalia evinces an almost absurdist delight in the sense and sound of words. When Justice Souter told a lawyer that he wanted to ask a “sort of complementary question,” Scalia had to interrupt to ask, “Is that with an ‘i’ or an ‘e’?” When Kennedy characterized a lawyer’s argument as “Gothic jurisprudence,” Scalia interjected dryly, “Rococo, I think.”
He seems to require less preparation for battle than other Justices. He does not ask his clerks to prepare “bench memos,” which summarize, in thirty to fifty pages, possible lines of questioning and relevant precedents. Instead, he asks for “two single-spaced pages,” Christine Jolls, a former clerk who is now a law professor at Harvard, says. Jolls, who was Scalia’s liberal clerk in the 1996–97 term, fondly recalls Scalia as “a prince to work for.” She said, “He would always report back to us about the conferences the Justices have after oral arguments. Most of the Justices don’t share that information with their clerks. But Justice Scalia would always block out time to give us a blow-by-blow. He thought we deserved to know. And he’d, in a genial way, do impersonations of the other Justices that were very funny.”
In his early years on the Court, Scalia’s exuberant questioning was not well received by his colleagues. In a 1988 speech, Justice Harry Blackmun, who retired in 1994, recalled how Scalia had grilled a lawyer named Penny White, a thirty-two-year-old solo practitioner from Johnson City, Tennessee. He “picked on her and picked on her and picked on her, and she gave it back to him,” Blackmun said. “Finally, at the end of the case we walked off, and Nino said the only thing he could say: ‘Wasn’t she good? Wasn’t she good?’ The rest of us were completely silent. We knew she was very good.” Lewis Powell, who retired from the Court in 1987, was even more put off by Scalia, according to John C. Jeffries, Jr., Powell’s biographer. “Politically, Powell and Scalia were not so far apart, but personally, they were like oil and water,” Jeffries writes. “Scalia’s cheerful lack of deference rubbed his senior colleague the wrong way. His volubility struck Powell as bad manners. In Scalia’s first oral argument he asked so many questions that Powell whispered . . . ‘Do you think he knows that the rest of us are here?’ ”
The other Justices have since caught up with Scalia. Now all of them—with the exception of Clarence Thomas—are garrulous. Breyer will steeple his fingers and pose long, professorial hypotheticals. Ginsburg will peer through her glasses and tell a lawyer that his argument is “exceedingly weak,” as she did in a case this fall. Souter is polite and elegant—he often frames possible solutions to a problem, rather than tearing apart others’ arguments—but he, too, speaks at length. Sandra Day O’Connor can be as peevish as Scalia, matching his “for Pete’s sake”s with her own “for goodness sake”s. But her frustration usually emerges when attorneys aren’t telling her what she wants to know. O’Connor will tell a lawyer to “just answer the question for once,” or snap at a lawyer who says she’s asked a hard question to “do your best”—whereas Scalia’s anger comes out when a lawyer says something that he considers fatuous. “Scalia walks into the room with a pretty clear idea of what he thinks about the case,” a former O’Connor clerk told me. “His questioning is often very sharp toward the side he disagrees with, but he is really speaking to the other Justices, trying to show them how stupid this litigator is. O’Connor walks into the room danglingly conflicted about the case—she really wants to hear the answers to her questions, to help her make up her mind.”
Gone are the days when Justice Hugo Black could advise a young Harry Blackmun, “Never ask many questions from the bench, because if you don’t ask many questions, you won’t ask many foolish questions.” A. E. Dick Howard, a law professor at the University of Virginia, says, “There has been a sea change on oral argument over the last twenty years. In the eighties, there were three or four Justices who were content to sit back and let the advocate make his argument. Now it’s like eight professors who all think they’re going to ask the question that probes the deepest. They don’t care about the architecture of an argument; they go straight to the issue they care about. They’re using the lawyers as postmen to carry messages down the bench, and the result is often cacophony.”
Though the constant interrogation makes the Court a surprisingly entertaining spectacle, it’s hard sometimes not to feel sorry for the lawyers who are being skewered. Scalia and Breyer seem to be having the most fun, though in different ways. Breyer can look sleepy and disengaged when he isn’t speaking—gazing at the ceiling through half-closed eyes, like a learned tortoise; he comes alive when he’s unfurling one of his elaborate what-if scenarios. Scalia is perpetually sprung for action. He rocks in his chair like a restless kid waiting for his turn at the blackboard.
One afternoon in November, the Court heard a case brought by a girls’ basketball coach named Roderick Jackson. Jackson had been fired from his job at a Birmingham, Alabama, high school after he complained that the girls’ team received less funding and had shabbier facilities than the boys’ team. Now he said that he was entitled to sue the school district under Title IX, the gender-equity law. The visitors’ seats were filled. The marshal issued a warning about keeping quiet. With Ionic columns and claret-colored velvet curtains, the Court is one of those grand spaces which make you feel exalted. The rules of the house are high church: No audio or video recording is allowed. Leaning on one’s elbows is frowned upon. A journalist must wear a suit to sit in the press gallery.
Such proprieties can seem overly decorous, given how unbridled the proceedings have become. The attorney for Coach Jackson was Walter Dellinger, a Supreme Court veteran. He did not make it very far into his argument before Scalia signalled that he found it ridiculous. By what conceivable logic, Scalia wondered, was the coach’s firing predicated “on the basis of sex”? Had the coach been “excluded from participation in, denied benefits of, or subjected to discrimination under an education program?” Dellinger took up the challenge. “Absolutely,” he said. But Scalia wouldn’t let it go. “Do you think that remotely describes what happened to this coach?” he thundered.
The lawyer for the school district, Kenneth L. Thomas, was a slim, dapper fellow who addressed Ginsburg as “Ma’am.” Breyer took him on, asking him to recall the “bad days of the nineteen-fifties in the South.” He asked the lawyer to “imagine an individual” who “had been kept out of a restaurant or he’d been treated physically badly, not because of his race.” He went on, “He was white but he was associating with people who were black. And they both go into a restaurant and they both are refused service. Maybe they’re beaten up. I mean both of them. Now, can the white individual bring a lawsuit under the civil-rights statute? I’ve always thought the answer to that question is ‘Of course.’ ”
Ginsburg, who made her legal career championing gender equality, clearly thought that teachers and coaches needed to be protected from retaliation if they stood up for girls. “It seems to me that if you’re talking about the sixth-grade soccer team, realistically, the only one who is going to know anything and be brave enough to complain will be the teacher,” she said. The lawyer argued that the coach should have sought redress by contacting the Atlanta branch of the Office of Civil Rights; an official investigation, he had said, would have embarrassed the school district, most likely resolving the issue without a lawsuit. But Ginsburg could all too easily imagine a frustrating response to the coach’s call: “O.C.R. says, as it usually says, ‘We’re too busy, sorry. Congress didn’t give us enough money.’ ”
Scalia stepped in to block Ginsburg’s attack. He asked, “Do we have any idea how effective the enforcement of O.C.R. is?” Perhaps, he suggested, “anybody who gets a directive from them will hop to it.”
The lawyer for the school district looked relieved. “Justice Scalia, that’s exactly it!” he said. “I have firsthand knowledge that when they call we’re supposed to jump. No doubt about it.”
Scalia probably thought things were going well now. He had the lawyer’s back. He tried to buttress the lawyer’s argument by suggesting that the Office of Civil Rights frequently investigated complaints. “And do they call more than infrequently?” he asked hopefully.
“All the time,” the lawyer crowed.
But Ginsburg, who is as tenacious as Scalia, was still in the fight. She noted that the lawyer had cited only one instance in which the Office of Civil Rights had intervened in a Birmingham school. “Is there any other?” she asked in her nasal, persistent voice.
“Two,” the lawyer replied reluctantly.
“In how many years?”
“Twenty-six,” the lawyer admitted. He then added—so gamely that you had to hand it to the guy—“But they’re all memorable.”
Scalia took direct aim at Ginsburg. He argued that it was hardly the Court’s job to “determine whether agencies are inefficient.” Even if the Office of Civil Rights was failing miserably at its job, he said, it was absurd for “attorneys general to fill the void.” During the proceedings, he sighed in disbelief more than once, and, at one point, he declared that the coach’s claim of discrimination was simply too “weird” to be taken seriously.
Scalia, having inspired his brethren to become his equal in volubility, now primarily distinguishes himself with the force, and sometimes the scorn, of his written opinions. If his questioning is for the benefit of the other Justices, then his opinions seem to be for the benefit of a future generation that may yet be saved for originalism. While his dissents often nimbly dismantle the dodgy logic of the majority opinion, they do so in a tone of such bitter disappointment that it’s hard to imagine his arguments winning over any Justice who voted against him. (In fact, his unstinting critiques often help his opponents refine their arguments in subsequent cases.)
Nowhere is Scalia’s style more pronounced than in his opinions in abortion cases. Scalia believes that a right to abortion cannot be found in the text of the Constitution. He rejects the idea that the Fourteenth Amendment’s protection of “liberty” implies other rights, such as the right to privacy and autonomy. When the Constitution’s text is ambiguous or silent on a subject, Scalia’s method is to determine whether a long-standing American tradition has supported the practice under challenge. “For me . . . the constitutionality of the death penalty is not a difficult, soul-wrenching question,” he wrote in his First Things essay. “It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse-thieving, as anyone can verify by watching a Western movie). And so it is clearly permitted today.” Conversely, Scalia believes that, because abortion was outlawed in the United States for more than a century, one cannot claim that American tradition upholds a right to it. In 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court allowed states to place some restrictions on abortion but, significantly, upheld the “essential holding” of Roe: that abortion is a constitutionally protected right. In part, the opinion relied on stare decisis, the principle of respecting precedent and “letting the decision stand.” Whether Roe was right or wrong, the Court argued, Americans had come to rely on it. “To overrule, under fire, in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy,” Justice Souter wrote for the majority. Furthermore, Justice Kennedy added, in a line that conservative critics of the Court find foolish, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Scalia’s dissent was one of the most blistering opinions ever written by a Supreme Court Justice. “The Court’s description of the place of Roe in the social history of the United States is unrecognizable,” he said. He went on:
In stressing the need to cling to Roe “under fire” and in the face of “great opposition,” the Court’s position smacked of “czarist arrogance,” Scalia railed. “We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change.” He even insinuated that the majority opinion smacked of fascism, projecting nothing less than a “Nietzschean vision of us unelected, life-tenured judges, leading a Volk.”
Scalia has a distinctive writing style—lucid, sarcastic, peppered with hyperbolic analogies (Cossacks, Nietzsche), offhand historical references (Peace of Westphalia), belittling dismissals of the majority opinion (“ludicrous,” “preposterous,” “appalling”), and occasional allusions—not too specific or up to date—to popular culture. The results can be trenchant and funny. In a 2001 dissent in which he opposed forcing the P.G.A. Tour to allow a disabled golfer to use a cart, he wrote that the Court had been asked to decide the “incredibly difficult and incredibly silly question” of whether walking was an essential aspect of golf, and that it should, “either out of humility or out of self-respect,” decline the opportunity. “To say that something is ‘essential’ is ordinarily to say that it is necessary to the achievement of a certain object. But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity) it is quite impossible to say that any of a game’s arbitrary rules is ‘essential.’ ” (Occasionally, Scalia gets carried away with the notion of himself as the Court’s littérateur. A concurrence in a 1998 case inspired a dizzy reference to the Cole Porter song “You’re the Top”: Souter’s opinion, Scalia wrote, “resuscitates the ne plus ultra, the Napoleon Brandy, the Mahatma Gandhi, the Cellophane of Subjectivity, th’ ol’ Shocks the Conscience Test.”)
Cases in which Scalia believes that élite judges or professors are trying to dismantle the moral positions of “the people” bring out a particular vituperativeness, however, and leave the unavoidable impression that he is speaking not only for originalism but also for his own selective notion of the vox populi. In his dissent in Lawrence v. Texas, the sodomy case, he wrote, “Today’s opinion is the product of a Court which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. . . . Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as Scoutmasters for their children, as teachers in their children’s schools, or boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” And because these Americans believe that their objection to gay people is based on moral principle—or, rather, because Scalia says they do—the Court shouldn’t call it discrimination.
In an earlier gay-rights case, Romer v. Evans, which declared unconstitutional an amendment passed by Colorado citizens exempting homosexuals from protection under anti-discrimination laws, Justice Kennedy had written for the majority that “a State cannot so deem a class of persons a stranger to its laws.” It was a simple, profound argument, and it lacked the logical flaws of some of the Court’s abortion rulings. But Scalia was unimpressed. The amendment, he wrote, was “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of laws.” The Court had “no business imposing upon all Americans the resolution favored by the élite class from which the members of this institution are selected, pronouncing that ‘animosity’ towards homosexuality . . . is evil.” (Kennedy’s opinion had not used the word “evil.”)
In other, more idiosyncratic ways, Scalia has shown his preference for maintaining the status quo. In 1996, he wrote the lone dissent in a decision requiring the Virginia Military Institute to admit women. (Clarence Thomas, his most frequent companion in dissent, had to recuse himself because his son attended the school.) Scalia argued that “the function of the Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them.” Nor could he resist waxing sentimental about V.M.I.’s “old-fashioned” code of “manly honor.” Scalia’s insistent traditionalism extends even to the political spoils system. In a 1990 case, Rutan v. Republican Party of Illinois, in which the Supreme Court ruled against rewarding Party service with government jobs, Scalia again dissented: “As the merit principle has been extended and its effects increasingly felt; as the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines, and the Daley Machines have faded into history; we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by ‘party discipline’ before the demands of small and cohesive interest groups.”
In his V.M.I. dissent, Scalia wrote that the Court had a duty to respect “those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts.” Scalia has consistently championed this principle. But in his identification of which American traditions are “unbroken” he can be selective and historically misleading. After all, slavery and segregation were “unbroken national traditions” for many years. And, while political patronage certainly has a place in American history, it has long been challenged by an equally robust tradition of meritocracy.
Scalia’s frequent invocation of tradition is based on the originalist method, but it also clearly suits his political temperament. He has a conservative’s skepticism about using the law as an instrument of morality. Good societies are not achieved by good laws, he has written, but are built upon the “effect of one good person upon another,” and to expect more from law than from good behavior “demeans virtue.” In Scalia’s view, we shouldn’t strive for an ideal society but, rather, make do with this one, in spite of its flaws and inequalities. Thus, when he is asked in public appearances about the Declaration of Independence, and its promises of life, liberty, and the pursuit of happiness, he describes it as an aspirational document that has no relevance for the judiciary. In a 1987 essay in which he cited examples of “good societies,” he reached far into the past, choosing the Athens of Pericles, Cicero’s Rome, Dante’s Florence, Elizabeth I’s England, and George Washington’s United States. He loves Robert Bolt’s play “A Man for All Seasons”—the story of Thomas More, who would not swerve from either his principles or his Catholic faith to approve Henry VIII’s divorce. “I think he sees himself the way Thomas More did, as a defender of the law,” Douglas Kmiec says. (He probably identifies, too, with what Bolt called More’s “adamantine sense of self.”)
Scalia attends St. Catherine of Siena in Great Falls, Virginia, one of the few Catholic churches in the Washington area where, contrary to Vatican II reforms, a Latin Mass is held on Sunday. He has four daughters and five sons, including Eugene, the Solicitor of Labor in the Bush Administration; Matthew, who served as an infantry captain in Iraq; and Paul, a priest with the diocese of Arlington, Virginia, whom the newsletter Priests for Life recently described as “young, fervent, energetic, brilliant, and orthodox.” Father Paul Scalia has counselled, in response to a questioner on a Web site for Catholic mothers, that it would never “be acceptable to attend the wedding of a Catholic attempting to marry outside the Church.” He has written for pro-life publications and has condemned “contemporary” liturgical music that aspires to relevance. Justice Scalia recently joked with a visitor, “One priest in the family makes up for two lawyers.”
Scalia himself has praised, most recently in his speech in Baton Rouge, “traditional Catholics” who say the Rosary, go on pilgrimages, and “follow religiously the teaching of the Pope.” His vision of the judge’s role has an ecclesiastical aura of stringency and renunciation. “I don’t deal with policy—that’s not my business,” he once told an audience at Brooklyn College. “I gave it up when I took the veil.” Even his leisure habits—duck, pheasant, and turkey hunting, poker games with members of the Republican establishment, lunch at the stalwart A.V. Ristorante, little reading outside of work—seem drawn from some older code of manly conduct. When, last year, the Los Angeles Times reported that Scalia had gone on a hunting trip with Vice-President Cheney, and the Sierra Club asked that he recuse himself from a case involving Cheney, Scalia refused, responding with a memo that revealed, among other things, the rigors of his hunting vacations: “The group hunted that afternoon and Tuesday and Wednesday mornings; it fished (in two boats) Tuesday afternoon. All meals were in common. Sleeping was in rooms of two or three, except for the vice president, who had his own quarters.”
Scalia’s fervency has undermined his ability to form coalitions on the Court. He would rather come out swinging than soften his words in anticipation of some future case. “These opinions where he berates Justice O’Connor, she takes it personally, I think,” the former O’Connor clerk told me. “There are cases where she might have been persuadable had he been more sensitive to the need to cultivate her—even just to the extent of not actively attacking her. I always wondered to what extent her staying on the Court and not retiring had to do with him. Everyone said it was because she didn’t want to resign in the wake of the controversy over Bush v. Gore—but partly, maybe, it was not wanting there to be two Scalias on the Court. I think his tone with her has pushed her against him. I never saw them calling or coming to one another’s chambers, as Justices will occasionally do, if they have differing but similar opinions. For most of them, there is an effort to build relationships—to sign on to an opinion that you agree with ninety per cent, or to say ‘If you could change X and Y, then I could join your opinion.’ I never saw any of that between them.”
O’Connor and Kennedy the swing votes on the current Court, do not adhere to any strict theory of interpretation. For them, each case presents, to some degree, a fresh dilemma. O’Connor, a minimalist who prefers small steps and compromise positions, seems to be a special disappointment to Scalia. The former O’Connor clerk said, “O’Connor does try to have it both ways and sometimes that leads her into a position that is kind of incoherent or at least not intellectually consistent. And intellectual consistency is Scalia’s lodestar.”
For this reason, it has been easier for him to be friends with Thomas, who is consistent and who agrees with him, and with Ginsburg, who is consistent and who disagrees with him. Although Thomas is more extreme than Scalia in his willingness to overturn precedent, Scalia told Thomas’s biographer, Ken Foskett, that they share a contrarian temperament. Ginsburg is a closer personal friend, however. The Scalia and Ginsburg families spend every New Year’s Eve together. Ginsburg has said that Scalia is the only one of her brethren who can reliably make her laugh—and the only one who can carry a tune. Scalia has said that Ginsburg is the liberal with whom he’d most like to be stuck on a desert island. “Sometimes he has an Italian temper that flares up,” Ginsburg told an audience at the Georgia State law school in 2003. Still, she recalled, when she wrote the majority opinion in the V.M.I. case Scalia came to her chambers to show her a draft of his dissent, saying, “ ‘Ruth, you’re not going to like this . . . but I want you to have my dissent as early as I can give it to you so you’ll have time to respond.’ ” Ginsburg added, “He absolutely ruined my weekend, but my opinion is ever so much better because of his stinging dissent.”
Despite Scalia’s failure as a politician, he has influenced the way the Rehnquist Court approaches jurisprudence. In a 1996 speech, Scalia said, “I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” He approaches statutes the same way. He never asks what the legislature meant; there is only the text, and Scalia is certainly no postmodern relativist. “Words do have a limited range of meaning, and no interpretation that goes beyond that is reasonable,” he has said. Under Scalia’s brusque tutelage, the other Justices have paid closer attention to the language of particular statutes. And he has been strikingly successful at getting his brethren to give less importance to a statute’s legislative history. In its 1981–82 session, the Court examined a law’s legislative history in almost every statutory case. By the early nineties, according to a study by Gregory Maggs, a law professor at George Washington University, it was used in only forty per cent of the cases. “With Justice Scalia breathing down the neck of anyone who peeks into the Congressional Record or Senate reports, the other members of the Court may have concluded that the benefit of citing legislative history does not outweigh its costs,” Maggs wrote.
Scalia’s vote against the flag-desecration amendment was not the only time he has aligned himself with the Court’s liberals. Scalia believes that the Constitution offers a powerful set of rights for the accused. Last year, in Hamdi v. Rumsfeld, in which a plurality upheld the Bush Administration’s right to classify U.S. citizens as enemy combatants and detain them indefinitely, Scalia dissented, noting that “the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment.” And last term, in Blakely v. Washington, Scalia wrote the opinion for an atypical majority—he was joined by Stevens, Souter, Thomas, and Ginsburg—declaring that judges could not increase criminal sentences beyond the maximums stipulated by statutes. The practice, he wrote, undermined the “fundamental” right to trial by jury.
Scalia’s influence has also been felt in jurisprudence involving matters of religion, where he has pushed the Court in a novel direction that has angered many Americans, both religious and nonreligious. In Employment Division of Oregon v. Smith, Scalia wrote a majority opinion holding that a law did not pose a constitutional problem simply because it might jeopardize a religious practice. The 1990 case involved a challenge to Oregon’s drug laws; Alfred Smith, a drug-and-alcohol counsellor, had been fired from his job for using peyote as part of a religious ceremony in the Native American Church. Smith claimed that in denying him unemployment benefits—on the basis that he was fired for “misconduct”—the state was violating his rights under the free-exercise clause. Scalia’s opinion that an individual’s religious views do not “excuse him from compliance with an otherwise valid law” infuriated both religious and civil-liberties groups, and prompted Congress to pass the Religious Freedom Restoration Act of 1993. According to the act, a state law that imposed substantial burdens on religious practice could pass muster only if the state could show that it had a “compelling interest” in doing so. In 1997, Scalia joined a Court majority in declaring the act unconstitutional.
Nevertheless, Scalia is an advocate for the mingling of government and religion. In cases that have come before the Court, he has rarely seen a constitutional problem with government financing of religious groups or with government sponsorship of religious displays. He told a recent visitor to the Court that the metaphor of a wall between church and state cannot be found in the Constitution and has no legitimate place in our legal tradition. In America, he said, the notion was championed by the anti-Catholic Know-Nothing movement of the nineteenth century, in order to justify withholding money from Catholic schools. (He cited a recent book, “Separation of Church and State,” by the University of Chicago law professor Philip Hamburger, that makes this argument.) Legal scholars have pointed out that the wall-of-separation metaphor may be unhelpfully rigid, and that Thomas Jefferson, who used the phrase in a letter to Connecticut Baptists, may never have imagined it as the last word on the subject. But Scalia seems to hold it in especially low regard.
In New York on the Monday before Thanksgiving, Scalia donned a black yarmulke to speak at the Shearith Israel synagogue on Central Park West. Golden light streamed through the Tiffany stained-glass windows onto an elegantly dressed late-morning crowd. Scalia quoted Justice William Douglas, who said that American institutions “presuppose the existence of a Supreme Being.” He added that, in the American context, neutrality did not mean “neutrality between religiousness and non-religiousness but between denominations”—that is, our government couldn’t favor one religion over another, but it could certainly favor religion. He asked the audience whether it thought that European secularism had helped the Jews of Europe; surely they would have been better off in America. He gleefully revealed that Benjamin Franklin—that icon of rational cosmopolitanism—had, during a rough patch in the Constitutional Convention, suggested that a chaplain be brought in every morning to pray.
Last month, the Court heard a case involving the public display of the Ten Commandments on the grounds of the Texas State Capitol. During the oral arguments, Scalia chided the lawyer who argued that it was constitutional to display the Decalogue on public property because Moses’ commandments were a foundation of American law. Even though the lawyer represented the side he would presumably agree with, Scalia pushed him repeatedly for an admission that the Decalogue was a religious statement, and that to pretend otherwise did both religion and the Ten Commandments a disservice. “If you’re watering it down to say that the only reason it’s O.K. is it sends nothing but a secular message, I can’t agree with you,” Scalia said. “I think the message it sends is that law—and our institutions—comes from God. And if you don’t think it conveys that message I just think you’re kidding yourself.” When the lawyer claimed that the commandments were the basis of the Declaration of Independence, Scalia called the argument “idiotic.” The commandments, he said later, are “a symbol of the fact that government derives its authority from God.” This was a startling assertion, but of a piece with earlier Scalia statements, such as his claim, in the First Things essay, that the American people’s “un-European” religiosity helps explain why we “are more inclined to understand, as St. Paul did, that government carries the sword as ‘minister of God’ to ‘execute wrath’ upon the evildoer.”
For Scalia, the first words in the Bill of Rights (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) mean only that America should not have a national church or coerce people—“by force of law and threat of penalty,” as he puts it—into participating in religious exercises. In 1992, he excoriated the majority decision in Lee v. Weisman, which concluded that prayers said at a public-school graduation constituted an unacceptable form of coercion. The majority’s argument that students would feel unduly pressured to pray against their will, Scalia said, was “psychology practiced by amateurs.” Moreover, religious faith required a public forum for its expression: “Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography.”
Some of Scalia’s positions on religion have been adopted by the majority. For example, the Court has moved toward permitting some government funding of religious schools. And yet it’s hard to identify a Scalia Doctrine that speaks for the Court, as opposed to a Scalia Doctrine that speaks for Scalia. Imperfect though some of O’Connor’s tests may be—like the “undue burden” standard for evaluating state restrictions on abortion—they have taken hold in a way that Scalia’s more rigorous formulas have not. Scalia would love to expunge the phrase “evolving standards of decency” from the Court’s lexicon—but it keeps cropping up in decisions. He would like to stop his fellow-jurists from citing the examples of foreign courts and legislatures, which they often do in death-penalty cases, but he has not. (“You talk about how it’s nice to know we’re on the right track, that we have the same moral and legal framework as the rest of the world,” he said in a recent debate on the subject with Stephen Breyer at American University’s law school. “But we don’t have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that what we’re after is to do something that will be just like Europe, they would have been appalled.”) And, of course, he would have liked the Court to overturn Roe and declare that it has no authority to say anything about abortion. For all his brilliance, Scalia has repeatedly failed at the art of persuasion.
Some of Scalia’s many critics like to hunt for his inconsistencies—cases where he has deviated from originalist precepts simply to come up with a result that he preferred. (Anyone who declares his allegiance to a particular interpretive method as flamboyantly as Scalia does is asking for such scrutiny.) On this score, Bush v. Gore is a clear embarrassment for Scalia. He signed on to a majority opinion that limited itself to the particular circumstances of the 2000 election battle, even though he has regularly argued that the Court should try to establish clear rules with broad applicability. In his V.M.I. opinion, he wrote, “The Supreme Court of the United States does not sit to announce ‘unique’ dispositions. Its principal function is to establish precedent—that is, to set forth principles of law that every court in America must follow.” Also troubling was his willingness to flout his conservative commitment to respect the integrity of state political processes. Gary Rosen, one of the few conservative critics of Bush v. Gore, has written, “If judicial self-restraint means anything, it is that the Justices should respect the prerogatives of the other branches of state and federal governments, especially with regard to those ‘political questions,’ as they are known in legal circles, that do not clearly fall within the Court’s institutional competence and would needlessly involve it in partisan controversy.”
Scalia, for his part, has indicated that there are a few instances where he does not toe the originalist line. Public flogging or branding would most likely not be permitted by courts today, he has written, even though both were permitted at the time that the Eighth Amendment was passed. And, he implied, this is the proper response. Here, presumably, “evolving values” cannot be denied.
Scalia’s over-all voting record, however, is remarkably free of contradiction. To some, that’s a problem, a sign of an overly settled mind. “If you gave constitutional-law professors a hundred church-state cases, they could tell you with almost a hundred-per-cent accuracy how Scalia would vote in each one,” Stephen Gillers, a liberal law professor at New York University Law School, told me. “Scalia always knows what he thinks going into a case. And yet you’d like to think that there are judges with skill and qualities of personality that will enable them to reconsider, or at least be sympathetic to, the best arguments made by people with whom they don’t normally agree. That’s the meaning of deliberativeness.”
Other Justices are similarly consistent in their voting on some issues, but none of them publicly declaim the virtues of their method in the tireless, martial way that Scalia does. If anything, Scalia’s air of conviction has grown more robust in recent years. Where he once described himself as a “faint-hearted originalist” and, in 1988, gave a speech called “Originalism: The Lesser Evil,” he is now likely to say, when asked, for instance, how one could know precisely what a text meant two hundred years ago, that it is just “not that hard.” He often says, “I sleep very well at night.”
When you hear Scalia speak, you can tell that there are people in the audience who, to their own surprise, can’t help but appreciate his swagger. They’re a little dazzled by his claim that he doesn’t care about the outcome of a case. They’re amused when he argues that “non-originalism is not an interpretive philosophy” and adds, “It just means you don’t agree with me!” Which—until you remember that the fact that you’re not an originalist does not mean you’re condemned to stumble cluelessly from case to case—sounds convincing.
And yet it’s unclear how a pure originalist would ever get to some of the outcomes that we now consider essential to our liberties and our conception of equality—Brown v. Board of Education, for instance, which Scalia is asked about so often in his public appearances that he will say things like “Waving the bloody shirt of Brown again, eh?” Though Scalia says that he would have voted with the majority in Brown, it’s hard to see an originalist justification for it. (He sometimes acknowledges as much, saying that a faulty—that is, a non-originalist—method can occasionally produce good results, a Scalian variation on “Even a broken watch is right twice a day.”) Nor is it clear, on a purely textual level, that the Fourteenth Amendment’s guarantees of equal protection extend to schooling. (The same Congress that passed the Fourteenth Amendment segregated Washington schools.) And Scalia’s resort to tradition when the text is ambiguous wouldn’t have helped to overturn segregation, either, since segregation was a long-standing American tradition. The way to get to Brown, and many other civil-rights decisions that we now take for granted, is through a willingness to do what Scalia abhors—to translate the fundamental principles of the Constitution into contemporary terms, to embrace the “living Constitution,” to allow courts to decide how values enshrined in the Constitution ought to be applied to modern life. A doctrinaire originalist, the prominent legal scholar Cass Sunstein has written, would not only reject Brown but find that “New York Times v. Sullivan, the cornerstone of modern free speech doctrine, is also wrong; that the government may ban political dissent when it is dangerous . . . that the federal government can discriminate on the basis of race and sex however it wishes; that much racial discrimination and nearly all sex discrimination by the states is unobjectionable; that compulsory school prayer is constitutionally acceptable; that, in short, most of the modern constitutional law . . . is illegitimate, fatally undemocratic, a kind of usurpation.”
Moreover, as Sunstein points out, the question of “whether the original understanding of an old text should bind current generations is not at all simple.” He explains, “We can agree that the Constitution itself should be taken as binding without finding it self-evident that Americans must be bound by past understandings of votes by some segment of the citizenry over two centuries ago.” The Constitution, it should be noted, does not stipulate the rules for its interpretation—and the idea that the framers would have welcomed scrutiny of its provisions in the light of changed circumstances is at least as plausible as the notion that the framers intended to freeze, for all time, the meaning of due process or cruel and unusual punishment. All of this calls into doubt Scalia’s certainty that he is right. “The great generalities of the Constitution have a content and significance that vary from age to age,” Justice Benjamin Cardozo said in 1921. “The method of free decision sees through the transitory particulars and reaches what is permanent behind them.”
Lately, it seems that Justice Scalia is campaigning for the job of Chief Justice. Just last year, he was so averse to press coverage that he allowed federal marshals to seize the tape recorders of two reporters who attended one of his speeches. In January, however, he consented to C-SPAN coverage of his debate with Justice Breyer at American University, and, on March 14th, he permitted the filming of a talk that he gave at the Woodrow Wilson Center, in Washington.
If Bush nominated Scalia for Chief Justice, there would certainly be a fight in the Senate, but he would probably be approved. Even the Senate Minority Leader, Harry Reid, said, speaking on “Meet the Press” in December, that although he often disagreed with Scalia’s opinions, he did not dispute that “this is one smart guy.” (In the same interview, Reid called Clarence Thomas “an embarrassment to the Supreme Court.”) Of course, there are good reasons that Bush might not pick Scalia. For one thing, the President might hesitate to nominate someone who is sixty-nine. (Thomas is fifty-six, while J. Harvie Wilkinson, Samuel Alito, and Michael Luttig, three of the federal judges thought to be leading candidates, are sixty, fifty-four, and fifty, respectively.) Moreover, if Bush promoted from within the Court, his Administration would have to face two confirmation hearings instead of one. Earlier Presidents have tended to appoint Chief Justices from outside the Court.
It’s possible that if Scalia were elected he would emulate Rehnquist—who was more acerbic in his opinion-writing as an Associate Justice than he has been as Chief—and rein himself in a bit. Since he gets along well with his colleagues, and likes a good joke, he would probably run a lively conference. But whereas Rehnquist has moved somewhat toward the doctrinal center since becoming Chief, it’s hard to imagine Scalia moderating his views. He might soften his tone but not his ideology.
Indeed, at the Wilson Center, although his voice was quieter than usual, the content of his speech was not. Scalia said that the idea that the Constitution was a “living organism” was “anthropomorphism” equivalent to “your stock broker when he tells you the market is resting for an assault on the eleven-hundred level.” He added, “The stock market is not a mountain climber and the constitution is not a living organism.” He forcefully declared that originalism was the only way. “There really is nothing else,” he stated flatly. The Constitution should be read like any other statute, he said: “You either tell your judges, ‘Look, this is a law like all laws. Give it the meaning it had when it was adopted.’ Or you tell your judges, ‘Govern us. . . . You make these decisions for us.’ ”
He also made a gesture aimed, perhaps, at setting liberals and Democrats at ease. “I have my rules that confine me,” he said. “I’m looking for the original meaning and when I find it I am handcuffed.” He added mischievously, “I cannot do all the mean conservative things I would love to do to this society.” ♦
