Thursday, May 15, 2008
He could have been the next chief justice. Today, he's just a poster boy for intolerance, vitriol and questionable ethics.
Apr 2, 2004 | As he travels the country speaking to law schools and religious groups, Supreme Court Justice Antonin Scalia likes to say that the U.S. Constitution is dead. It's not a "living document" whose meaning changes with the "evolving standards of decency that mark the progress of a maturing society," but rather a set of rules established once and for all in 1789. The Constitution, Scalia says, means "what it meant when it was adopted."
But even for a jurist rooted so deep in the past, there comes a time to think of the future. For Scalia, that time came on the morning of Dec. 9, 2000. The Florida Supreme Court had just ordered a manual recount of more than 40,000 undervotes in the 2000 presidential election. George W. Bush, who was leading Al Gore in Florida by just 537 votes at the time, wanted that recount stopped -- immediately.
Five Republican Supreme Court justices obliged, and Scalia took it upon himself to explain why. Counting the votes, Scalia wrote, would "threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."
As he wrote those words that Saturday morning, Scalia was clearly thinking about Bush's future. It's hard to imagine that he wasn't also thinking of his own.
Scalia was a centerpiece of the 2000 presidential race. Candidate Bush had named him as a model of the sort of judge he'd like to appoint, and Democrats had raised the scary specter of "Chief Justice Antonin Scalia" as a way to mobilize their base. When the election came before the court, surely Scalia saw some personal advantage in helping Bush -- more conservative justices to side with him, perhaps, or maybe even a chance to lead them as the new chief justice.
It hasn't turned out that way.
Three and a half years into the Bush presidency, Antonin Scalia is an increasingly marginalized player on the U.S. Supreme Court. With no new justices having joined him -- and his old Republican colleagues proving to be unreliable allies -- Scalia is more and more often on the losing side of close decisions. A Bush victory in November would almost certainly change the makeup of the court; Chief Justice William Rehnquist and Associate Justices Sandra Day O'Connor and John Paul Stevens will probably retire soon, and if they do so in the next four years Bush could provide Scalia with fellow justices ready to hew to his traditionalist right-wing views. But Scalia's outbursts -- his outraged dissents in cases on affirmative action and gay rights, his impassioned out-of-court talks like the one that led to his recusal from last week's Pledge of Allegiance case, and his contemptuous handling of the charges of impropriety arising from his decision to go duck hunting with Dick Cheney at a time when the vice president was a party in a case before the court -- make it less and less likely that Bush will appoint Scalia chief justice or that the Senate would confirm him if he did.
It's hard to know exactly why Scalia hasn't been more successful in leading a conservative revolution on the court. It could be that his views are simply too extreme to draw four supporting votes on a consistent basis. While more mainstream Republican judges like O'Connor and Anthony Kennedy may buy into the notion that societies progress and mature, Scalia maintains his allegiance to traditional values and the political views of the Founding Fathers. He also obeys the pronouncements of the Catholic Church -- he is rumored to be a member of the conservative Catholic group Opus Dei -- except with respect to the death penalty, where Scalia thinks the modern church has simply got the Bible wrong. (In a speech that became an article in the journal First Things in 2002, Scalia said that judges who believe the death penalty is immoral should resign from the bench.)
But the lack of success in leading his colleagues could also stem from Scalia's sledgehammer approach to writing opinions. Karl Rove and George W. Bush understand that even extreme right-wing views can be palmed off on the populace if they're wrapped up in the language of "compassionate conservatism" and articulated with a smile. Maybe that lesson has been lost on Scalia -- or maybe he just doesn't care.
Bush may see in Scalia a man of principle, but over the last nine months the most outspoken member of the Supreme Court has become a poster child for sputtering vitriol, questionable ethics and the intolerant rant.
Seven years ago, political scientist Richard Brisbin wrote a book exploring Scalia's role as a visionary leader of America's "conservative revival." Today, he is considerably more bearish on his subject. Given the lightning-rod aspects of Scalia's behavior and the closely divided nature of the U.S. Senate, Brisbin says that Scalia's "future prospects are to be an associate justice as long as he wants to be an associate justice."
And Brisbin isn't alone in that view; former clerks to the 68-year-old justice say Scalia himself probably shares it. "I think that having the court called the 'Scalia Court' would appeal to him as it would to any other justice," says Northwestern University law professor Steven Calabresi, who served as one of Scalia's first Supreme Court clerks. "But I think he's realistic enough to know that there are all sorts of reasons why, even if the president wanted to name him chief justice, it might make sense not to do it."
In 1986, Chief Justice Warren Burger gave Ronald Reagan the same opportunity that virtually every legal observer in the country predicted that William Rehnquist would have given George W. Bush by now. Burger retired, clearing the way for Reagan to name a new chief justice from the ranks of associate justices, and a new associate justice to take his place. Reagan nominated Rehnquist to the chief's chair, and Scalia to take Rehnquist's spot as associate justice.
Improbable as it seems today, the Rehnquist nomination was the more controversial of the two. Liberals worried that Rehnquist was too conservative, and he was dogged by a memo he wrote as a law clerk in 1952 -- one in which he seemed to argue that the Supreme Court should hew to the "separate but equal" standard of Plessy vs. Ferguson in the then-pending case of Brown vs. Board of Education. The Senate debate was contentious, but Rehnquist was confirmed by a vote of 65-33.
With the Senate distracted by the Rehnquist fracas, Scalia skated through the confirmation process. He was confirmed unanimously, 98-0, and the two senators who weren't on the floor to vote were Republicans who would have voted for him anyway. Al Gore and John Kerry were both in the Senate at the time; both voted to confirm Scalia.
In a speech last month in New Orleans, Scalia contrasted his easy ride to confirmation with the tough sledding some of Bush's nominees have faced. "Eighteen years ago, I was confirmed 98-0," Scalia said. "I was considered a good lawyer and an honest man. Those qualities carried the day."
Those may have been the qualities that led to Scalia's confirmation, but the new associate justice acted as if the Senate had given him a mandate to reshape the Supreme Court in his conservative image -- and to do so in his own aggressive way. As the story is told in John Jeffries' biography of Justice Lewis Powell, Scalia so dominated his first session on the Supreme Court bench that Powell turned to Thurgood Marshall and asked: "Do you think he knows that the rest of us are here?"
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