Antonin Scalia, self-made martyr

In the 18 years since then, Scalia has certainly learned of the existence of the other justices, if not the need to make nice to them. In his drive to keep constitutional interpretation frozen in the aspic of 1789 -- and in his allegiance to a moral agenda that disapproves of abortion, homosexuality and other modern vices -- Scalia has frequently found himself at odds with the majority of even this conservative court. In the term that ended in June, Scalia dissented 16 times, second only to Clarence Thomas' 21.

And from the very first days of his tenure on the court, when Scalia has disagreed with the majority, he has not been the least bit shy about saying so. Indeed, he quickly established himself as the most vigorous dissenter, a role he plays with increasingly frequency.

Within months of Scalia's swearing in, the Supreme Court heard oral argument in Edwards vs. Aguillard, a case concerning the constitutionality of a Louisiana law that required the teaching of creationism in any school that also taught evolution. Seven justices agreed that the law violated the First Amendment's prohibition against the establishment of religion. Scalia disagreed, railing against the majority for repressing Christian fundamentalists and pointing to "uncontradicted testimony that 'creation science' is a body of scientific knowledge rather than revealed belief." Scalia, with Rehnquist joining in, pronounced the jurisprudence on religious freedom "embarrassing."

Cass Sunstein, a leading scholar of constitutional law at the University of Chicago, said that Scalia is "one of the best writers in the court's history," but that he'd be even better if he showed at least some tolerance for opposing views. "He has a definite defect, which is insufficient appreciation that reasonable people disagree with him," Sunstein says. "His opinions would be much stronger if they were permeated with an awareness that reasonable people who disagree with him happen to be wrong, rather than -- as he occasionally portrays them -- lawless or buffoonish."

Michael Ramsey, a former clerk for Scalia who now teaches law at the University of San Diego, has a more positive take on Scalia's negativity. "When he's confident about an outcome, he doesn't beat around the bush in order to assuage people's feelings," Ramsey said. "When he sees an argument that he sees as a stupid argument, he treats it like a stupid argument, which is what he thinks it merits."

Justice O'Connor is the most frequent target of the "stupid argument" treatment. Although O'Connor, like Scalia, was appointed by Reagan, she passes for a centrist on this conservative court. In close cases, she is almost always the pivot point on which hard decisions turn. If O'Connor votes with the conservatives, they win 5-4. If she votes with the liberals, they win 5-4. According to one analysis, O'Connor was in the majority in each and every one of the court's 5-4 decisions in the 2003 term.

For Scalia, O'Connor's "defections" are particularly galling, and he rails vigorously against her whenever she strays. As one experienced Supreme Court practitioner put it in an e-mail exchange with Salon last week, Scalia's "'Sandy, you dumb broad...' opinions have been masterpieces of contemptuous nastiness for more than a decade."

O'Connor says the attacks don't bother her. In an appearance on ABC's "This Week" last summer, she said: "When you work in a small group that size, you have to get along, and so you're not going to let some harsh language, some dissenting opinion, affect a personal relationship." Still, it's hard to imagine that Scalia's brow-beating has made O'Connor more inclined to vote with him, particularly as Scalia's dissents veer, as they sometimes do, perilously close to the realm of ad hominem attacks. In 1989, for example, while advocating the reversal of Roe vs. Wade, Scalia accused O'Connor of results-oriented judging, said her assertions could not be taken seriously, and closed by stating that O'Connor's efforts were "simply irrational."

Scalia was just getting started. Vik Amar, a professor at the University of California's Hastings College of the Law, says that, over the top as Scalia's rhetoric was in the early stages of his tenure, he reached a sort of carping crescendo in 1996, when he dissented in high-profile cases involving gender discrimination and gay rights.

In United States vs. Virginia, a case in which seven justices agreed that Virginia must open the previously all-male Virginia Military Institute to female students, Scalia exploded in rage over his notion that a "self-righteous Supreme Court, acting on its own Members' personal view of what would make a 'more perfect union' ... can impose its own favored social and economic dispositions nationwide."

And in Romer vs. Evans, in which six justices invalidated a Colorado constitutional amendment that prohibited any government entity from offering legal protections to homosexuals, Scalia reached for the weapons of class warfare in defense of anti-gay prejudice. "This Court," Scalia wrote, "has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that 'animosity' toward homosexuality is evil. I vigorously dissent." Looking back, Amar says, "These were a couple of cases where it became clear to Scalia and to the world that he was never going to be effective at convincing the middle justices to form a reliable majority for his constitutional vision." Amar, who clerked for Justice Harry Blackmun in 1990, said Scalia's dissents in 1996 "marked his marginalization in some way in building majorities."

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