Antonin Scalia, self-made martyr

If conservative columnist Robert Novak is to be believed, Scalia was smarting from his "marginalization" as the Clinton era came to a close. In an unsourced report written in April 2000, Novak cited rumors that Scalia would step down from the court if Al Gore were elected president. "Scalia, the Supreme Court's conservative anchor, was dissatisfied with his colleagues even before President Clinton named two liberals to the nine-judge court," Novak wrote. "If Gore is elected with the prospect of naming still more liberals, Scalia's frustration could be too much, and he may call it a judicial career."

That's not how it happened, of course. While Gore unquestionably won the popular vote in 2000, Scalia, Thomas, Rehnquist, Kennedy and O'Connor intervened in the election just in time to prevent the nation from knowing who really won Florida -- and with it the Electoral College votes needed to take the White House.

By all rights, Bush vs. Gore should have marked the beginning of Scalia's climb back to power on the Supreme Court. During the campaign, Texas Gov. George W. Bush found it necessary to assure his base that he wouldn't make his father's mistake of appointing a moderate in conservative's clothing like David Souter. He did so by invoking the names of Scalia and his right-wingman, Clarence Thomas, as role models for future judicial appointments.

And by the time Bush took office in January 2001, it looked as though he would have as many as three chances to put Scalia clones on the Supreme Court. With a Republican in the White House, Rehnquist and O'Connor were sure to retire. The liberal John Paul Stevens, who will turn 84 in April, wouldn't be happy about giving Bush the power to name his replacement, but he might not have a choice.

None of that has happened, and barring a sudden health crisis or death, none of it is going to happen before the November election. Scalia has gained no new Republican colleagues on the court, and he seems to be losing influence over the ones he already has. Since the court's 2000 term, which began three months before Bush took office, Scalia's conservative bloc has steadily lost its grip on the court's closest cases. An analysis by a Supreme Court practitioner who monitors court statistics shows that, in 2000, the conservative bloc prevailed in 54 percent of the court's 5-4 decisions. In 2001, the conservatives controlled 48 percent of those cases. And in the 2002 term, which ended in June, the conservatives won just 40 percent of the 5-4 votes.

During the 2000 term, the most liberal justices were the most frequent dissenters. By the time the 2003 term ended, Scalia and Thomas were.

The need to dissent so often would be deeply disappointing to someone like the late Justice William Brennan, who aimed to push and pull his colleagues toward the "right" outcomes through persuasion, politicking and compromise. That has never been Scalia's style. A lawyer who clerked for Scalia says his old boss is focused solely on getting the decision right, even if attention to the tiniest arcane detail risks putting off other justices. "It does translate into a difference in ability to move others within the court," the former clerk said. "Brennan was a master at that because he never made enemies and because he didn't project certitude about his views. Justice Scalia is more concerned about 'getting it right,' even if it means not carrying the day. It's a brand of integrity that at some level is admirable."

At some level, it may be. But over the last nine months, Scalia himself has turned up the volume on his vitriol so high that it's hard to hear anything else. Scalia's latest round of rants began in June. In a single week, Scalia issued fiery dissents in three cases. He attacked as a "sham" an affirmative action program approved by a majority of the court, saying that the justification for the program "challenges even the most gullible mind." He argued that the majority's reasons for reversing the death penalty in an ineffective-assistance-of-counsel case range[d] from the incredible up to the feeble."

And in Lawrence vs. Texas, in which the court invalidated laws criminalizing sodomy among consenting adults, Scalia accused his colleagues of having signed on to "the so-called homosexual agenda" and "taken sides in the culture war" against people who simply want to protect "themselves and their families from a lifestyle that they believe to be immoral and destructive."

Scalia dissented in whole or in part six more times in a single week earlier this year. At the same time, Scalia has been making the rounds of the speakers' circuit -- in a speech last week at the College of William and Mary, he said that his colleagues on the court have fallen under the spell of the "enormously seductive living Constitution." All the while, he is working to patch up problems caused by his earlier extrajudicial activities.

As a result of off-the-cuff comments last year in which he said that the words "under God" could be removed from the Pledge of Allegiance only by democratic action and not judicial fiat, Scalia had little choice but to recuse himself from any participation in the Pledge case heard by the court last week. But just as the remaining eight justices were preparing to take oral arguments on that case, Scalia issued his extraordinary memorandum refusing to recuse himself from another case: the one challenging the administration's refusal to release records related to Vice President Cheney's energy task force.

Although Scalia acknowledged that he is a friend of Cheney's, flew to Louisiana as a guest of Cheney on an Air Force plane, and spent a few days hunting ducks with Cheney and a small group of friends -- including an energy company executive -- Scalia proclaimed that no reasonable person could possibly question his impartiality in the case. Scalia's 21-page memorandum was just as dismissive of concerns raised by the press, the public and the Sierra Club as he has ever been of O'Connor.

But remarkably, the Scalia memorandum took a more reasoned approach than that taken on two previous occasions in which Scalia addressed the Cheney issue. In a letter he wrote to the Los Angeles Times in January, Scalia said that the question of whether he should recuse himself was the third toughest the Times had put to him. The first two: How was the duck hunting? and, Was Dick Cheney on the trip with you?

And when he was asked about the alleged conflict of interest during a talk at Amherst College in February, Scalia said: "It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack quack." It wasn't quite "What's the frequency, Kenneth?" but in the world of oddball pronouncements from public figures, Scalia's birdcalls came close.

In his more sober memorandum refusing to recuse himself from the Cheney case, Scalia complained that he had been victimized. "I have received a good deal of embarrassing criticism and adverse publicity in connection with the matters at issue here -- even to the point of becoming (as the motion cruelly but accurately states) -- the 'fodder for late-night comedians.' If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot."

To be fair to Scalia, reasonable lawyers differ on whether he should have recused himself in the Cheney case. But there's not a whisper of reasonable disagreement in Scalia's memorandum. The truth is solely as he construes it, and there is simply no reasonable argument to the contrary.

Scalia's decision not to recuse himself keeps him on the bench to hear the Cheney case, but it surely won't help him climb any higher. If Rehnquist retires in the next four years, President Bush or President Kerry will have the opportunity to appoint a new chief justice. There's no chance that Kerry would choose Scalia. But Scalia's refusal to recuse himself in Cheney's case hurt his chances in any case, said Calabresi, Scalia's former clerk: "I think this makes it harder for President Bush to nominate him for chief justice, and it would be an issue in any confirmation hearing," As with so much else Scalia has said and done, the Cheney recusal memo may ultimately work against his long-term interests -- at least if those interests include becoming chief justice of the United States.

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