CQ.com
News My CQ Bills Committees Members Search
About CQ Products
Advertise Customer Service
CQ WEEKLY
April 24, 2006 – Page 1074

Courts & the Law: Scalia v. Dignity

Conservatives love Antonin Scalia. And no wonder. The Supreme Court justice just loves to stick it to the liberals. And with life tenure he can get away with it. In recent weeks, Scalia has denounced people who believe in a “living Constitution” as “idiots” and told critics of Bush v. Gore to “get over it.” He has defended his decision not to step out of a case involving his duck-hunting companion Vice President Dick Cheney, and he has raised a new question about his impartiality in a pending case by publicly declaring that foreign terrorists are not entitled to jury trials.

Most famously, Scalia answered a Boston reporter’s church-state question about his attendance at a special Roman Catholic mass for lawyers and judges last month with a Sicilian gesture that was at the least insulting and arguably obscene.

Scalia’s pugnacious style off or on the bench makes him — in the words of Supreme Court expert David O’Brien at the University of Virginia — “the poster child for the right wing of the Republican Party.” Conservatives would do well, however, to question whether Scalia’s antics really serve their interest.

To be sure, Scalia has staked out some of the most conservative positions of any Supreme Court justice since perhaps the 1930s. And his vote has been decisive in any of the 5-4 decisions where he joined the majority, like the series of cases under former Chief Justice William H. Rehnquist easing the rules for government funding of religious institutions and strengthening states’ rights in disputes over federal powers.

Scalia’s personal influence after 20 years on the court, however, is unclear. In most of those closely divided cases, Rehnquist turned to justices other than Scalia to forge and hold a majority. If he were to retire today, Scalia would be remembered mostly for taking positions in dissenting or separate opinions that even his fellow conservatives sometimes refused to join.

On several of his signature issues, Scalia is clearly in the minority on the court. Scalia believes in “original intent” as the only way to interpret the Constitution. At least six of the court’s current members disagree, including the new chief justice, John G. Roberts Jr. Scalia believes that foreign law should never be used to help interpret the Constitution. A majority of the justices, including conservative Anthony M. Kennedy, disagree. And none of the other justices agree with Scalia on his stubborn refusal to ever look at legislative history in interpreting congressional statutes.

Scalia also is in the minority on more visible issues, such as his votes in dissent to overturn the Roe v. Wade abortion rights decision and the Miranda v. Arizona ruling on police interrogation.

In fact, two recent collections of Scalia’s opinions consist either exclusively or primarily of dissents. “He’s not a consensus builder,” says Paul Weizer, a professor at Fitchburg State College in Massachusetts, who included just three majority opinions in a Scalia collection of 25.

Disagreement, or Vituperation?

Dissenting opinions can serve a purpose, of course. They are, as former Chief Justice Charles Evans Hughes once wrote, “an appeal to the brooding spirit of the law, to the intelligence of a future day.”

In Scalia’s hands, however, a dissent is often as much vituperation as cerebration. He denounced the 7-1 ruling requiring admission of women to Virginia Military Institute as the work of an “illiberal Court.” He accused the six justices who struck down state anti-sodomy laws of taking sides in “the culture war.” The five who voted to limit display of the Ten Commandments in government buildings, he said, were guilty of “hostility to religion.”

At times, Scalia’s sharpness must surely grate on his colleagues. In a program shown years ago on C-SPAN, former Justice Sandra Day O’Connor remarked unfavorably on the argumentativeness of some of the “academics” on the court. Scalia sharpened his conservative teeth as a law professor at the University of Chicago.

A couple of years before that, Scalia had sneered at O’Connor’s refusal in a 1989 case to vote to overturn Roe. O’Connor’s view, Scalia wrote, “cannot be taken seriously.” Weizer says comments like those explain why Scalia “has not had the kind of influence” that many expected him to have.

Scalia’s colleagues do not stoop to reply to his personal attacks, and none has criticized any of his recent off-the-bench comments. But others have. O’Brien says, judiciously, that Scalia has “overcome wisdom with his remarks.” Dennis Hutchinson, a professor at the University of Chicago and co-editor of The Supreme Court Review, is more direct. “It’s sad as much as anything else,” he told The Washington Post’s Charles Lane. “It just does not add to the dignity of the office.”

The irreconcilable right wing cares little for the dignity of the court. Conservative bloggers were openly contemptuous whenever they felt betrayed by the Rehnquist Court, and some seem poised to attack the newly arrived justices, Roberts and Samuel A. Alito Jr., at any sign of inconstancy. That’s politics perhaps. Scalia, however, is no politician, but a robe-wearing justice. The court — and the public it serves — deserve better.

Kenneth Jost is the Supreme Court editor for CQ Press.

Source: CQ Weekly
The definitive source for news about Congress.
© 2006 Congressional Quarterly Inc. All Rights Reserved.

Free Features
 CQPolitics.com
 Craig Crawford's 1600
 Courts & the Law
 Media
 Futurist
 States & Localities
 CQ Homeland Security
 CQ Midday Update