THE SUPREME COURT: CHANGE AT THE TOP : Excerpts From Opinions by Judge Antonin Scalia

Following are excerpts from three opinions written by Judge Antonin Scalia for the U.S. Court of Appeals for the District of Columbia:

Javier Sanchez-Espinoza et al vs. Reagan et al, argued May 24, 1984, and decided Aug. 13, 1985, involved a case in which 12 Nicaraguans sought redress for “injuries to themselves or their families at the hands of the contras in Nicaragua.” Scalia wrote the opinion dismissing the suit.

“Just as the special needs of the armed forces require the court to leave to Congress the creation of damage remedies against military officers for allegedly unconstitutional treatment of soldiers, so also the special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad.

“The foreign affairs implications of suits such as this cannot be ignored--their ability to produce what the Supreme Court has called in another context ‘embarrassment of our government abroad’ through ‘multifarious pronouncements by various departments on one question.’ We think that as a general matter the danger of foreign citizens’ using the courts in situations such as this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist.”

In 1984, Scalia sided, in a dissent, with a Marxist professor who sued conservative newspaper columnists Rowland Evans and Robert Novak for libel. The court majority in Ollman vs. Evans said that the columnists exaggerated when they said the professor had “no status” among his peers, but such exaggerations were acceptable as part of a lively political dialogue.

“If Evans and Novak had chosen to call (Prof. Bertell) Ollman a traitor to our nation, fair enough. No reasonable person would believe, in that context, that they really meant a violation of (federal laws against treason). But to say that hyperbole excuses not merely the exaggeration but the fact sought to be vividly conveyed by the exaggeration is to mistake a freedom to enliven discourse for a freedom to destroy reputation. The libel that ‘Smith is an incompetent carpenter’ is not converted into harmless and non-actionable wordplay by merely embellishing it into the statement that ‘Smith is the worst carpenter this side of the Mississippi.’

“What a strange notion that the problem of excessive libel awards should be solved by permitting, in political debate, intentional destruction of reputation, rather than by placing a legislative limit upon the amount of libel recovery. It has not often been thought, by the way, that the press is among the least effective of legislative lobbyists.”

In U.S. vs. Hansen (1985), writing for a unanimous three-judge panel, Scalia rejected an appeal by former U.S. Rep. George Hansen, convicted by a U.S. District Court for failing to disclose more than $200,000 in loans and $80,000 in profits as required by the Ethics in Government Act.

When 123 members of Congress filed a legal brief in support of Hansen, saying that criminal prosecution was not intended by the act, Scalia was critical: “The pattern is entirely consistent with the sort of legislative gamesmanship we described earlier, in which some members of Congress were gambling on the expectation that (the act) would be precluded, and others (who favored criminal penalties) were gambling on the opposite.”

Scalia also rejected the argument that the act did not provide for criminal penalties: “The two sections (of the law) combine to produce a natural progression in penalties. Those who intentionally fail to file (the proper) forms are subject only to the civil sanction, while those who lie on their forms are additionally subject to the criminal penalty. It will not do to give this principle of statutory interpretation mere lip service. . . . A steady adherence to it is important.”

Scalia also disposed of Hansen’s assertion that the information omitted would not have prompted an investigation because it would have only required checking off an extra category on the disclosure report form.

“Application of (the act) does not require judges to function as amateur sleuths inquiring whether information specifically requested and unquestionably relevant to the department’s or agency’s charge would really be enough to alert a reasonably clever investigator that wrongdoing was afoot.