Scalia and the Court: Pulling Consensus to Right

<i> David M. O'Brien is associate professor of government at the University of Virginia and author of "Storm Center: The Supreme Court in American Politics" (W.W. Norton, 1986)</i>

Whether the Supreme Court carries the “Reagan Revolution’ into the next century turns on the appointment of Antonin Scalia, far more than the elevation of Justice William H. Rehnquist to the chief justiceship. And, given the way the U.S. Supreme Court works, Scalia’s personal style and skills will prove as important as his judicial philosophy. For the court to shift direction, in the short run at least, it will fall to Scalia to move Justices Lewis F. Powell Jr. and Byron R. White--the centrists--and forge a conservative majority with Rehnquist and Justice Sandra Day O’Connor.

Next to Rehnquist and fellow-appellate court Judge Robert H. Bork, no other legal scholar has been closer to the Reagan inner-circle or had more influence in shaping the Administration’s judicial and political agenda than Scalia. With his energy and comparative youth (at age 50), he will be able to continue this agenda long after Reagan has left office.

Ideology and judicial philosophy, however, are not all that the Administration is banking on. By naming the first Italian Catholic, the religious right-wing may be appeased and an appeal made to ethnic voters, in the way that O’Connor was a gesture to women. Even more important, Scalia enjoys a reputation as a team player and consensus-builder. His personal skills are what the Reagan Administration is really betting on. They gave him an edge over the other leading candidate--Bork--and will be tested in getting the court to move rightward.

“Nino,” as he is known to family and friends, is sociable, hard-working and profoundly conservative. He will bring a good deal of color to the court. He has a quick wit, a street-wise sense about him and the kind of engaging and incisive mind that one finds among New York intellectuals.


More than charm and conviviality, however, will be needed to win others over. Whether Scalia proves successful depends on his willingness to compromise and accommodate others. Rehnquist has often preferred to stand alone. Scalia is more open-minded to the extent that he enjoys kibitzing and debating. But, once he has decided, he also tends to give no quarter and to stubbornly hold fast--earning him yet another nickname, “Ninopath,” on the court of appeals. Whether Scalia is willing to temper his language--and often condescending, and even sarcastic, tone--as well as bend on some of his hard-line views remains to be seen.

Scalia’s conservatism is rooted in the boyhood of a deeply religious, cultured and intellectual family life. His father was a professor of Italian literature at Brooklyn College, and his mother a grade-school teacher. After graduating from a Jesuit school in Manhattan, he went to Georgetown University and Harvard Law School, where he made the Law Review. He then practiced six years with one of the country’s leading law firms before joining the faculty of the University of Virginia School of Law.

Besides being an energetic scholar, Scalia has always been a mover and shaker. Throughout the 1970s, he established connections with many who would assume positions of power in the Reagan Administration. In 1971-72, he took a one-year leave to work as general counsel in the Nixon Administration’s Office of Telecommunications Policy. Two years later he was tapped by President Gerald R. Ford’s attorney general, Edward H. Levi, to take over as head of the Office of Legal Counsel in the Department of Justice. When Ford left office, Levi returned to the University of Chicago Law School and persuaded Scalia to come along.

Before going to Chicago, however, Scalia spent perhaps the most crucial year of his early career at the American Enterprise Institute--then the largest conservative think-tank in Washington. It was a Republican refuge, a stronghold from which to issue attacks on the Carter Administration, as well as to formulate what would become much of the Reagan agenda. Along with Bork and Laurence H. Silberman, both also now on the District of Columbia Circuit Court of Appeals, Scalia joined James C. Miller III, now director of the Office of Management and Budget; Jeane J. Kirkpatrick, former ambassador to the United Nations; Irving Kristol, the influential neo-conservative, and Jude T. Wanniski, architect of supply-side economics.


At the University of Chicago, Scalia maintained his association with AEI, serving as editor of its magazine, Regulation, writing articles attacking Carter’s regulatory policies. He also helped found the Federalist Society, a fraternity of law students from which the Reagan Administration would fill its ranks of lawyers.

By 1980, Scalia was well-connected with the then-incoming Reagan Administration. But, he turned down an early offer of a judgeship on the appellate court for the Seventh Circuit, in Chicago, in order to await a possible opening on the District of Coloumbia Circuit. Scalia has always been interested in the exercise of power and putting ideas--and what had become the Reagan Administration’s agenda--to work. In 1982, Ronald Reagan placed him on the appellate court in Washington, considered the second most powerful court in the land because it handles the vast majority of all challenges to administrative action and regulatory policy.

On the appellate bench, Scalia continued to make his mark and to exercise considerable influence. His law clerks went into the Administration or on to clerk at the Supreme Court. He remained a prolific writer: almost two dozen articles and, in four years on the appellate court, more than 80 majority opinions and dozens of concurring and dissenting opinions.

Scalia consistently developed a home-spun but trenchant philosophy of aggressive judicial conservativism, endearing him to the Administration: a severely limited view of freedom of expression; antagonism toward affirmative action, abortion and the “liberal jurisprudence” that undergirds past judicial activism; a corresponding deference to broad presidential power and control, and a respect for tradition, a rigid separation of powers and limited governmental intervention into the economy based on free-market capitalism.


His views on the First Amendment, for example, are so extreme that conservative columnist William Safire last year called him “the worst enemy of free speech in America today.” He favors not only making it easier to win libel awards, but cutting back protection for peaceful demonstrations and other forms of “symbolic speech.” Constitutional law in the last 50 years simply got it all wrong, according to Scalia. Nor is the Freedom of Information Act spared his acerbic pen. Too much data is released to the public and, in his view, the act “is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored.”

Even Rehnquist appears more moderate on some issues of civil rights. “Without question,” Rehnquist observed in Meritor Savings Bank vs. Vinson, “when a supervisor sexually harasses a subordinate because of the the subordinate’s sex, that supervisor ‘discriminates’ on the basis of sex.” By contrast, in that same case in the lower court, Scalia sided with Bork in rejecting the claim and stressing “the awkwardness of classifying sexual advances as ‘discrimination.’ ”

Although Scalia will prove a powerful ally of Rehnquist and O’Connor, he is not as taken by their brand of judicial self-restraint based on “strict constructionism” and pays less deference to states’ rights. He is a more aggressive and ideologically committed. Much will thus depend on Scalia’s not alienating the centrists during conference. If the centrists swing over to the conservatives, Rehnquist, as the chief justice, will be a position to assign opinions for the majority. Otherwise, the balance could tip at conference, giving senior Associate Justice William J. Brennan Jr., the power to assign opinions. Even if Scalia tempers himself, Powell, White or O’Connor--all respected, more experienced and more moderate conservatives--could still well take the lead. Certainly, when writing opinions, Scalia will have to moderate his own views in order to build and command a majority.

To capture and hold the centrists on the court, the new right-wing trio must match wit and wisdom with that of the old consensus-builder: Brennan. Scalia’s personal style and approach is more closely matched to that of Brennan than any of the others, and that is what makes him so formidable. Though one is a conservative Italian Catholic and the other a liberal Irish Catholic; both are sons of immigrants, students of the art of politics who work well with others and know how to shape opinions and forge coalitions. Still, his ideological fervor may well limit his ability to compromise, whereas Brennan has proven over the years that he knows how to both sway and yield so as consolidate power and maintain his principles. The challenge for Scalia will be to master Brennan’s style and approach without sacrificing his own agenda.


The court is likely, in the near term at least, to continue down the paths tread by the Burger court; no sharp change in direction, though perhaps a slightly more conservative tone in some rulings. Scalia, however, will be a force to be reckoned with. Whether and how far the court as reshaped by Reagan dismantles the house built by the Warren court and charts a new course will ultimately turn on the competition for influence among the justices, and whether the bench is packed with still more “true believers” like Scalia.