Witty, but Wrong

The U.S. Senate is all but certain to confirm William H. Rehnquist as the next chief justice of the United States and then approve Antonin Scalia to take his place as a justice of the Supreme Court.

Like Rehnquist, Scalia is a highly intelligent, widely praised judge and an arch conservative. His philosophy, expressed in articles and opinions that he has written since joining the U.S. Circuit Court of Appeals in 1982, is a near-perfect fit with President Reagan’s political views. Scalia opposes affirmative action and abortion. He would give wide discretion to the executive branch in matters ranging from consumer affairs to foreign policy. He believes that the Freedom of Information Act was a mistake, and he favors the government’s right to keep secrets.

In a 1982 article in the journal Regulation (published by the American Enterprise Institute), Scalia wrote: “The defects of the Freedom of Information Act cannot be cured as long as we are dominated by the obsession that gave them birth--that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public, and its surrogate, the press.” Since joining the bench Scalia has implemented this view, almost always deciding against plaintiffs seeking government information and consistently deciding in favor of plaintiffs suing the press for libel.

On matters of race, Scalia has expressed “grave doubts about the wisdom of where we are going in affirmative action.” As a judge, he has also imposed a high burden of proof on people who bring suit charging that they have been the victims of discrimination.

Scalia cloaks his policy choices in the clothing of “judicial restraint”--the notion that the courts must defer to the political branches of government in setting public policy. Thus on abortion, for example, he says that the decision about what the people want should be left to legislatures, which are responsive to the voters, and not to courts, which are not.

In 1978 he said, “The courts’ expansion stems, in part, from their function of deciding what are constitutional rights. Much of their activity is in that area, and I think they have gone too far. They have found rights where society never believed they existed.”

Yet, earlier this year, Scalia wrote the Court of Appeals decision striking down the Gramm-Rudman law that Congress had just enacted (a decision subsequently upheld by the Supreme Court). There was more than a touch of irony in a staunch proponent of judicial restraint becominga judicial activist.

Scalia’s style is clever, witty and distinguished. He will no doubt add intellectual rigor to a court that sometimes seemed adrift or confused under the stewardship of Chief Justice Warren E. Burger. But while we admire the strength and clarity of his views, we find little in them to agree with.