Scalia: Signs of Hope

It is too early to make a judgment, but the newest member of the U.S. Supreme Court, Antonin Scalia, who was considered the conservative soul mate of Chief Justice William H. Rehnquist, has surprisingly voted in a number of important cases with William J. Brennan Jr., the court’s most liberal member.

Earlier this month Scalia joined the majority against Rehnquist and the Reagan Administration in voting to order that easier standards be applied in determining which refugees are granted asylum in this country. And this vote was not an aberration. The court’s docket is not yet half complete, but Scalia has already voted with a liberal majority to invalidate curbs on door-to-door politicking in Illinois, to require employers to grant unpaid pregnancy leaves and to overturn political shenanigans in Alabama designed to disfranchise black voters. In each of these cases Scalia’s vote turned a shaky 5-4 split into a solid six-vote majority, which gives the entire legal system much more guidance about the Supreme Court’s view of things.

In four cases decided so far involving the police, Scalia has voted three times in favor of giving them broader power. But in the fourth case, in which he himself wrote the opinion, Scalia ruled that the police acting under a search warrant for something else could not move stereo equipment to check its serial number in case it had been stolen. The Fourth Amendment, Scalia said, “sometimes insulates the criminality of a few in order to protect the privacy of us all.” Exactly so. Even Brennan could not have said it better.

In three-fourths of the cases decided so far, Scalia has indeed voted with Rehnquist, as President Reagan thought he would when he appointed him to the court last year. But in the early going Scalia has shown an encouraging independence and clarity of thought, raising hope that Reagan’s plan to shape the court into his conservative mold for years to come may yet be foiled. Brennan, the court’s senior member, was appointed by President Dwight D. Eisenhower, but over the years has become the court’s premier champion of the rights of individuals. Scalia, the court’s youngest member, has already shown that he is no lockstep ideologue and that there is reason to hope that he will show more good sense in the future.