Intense, Feisty Scalia Gives High Court a Sharp Edge

Four years ago, when Justice Antonin Scalia took his seat on the Supreme Court, observers quickly predicted that he would be the driving force behind a conservative revolution in American law.

Quick-witted and intense, the former University of Chicago law professor dominated the debate in the panel’s stately, column-ringed courtroom almost from the start. A prominent law magazine immediately dubbed the institution “Scalia’s court,” insisting that if the high court’s sessions ever were televised, his name would become a household word.

But now, as the high court’s 1989-90 term comes to an end, Scalia seems more a force without followers. Rather than leading the court to the right, he has devoted much of the past year to berating his conservative colleagues for taking what he views as fuzzy or moderate positions.

Perhaps as a result, the stridence of Scalia’s writing is attracting more attention these days than the substance of his arguments.

“Scalia really had his fangs out this year,” says Northwestern University law professor Lawrence Marshall, who recently served as a court clerk. “His dissents seem to say that ‘if you don’t agree with me, you must be out of your mind.’ ”

“He’s the most ideological of the conservatives,” says University of Virginia law professor A. E. Dick Howard. But “he’s also the most provocative, interesting figure up there.”

Examples of Scalia’s blunt-spoken style abound:

--On the final day of last year’s term, Scalia lashed out at Justice Sandra Day O’Connor for refusing to cast a decisive fifth vote that would have been needed to overturn Roe vs. Wade, the landmark abortion rights case. Her stated reasons for refusing to rule squarely on the right to abortion were “irrational” and “cannot be taken seriously,” Scalia harrumphed.

--Two weeks ago, he sharply criticized the court for taking on the issue of whether a comatose person has a “right to die”--asserting that the answer is “neither set forth in the Constitution nor known to the nine justices of this court any better than . . . to nine people picked at random from the Kansas City telephone directory.” Instead, Scalia wrote, since the Constitution says nothing about abortion or a right to die, “we should announce, clearly and promptly, that the federal courts have no business in this field.”

--In March, when Chief Justice William H. Rehnquist joined with the court’s liberals to uphold a state law that banned corporations from running newspaper ads in support of political candidates, Scalia read an angry dissent from the bench: The government cannot use “censorship” to assure fairness in elections, he said.

--Two weeks ago, Scalia again slammed his fellow conservatives for failing to enforce another clearly defined right: By a 5-4 margin, the court had ruled that an accused child molester does not have “an absolute right” to confront his accuser in court and, therefore, that child victims may testify via closed-circuit television. Scalia lectured the majority that the Constitution “with unmistakable clarity” grants defendants in criminal cases the right to face their accusers. For good or bad, he declared, “the Sixth Amendment requires confrontation--and we are not at liberty to ignore it.”

Such onslaughts have given the 54-year-old Scalia a sure reputation as a zealot. “Rather than being a team player for the conservatives, he has taken on the role of the one who articulates the True Faith,” says University of Chicago Law School Dean Geoffrey Stone. “He proselytizes for the faith, and (then) chides his colleagues when they fail to live up to it.”

For Scalia, the True Faith means adhering strictly to the words of the Constitution. The First Amendment says that the government may not pass any law “abridging the freedom of speech,” so, in the recent ruling on flag burning, Scalia zealously protected the protesters--to the dismay of conservatives. The Constitution also says that every person has a right to the “equal protection of the laws,” so Scalia argues that any government preference for blacks or whites--such as affirmative action programs--is absolutely unconstitutional.

On the bench, Scalia energizes the court debates. While several of his aging colleagues sit somnolently through the arguments, Scalia prods and pokes at the attorneys on both sides. At times, a quick question reveals his New York boyhood more than his Harvard law background. Earlier this year, as a lawyer spun out a long-winded argument to make a dubious point, Scalia looked agonized, then amazed. Finally, he simply couldn’t hold back any longer. “Ah, come on. You can’t be serious about that!” he exclaimed.

Although the justice’s legal writings sometimes suggest an acerbic, even bitter man, Scalia after hours is warm, genial and outgoing. At parties, he is renowned for playing the piano and leading songfests. At the court, he jogs with his law clerks and greets court employees like old friends. One evening, several reporters spotted Scalia leaving the court in a tuxedo and teased him on his natty attire. “Ah, yes,” he retorted, “esteemed jurist by day, man about town at night.”

The son of an Italian immigrant, “Nino” Scalia grew up in Queens, N.Y., a blue-collar neighborhood on Long Island that was home to TV’s fictional Archie Bunker. A brilliant student, he was graduated at the top of his class at Georgetown University and Harvard Law School. After practicing law in Cleveland during the 1960s, he took a pay cut to teach--first at the University of Virginia, then at Chicago.

Scalia joined the Justice Department under President Gerald R. Ford. In 1981, then-President Ronald Reagan appointed him to the U.S. Court of Appeals in Washington. When Rehnquist was elevated to chief justice in 1986, Reagan tapped Scalia to be an associate justice.

Scalia’s supporters contend that the justice merely has attempted to fashion a clear, consistent intellectual approach to deciding constitutional cases. If a “right” is spelled out in the Constitution, Scalia says, the court should vigorously protect it; if not, the justices should stand back and let the other branches of government--cities, states or Congress--make the decisions.

Ironically, however, his strict, literalist approach frequently pits Scalia against another of the court’s better-known conservatives, Justice O’Connor, who takes a decidedly different approach. Like former Justice Lewis F. Powell Jr., O’Connor seeks to mete out justice and fairness, rather than ideology. Her opinions are balanced, nuanced, and--at times--confusing. Rarely is there a clear, firm declaration of her ideological views.

These days, liberals hang their hopes on O’Connor’s passion for balance. But to conservatives such as Scalia, her moderation is a cause for outrage. “My guess is that he is disappointed in her,” says Washington attorney Alan B. Morrison, a longtime friend of Scalia. “He probably thought he could persuade her to go further” in restricting abortion or affirmative action, Morrison said.

But Morrison, among others, questions why Scalia routinely attacks O’Connor so directly. “It’s hard to fathom how that will help his cause,” he says. Harvard law professor Laurence H. Tribe, who frequently argues before the court, agrees. Tribe says that Scalia’s domination of the debates “seems to irritate some of the other justices. I also think his shooting from the hip and aiming at the egos of his colleagues, has not endeared him to them,” he adds.

In an opinion last year in Croson vs. Richmond, for example, O’Connor argued that because the equal-treatment guarantee in the Constitution protects whites and blacks equally, the city of Richmond could not set aside 30% of its city contracts for black entrepreneurs. But O’Connor went on to say that affirmative action might be permissible in an “extreme” case if it were the only way to make up for blatant exclusion of blacks in the past.

By contrast, Scalia left no room for any such doubts. In a separate statement, he attacked O’Connor’s opinion as muddled and said that the court should rule clearly that official racial classifications of any sort were unconstitutional. He also forecast--correctly--that the court opinion was so ambiguous that it would simply spur more litigation.

Predictably, perhaps, the interpretation of O’Connor’s decision depended on the eye of the beholder. Conservative lawyers contended that her opinion marked the end of affirmative action efforts by state and city governments; civil rights lawyers said that it did no such thing.

Unintentionally, perhaps, Scalia’s dissent on the child-molester case placed him squarely in the same corner as the court’s three liberals. And that was not the first time: He joined with them last year--and again last month--to rule that the right to free speech protects protesters who burn an American flag.

“The liberals don’t give him credit where it’s due,” says Richard Bernstein, a Washington lawyer and a former Scalia clerk. “He obviously has no love for child-molesters or flag-burners, but he has a love for the language of the Constitution.”

But Scalia’s rigid interpretation of the Constitution frequently places him on the opposite side from the liberals. Over the last 25 years, the high court’s dominant liberal bloc created broad legal doctrines out of simple words in the Constitution. For example, the right to “liberty” was interpreted to mean that individuals have a right to privacy, that women have a right to abortion, and--now--that all Americans have a right to refuse life-sustaining medical treatment. Scalia would reverse all of these doctrines because they are not based on clearly spelled-out constitutional rights.

For Supreme Court lawyers who would like to present a tidy half-hour argument and then sit down, Scalia’s intense interest comes as a mixed blessing. “You know you are going to have to confront Nino,” said one attorney who appears before him regularly. “You have to prepare for him,” he says.

Most likely, attorneys will have to prepare for Justice Scalia for many years to come. If there is a voluntary retirement age for Supreme Court justices, it comes about age 80. And for Antonin Scalia, the energetic intellectual of the conservative bloc, his 80th birthday will come during the year 2016.

QUOTATIONS FROM JUSTICE SCALIA: On the “right to die”:

“The point at which life becomes ‘worthless’, and the point at which the means necessary to preserve it become ‘extraordinary’ or ‘inappropriate’ are neither set forth in the Constitution nor known to the nine Justices of this court any better than they are known to nine people picked at random from the Kansas City telephone directory. . . . I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field.”

On the “right to abortion”:

“I continue to believe...that the Constitution contains no right to abortion. It is not be found in the long-standing traditions of our society, nor can it be logically deduced from the text of the Constitution. Leaving this matter to the political process is not only legally correct, it is pragmatically so. . . . The court should end its disruptive intrusion in this field as soon as possible.”

On witnesses in child-molestation cases testifying via television:

“The Sixth Amendment provides, with unmistakable clarity, that ‘in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.’ That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child, but by the same token it may confound and undo the false accuser, or reveal the child coaxed by a malevolent adult. We are not free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees and then to adjust their meaning to comport with our findings. For good or bad, the Sixth Amendment requires confrontation and we are not at liberty to ignore it.”