Scalia Comes to Reside in State of Dissent

It’s apparently not easy being Justice Antonin Scalia.

Seeing himself as a lonely voice of reason and principle, he is marooned on “a self-righteous Supreme Court,” surrounded by a “lawyer-trained elite” that is determined to foist its “smug assurances” and “counter-majoritarian preferences” onto a helpless and unwitting nation.

As Scalia tells it, his legal views rest on history and law, while his colleagues adopt positions that are “irrational . . . preposterous . . . [and] comical.”

They refuse to see that homosexuality is the type of conduct that is so “reprehensible, [like] murder, for example” that it should be condemned in law. They fail to see why state-funded colleges should preserve “old-fashioned concepts such as manly honor” against invasions of capable, determined young women.

“The court must be living in another world,” the 60-year-old Scalia complained one day recently. “Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”

These days, it is hard to recognize the bright and witty Chicago law professor who ascended to the Supreme Court 10 years ago. Then, Scalia was seen as a leader who, through intellectual drive and personal charm, could help mold the Reagan revolution on the high court.

Now, however, the charm has given way to bombast and petulance.

By term’s end this year, even Chief Justice William H. Rehnquist had moved away from Scalia. Though a staunch conservative, Rehnquist is a modest and genial person who is invariably respectful of his colleagues, even those he regularly disagrees with.

Only Justice Clarence Thomas remains a faithful ally to Scalia.

Rehnquist voted with the majority to rule that the all-male admission policy at the Virginia Military Institute is unconstitutional, and he signed on to opinions expanding free-speech protections for government contractors, ignoring ferocious dissents from Scalia.

Putting Scalia on the high court “has proven to be a pyrrhic victory for conservatives,” said Stanford University law professor Kathleen Sullivan. “He has succeeded in thoroughly alienating [Sandra Day] O’Connor and [Anthony M.] Kennedy, and they hold the swing votes. He is true to the Reagan revolution, but he has scared away all the allies.”

The result is that the high court, though stacked with Republican appointees in seven of nine seats, still turns out major rulings with a decidedly liberal bent.

The opinion upholding gay rights in Colorado spoke for a 6-3 majority and was written by Kennedy. The opinion striking down the all-male policy at VMI spoke for a 7-1 majority. (Thomas had recused himself.)

Recent rulings in favor of free speech for government contractors had a 7-2 majority.

Yale University law professor Akhil Amar finds much to admire in Scalia’s writing but comments that he still acts like a law professor who fires off sharply worded missives to fellow academics.

“He believes there’s only one right answer to every question, and he has it. It’s an academic vice,” Amar said. “He is following in the footsteps of Felix Frankfurter.”

A renowned Harvard University law professor when he was named to the high court in 1939, Frankfurter was seen as being destined for greatness. But as a justice, he could not resist lecturing his colleagues, whom he viewed as dimwits.

Not surprisingly, his influence steadily shrank. Frankfurter spent his later years as the grumpy old man of the court whose dissents were generally ignored.

“There’s no question Scalia deserves the Felix Frankfurter Award for making friends and influencing people,” Sullivan joked.

It is not clear that Scalia’s decisions are any more consistent or principled than those of his fellow justices.

Consider, for example, the 14th Amendment’s clause that says no state may deny to “any person the equal protection of the laws,” a provision added after the Civil War to protect newly freed slaves.

Scalia has fiercely opposed affirmative action programs, such as those adopted by city councils to give blacks an edge in competing for some contracts. It is obvious, he says, the 14th Amendment gives white men a right to compete for all contracts or jobs “uninfected with racial bias.”

It is also “entirely clear,” however, that all young women may be excluded by law from applying to the all-male VMI, he says, without violating the equal-protection clause.

As a young man, Scalia attended an all-boys high school in New York and dressed in a military uniform. Nonetheless, when the 7-1 majority ruled that the 14th Amendment does not allow VMI to automatically exclude young women, Scalia accused his fellow justices of “acting on [their] personal view” of what is desirable, rather than applying a principled view of the law.

On the 1st Amendment, his views are similarly hard to reconcile with a clear principle.

Four years ago, he spoke for the court when it struck down, on free-speech grounds, a St. Paul, Minn., law that made it a crime to burn a cross in the front yard of a black family’s home. The 1st Amendment protects free expression, no matter how offensive, Scalia wrote.

But he dissented bitterly when the court ruled that a county board in Kansas violated the 1st Amendment when it retaliated against a trash hauler for writing a letter to the newspaper editor that criticized the board.

“It is profoundly disturbing,” Scalia boomed, “that the varying political practices across this vast country can be transformed overnight by an institution whose conviction of what the Constitution means is so fickle.”

Scalia’s former clerks, many of them young conservatives, are unwilling to speak for the record but defend his strong comments as reflecting his deep commitment to the job.

“He cares passionately about every case, even the minor ones that no one pays attention to. And he wants to get it right,” said one.

Another said his ex-boss seems particularly angered to be losing in a Republican-dominated court.

“These days, the liberals [William J.] Brennan, [Thurgood] Marshall and [Harry] Blackmun are gone, and he’s still losing. That’s got to be frustrating for him,” the former clerk said.

But the caustic, personal attacks on his colleagues are clearly not furthering Scalia’s cause, the former aide added. “I can’t defend the tone,” he said. “It’s not helpful at all.”