THE KIND OF JUSTICE ONLY THE PUNDITOCRACY COULD LOVE:

No shades of gray for Scalia (Joan Biskupic, 9/17/02, USA TODAY)

No one on the high court cuts a swath quite like Scalia, the uncompromising conservative whose biting opinions and occasional jabs at other justices have created a cult following for his writings and shaped debates over how courts should view the Constitution.

Scalia, 66, was particularly caustic during the term that ended in late June. His sharply worded opinions gave insight not only into the rivalries at the court, but also into what seems to be Scalia's building frustration at not getting his way on a bench that is conservative — just not conservative enough for him.

He is especially critical of the middle-of-the-road reasoning of Justices Sandra Day O'Connor and Stephen Breyer. O'Connor, and to a lesser extent Breyer, have guided the court toward incremental changes in the law on issues ranging from abortion to crime and punishment. To them the law is fluid, the product of the specific facts of a case and evolving times.

Scalia seethes at what he views as their too-flexible interpretation of the Constitution and their inability to resolve cases once and for all, without forcing lower courts to guess at the meaning of rulings. His frustration is echoed by some lawyers and lower court judges.

Less popular is Scalia's rigid view of the law: Consider the Constitution only in its 18th-century context. Look to a statute's exact words, not to lawmakers' intent. If a ruling's outcome is socially unpleasant, let elected officials fix it.

Again and again during the past term, Scalia's frustration surfaced:

* In a case in which the court set limits for states that want to keep sexual predators confined after they have served their time, a dissenting Scalia — joined only by fellow conservative Clarence Thomas, his frequent ally — tore into the middle ground Breyer had struck for the seven-justice majority. Scalia said Breyer's vague standard for continued detention "gives trial courts ... not a clue" about how to carry the decision out.
* Scalia was so angered by the majority's decision that the Constitution forbids executing mentally retarded criminals that he ridiculed it from the bench. As the other justices sat impassively, he warned that defendants now will feign retardation, and death-penalty cases will become "a game."

"Seldom has an opinion ... rested so obviously upon nothing but the personal views of its members," his written dissent said.

* Scalia seemed testier last term with lawyers who came before the court. In one case, he accused the lawyer for a special education student of exaggerating the boy's condition: "What did he have — a stutter, perhaps? ... I suggest you not paint your client as more sympathetic than he is."

Off the bench, the Catholic justice declared that any Catholic judge who wants to follow the church's stance against the death penalty, rather than legal precedent favoring it, should resign.

To an extent, it all was typical Scalia: brainy, persistent and sharp-tongued, as he has been since joining the high court in 1986. But some legal analysts see a new edge to his attitude.

"It is striking his need to jab people in the eye," says Stanford University law professor Pamela Karlan. While O'Connor will "do what she can to win consensus and take control of a case, he's Rocky, the lone free ranger." [....]

Scalia's lack of influence on the court has led some analysts to speculate that his pointed opinions could be aimed as much at young lawyers who will be tomorrow's judges and attorneys general as they are at his colleagues. [...]

After he joined the high court, Scalia's aggressiveness irked some colleagues. He proved to be the opposite of Brennan: Rather than brokering compromises, Scalia fought over minutiae. It isn't unusual for him to join another justice's opinion, but to note that he doesn't agree with one paragraph.

He also refuses to join opinions that use congressional reports or speeches to interpret statutes. "We are governed by laws, not by the intentions of legislators," he has said, spurning the traditional approach of figuring out the benefits and penalties in a law.

Scalia's inattention to etiquette can be jarring. John Jeffries' biography of the late Justice Lewis Powell says that during Scalia's first session at the court, he asked so many questions that Powell whispered to Justice Thurgood Marshall, "Do you think he knows that the rest of us are here?"

The tension between Scalia and O'Connor has been most pronounced. Both are generally conservative, but O'Connor is constantly weighing what to her are gray areas of the law, while Scalia's view is all black or white.

Perhaps Scalia's most famous condemnation of O'Connor came in a 1989 abortion case, when he said her views "cannot be taken seriously." In 2000, when the court struck down Nebraska's ban on a midterm procedure it called "partial birth" abortion, Scalia's dissent again targeted O'Connor.

In June, when he dissented from O'Connor's majority opinion allowing people who were not named in a class-action lawsuit to object to terms of a settlement, he wrote: "I mentioned in a recent dissent the court's penchant for eschewing clear rules that might avoid litigation. Today's opinion not only eschews such a rule; it destroys one that previously existed."

The pragmatic Breyer also is a regular foil of Scalia. Dissenting from a recent Breyer opinion that said an employer ordinarily doesn't have to bend its seniority system so that a disabled person can stay on the job, Scalia complained that the majority responded neither "yes" nor "no" to the question, but rather "maybe."

The justices typically do not criticize each other beyond their written opinions. Scalia's targets rarely use any ink answering him. One justice put it this way recently: Scalia has his ideas, the others are not going to persuade him to change, so they move on.

Many law professors speculate that Scalia could be more of a force in shaping the law if he weren't bound to such divisive rhetoric. "His vigor and occasional viciousness ... in written opinions may, in the long run, alienate people who might be his allies in moving the court to the right," liberal Harvard University law professor Laurence Tribe says. "I therefore hope he will keep it up."

All of the talking heads who are so upset about Harriet Miers and wish the President had appointed another Scalia seem completely ignorant of how the Court actually works. Or else they are so wrapped up in their own profession that they think good sound bites are better than conservative majority opinions. The President, on the other hand, seems to want to change the Court.

MORE:
JUDGING THE JUDGES (The NewsHour with Jim Lehrer Transcript, June 29, 1998)

PAUL CAMPOS: I think actually Justice Scalia's influence may be diminishing. I think that perhaps the most striking evolution that has taken place among the members of the court over the last few years has been Justice Scalia's striking marginalization as he attempts to strike out his own theory of constitutional, especially statutory interpretation. Supreme Court Wrap I think he is being more and more ignored by the other justices in terms of trying to have a coherent theory and in terms of trying to enforce a coherent theory as statutory and constitutional interpretation, and I think he's becoming more and more of a sort of outlier and marginal figure in terms of the basic conversation that's taking place on the court.

Posted by Orrin Judd at October 8, 2005 10:13 AM