Sunday, December 13, 2009

Scalia: The Justice of Injudicious Temperament

     Justice Antonin Scalia has a well developed capacity for indignation that he directs at any number of targets, including Congress, “living constitutionalists,” and international law advocates. But even long-time Scalia watchers seemed surprised early in the current Supreme Court term when Scalia chose Jewish war veterans for one of his signature from-the-bench outbursts.
     Scalia professed incomprehension during the Oct. 7 arguments in Salazar v. Buono that Jewish war veterans could feel slighted at the designation of a Christian cross — with no other religious symbol — as a national memorial to World War I veterans. The eight-foot high cross, originally erected by the Veterans of Foreign Wars but later given official recognition by Congress, sits atop a hill in a remote location in the Mojave Desert in California.
     “The cross doesn’t honor non-Christians who fought in the war?” Scalia asked of the lawyer representing a plaintiff who views it as an unconstitutional government endorsement of religion. The cross, Scalia continued, “is the most common symbol of the resting place of the dead.”
     In all seriousness, ACLU attorney Peter Eliasberg felt obliged to explain to Scalia, a devout Roman Catholic, that the cross may be a common symbol for Christians, but not for others. “I have been in Jewish cemeteries,” Eliasberg said. “There is never a cross on a tombstone of a Jew.”
     Scalia remained unconvinced. His voice rising, Scalia insisted that the idea that the cross honors only Christian war veterans was “an outrageous conclusion.”
     The episode comes to mind these days as Scalia’s legacy during 23 years on the Court is being examined thanks to the first full-length biography of the justice. In American Original, Joan Biskupic, the longtime Supreme Court reporter for USA Today, provides a scrupulously fair account of Scalia’s life and views.
     Biskupic, a friend and colleague for 20 years, has informed her narrative with several interviews with Scalia himself and with six of Scalia’s current or former colleagues. She accurately describes his reputation for brilliance, his strongly held legal views and his apparently increased influence in the four years since the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
     Along with those positives, however, Biskupic also presents the major elements of the less favorable view of Scalia the justice: his outsized ego, overbearing personality, and intellectual inconsistency. Tellingly, the most damning items come from Scalia himself or from other justices who simultaneously profess admiration for and exasperation with their irascible colleague.
     “I love him,” Justice Ruth Bader Ginsburg tells Biskupic, “but sometimes I’d like to strangle him.” Ginsburg and her husband are close friends with Scalia and his wife: the justices share a passion for opera; the families share festive holiday dinners.
     Justice John Paul Stevens, the longest serving of the Court’s current members, says all the justices admire Scalia’s “writing ability and his style and all the rest.” But, Stevens adds, “Everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”
     From Biskupic’s telling, Scalia’s dogmatism may be traced as far back as his years as a student at a Jesuit-run, all-male military academy, where the school newspaper once described him as “an exemplary Catholic.” Scalia’s pre-ecumenical faith helps explains his blind spot to the Jewish war veterans’ argument. So too his experience at an all-male military academy helps explain Scalia’s scornful dissent when the Court in 1996 ruled the all-male Virginia Military Institute guilty of unconstitutional sex discrimination.
     From Scalia himself, readers learn that despite his illustrious career he nurses long lingering resentments. More than 50 years later, Scalia still broods that Princeton rejected him because of his Italian immigrant background. (He went on to graduate first in his class from Georgetown.) Nearly 30 years after the fact, he remains “bitterly disappointed” that President Ronald Reagan passed him over for solicitor general in 1981. (He was appointed the next year to the federal appeals court in Washington.) And after Chief Justice William H. Rehnquist’s death in 2005, Scalia evidently hoped for elevation to the post even while acknowledging the reasons for picking someone else.
     Biskupic recounts some of the many examples of Scalia’s argumentative questioning from the bench — and his response that Ginsburg can be just as bad. She quotes some of Scalia’s inflammatory dissents — and his comment in a slightly different context that he is “not that nasty a fellow.” And she notes, in the face of Scalia’s denial, that he applies his “originalism” to constitutional cases selectively, upholding laws that he approves (abortion regulations) while striking down laws that he disapproves (the District of Columbia gun ban).
     Throughout, Biskupic draws a portrait of a justice who is the very antithesis of the model judge of open mind and judicious temperament. Scalia came to the Court on Rehnquist’s elevation to the chief justiceship in 1986 and succeeded then to Rehnquist’s place as the most conservative of the nine. When Rehnquist’s bust was unveiled at the Supreme Court last week [Dec. 10], Roberts remembered his fellow conservative as “modest and unassuming,” while the liberal Stevens recalled Rehnquist as “absolutely impartial” in all procedural matters.
     Some day, Scalia will be honored with his own bust in the Supreme Court building. There will be fond tributes, no doubt, but modesty and impartiality will likely go unmentioned.

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