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Nation & World: Sunday, October 19, 2003
Analysis
Justice Scalia's bluntness may thwart his effectiveness
By Charles Lane and David Von Drehle
The Washington Post
WASHINGTON — The Supreme Court next year will decide potentially the most significant case on the relationship between church and state since public-school prayer was banned in the 1960s.
Yet a justice who cares passionately about the issue will be stuck on the sidelines — a victim, it appears, of his outspoken disagreement with what he sees as the court's misguided impulse to banish God from the public square.
Justice Antonin Scalia's decision not to participate in the Pledge of Allegiance case — which he declined to explain publicly when the court announced Tuesday that it would hear the case — almost certainly means one vote fewer for the proposition that states can require public-school teachers to lead students in reciting the words "one nation, under God." It also provoked some court watchers to wonder whether the justice has become so blunt in his criticism of judges who "invent new rights" — and so frustrated by his inability to persuade colleagues to halt the trend — that he risks losing his ability to advance the conservative cause on the court.
Scalia took himself out of the case after Pledge opponent Michael Newdow noted that the justice had publicly criticized the idea that courts had the power to remove the words "under God" from the Pledge. Scalia told an audience in Fredericksburg, Va., on Jan. 12 that an appeals court's decision in the case was an example of a "new philosophy" among judges "that says, '(The Constitution) doesn't mean what ... the Framers thought it meant. It means what we think it ought to mean.' "
In saying that, Scalia was expressing a philosophy of constitutional interpretation that he has espoused throughout his career, first as a law professor and then on the Supreme Court. He believes the Constitution is unchanging, that the words and intentions of the authors are the last word on its meaning. He rarely mentions the alternative theory — of a "living Constitution" that evolves as society changes — without scorn. Change should come through legislatures and Congress, he argues, not by "judicial fiat."
Some critics charge that Scalia manages to find constitutional support for his beliefs when it suits him. He has countered by noting that he voted to uphold the right to burn the American flag despite his personal abhorrence.
In any event, Scalia has not been able to bring the court majority reliably to his side in 17 years of trying. At reunions of his clerks, he reflects on this in the sad tones of a man who has done his best but has come up short.
"He lives in a perfect world where you set out intellectual propositions and you stick with them," said a former Supreme Court clerk who admires him. "That is not always the most practical way for a justice to work."
Scalia arrived on the court in 1986 amid conservative hopes that he would lead a resurgence of traditionalist jurisprudence. For all the intellectual heft of his opinions, however, Scalia, 67, has found himself doing his best work in dissent. Scalia has lost time and again on school prayer, abortion, gay rights and affirmative action.
Meanwhile, power has rested with moderate conservatives — Justices Sandra Day O'Connor and Anthony Kennedy — whose more flexible approach has made it easier for them to forge majorities with the court's liberals.
"It drives him crazy when the Kennedys and O'Connors are willing to bend principles to reach a result," according to someone who has discussed court trends with Scalia over the years.
Scalia's colleague and longtime friend, Justice Ruth Bader Ginsburg, has said that the intensity of his language sometimes interferes with his ability to persuade. "Both of us love the law, and I've been known on occasion to suggest that Justice Scalia tone down his dissenting opinions ... because he'll be more effective if he is not so polemical," Ginsburg said at a speech last year. "I'm not always successful."
If anything, Scalia's tone has only intensified recently. His dissent in a 6-3 decision last term striking down anti-sodomy laws was withering, denouncing "a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."
The comments that apparently prompted Scalia's recusal from the Pledge case were an extended lament on 40 years' worth of court rulings barring government support of religion — rulings Scalia has been powerless to undo, largely because Kennedy or O'Connor did not join his view.
Richard Lazarus, a Supreme Court expert at Georgetown University, said it's "tragic or ironic" that Scalia's exasperated speech appears to have taken him out of such a high-profile case. "The very reason he spoke with such passion and such specificity is that he cares so much," Lazarus said.
Staff writer Jacqueline Salmon contributed to this report. |
