Analysis
Is Scalia Too Blunt To Be Effective?
Justice Out of Case About Which He Cares
David Von Drehle
Washington Post Staff Writers
Friday, October 17, 2003; Page A27
Early next year, the Supreme Court will decide potentially the most significant case on the relationship between church and state since the court banned public school prayer in the 1960s.
Yet a member of the court 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 on Tuesday that it would hear the case -- almost certainly means one vote fewer for the proposition that the states can require public school teachers to lead their 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 a majority of his 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 A. 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 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 Thomas Jefferson thought it meant, 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 obvious scorn. Change should come through legislatures and through Congress, he argues, not by "judicial fiat."
Some critics charge that Scalia manages to find constitutional support for his own beliefs when it suits him. He has countered by noting that he voted to uphold a First Amendment right to burn the American flag despite his personal abhorrence of the act.
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 often 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."
Appointed by President Ronald Reagan in 1986, Scalia arrived on the court amid conservative hopes that he would spearhead a resurgence of traditionalist jurisprudence. For all the intellectual heft of his opinions, however, when it comes to the social issues about which he and his supporters feel most strongly, Scalia, 67, has found himself doing his best work in dissent. On school prayer, abortion, gay rights and affirmative action, Scalia has lost, time and again.
Meanwhile, power has rested with the moderate conservatives -- Justices Sandra Day O'Connor and Anthony M. Kennedy -- whose more flexible approach has made it easier for them to forge majorities that sometimes include the court's liberal members.
"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 told an audience at the Smithsonian last year, according to the Associated Press. "I'm not always successful."
If anything, Scalia's tone has only intensified recently. His dissent in a 6 to 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."
This is not the language of a man who feels he has shaped the court to his own liking, a former Scalia law clerk noted. "The persona he is projecting publicly is not the persona of a guy who's made the mark he wanted to make," the former clerk said.
The comments that apparently prompted Scalia's recusal 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 in critical cases. While speaking, he pointed to a man carrying a sign that said, "Get Religion Out of Government."
"If the gentleman holding the sign can persuade all of you that we should eliminate God from the Pledge of Allegiance, that could be democratically done," Scalia said. It should not, he added, be done by judges. This shows, Newdow later argued, that Scalia had prejudged his case.
Richard Lazarus, a Supreme Court expert at Georgetown University, finds it "tragic or ironic, depending on your point of view," 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.
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