Scalia: captain of a ship that may never come in Conservative justice fights on alone


WASHINGTON -- When the Yankees play at Camden Yards, a famous -- and devoted -- fan of theirs sometimes can be found in a good seat there. But not easily. He will blend in perfectly, wearing an ordinary baseball cap and glasses. He won't look a thing like Antonin Scalia.

It may be only at the ballpark that Justice Scalia really blends in. At the Supreme Court, where he works as the nation's premier showman-judge-theoretician, he is a loner who is losing regularly in a stubborn fight to protect the true conservative cause against the "balancers," the moderates in the middle of the road who are now in control.

To him, it doesn't always matter greatly that his side loses. As he once said to a companion after watching the Orioles beat the Yankees at Camden Yards, "It was a great game -- but it turned out wrong!"

Certainly, he can fight back verbally when he loses in a big way within the court, but this man known for his charm always insists that there is nothing personal about it. He has a barbed wit and barbed computer keys, and both frequently leave stings -- unintentionally, he will say fervently.

He is a loner mainly because he remains the solitary captain of the conservative revolution that never quite happened at the court. Practically alone, he is what is left over from the attempt to "Reaganize" the Supreme Court, turning it into a deeply conservative bastion where new rights no longer emerge from "activist" judges, and even old rights get strongly diluted if not dissolved.

At the tender age, for a justice, of 57 and after only seven terms on the court, Antonin Scalia is on the verge of becoming a historical curiosity, perhaps already "a figure of the past," as an admirer, Bruce Fein, Washington lawyer and former official with the Ronald Reagan administration, tentatively phrases it. "I don't see on the horizon that we're going to get more people [on the court] like Scalia."

It is an assessment that is shared by some liberals, too. Says Harvard law professor and constitutional expert Kathleen Sullivan, a sometime-adviser to the Clinton administration: Justice Scalia's "hard-edged judicial conservatism has failed to take hold at the court; it has been overtaken by the more moderate approach of the balancers."

Justice Scalia is not expected to get an ally when President Clinton names a replacement for retiring Justice Byron R. White within the next few weeks.

When the court is divided, Justice Scalia seldom leads a majority, and he is able as a routine to count only upon Justice Clarence Thomas' voting with him. Even Justice Thomas, however, insists in private encounters that he is independent of any "bloc" on the court, including any two-man bloc with Justice Scalia.

The two great ambitions of the "Reagan revolution" that Justice Scalia was to help gain within the court -- completely ending the constitutional right to abortion and bringing prayer back to the public schools -- were never achieved. Abortion rights remain, even if narrower in scope, and prayers are still banned from public education -- both the result of 5-4 rulings last year, with Justice Scalia on the losing side on both.

The main reason those causes were lost is that three other appointees to the court during the 12 years of the Reagan and George Bush administrations do not share the pure dogma of the constitutional faith of those administrations. Those three are the so-called "balancers": Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter.

The pure "Reagan-Bush" legal dogma is, in reality, dogma borrowed in considerable part from Justice Scalia himself. His judicial philosophy has three basic theories at its center:

* First, law works best when it is embodied in a hard, fast and clear-cut rule that people must obey and judges must enforce loyally -- letting legislatures deal with any hardships that result.

* Second, laws are best understood by their literal words and the ordinary meanings those words had when the laws were written.

* Third, the Constitution is to be understood, and applied, as the 18th-century authors intended in the beginning; it does not change with the times or shifts in public sentiment.

"He came to the court," Harvard professor Sullivan recalls, "with the clearest intellectual agenda of anyone on the court in a long time." And, because that agenda is simplicity itself -- rules are rules, and words mean what they say -- "it is easy to judge [Justice Scalia's] successes and failures." His most "notable failures," the professor suggests, were on abortion and school prayer.

To Justice Scalia, the Constitution's silence on abortion means that there is no such right there. He sees no sign that the authors of the Bill of Rights wanted prayers banned from the public schools. And, on a host of federal civil rights laws, he is openly hostile to reading them in the most expansive way the words can be read; if legislators don't write what they mean into law, judges should not supply any broader meanings, he thinks.

Within the current court, he loses more often on constitutional decisions than on those based on laws written by Congress or state legislatures. Whether he loses or wins on anything, though, Justice Scalia shows no signs of changing and no signs of withdrawing from the fray.

"It is hard to imagine him just receding from view," Ms. Sullivan remarks.

Indeed, the public image of the court would be profoundly changed if Justice Scalia were to recede from his most visible role, from the one part of the court's life and work where he remains the dominant figure. That is in the court's public "theater," its hearings on cases.

That is Justice Scalia's stage. Just why it is could be seen during a lively 60 minutes recently in a case on a fundamentalist church's plea for the right to hold worship services in a public school in the small Long Island town of Center Moriches, N.Y.

The two lawyers fielded a total of 209 questions -- 82 from Justice Scalia; no other justice had half that many. But sitting through 82 Scalia questions may not be an endurance test for the audience; it can be entertainment. It also can be a vivid display of Justice Scalia's clever use of sarcasm to make his points.

In the Center Moriches case, it was clear that Justice Scalia could see little wrong with using public school buildings for prayer services. He seemed drawn to the basic argument of the lawyer for Lamb's Chapel, the fundamentalist church, that having worship in a schoolhouse would contribute to community welfare.

And so he was troubled about something he had read in the case -- presumably, the night before, in his usual diligent preparation for a hearing. It was something in the other side's defense of banning rituals from the school building. The claim, made by New York's attorney general, siding with the school board, was that religion is for those who already believe, not for the good of the community.

Acting offended, Justice Scalia started working on the school board's lawyer about that comment. Giving no hint of where he would be going, the justice asked, "I grew up in New York state, and in those days, they used to have a tax exemption for religious property. Is that still there?"

The lawyer said it was.

"But," Justice Scalia went on, "they've changed their view, apparently. You see, it used to be thought that . . . a God-fearing person might be less likely to mug me and rape my sister. That apparently is not the view of New York anymore."

His point was becoming clear: He was needling New York for NTC disparaging religion as a moral force, and he wanted the other justices to focus on that, to entice them into letting more religion into the schools.

As is so often true with Justice Scalia, however, he was not content to leave it at a contrast of the change in morals in New York; the thought needed a punch line, preferably a funny one. With a straight face, as if he were entirely serious, he dropped the line: "Has this new regime worked very well?"

Gales of laughter rocked the court room, partly because the line was a wonderful put-down, partly because Justice Scalia's humor is admired at least for its cleverness: Supreme Court arguments are not usually made of such stuff.

Joining in the laughter, tilting her head back with delight on her face, was Justice O'Connor, who seldom appreciates Justice Scalia's domination or his one-liners. Her jaw noticeably tightens when he starts a round of inquiries to a lawyer.

Indeed, that same hearing provided a small vignette into why Justice Scalia's control of an argument sometimes, perhaps frequently, unsettles his colleagues. At one point, in the midst of one of the Scalia barrages, Justice O'Connor tried to get in a question. She was cut off after two words and had to wait for eight more Scalia questions before an opportunity came.

Even some of Justice Scalia's close friends seem somewhat put off by his theatrics on the bench. A liberal Circuit Court judge, Ruth Bader Ginsburg, who notes that she is very fond of Justice Scalia from their years as colleagues on the U.S. Court of Appeals, was discussing at a party recently her friend's performances as the self-cast star of the show: "Oh, Nino," she said maternally. "Sometimes I could just shake him!"

Those performances, Justice Scalia's admirers suggest, are part his intellectual playfulness -- and, perhaps, a display of intellectual arrogance.

Washington lawyer Fein says: "I would distinguish between arrogance in a social setting and intellectual arrogance. In a social setting, that is not his personality at all -- he is not a pretentious character. On the other hand, there's certainly more than a grain of truth to his general disposition not to look kindly upon people who haven't done their intellectual homework as he has."

The image of Justice Scalia as a self-absorbed showoff is now clearly a part of the popular culture: A few blocks from the Supreme Court, a bookstore prominently displays "The Supreme Court: A Paper Doll Book," lampooning each of the justices. On the pages for "Nino" Scalia, the book jokes that the last book he has read is an unpublished autobiography, "The Brilliant Life and Times of Antonin Scalia."

Justice Scalia is said to be well aware of that image and seeks simply to brush it off in private. But some of his private comments reveal a relish for being the dominant one in a group; one conversational partner recalled the justice's talking with gusto about the pleasure of sitting at the head of a table filled with his family of nine children. "It was the authority of it," said that individual.

The justice is seen fairly often on Washington's social circuit, but there, he seems not to affect the self-importance that others observe in him on the bench. Says one party companion: "He is very amiable, very sociable -- and I've seen him just walk around the room, drinking a beer out of a bottle."

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