High Court's Colorful Man in Black Justice Scalia

Article excerpt

In the cramped US Supreme Court press gallery, the view is so obstructed that an officer holds up cards to indicate which justice is speaking. With seven men on the bench, it's easy to confuse the softer tones of Justices John Paul Stevens, Anthony Kennedy, and Stephen Breyer.

But one voice is unmistakable. Its penetrating pitch cows lawyers, and it can range from a controlled explosion to a dancing light-hearted mockery. That's Justice Antonin Scalia - no need to look at the card.

Articulate and fiery, Justice Scalia stood out from the start. From forcefully written conservative decisions to gloves-off verbal jousting, from his philosophy of law to his sporty role as bon vivant on the Washington social scene, Scalia makes waves. He may not be the most politic or influential vote-getter on the bench. Yet since joining the nation's highest legal body 13 years ago, Scalia has overseen - some say singlehandedly - a basic shift in the court's underlying approach to law and the Constitution. Certainly he is one of the most colorful of the nine court members. No other justices have one, let alone two, Web sites set up by admirers. Some conservatives talk about "Nino," as he's known to friends, as a future United States president. (Scalia says no.) Moreover, Scalia has stayed in the news, even if the Supreme Court, with its lightest term in years, hasn't. He is cited around town for his lone dissent in the 1988 case that upheld the independent-counsel law, in the Iran-contra investigation. With Kenneth Starr's investigation of the White House now front and center, Scalia's dissent, which raises the likelihood of partisan abuse by a prosecutor, is being passed around like manna in Democratic circles. Some court observes expected that Scalia, with his academic brilliance and government experience, would be another William Brennan, a skillful consensus-builder for his cause. Yet his combative style and hard-edged legal theories have alienated him from court centrists such as Justices Sandra Day O'Connor and Anthony Kennedy. Papers of the late Justice Thurgood Marshall show Scalia's sarcasm could annoy even affable Chief Justice William Rehnquist, a fellow conservative. Instead, Scalia's impact has been on the way the court approaches constitutional law itself. By adhering to methods he calls "originalism" and "textualism," Scalia has prompted the justices to be more self-conscious about how they interpret law. Rather than following judicial interpretation of law, originalists go directly to the source - to the language of the Constitution of 1791, or to the post-Civil War 14th Amendment in 1868 that forbade discrimination. "Scalia is at the heart of a major shift on the court in how cases are presented and how legislative history is understood," says Michael Dorf of Columbia University in New York. "We used to start with history in thinking about interpreting law; now we start with language." This shift is apparent on both the liberal and conservative sides of the bench. "We are all originalists now," says liberal scholar Ronald Dworkin, who differs with Scalia not on methods but on how they are applied. Before the mid-1980s, the justices did not often hang their decisions on a theoretical legal framework. "Before Scalia, until the late '80s, the justices would issue a ruling and say, 'Here is why our opinion makes sense,' and then support it with some law and history," says Mark Tushnet of the Georgetown University Law School and a former clerk for Justice Thurgood Marshall. "But now everyone is much more conscious about looking at what the text {of the Constitution} says - and quite often less conscious about how that might fit into a social or practical context." "Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible," Scalia stated in a lecture at Princeton University in New Jersey three years ago. …


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