In Nino Veritas

...He then sets his sights on the heart of the matter, the idea that "cross-racial understanding" is an educational benefit sufficient to override the principle of nondiscrimination: "This is not, of course, an 'educational benefit' on which students will be graded on their law school transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding...

...The University of Michigan Law School's mystical 'critical mass' justification for its discrimination by race challenges even the most gullible mind," Scalia thunders in the first sentence of his opinion, insulting a colleague before reaching his thirty-second word...

...BY R. H. SAGER T 4 4 o be able to write an opinion for oneself, without the need to accommodate, to any degree whatever, the more-or-less-differing views of one's colleagues...

...At the most basic level, Justice Scalia is simply a rascal—a brilliant, hilarious rascal who keeps the rest of the Court on its feet, but a rascal, nonetheless...

...How many justices' opinions are forwarded around the Internet to highlightthe best one-liners...

...Washington's mandarins clucked...

...Given that fourteen years ago all the death penalty statutes included the mentally retarded, any change . . . was bound to be in the one direction the Court finds significant...

...But, honestly, isn't it his Supreme Court already...

...The dastardly Justice O'Connor constructed the majority opinion, upholding the University of Michigan Law School's racial preferences, even as the Court struck down an only slightly more rigid undergraduate scheme...

...The Great Scalia clearly cares passionately about the law, arguing for a strictly textual reading of the Constitution—as he does in his lively book, A Matter of Interpretation—as opposed to the "living Constitution" hope chest from which so many of his colleagues pick...

...Taking the "direction of change" argument by the horns, Justice Scalia pointed out that only eighteen of the thirty-eight states that have the death penalty exclude the mentally retarded—"less than half (47 percent);' as he noted...

...Another recent dissent—lower profile, but notable for its dramatic dollop of derision—was Atkins v. Virginia, in which a six-justice majority declared that executions of mentally retarded criminals violated the Eighth Amendment's prohibition on cruel and unusual punishment...

...But reason for cheer was not far off...

...A man with this restless a mind is unlikely to leave the court feet-first...

...For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be 'taught' in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens...

...David Souter undoubtedly has his moments, but I've never received selections from one of his opinions under the heading, "YOU HAVE TO READ THIS...

...This is all too high-minded, though...

...O'Connor's fuzzy reasoning may have carried the day, but the Great Scalia's foresight will be remembered when the caravan of new cases reaches the Court...

...Is this the kind of behavior that gets one elevated to chief justice...

...The Lawrence dissent, Caplan wrote, was "biting" and "sarcastic," which apparently makes quite a number of milquetoasts about town uneasy...

...How could he be so uncollegial...

...Regardless of one's view of the merits of the various states' laws, it was clear that the majority had little justification in the Constitution for its holding...

...Justice Scalia closes by ripping apart the fine distinctions drawn by the majority: "Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today's Grutter-Gratz [Gratz was the undergraduate case] split double-header seems perversely designed to prolong thecontroversy and the litigation...

...The occasion was the aftermath of the Court's landmark—why is it never a "rest stop"?—decision in the Lawrence v. Texas sodomy case, in which Justice Anthony Kennedy and five of his closest friends endowed Americans with a panoply of now constitutionally protected rights that our Founding Fathers never specifically contemplated, at least not without blushing...

...Then he opens his next segment of argument with the phrase, "Even less compelling (if possible) is the Court's argument .. ." But is there really anywhere to go after that parenthetical...

...he had called them hypocrites, and he had picked at the nits in their reasoning...

...when retirement rumors pop up about him, they center not on health, but on the question of whether he is enjoying himself...

...So we all need to just sit back and enjoy it...

...Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members," Justice Scalia wrote...

...Scalia had accused his colleagues of taking sides in the culture war...

...In what other direction;' he goes on, "could we possibly see change...

...It truly is an unparalleled pleasure, after a decision comes down from the Supreme Court with which one disagrees, to be comforted by those two wonderful words: "Scalia" and "dissenting...

...to express precisely the degree of quibble or foreboding or disbelief or indignation that one believes the majority's position should engender—that is indeed an unparalleled pleasure...

...This all may sound a bit juvenile...

...1k...

...The fun to be had on the Court is in the dissent, and few doubt that Nino Scalia is a man interested in fun...

...But given the passage above, it's hard to imagine that Justice Scalia is truly interested in tacking "Chief" to his title...

...That's why someone like the editor of Legal Affairs feels the need to dress up Justice Scalia's behavior as carrying on a grand and noble tradition of Supreme Court dissents, from William Johnson's first dissent from the Marshall Court, to John Marshall Harlan's dissent from Plessy v. Ferguson, and so on down through the years...

...to address precisely the points of law that one considers important and no others...

...The majority opinion, penned by Justice John Paul Stevens, relied on what it called "the direction of change" to divine the people's will from opinion polls, as well as the fact that some state legislatures—though pointedly, not Virginia's—have recently exempted the mentally retarded from the death penalty...

...The point of the Washington Post piece—penned by the editor of Legal Affairs magazine, Lincoln Caplan—was to defend Justice Scalia from criticism of his rousing dissent in Lawrence, and from questions about his judicial temperament generally...

...So Justice Antonin Scalia told the Supreme Court Historical Society, in a lecture quoted recently on the Washington Post's op-ed page...

...Appreciate Justice Scalia for what he is...

...And after spending a page mapping the various gaps where plaintiffs could drive trucks through the majority's logic, he concludes, summoning up his grumpiest self, "I do not look forward to any of these cases...

...No, collegiality is not Justice Scalia's strong suit, and that fact alone may deny his fans the pleasure of one day seeing a Scalia court...

...Indeed, when reading a Scalia dissent, it is almost impossible not to picture the Great Scalia snapping towels at lesser minds—say, Kennedy and Sandra Day O'Connor—in the Supreme Court locker room after session...

...But he just as clearly embraces his own highly activist role: that of courthouse bully...

...It's even harder to imagine that he'd have much fun, even if President Bush did get the chance to pin it there...

...Such was the case recently for opponents of affirmative action, in Grutter v. Bollinger...