JUSTICE & ANTONIN SCALIA When he's right, he's right When he's wrong, he's also right

...Baiting the opposition-whether outside or inside the Court-is basic to his temperament...

...In other words, the Court has embroiled itself in political issues that should be left to the people and their representatives-and that only a Republican administration would set the Court back on its right course...

...Such outbursts have been costly...

...His immigrant saga-the only child of a Sicilian father and a first-generation Italian-American mother-was lavishly praised...

...Scalia's colleagues thought he had pretty much lost it when he ferociously wrote, "The institutional design of the Independent Counsel is designed to heighten, not to check, all of the institutional hazards of the dedicated prosecutor...

...All of these considerations were to be weighed in determining the punishment of two career criminals who had led astonishingly unproductive lives...

...Of course, the sins of textualism and Catholicism are not unrelated-both reflect respect for the written word, an ordered universe, and an attachment to tradition...

...Or, as he prefers to put it, "enduring...

...Perhaps he is both...

...This term the Court has ruled 5 to 4 on another sentencing issue-California's three-strikes law...

...Circuit...

...In effect, of course, this is an attack on much of twentieth-century jurisprudence, which has created a host of new constitutional rights by embracing such Holmesian ideas as the "balancing of competing interests" and Justice William Bren-nan's "living Constitution...

...Senator Edward Kennedy worried that Scalia might be "insensitive" on women's rights, but concluded that one could hardly "maintain that Judge Scalia is outside the mainstream...

...Is Scalia an opportunist who threatens the very democracy whose Constitution he has sworn to uphold...

...Now judges are governed by this new branch of government, by what Scalia mockingly calls "a sort of junior-varsity Congress...

...When Cardinal Avery Dulles said he agreed with the pope's position, Scalia answered that this was "just the phenomenon of the clerical bureaucracy saying, 'Yes, boss.'" What the pope has to say is irrelevant to him as a judge, says Scalia, since his own views on the morality of the death penalty have nothing to do with how he votes judicially...

...Judges, he says, are to eschew their own "intellectual, moral, and personal perceptions...

...Such rules can embolden judges to be courageous when having to issue an unpopular ruling, such as one protecting a criminal defendant's rights...

...How the devotion is known is not clear...

...In a majority opinion on racially based jury selection, he attacked Justice Thurgood Marshall, saying that his dissent "rolls out the ultimate weapon, the accusation of in-sensitivity to racial discrimination-which will lose its intimidating effect if it continues to be fired so randomly...

...The Supreme Court repeatedly said victim-impact statements created a constitutionally unacceptable risk of arbitrary and capricious decisions by juries...

...Yet his confirmation hearings became a virtual lovefest...

...Scalia dissented, attacking the "recently invented" requirement of mitigating circumstances, asking why the jury could not also take into account "the specific harm visited upon society by a murderer...

...Reason finds no refuge in this jurisprudence of confusion," he wrote...

...The editor of Salon.com wrote that defenders of the Bush v. Gore decision, in which Scalia played such a large role, "would have to perform feats of casuistry unseen since the days when Ignatius Loyola strode the earth to do so...

...Morrison v. Olson was the decision upholding the Independent Counsel Act...

...He once said, "With five votes you can do anything around here...

...It doesn't really matter to a majority of the Court that Scalia was probably correct when he said, "I do not believe-and for two hundred years, no one believed-that the Constitution contains a right to abortion...

...Is Antonin Scalia an opportunist or an originalist...

...A powerful, congenial chief such as Chief Justice Earl Warren-or William Rehnquist, for that matter-can mold the court in his image through persuasive deliberations and adept assignments...

...Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted....It is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him...

...More important for Wilentz and his political allies, this is a chilling mixture for a chief justice-a job Scalia is rumored to want and that President George W. Bush is rumored to want him to have...

...From today's perspective, in which Scalia has emerged as a reliable proponent of hard-right views on issues from property rights to the death penalty, his confirmation hearings seem to have happened in a parallel universe...

...One may argue (as many do) that society has a moral obligation to interfere...

...As Scalia wrote in his solo, and prescient, dissent in the case recognizing the constitutionality of the now notorious Office of the Special Prosecutor: "Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis...

...Find Law columnist Edward Lazarus, for example, recently questioned Scalia's integrity, arguing that his reputation as "a rigorous and thoroughly principled jurist" has always seemed to him "largely a myth...

...For many years, O'Connor avoided signing majority opinions authored by Scalia, which meant that Chief Justice Rehnquist-who needed her vote-avoided assigning controversial opinions to Scalia...

...In the mid-1970s, the Supreme Court had begun requiring that defendants in capital cases be allowed to present "mitigating circumstances" during the sentencing phase of capital trials...

...I therefore hope he will keep it up...

...Isolated he may have been, but he was also completely right...

...JUSTICE & ANTONIN SCALIA The Supreme Court's most strident Catholic Julia Vitullo-Nartin After being nominated as a Supreme Court Justice by President Ronald Reagan in 1986, An-tonin Scalia faced down the Democratic-controlled Senate Judiciary Committee by refusing to discuss his views on any question likely to come before him as a sitting justice...

...However, one's moral views do govern whether or not one can or should be a judge at all...

...How then to explain Bush v. Gore, the 5-4 ruling that effectively handed the presidency to George W. Bush in 2000...

...While the chief is only first among equals, he has the crucial task of assigning opinions in which he is in the majority...

...The particular cases before the Court involved life sentences for two men whose third crimes were shoplifting-$1,200 worth of golf clubs in one case, and $154 worth of children's videotapes in the other...

...Lazarus's own moral claim to fame: he betrayed the ethics of his Supreme Court clerkship by publishing the first and only insider account of the workings of the Court...

...Hbedience, for good or ill, is indeed an ongoing Scalia theme...

...He also took them on individually...

...Since when does the Supreme Court limit its rulings to present circumstances...

...All around, an admirable position...

...If Scalia's first sin in the eyes of doctrinaire liberals is his textualism, make no mistake about the fact that his second sin is that he is a practicing Catholic-or, as commentators repeatedly mention, a "devout" Catholic...

...Calling his approach textualism, Scalia argues that primacy must be given to the text, structure, and history of any document-Constitution or statute-being interpreted...

...This, Wilentz continues, is "exactly the stereotype of Catholicism as papist mind-control that Catholics have struggled against, and that John F. Kennedy did so much to overcome...

...Scalia says he takes the Constitution as it is, not as he wants it to be...

...In a 1987 dissent he defended the "unknown, unaffluent, and unorganized" workers ignored by proponents of affirmative action...

...Still, he has not urged submission on American Catholic citizens...

...There aren't many convincing answers...

...In 1984, Congress established the U.S...

...Reagan was said to have danced around the Oval Office, singing "Scalia / I've just picked a judge named Scalia," to the tune of West Side Story's "Maria...

...He ridiculed Justice Stephen Breyer, for example, for writing a decision so vague that it gave trial courts "not a clue" as to how to carry it out...

...Scoffing at the idea that our "maturing" society's "evolving standards of decency" might in and of themselves make the death penalty unconstitutional, Scalia said that the Constitution he in-< terprets and applies is not living but dead...

...Continuing the manual count, wrote Scalia, would "threaten irreparable harm" to Bush "and to the country, by casting a cloud upon what he claims to be the legitimacy of his election...

...No longer...

...Scalia can be particularly provocative, even shocking, on race...

...I have committed myself to the governing principle...

...In 1991, in Payne' v. Tennessee, the Court finally agreed and overturned the ban on victim-impact statements...

...Harvard Law Professor Alan Dershowitz, for example, calls Scalia the "voice of Spanish clerical conservatism...

...Scalia puts little effort into winning over those who disagree with him...

...In dissenting from Planned Parenthood v. Casey (1992), Scalia questioned O'Connor's intelligence...

...Perhaps Scalia's most troubling sin is that he does not always hold himself to his own principles...

...He has joked more than once that the keys to being a good Catholic and a good jurist are the same: being strong enough to obey the relevant law...

...Justice Marshall announced his retirement the same day-some said because his heart was broken...

...Born in 1936, he spent his early childhood in Trenton, New Jersey, before the family moved to New York, when his father became a professor of Romance languages at Brooklyn College...

...Like victim-impact statements, added punishment for multiple offenses has a long tradition in the common law...

...Sentencing Commission as an independent rule-making body to promulgate mandatory guidelines for every federal criminal offense...

...Any judge who believes the death penalty immoral should resign, he says, rather than "simply ignoring duly enacted, constitutional laws and sabotaging death-penalty cases...

...Scalia's true priority is to get secular humanists off the federal bench...

...No longer do courts cavalierly assume that the Constitution prevents Americans from protecting themselves against known repeat predators...

...He went on to practice law from 1961 to 1967 with Cleveland's most prestigious firm, Jones, Day, Cockley, and Reavis-named after the city's first families...

...Another possible explanation is that Scalia believes deeply something else he said in his Casey dissent, which is that Roe "fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of justices to this Court, in particular, ever since...

...Larry Kramer, a law professor at New York University, calls Scalia's belief that judges should renounce their own desires when interpreting the law "judicial asceticism...

...And both have a long contentious relationship with liberalism...

...Some senators even called Scalia by his nickname, Nino...

...Wilentz also writes that despite calling himself a strict constructionist-actually, he doesn't-Scalia wants to impose "a religious sense that is directly counter to the abundantly expressed wishes of the men who wrote the Constitution...

...Peter Laarman, minister at New York's Judson Memorial Church, gave a sermon naming Justices Scalia and Clarence Thomas as members of the "scary lunatic fringe occupying most of the seats of power...

...Most (perhaps all) of his critics missed the reference to Saint Paul and therefore misinterpreted the speech, but then Scalia pretty much knew they would...

...Hertainly, there is something admirable in Scalia's allegiance to tradition and his stubborn refusal to pander on moral issues-both of which predictably incite his critics to excess...

...This, in turn, reminds us of the conundrum of his role in Bush v. Gore...

...He can also be combative on issues that usually call for compassion...

...The answer is not yet clear...

...Most states with three-strikes laws require the third strike to actually be a felony, usually a violent one...

...His "living Constitution" is both the dominant liberal constitutional concept and the polar opposite of Scalia's textualism...

...If the next case should have such different facts that my political or policy preferences regarding the outcome are quite opposite, I will be unable to indulge those preferences...

...But that's another story...

...Scalia accurately predicted, "If the prosecutor is obliged to choose his case, it follows that he can choose his defendants...

...It "is opportunism, and it threatens democracy...

...It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted...

...Howard Metzenbaum, for example, an outspokenly liberal Ohio Democrat, announced that Scalia's conservatism was irrelevant and that all that mattered was his "fitness...

...In 1977, he joined the law faculty at the University of Chicago, from which he was appointed in 1982 to the nation's second most important court, the U.S...

...Scalia's remarks, wrote Wilentz, "show bitterness against democracy, strong dislike for the Constitution's approach to religion, and eager advocacy for the submission of the individual to the state...

...Ironically, Scalia's tightly argued dissent in Casey eerily foreshadows his own lead role in the scandal of Bush v. Gore: "The Imperial Judiciary lives," Scalia wrote...

...As a Catholic who grew up in working-class neighborhoods (even though his father was an academic), Scalia often reveals a different sensibility from his Brahmin peers...

...He are only means: denial and self-control are the reasons...

...He graduated first in his class from Saint Francis Xavier, a Jesuit high school in Manhattan, first in his class from Georgetown University, and cum laude from Harvard Law School...

...In A Matter of Interpretation (Princeton), his Tanner Lectures at Princeton, he cautions that creating new constitutional rights may trigger a majoritarian reaction...

...How, then, did this exemplar of charm and learning become what he is today-the scourge of the country's liberal establishment...

...In a 1979 law review article he denounced "the Wisdoms and the Powells and the Whites," whose ancestors participated in the oppression of African Americans, and who as justices sought to correct the effects of that ancestral oppression at the expense of newer immigrants...

...Is Wilentz right...

...Tony Mauro in the Legal Times predicted that Scalia would become the court's "intellectual lodestar...

...It became clear that Nino was a man of many parts-Nino, the tennis player, opera singer, pianist, poker player, raconteur, man about town, father of nine...

...He taught law at the University of Virginia, became general counsel to the White House Office of Telecommunications Policy, chaired the Administrative Conference of the United States, and became assistant attorney general in the U.S...

...At the end of the day," he notes, "an evolving Constitution will evolve the way the majority wishes...

...The act specifically rejected rehabilitation as a goal of imprisonment, and mandated instead "that punishment should serve retributive, educational, deterrent, and incapacitative goals...

...As if the decision weren't mischievous enough, the Court also pronounced-amazingly-that "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities...

...He's argued (correctly) that the pope's opposition to the death penalty expressed in Evangelium vitae is not "binding teaching" requiring adherence by all Catholics-though they must give it thoughtful and respectful consideration...

...He may never have written a less convincing justification of one of his positions, but it makes some sense if understood in light of how far wrong he thinks the Court has gone...

...The history of the Independent Counsel Act is replete with examples of prosecutorial abuse that would have made the Founders recoil...

...Judges, after all, take an oath to apply the laws as enacted...

...How can Scalia reconcile his principled views with his vote in Bush v. Gore...

...His opponents claim Scalia acted as a ruthless, self-serving politician who put his own boy in power when it looked like the other side might win...

...A shocked Wilentz says that Scalia "sees submission as desirable...

...After all, he recently attacked all his colleagues, asserting that the justices on the Court were no better qualified to rule on the right to die than nine people selected at random from a Kansas City phone book...

...In the past, judges were able to use their discretion to minimize inequities in the law...

...He mocked Justice David Souter for resorting "to that last hope of lost interpretive causes, that Saint Jude of the hagiography of statutory construction, legislative history...

...Potential enemies were declawed by his accomplishments and affability...

...Adopted by referendum in 1994, California's harsh law permits judges to treat crimes that would ordinarily be considered misdemeanors as third felonies...

...Here was a case with Scalia's favorite elements: the direct voice of the majority expressed via referendum, state sovereignty via its law, and centuries of Anglo-Saxon tradition...

...That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws, Scalia argues, but a judge "bears no moral guilt for the laws society has failed to enact...

...With unchecked discretionary powers and unlimited funds, the independent counsel would be accountable to no one and would be entirely focused on a single target...

...Department of Justice's Office of Legal Counsel...

...What should society do with such people...

...Court of Appeals for the D.C...

...This is not strict constructionism, says Wilentz...

...Take two 1988 dissents, Morrison and Mistretta, which, in the words of Northwestern University Law Professor Thomas Merrill, showed Scalia to be "completely isolated" on the Court...

...The context of this statute is acrid with the smell of threatened impeachment," wrote Scalia...

...Ironically, despite Scalia's carefully drawn, if dubious, distinctions, Scalia's antagonist Wilentz accuses him of believing that Catholics, as citizens, would be unable to uphold views that contradict church doctrine...

...That temper has regularly been directed at centrist Justice Sandra Day O'Connor, who often must be wooed as the crucial fifth vote in a conservative coalition...

...the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests...

...Calling Scalia a cheap-shot artist, Washington Post columnist Richard Cohen maintains that the justice's mind is rigid on constitutional issues between church and state: "Anyone who thinks Scalia will give First Amendment issues a fair and reasoned hearing is, it seems, proceeding in a way Scalia would appreciate: solely on faith...

...One has to wonder whether the 2002 elections giving the House, Senate, and (by extension, the Supreme Court) to the Republic cans reflect, in part, this prediction come true...

...Then he job-hopped...

...Ex-prosecutor and best-selling legal commentator Vincent Bugliosi's inflammatory charge is that "having Justice An-tonin Scalia speak on ethics is like having a prostitute speak on sexual abstinence...

...He says that the death penalty, for example, is not a "difficult, soul-wrenching question...

...Even the legal press was effusive about Scalia's Supreme Court confirmation...

...Capital cases, argues Scalia, are different from the other life-and-death issues the Court might hear, like abortion or legalized suicide...

...Scalia would soon establish himself as one of the most brilliant and belligerent conservatives ever to sit on the high court...

...No respectable attack was ever leveled at the Catholicism of Scalia's nemesis, Justice William Brennan...

...In these instances, it is not the state that is decreeing death, but private individuals whom the state has decided not to restrain...

...Scalia's third sin is his shockingly bad temper, in print, toward his intellectual opponents...

...Bush may well have won the election fair and square, but we'll never know for sure...

...It is not at all clear that this will happen...

...Scalia lost on Mistretta, but he eventually won on another crucial sentencing issue-victim impact statements...

...When I sit on a Court that reviews and affirms capital convictions," said Scalia, "I am part of 'the machinery of death.'" The Supreme Court's ruling is often the last step that permits an execution to proceed...

...And, then, of course, there's abortion, by far the most divisive social issue of our time, and one that Scalia argues should be settled legislatively rather than judicially...

...Yet while defendants in particularly heinous crimes could present evidence about an abusive childhood, victims and their families had no standing to speak...

...How, then, can Scalia continue to serve as a judge in a court that has repeatedly upheld abortion, which he regards as immoral...

...He was a brilliant, strategic, persuasive conciliator who more often than not won the day...

...It is a testament to the revolution Scalia has wrought that this case even came before the Court, much less that the Court upheld three strikes...

...This was the first time in American history that the Court decided a presidential election, and it did so by improbably concluding that Florida's diverse standards for counting votes constituted an equal protection violation under the Fourteenth Amendment...

...It is a chilling mixture for an American...

...Or is he a brave originalist, seeking to return to the principles of the American Founding Fathers that the Court discarded in the last fifty years...

...Indeed...

...Yet the conservative Rehnquist Court has signaled more than once that it's not going to reverse Roe v. Wade...

...Wilentz attacked a speech Scalia had given at the University of Chicago Divinity School (and reworked for the conservative journal, First Things), arguing that the Eighth Amendment's prohibition of cruel and unusual punishment does not proscribe the death penalty...

...Indeed, the country has grappled with the gross injustices of federal sentencing...

...Thus Scalia saw nothing wrong with the language he used in concurring with the Court's stay (by definition an emergency measure) halting the Florida vote recount...

...The office would encourage the worst tendencies in American democracy...

...Reagan knew what he was getting...

...Generally thought by legal scholars (including Scalia) to have been the twentieth century's most influential justice, Brennan may well have also been the most loved...

...Scalia has spent most of his career captivating others, who often let their affection for him overcome their distaste for some of his ideas...

...There he seemed to place the "irreparable harm" that a Florida recount would do to petitioner George W. Bush above the irreparable harm to citizens whose votes would not even be counted...

...Scalia handled his interrogation so engagingly that the Senate voted ninety-eight to zero to confirm him...

...He is a social animal, and it is possible that his fury about being correct yet alone over several momentous issues has warped his judgment on others-on which he is probably not right...

...His wrath is born of his self-confidence in the face of universal opposition...

...The liberal American Prospect magazine scathingly refers to Scalia's "Jesuitical" logic...

...He explains his judicial rigidity by saying that when "I adopt a general rule, and say 'This is the basis of our decision,' I not only constrain lower courts, I constrain myself as well...

...Scalia, in contrast, goes out of his way to give speeches like his provocative 1996 "Fools for Christ's Sake" address at the Mississippi College of Law, a Baptist school...

...Harvard Professor Lawrence Tribe once pointed out that Scalia's "vigor and occasional viciousness" in his written opinions may "alienate people who might be his allies in moving the Court to the right...

...We are reminded, again, that in most matters of criminal justice, Scalia is the people's champion-even if this decision was written by his protagonist, Justice O'Connor, leaving him to concur...

...It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges-leading a Volk who will be 'tested by following,' and whose very 'belief in themselves' is mystically bound up in their 'understanding' of a Court that 'speak[s] before all others for their constitutional ideals'- with the somewhat more modest role envisioned for these lawyers by the Founders...

...Part of the anger Scalia arouses is a result of how successful he has been in restoring respect for the Constitution's actual words...

...Worse, they would focus attention not on the moral guilt of the defendant's alleged harms to society but on the emotions and opinions of persons who were not parties to the crime...

...Mistretta v. U.S., the other dissent that isolated Scalia, concerned a revolution in criminal sentencing that has gone almost unnoticed by most Americans...

...These knee-jerk liberal denunciations are appalling in a way, but while some of these comments might set off alarms for William Donohue and his Catholic League cohorts, they do not represent a revival of pure, nineteenth-century anti-Catholicism...

...Wilentz probably put his finger on something important when he wrote, "One senses that Mr...

...There's little reason to think that as chief Scalia wouldn't keep it up...

...The late Justice William Brennan's reputation as the most influential Supreme Court justice of his generation would shortly pass to Scalia, asserted Michael Greve, cofounder of the libertarian Center for Individual Rights, a public-interest law firm in Washington, D.C...

...This is not only not the government of laws that the Constitution established, it is not a government of laws at all...

...Given that Marshall knew far better than Scalia the reality of racial discrimination when he saw it-he was surely the only justice in the history of the Supreme Court to have once been dragged to a river by a lynch mob-even years later Scalia's words seem intemperate and misplaced...

...All sentences would become determinate (fixed), with no parole other than a small credit that could be earned by good behavior...

...But the piece de resistance of liberal loathing can be found in a July 8,2002, Op Ed in the New York Times by Princeton professor Sean Wilentz...

...Scalia has even affronted his conservative Catholic supporters...

...Scalia's respect for established precedents and his disdain for catchall uses of the equal protection clause suddenly didn't seem to apply here-nor did his reverence for the separation of powers...

...Some of his harshest language concerning his colleagues came in his criticism of Roe: "The emptiness of the 'reasoned judgment' that produced Roe is displayed in plain view by the fact...that the best the Court can do to explain how it is that the word 'liberty' must include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice...

...This expanded vision of the Constitution gave judges enormous power to assert that their individual policy preferences and social goals-however unpopular-were also the law...