The Supreme Court’s angry justice

What happened this term?

The two most important—and divisive—cases involved affirmative action and gay rights. In the affirmative-action case, the court approved the University of Michigan Law School’s admissions policy of giving special consideration to minorities to create a diverse student population. Scalia’s dissent was dismissive, calling the diversity rationale “a patriotic, all-American system of racial discrimination.” In striking down a Texas anti-sodomy law, the court ruled that under the Constitution, homosexuals are “entitled to respect for their private lives” and that the government “cannot demean their existence” by criminalizing their sexual conduct. In another blistering dissent, Scalia said that the majority had signed on to “the so-called homosexual agenda” and “taken sides in the culture war.”

Why such strong language?

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Scalia has made it clear that he finds himself increasingly alienated from most of his fellow justices, including other Republican appointees. The affirmative-action decision was written by Sandra Day O’Connor, who, like Scalia, was a Reagan appointee. The sodomy ruling was written by Anthony Kennedy, another Reagan choice. Each decision explicitly adapts the Constitution to cultural developments. The sodomy ruling, for example, takes into account the growing acceptance of gays. The diversity ruling cites the consensus among universities, corporations, and other major U.S. institutions that their workers and students should reflect America’s diverse population. For O’Connor, Kennedy, and the more liberal justices, the underlying assumption is that a “living Constitution” must be interpreted according to evolving social values.

How does Scalia see it?

“The Constitution is not an organism,” Scalia said in a speech two years ago. He adamantly opposes adapting the court’s interpretation of the Constitution to popular opinion or intellectual fashion. The death penalty, he says, cannot be deemed “cruel and unusual” now, because it wasn’t when the Constitution was written. The Bill of Rights cannot now confer the right to an abortion or to homosexual relations, because it didn’t in 1791. “You think there ought to be a right to abortion?” he once remarked. “Fine, pass a law.” When other justices find a right to abortion or privacy “implied” in the Constitution, Scalia says, they’re simply turning their own personal views into law. Liberals counter that Scalia’s “originalist” or “constructionist” judicial philosophy is a convenient front, behind which he also seeks to impose his own views and values.

What does Scalia believe?

Scalia, a devout Roman Catholic and a thoroughly traditional man, has lamented that long-standing American values are being trampled by “elites.” Married for 43 years, he has nine children, including a son who is a Catholic priest. Scalia attends Mass at a suburban Virginia parish known for its strict adherence to church teachings on issues such as abortion. In America, Scalia has said, devout Christians are under siege. He noted in 1996 that the word “cretin” was derived from the French word for Christian. “That is the view of Christians taken by modern society,” he said. People who adhere to traditional Christian beliefs, he said, “are to be regarded as simple-minded.”

Is Scalia simple-minded?

Anything but. From an early age, Scalia has excelled in every intellectual endeavor he has undertaken. An only child, he was raised in a cultured, deeply religious Italian-American family in Queens, N.Y. His mother was an elementary schoolteacher, and his father a Sicilian-born professor of Romance languages who translated poetry. Legal scholars trace Scalia’s appreciation for the precise meaning of words to his father’s intellectual pursuits. Scalia won admission to a rigorous Catholic military academy in Manhattan, where he received what has been described as “a double dose of authority.” Even in high school, says classmate William Stern, Scalia was “so superior academically” that everyone else “just competed for second.” Scalia later gained admission to Harvard Law School, where he helped edit the law review and graduated magna cum laude.

How did he become a judge?

After teaching law and working at the Justice Department, Scalia was tapped by President Reagan for the federal appeals court in D.C. On the federal bench, Scalia distinguished himself as a man of razor-sharp intellect and strong views. “If you don’t feel like having a good debate about something, you’d better avoid him,” said Philip Heymann, a liberal scholar. In 1986, Reagan appointed Scalia to the U.S. Supreme Court; impressed by Scalia’s stellar intellectual reputation, the Senate approved the nomination 98-0.

How has he fared on the court?

Conservatives originally hoped Scalia would join Chief Justice William Rehnquist as leaders of a new conservative majority. But many of the Republican appointees have proved to be centrists. Far too often for Scalia’s taste, they vote with the court’s liberal minority. With evident scorn, he has referred to his colleagues’ reasoning as “perverse,” “silly,” and “muddled.” As a result, Scalia has emerged as perhaps the most quoted, but also the most isolated, member of the court—often joined in his dissent only by Clarence Thomas. The ever-pugnacious Scalia, said one court watcher, is “a force without followers.” That could change, though. Scalia, 67, could be on the bench for more than a decade. And should President Bush win re-election, he’ll probably get to name at least two justices. In selecting future nominees, Bush has said, his “ideal” will be Antonin Scalia.

Scalia’s biggest decision