HILADELPHIA,
April 29 — About 20 minutes into stock remarks in praise of the
Constitution, Justice Antonin Scalia paused. "Everything I've said up to
now," he told a hotel ballroom full of lawyers here on Thursday, "has been
uncontroversial."
What followed was not.
In emphatic phrases punctuated by operatic gesticulation, he then
launched into an attack on a series of the most important Supreme Court
decisions of the last 40 years. The court was wrong, he said, to say the
Constitution requires that lawyers be provided to poor people accused of
crimes. It was wrong, too, to find that the First Amendment imposes limits
on libel lawsuits.
"We have now determined," he continued, "that liberties exist under the
federal Constitution — the right to abortion, the right to homosexual sodomy
— which were so little rooted in the traditions of the American people that
they were criminal for 200 years."
He said his colleagues may soon discover a right to assisted suicide
between the lines of the text of the Constitution.
"We're not ready to announce that right," he said, more than a little
sarcastically. "Check back with us."
Citing long judicial tradition, Justice Scalia speaks eloquently about
his desire to stay out of the public eye. But with his frequent and colorful
public speeches, his 21-page defense in March of his duck-hunting trip with
Vice President Dick Cheney, and his forceful, cutting and almost uniformly
conservative opinions, Justice Scalia cannot help attracting attention.
His writing alone makes him stand out.
"He ranks with Holmes and Jackson as a writer," said Cass R. Sunstein, a
law professor at the University of Chicago, referring to Justices Oliver
Wendell Holmes Jr. and Robert H. Jackson.
But Stephen Gillers, who teaches judicial ethics at New York University,
draws a different comparison: "Since World War II, I think it's fair to say,
the extrajudicial conduct of only three justices have become significantly
newsworthy in a harmful way: Fortas, Douglas, Scalia."
Justice Abe Fortas resigned in an ethics scandal in 1969, and Justice
William O. Douglas's unorthodox private life and public statements led
Gerald R. Ford, then the House minority leader, to call for his impeachment
in 1970.
"Scalia is calling undue attention to himself, by mixing it up publicly
in a way we associate with players, not referees, which is what a judge is
supposed to be," Professor Gillers said.
Cited by George W. Bush during the 2000 presidential campaign as one of
his two favorite justices, along with Clarence Thomas, Justice Scalia was
not long ago widely mentioned as a possible successor to Chief Justice
William H. Rehnquist.
These days, while he remains the great hope of many conservatives, even
admirers say his public profile in a bitterly divided Washington has made
such a move unlikely.
Television cameras were banned from Thursday's speech at the justice's
direction, but reporters were allowed to make audio recordings of his
remarks "for note-taking purposes but not for broadcast." That was a new
accommodation, resulting from an incident in April in which a member of
Justice Scalia's security detail ordered two reporters to erase recordings
of his speech that day at a high school in Mississippi.
In other settings, the justice is less bashful.
He dominates oral arguments on the court with his active and sometimes
withering questioning. His written opinions are pungent, trenchant and
immensely readable. He is a hero to the American right.
Yet at the same time his opinions are sometimes so brash that they fail
to attract the additional four votes needed to determine an outcome, some
scholars say.
"His writing style is entertaining in the way that shouting matches on
`Hardball' are entertaining," said Mark Tushnet, a law professor at
Georgetown. "Nobody persuades anyone by shouting on `Hardball.' "
His jurisprudence — with its emphasis on the original meaning of the
Constitution, on the literal words of statutes and on categorical rules
rather than ad hoc balancing — is aimed, legal experts say, at the lower
courts, at law schools and at posterity.
"He recognizes that his influence is largely in the strength of his own
words and not in the number of votes he attracts to his opinions," said
Douglas Kmiec, a law professor at Pepperdine.
In private, Justice Scalia is a gregarious man with many friends in the
Washington elite, including people with whom he served in the Nixon and Ford
administrations. But he is also on good terms with many of his ideological
opposites, including lawyers for liberal advocacy groups like the American
Civil Liberties Union and the Sierra Club.
He is a man of varied tastes, with a fondness for poker, opera and, as
all the world now knows, hunting. His friends call him Nino, and they say he
enjoys nothing more than a good joke at his own expense.
The justice seems to enjoy informal exchanges and verbal jousting.
Justice Scalia, a former law professor, would occasionally drop by to
commandeer a constitutional law class at Catholic University, recalled
Professor Kmiec, who was then the dean of the law school there.
"He'd go up to the lectern, ask the instructor what the topic of the day
was, and literally take control of the class," Professor Kmiec said.
"He'd say, almost in so many words, `If you think I'm wrong, then fight
me about it.' "
Though he tries to keep most of his fights private, his efforts to stay
out of the news have lately failed spectacularly.
In October, he recused himself from the case considering whether the
words "under God" may be spoken in the Pledge of Allegiance in public
schools. He gave no explanation, but his decision was almost certainly based
on his having remarked on the case the previous January at a Religious
Freedom Day ceremony sponsored by the Knights of Columbus in Fredericksburg,
Va.
His decision not to withdraw from a case involving Mr. Cheney has been
the subject of caustic commentary. The case was argued on Tuesday, and
Justice Scalia was, as usual, an active questioner.
His combative tone in front of his audience on Thursday was mixed with a
measure of defensiveness, perhaps prompted by these matters. Though he did
not refer to them directly, he did reflect on the reputation he brought with
him to the Supreme Court in 1986. He was seen, he said, as a good and honest
lawyer.
"I'm not going to shade a decision," he said, "you know, make it come out
the way I wanted it to come out."
And he was quick to assure his audience that he might not be prepared to
follow all of his criticisms to their logical conclusion, which could entail
rolling back half a century of constitutional law.
"I am a textualist," he said. "I am an originalist. I am not a nut."
Nadine Strossen, the president of the A.C.L.U. and a friend of the
justice's, noted that his principles had led him to results that might not
match his generally conservative policy preferences. She noted that he was
in the majority in a 1989 decision that struck down a Texas law banning
flag-burning. His dissents from the court's recent campaign finance decision
and a 2000 decision limiting protests outside abortion clinics also showed,
she said, great sensitivity to the First Amendment.
He also has many times ruled in favor of criminal defendants,
particularly when their cases involved questionable searches.
Financial disclosure records, which report travel reimbursements, suggest
that he makes more speeches than any other justice.
But the speeches are not publicized in advance and the texts are not made
public. The Supreme Court's Web site contains 27 speeches by Chief Justice
Rehnquist, 11 by Justice Stephen G. Breyer, 5 by Justice Ruth Bader Ginsburg
and one each by Justices Sandra Day O'Connor and Anthony M. Kennedy. And
none by Justice Scalia.
Justice Scalia, who is 68, joined the court in 1986, confirmed by a vote
of 98 to 0. That, he suggested Thursday, would never happen today.
"Just between you and me," he said to the assembled lawyers, "I have
always been a fairly conservative person. I think that was known 18 years
ago."
Indeed, many experts say that the nation's polarized political
environment and Justice Scalia's high profile would doom any chance he has
of succeeding Chief Justice Rehnquist.
"I think he recognizes," Professor Kmiec said, "that the political
reality is that in a closely divided Senate, where they have been
filibustering far less well known figures, any proposed elevation to the
ranks of chief justice would be vigorously opposed by those who have a
different understanding of the Constitution than he has. I think that's
unfortunate."
Paul Weyrich, of the Free Congress Foundation, a conservative research
group, said Justice Scalia remained the first choice of the American right.
"Sometimes White Houses are just afraid to buy into any controversy at
all," Mr. Weyrich said. "That hasn't been the hallmark of this White House."
Before his nomination, by President Ronald Reagan, he had served for four
years as a judge on the federal appeals court in Washington, and he held
several posts in the Nixon and Ford administrations.
Before becoming a judge, he taught law at Georgetown, the University of
Virginia and the University of Chicago, and an academic predisposition
toward provocative debate informs and colors his judicial work.
His appetite for the sort of discussion and debate he enjoyed as a law
professor has not been sated by the conferences the justices hold after oral
arguments. Under Chief Justice Rehnquist, they are said to consist of little
more than a tally of votes.
"I don't like that," Justice Scalia said after a speech at George
Washington University in 1988, two years after he joined the court. "Maybe
it's just because I'm new. Maybe it's because I'm an ex-academic. Maybe it's
because I'm right."
Professor Tushnet of Georgetown said he sensed that Justice Scalia's
frustration with the atmosphere inside the court might have only grown in
recent years.
Justice Scalia is the only child of Eugene and Catherine Scalia. His
father, an immigrant from Italy, taught Romance languages at Brooklyn
College. His mother was an elementary-school teacher. He was educated at
Xavier High School, a Jesuit school in Manhattan, at Georgetown and at
Harvard Law School.
He has nine children, a fact that influences his legal philosophy.
"Parents know that children will accept quite readily all sorts of
arbitrary substantive dispositions — no television in the afternoon, or no
television in the evening, or even no television at all," he said at a
Harvard lecture in 1989. "But try to let one brother or sister watch
television when the others do not, and you will feel the fury of the
fundamental sense of justice unleashed."
He is often in dissent. According to Thomas Goldstein, a Washington
lawyer who follows the court, only Justice John Paul Stevens has dissented
more often in recent years. In the last term, Mr. Goldstein said, Justice
Thomas was the most frequent dissenter, followed by Justice Scalia.
The justice's style can verge on the insulting. Dissenting in a 2002
decision prohibiting the execution of the mentally retarded, he wrote,
"seldom has an opinion of this court rested so obviously upon nothing but
the personal views of its members." An argument made by Justice O'Connor, he
wrote in a 1989 abortion case, "cannot be taken seriously."
Opinions vary about whether other justices take offense.
Steven G. Calabresi, a law professor at Northwestern and a former Scalia
clerk, said the other justices look the other way.
"His colleagues all recognize that he feels very strongly in some cases
and that those temper tantrums blow over," Professor Calabresi said. "I
watched him talk to Justice O'Connor and Justice Kennedy a lot, and my sense
is that they got along very well."
Some scholars detect a rightward drift in Justice Scalia's recent
decisions.
"When I worked for him, he had a set of principles, and those principles
led to principled results, which were sometimes conservative and sometimes
liberal," said Lawrence Lessig, a law professor at Stanford who was also a
law clerk to Justice Scalia. "I don't understand anymore how his
jurisprudence follows from his principles."
Sometimes he seems perplexed by the attention he receives.
After the stir in April at the Mississippi school over the recording of
his speech, he sent a gracious and reflective apology to one of the
reporters, Antoinette Konz.
"I abhor as much as any American the prospect of a law enforcement
officer's seizing a reporter's notes or recording," he wrote. "It has been
the tradition of the American judiciary not to thrust themselves into the
public eye." He added, "It may be that my efforts to pursue it are doomed to
failure."