Scalia and the Court: Pulling Consensus to Right

June 29, 1986|David M. O'Brien | David M. O'Brien is associate professor of government at the University of Virginia and author of "Storm Center: The Supreme Court in American Politics" (W.W. Norton, 1986)

CHARLOTTESVILLE, VA. — Whether the Supreme Court carries the "Reagan Revolution' into the next century turns on the appointment of Antonin Scalia, far more than the elevation of Justice William H. Rehnquist to the chief justiceship. And, given the way the U.S. Supreme Court works, Scalia's personal style and skills will prove as important as his judicial philosophy. For the court to shift direction, in the short run at least, it will fall to Scalia to move Justices Lewis F. Powell Jr. and Byron R. White--the centrists--and forge a conservative majority with Rehnquist and Justice Sandra Day O'Connor.

Next to Rehnquist and fellow-appellate court Judge Robert H. Bork, no other legal scholar has been closer to the Reagan inner-circle or had more influence in shaping the Administration's judicial and political agenda than Scalia. With his energy and comparative youth (at age 50), he will be able to continue this agenda long after Reagan has left office.

Ideology and judicial philosophy, however, are not all that the Administration is banking on. By naming the first Italian Catholic, the religious right-wing may be appeased and an appeal made to ethnic voters, in the way that O'Connor was a gesture to women. Even more important, Scalia enjoys a reputation as a team player and consensus-builder. His personal skills are what the Reagan Administration is really betting on. They gave him an edge over the other leading candidate--Bork--and will be tested in getting the court to move rightward.

"Nino," as he is known to family and friends, is sociable, hard-working and profoundly conservative. He will bring a good deal of color to the court. He has a quick wit, a street-wise sense about him and the kind of engaging and incisive mind that one finds among New York intellectuals.

More than charm and conviviality, however, will be needed to win others over. Whether Scalia proves successful depends on his willingness to compromise and accommodate others. Rehnquist has often preferred to stand alone. Scalia is more open-minded to the extent that he enjoys kibitzing and debating. But, once he has decided, he also tends to give no quarter and to stubbornly hold fast--earning him yet another nickname, "Ninopath," on the court of appeals. Whether Scalia is willing to temper his language--and often condescending, and even sarcastic, tone--as well as bend on some of his hard-line views remains to be seen.

Scalia's conservatism is rooted in the boyhood of a deeply religious, cultured and intellectual family life. His father was a professor of Italian literature at Brooklyn College, and his mother a grade-school teacher. After graduating from a Jesuit school in Manhattan, he went to Georgetown University and Harvard Law School, where he made the Law Review. He then practiced six years with one of the country's leading law firms before joining the faculty of the University of Virginia School of Law.

Besides being an energetic scholar, Scalia has always been a mover and shaker. Throughout the 1970s, he established connections with many who would assume positions of power in the Reagan Administration. In 1971-72, he took a one-year leave to work as general counsel in the Nixon Administration's Office of Telecommunications Policy. Two years later he was tapped by President Gerald R. Ford's attorney general, Edward H. Levi, to take over as head of the Office of Legal Counsel in the Department of Justice. When Ford left office, Levi returned to the University of Chicago Law School and persuaded Scalia to come along.

Before going to Chicago, however, Scalia spent perhaps the most crucial year of his early career at the American Enterprise Institute--then the largest conservative think-tank in Washington. It was a Republican refuge, a stronghold from which to issue attacks on the Carter Administration, as well as to formulate what would become much of the Reagan agenda. Along with Bork and Laurence H. Silberman, both also now on the District of Columbia Circuit Court of Appeals, Scalia joined James C. Miller III, now director of the Office of Management and Budget; Jeane J. Kirkpatrick, former ambassador to the United Nations; Irving Kristol, the influential neo-conservative, and Jude T. Wanniski, architect of supply-side economics.

At the University of Chicago, Scalia maintained his association with AEI, serving as editor of its magazine, Regulation, writing articles attacking Carter's regulatory policies. He also helped found the Federalist Society, a fraternity of law students from which the Reagan Administration would fill its ranks of lawyers.

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