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The Nation

Court's new tilt could put Scalia on a roll

Long a dissenter, he's poised to be leader of a conservative majority.

February 20, 2007|David G. Savage | Times Staff Writer

WASHINGTON — It has been two decades in the making, but this is the year Justice Antonin Scalia, the Supreme Court's most outspoken dissenter, could emerge as a leader of a new conservative majority.

Between now and late June, the court is set to hand down decisions in four areas of law -- race, religion, abortion regulation and campaign finance -- where Scalia's views may now represent the majority.

In each of those areas, the retirement of centrist Justice Sandra Day O'Connor and her replacement with Justice Samuel A. Alito Jr. figure to tip the court to the right. That would give the 70-year-old Scalia the chance to play a part that has largely eluded him: speaking for the court in major rulings.

Scalia does not see shades of gray in most legal disputes; instead, he favors clear rules and broad decisions.

A series of broad-brush rulings could put Scalia's stamp on some key American social issues. A Scalia-led majority would move to outlaw the use of racial guidelines to achieve integration, allow a greater role for religion in public life, more tightly regulate abortion, and strike down campaign-funding laws seen as constricting free speech.

It is a prospect dreaded by liberals, and eagerly awaited by many on the right.

"I'm looking forward to the next 10 to 12 years," said Terry Eastland, the publisher of the conservative Weekly Standard.

Though his majority opinions have been few, Scalia has been anything but silent in his long career. His influence has been considerable, especially for a generation of lawyers inspired by his championing of "originalism" -- strict adherence to the original meaning of the words in the Constitution.

"Justice Scalia has had a bigger impact off the court than on it," said law professor Michael Gerhardt of the University of North Carolina. "In his speeches and his opinions, he is trying to reach a wider audience."

Scalia does not grant media interviews, but in recent years he has spoken regularly at colleges and law schools, and he rarely fails to make news with an off-the-cuff comment. When asked to explain his role in the Bush vs. Gore decision that halted Florida's recount in the 2000 presidential race, his standard rejoinder is: "Get over it."

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"I'm a textualist. I'm an originalist. I'm not a nut," he told students at Claremont McKenna College this month.

His dissenting opinions have won him "a nearly cult-like following among many conservatives," said author Kevin A. Ring, whose book "Scalia Dissents" contains the justice's writings in a dozen areas of law.

Still, much more than memorable dissents were predicted when the Senate unanimously confirmed Scalia, then a federal appellate judge, to the high court in 1986. A former law professor, he was seen as smart, witty and charming. Many thought he would lead a conservative counterrevolution.

But he has not quite lived up to early expectations.

His temperament may be to blame, George Washington University law professor Jeffrey Rosen says in a new book accompanying a PBS series on the Supreme Court. Rosen writes that Scalia's acerbic style and his know-it-all manner have turned colleagues against him.

Scalia's conservative admirers say the blame lies not with him but with other Republican-appointed justices, such as Anthony M. Kennedy, David H. Souter and O'Connor, who turned out not to be true conservatives.

"He is not a split-the-difference type of jurist, and he has needed one extra person on his side," Eastland said. "Consider how different it would have been had Bork been confirmed." In October 1987, conservative Robert H. Bork, then a federal appellate judge, was rejected for the Supreme Court seat that Kennedy eventually filled.

With Bork at his side, Scalia and then-Chief Justice William H. Rehnquist would have had a majority to overturn Roe vs. Wade in the early 1990s. Instead, they fell one vote short.

Even when in the majority, Scalia has written relatively few major opinions for the court. Rehnquist, during his tenure as chief justice from 1986 to 2005, rarely turned to Scalia, because doing so risked losing the crucial votes of moderates, in particular O'Connor and Kennedy.

Often Scalia and his primary ally on the court, Justice Clarence Thomas, have sought to go further on opinions than the rest of the majority.

But last year, there were signs of change. The new chief justice, John G. Roberts Jr., turned to Scalia to write two key opinions.

One concerned whether drug evidence should be thrown out because the police, with a search warrant, had rushed into a house. Scalia's opinion not only upheld the evidence but cast doubt on the future of the exclusionary rule, the doctrine that says illegally seized evidence is generally inadmissible.

And when given a chance to write a decision on wetlands, Scalia's opinion cast aside 30 years of environmental law and largely limited the federal clean-water authority to "navigable" waterways.

In both cases, Kennedy wrote separate opinions that undercut Scalia's views.

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