Also pending is the challenge to the federal Partial-Birth Abortion Ban Act outlawing a midterm abortion procedure. This case does not call into doubt the basic right to abortion set in Roe vs. Wade; but a broad ruling in favor of the ban could trigger more stringent regulation of abortion across the nation.
Scalia has repeatedly called for overturning Roe vs. Wade and letting states decide whether to permit abortion.
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The heart of Scalia's message is that much of what the Supreme Court has done in recent decades amounts to an illegitimate power grab.
The justices overstep their authority when they stretch the Constitution to resolve current controversies, he says. Issues such as abortion, gay rights and the death penalty should be decided by voters and elected lawmakers, not by judges, he argues.
"I'm one who believes the Constitution should be interpreted exactly as it was adopted," he said in a recent speech. "It should be interpreted as it was written -- nothing more, not less."
Liberal law professors say originalism is more effective as a slogan than as a formula for shaping legal opinions.
"It is a good for public relations, and it's good to put in speeches, but it doesn't work in deciding cases," Harvard University law professor Mark Tushnet said.
Scalia's critics also say he has not consistently followed his own principle.
For example, Scalia has regularly voted in favor of white males who have challenged affirmative-action policies that benefit blacks, Latinos or women. He has done so on the basis of the 14th Amendment, adopted after the Civil War, which says no state may deny any person "the equal protection of the laws." Originally, the amendment was intended to protect blacks from discrimination by Southern whites.
The Constitution puts no such "equal protection" restriction on Congress or the federal government. Yet when white contractors sued in the 1990s to challenge federal policies that benefited minorities, Scalia voted to strike down the policies as unconstitutional, though neither the words nor the history of the Constitution prohibited such programs.
Scalia's use of originalism "tends to persuade those who already agree with him," said liberal constitutional-law professor Erwin Chemerinsky of Duke University, but "it doesn't persuade those who disagree with him."
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\o7david.savage@latimes.com
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'I mean, it's crazy'
