When Ronald Reagan nominated Antonin Scalia to the Supreme Court in 1986, conservatives rejoiced, confident they had someone who would seize the intellectual dominance of the high court away from William Brennan. That hope has shriveled and died.
It is not that Justice Scalia is not bright; quite the contrary. He is also the best stylist on the court, and even jurisprudential liberals such as myself enjoy reading his opinions. From all reports, he is a nice guy, and enjoys good relations with his colleagues, even those who strongly disagree with him.
But Scalia, despite his many talents, has not filled the high hopes surrounding his appointment, and in recent years his dissenting opinions have turned downright nasty, a clear indication of his frustration with the Roberts court. In one case he sneeringly averred that the majority opinion expressed “the mystical aphorisms of the fortune cookie.”
Scalia has not been without influence. He has been in the majority on almost every case involving labor and business, and has also had influence on Fourth Amendment search-and-seizure issues, as well as providing a striking interpretation of what the “confrontation clause” means in modern times.
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He has, however, failed to convince his colleagues, or the legal academy, that his originalist jurisprudence is not only the best way to read the Constitution but the only way. Critics point out that Scalia can come up with an originalist reading to fit the results he wants, such as the decisions that demolished a century of campaign-finance regulations. Historians consider ludicrous his concurring opinion in one case, claiming that the Framers intended corporations to have First Amendment rights.
Scalia reminds one of Felix Frankfurter, whose appointment by Franklin Roosevelt in early 1939 brought hosannas from liberals. Frankfurter also expected to lead the court because of his great intellect and knowledge but soon found that the other justices resented his lecturing and badgering them. Within a few years his dissents took on the bitter tone of “I am so right! Why won’t these other guys listen to me?” There is more than a touch of that in Scalia’s recent dissents.
In the June case on same-sex marriage, Obergefell v. Hodges, Scalia described Justice Anthony M. Kennedy’s opinion for the majority as “lacking even a thin veneer of law,” while its style was “as pretentious as its content is egotistic.” The opinion, he declared, went far beyond the furthest limits of judicial power that one could imagine, limits that Scalia made clear he – and the people of the United States, if not the court majority – understood.
Another reason for Scalia’s inability to win a majority is that he has never understood Brennan’s talents.
At the beginning of every term Brennan would ask his new law clerks what the most important number on the court was, and then tell them – “Five! That’s a majority.” Brennan worked with his colleagues, solicited their views, made adjustments to his opinions, and during the Burger years, often turned what would have been a dissenting position into the majority opinion.
In many ways, Scalia is like William O. Douglas, arguably the most liberal justice to sit on the high court in the 20th century. When writing for the majority, Douglas would, of course, make the necessary adjustments to his colleagues’ requests. In the minority, he didn’t give a damn if anyone joined him or not. He made no effort to win people to his position. “The only soul I have to save,” Douglas said, “is my own.” Scalia does not use those words, but that is the message in many of his dissents.
The last few terms have seen the four liberal members of the court – Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan – apparently working well together, and successfully bringing the swing vote, Kennedy, to their side on such important issues as the gay-marriage case. Their success has left Scalia sputtering, and the language in his dissents has sent reporters scurrying to see if there had been similar nastiness in the past. There has been, but usually not in the pages of the United States Reports (the official compilation of the court’s opinions).
Although Scalia has failed to live up to conservative expectations, he has not been without influence. Ironically, his greatest impact may have been his opinion in the Windsor case, in which the majority, speaking through Kennedy, struck down the federal Defense of Marriage Act. In a bilious dissent, Scalia warned that the next step would be the court’s approving same-sex marriage. He attacked Kennedy’s opinion for providing an opening for gay-rights activists, and predicted the tactics they would employ.
The day after that opinion, the American Civil Liberties Union and gay-rights advocates began filing suits following exactly the strategy Scalia had laid out. As we now know, it worked very well.
Melvin I. Urofsky is the author of “Dissent and the Supreme Court” (Pantheon), scheduled for publication in October. He wrote this for The Philadelphia Inquirer.