Justice Scalia samples the benefits (and drawbacks) of being a 'personality'

LAW IN PERSPECTIVE

December 09, 1990|By LYLE DENNISTON | LYLE DENNISTON,Lyle Denniston is The Sun's legal correspondent in Washington and makes his base at the Supreme Court.

In this Media Age, when celebrity may count for more than substance, it is hard to find a more obvious darling of the "personality press" than Antonin Scalia. No matter that he carries on most of his life in the nearly out-of-sight cloisters of the U.S. Supreme Court; his charm, wit, brilliance, dark good looks, and quickness with a well-turned phrase make him a natural.

Rarely do Supreme Court justices get the television-and-magazine treatment that turns a prominent individual into public property, although that has always been the case with Justice Sandra Day O'Connor, because of her "firstness" -- the only woman ever to be named to the court.

But the rank and status of media star were conferred on Mr. Scalia, too, from the time he joined the court four years ago, and that kind of attention toward him seems to be intensifying.

Lately, however, trouble has been brewing over his celebrity, and the main source of the trouble is the justice himself. He several times has refused, according to the lawyers' newspaper, Legal Times of Washington, to make public speeches when he learns that TV cameras are in the audience. The Legal Times, indeed, criticized him for "petulance."

xTC That is reminiscent of the controversy that dogged former Chief Justice Warren E. Burger, who regarded TV coverage of his public appearances as an invasion of his personal privacy. Apparently, Mr. Scalia does not go that far, but he reportedly has made known his strong feelings that it is inappropriate for a judge like him to get too far out toward the front of America's public stage.

The issue may not be the kind that shakes Washington, or the nation, to its foundations. But it has an element of seriousness to it, and it is worth at least passing examination.

The Supreme Court is an institution that depends, for its success, upon public acceptance of its sometimes controversial decisions, and that need requires it and its members to emerge from time to time into the glare of publicity. That happens, of course, when it issues those decisions. It also happens, with less frequency, when the court holds public hearings on a topic that is fascinating, even for the uninitiated.

But little of that publicity focuses closely upon the justices as individuals, even though public acceptance of what they do might be more likely if more of the public thought of them as flesh-and-blood human beings. For example, Justice O'Connor appears to be held in very high regard by the general public as a real person, and the court as a whole no doubt benefits to a degree from her popularity, no matter how controversial some of her opinions may be (and there surely have been some in that category).

Still, Justice O'Connor is not a publicity-seeker and does not encourage the media interest in her or, for that matter, in her public speeches. She will not distribute texts of her prepared remarks, for example. She, like Mr. Scalia now, seems to have some distaste for what the press often does with its chosen stars, and that is part of the explanation for her, and for his, reticence.

It is a tradition, long observed around the court, that the justices shall be known by their work product, not by their individual personalities. Part of that seems to be a sensitivity to the fact that the court is an institution of nine equals. And part of it appears to be that the justices think they do better work if their minds are not on the public things that feed the egos (and protect the jobs) of politicians.

Moreover, they are very sensitive about their personal and institutional independence, and most of them, in private, show that they do not even understand the concept of currying public favor. In private interviews with the press, most of them are noticeably on guard, and many of them have seemed genuinely awkward in that setting. A "leak" to the press about the court's inner deliberations is as puzzling to many of them as it is unsettling. The book "The Brethren" caused real trauma there.

Most of the justices will show up in public routinely only for the court's own hearings and decision days, or for high ceremonial occasions. They will testify before Congress to support the court's budget requests but generally for nothing else. Even chief justices approach Congress, on legislation of interest to the court, with diffidence and usually without the finesse or guile of professional lobbyists.

When the media has singled out one of their number for celebrity status, however, all of these sensitivities begin to squeeze the chosen one -- and, to some degree, begin to offend that justice's colleagues.

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