Scalia: captain of a ship that may never come in Conservative justice fights on alone

May 15, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- When the Yankees play at Camden Yards, a famous -- and devoted -- fan of theirs sometimes can be found in a good seat there. But not easily. He will blend in perfectly, wearing an ordinary baseball cap and glasses. He won't look a thing like Antonin Scalia.

It may be only at the ballpark that Justice Scalia really blends in. At the Supreme Court, where he works as the nation's premier showman-judge-theoretician, he is a loner who is losing regularly in a stubborn fight to protect the true conservative cause against the "balancers," the moderates in the middle of the road who are now in control.

To him, it doesn't always matter greatly that his side loses. As he once said to a companion after watching the Orioles beat the Yankees at Camden Yards, "It was a great game -- but it turned out wrong!"

Certainly, he can fight back verbally when he loses in a big way within the court, but this man known for his charm always insists that there is nothing personal about it. He has a barbed wit and barbed computer keys, and both frequently leave stings -- unintentionally, he will say fervently.

He is a loner mainly because he remains the solitary captain of the conservative revolution that never quite happened at the court. Practically alone, he is what is left over from the attempt to "Reaganize" the Supreme Court, turning it into a deeply conservative bastion where new rights no longer emerge from "activist" judges, and even old rights get strongly diluted if not dissolved.

At the tender age, for a justice, of 57 and after only seven terms on the court, Antonin Scalia is on the verge of becoming a historical curiosity, perhaps already "a figure of the past," as an admirer, Bruce Fein, Washington lawyer and former official with the Ronald Reagan administration, tentatively phrases it. "I don't see on the horizon that we're going to get more people [on the court] like Scalia."

It is an assessment that is shared by some liberals, too. Says Harvard law professor and constitutional expert Kathleen Sullivan, a sometime-adviser to the Clinton administration: Justice Scalia's "hard-edged judicial conservatism has failed to take hold at the court; it has been overtaken by the more moderate approach of the balancers."

Justice Scalia is not expected to get an ally when President Clinton names a replacement for retiring Justice Byron R. White within the next few weeks.

When the court is divided, Justice Scalia seldom leads a majority, and he is able as a routine to count only upon Justice Clarence Thomas' voting with him. Even Justice Thomas, however, insists in private encounters that he is independent of any "bloc" on the court, including any two-man bloc with Justice Scalia.

The two great ambitions of the "Reagan revolution" that Justice Scalia was to help gain within the court -- completely ending the constitutional right to abortion and bringing prayer back to the public schools -- were never achieved. Abortion rights remain, even if narrower in scope, and prayers are still banned from public education -- both the result of 5-4 rulings last year, with Justice Scalia on the losing side on both.

The main reason those causes were lost is that three other appointees to the court during the 12 years of the Reagan and George Bush administrations do not share the pure dogma of the constitutional faith of those administrations. Those three are the so-called "balancers": Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter.

The pure "Reagan-Bush" legal dogma is, in reality, dogma borrowed in considerable part from Justice Scalia himself. His judicial philosophy has three basic theories at its center:

* First, law works best when it is embodied in a hard, fast and clear-cut rule that people must obey and judges must enforce loyally -- letting legislatures deal with any hardships that result.

* Second, laws are best understood by their literal words and the ordinary meanings those words had when the laws were written.

* Third, the Constitution is to be understood, and applied, as the 18th-century authors intended in the beginning; it does not change with the times or shifts in public sentiment.

"He came to the court," Harvard professor Sullivan recalls, "with the clearest intellectual agenda of anyone on the court in a long time." And, because that agenda is simplicity itself -- rules are rules, and words mean what they say -- "it is easy to judge [Justice Scalia's] successes and failures." His most "notable failures," the professor suggests, were on abortion and school prayer.

To Justice Scalia, the Constitution's silence on abortion means that there is no such right there. He sees no sign that the authors of the Bill of Rights wanted prayers banned from the public schools. And, on a host of federal civil rights laws, he is openly hostile to reading them in the most expansive way the words can be read; if legislators don't write what they mean into law, judges should not supply any broader meanings, he thinks.

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