Given the most recent public controversy involving statements made by Justice Scalia on torture, this prior column may be of some interest:
HEADLINE: The high court’s enfant terrible
Antonin Scalia appears to have every gift and advantage that a jurist could possess. He is brilliant, in robust health and has a personality so engaging that few (even among his critics) can resist liking him. Indeed, from the day he was appointed to the U.S. Supreme Court he seemed to lack only one essential element: adult supervision.
The increasing list of controversies surrounding Scalia reinforces his image as the enfant terrible of the court: precocious, unpredictable and impetuous. This month, Scalia has been dealing with a combination of such episodes ranging from a recusal from one case, the near recusal from another and an accusation of strong-arm censorship.
The latest controversy occurred during two speeches Scalia gave in Mississippi. Scalia often insists on no recordings at his speeches, including one controversial ban on television and radio recording at a speech when he received an award for supporting free speech. In Mississippi, however, no such rule was announced so two reporters proceeded to record the speeches, only to be confronted by a federal marshal demanding their tapes and then erasing them. This scene was made all the more bizarre by the subject of Scalia’s speech: the Constitution and the failure of people to have proper respect for its freedoms.
This week, Scalia issued a rather belated apology to the reporters after a week of criticism, including calls in Congress for an investigation. Scalia insisted that he never personally ordered the destruction of the tapes. Scalia further stated that he was reconsidering his no recording policy at future speeches. In a letter to one of the reporters, Denise Grones of the Associated Press, Scalia defended the deputy marshal involved in the incident. Scalia explained that his insistence that the speech not be recorded was never publicly announced as intended and that “the marshals believed [with good reason] that the same policy was in effect.” Scalia vowed to be more careful in the future to ensure that announcements are made at each speech.
The Scalia apology misses the point. First, he seems to believe that, if the announcement had been made, federal marshals would have the authority to seize or destroy the tapes. However, the use of a federal marshal in this fashion constitutes a form of censorship. Whether there was an announcement is irrelevant–the marshals had no authority to act in the matter. The marshal was present as part of a protective service detail, not Scalia’s personal praetorian guard. If Scalia is obsessed with such recordings, he must make arrangements with the host of the speech to enforce the rule and not use public personnel to carry out his private desires. Second, the greatest problem for Scalia has not been his ban on the recording of his speeches but the speeches themselves. Historically, many justices have refused to give any speeches beyond an occasional graduation speech containing the equivalent of a legal Hallmark card address. Scalia, however, has openly courted such events, often speaking before groups with strong conservative political agendas. Scalia has a following and these speeches appear to be an effort to maintain his base–like a type of judicial stump speech. However, justices are not supposed to have a “base” outside of Article III of the Constitution that gives them independence from political influence.
In fairness to Scalia, he is not the only one engaging in such questionable stump speeches or pandering to liberal and conservative bases. A few years ago, Justice Sandra Day O’Connor was accused of openly campaigning for the chief justice position in a series of speeches on hot-button issues like the death penalty. Recently, Justice Ruth Bader Ginsberg, along with Sen. Hillary Rodham Clinton (D-N.Y.), spoke to the American Constitution Society, a group created to offer liberal interpretations of constitutional law. Justice Clarence Thomas regularly appears before conservative groups, including a 2001 speech at the conservative American Enterprise Institute where he encouraged conservatives to join the fight in the on-going cultural war and not be deterred by notions of civility.
Scalia’s speeches have been a more serious problem. In 1996, he was criticized for giving a speech railing against the claimed constitutional right to die at a time when there were two euthanasia cases pending before the court. It was also such a speech last year that led to Scalia’s recusal from one of the biggest cases of this term: the constitutional challenge to the Pledge of Allegiance. Scalia gave a speech in front of a Religious Freedom Rally, where he effectively announced his intended vote on the case before it was even heard by the court. And a few weeks after this serious failure of judgment, Scalia gave another controversial speech to a different conservative group in which he lashed out at his colleagues for ruling against anti-sodomy laws.
This month, Scalia also faced intense calls for recusal after he went on a duck-hunting trip with Vice President Dick Cheney, despite the fact that Cheney is a named party in one of the cases that Scalia will hear this month. While Scalia may have been correct in not recusing himself, he showed a colossal lack of judgment in going on vacation with Cheney before the argument in the case.
It was not long ago that Scalia seemed almost a shoo-in for chief justice. Yet in a remarkably short period of time, Scalia has done irreparable damage to any claim for promotion. Ironically, Scalia’s greatest friends and fans may have sealed his fate. They could not resist inviting him to their events and Scalia appears unable to resist their invitations.
Despite my disagreement with many of Scalia’s decisions, he is an irreplaceable asset to the Supreme Court. He is a rarity. Scalia has a largely consistent and deep judicial philosophy on a court often populated with less than inspiring jurists. The current nomination process winnows out candidates who have had a single controversial thought in their lives and instead favors vanilla-flavored jurists with little intellectual substance.
Scalia can legitimately claim a legacy on the Supreme Court but, like former President Bill Clinton, he is frittering away that legacy due to a lack of self-control. He must decide whether he wants a legacy or whether he wants to be liked. An enfant terrible can be tolerated, even charming, in an academic setting, but it has no place on the highest court of the land.
LOAD-DATE: April 16, 2004 Chicago Tribune