By Greg Stohr
June 14 (Bloomberg) -- As a rule, U.S. Supreme Court justices don't tend to draw attention to themselves. Then there's Antonin Scalia.
Scalia, 70, has come to personify a national debate over the proper role of judges. In his opinions, he advocates -- often with sharp rhetoric -- a reading of the Constitution that would limit abortion rights and affirmative action. Outside the court, he's often at the center of dustups, whether it's tangling with scholars at a Swiss university or hunting ducks with the vice president.
``On the bench and off the bench, he's visible and he's quotable and he's controversial,'' said A.E. Dick Howard, a constitutional law professor at the University of Virginia in Charlottesville.
As Scalia winds up his 20th term, cases in the next three weeks on presidential wartime powers, the Clean Water Act, congressional redistricting and campaign finance may demonstrate the degree of his influence on the court. With Chief Justice John G. Roberts Jr., 51, and Justice Samuel A. Alito Jr., 56, still developing their approaches toward the law, Scalia has a chance to expand his role. The court will issue more decisions tomorrow.
Since 1986, when Scalia's nomination by President Ronald Reagan sailed through the Senate on a 98-0 vote, the first Italian-American justice has become an intellectual hero to conservatives and a legal bogeyman to liberals. Scalia pushes an ``original meaning'' approach, saying the notion of a ``living'' or ``evolving'' Constitution lets justices inject their personal policy preferences.
Death Penalty
``I believe it means today just what it meant when it was adopted,'' he told a Washington luncheon of the National Italian American Foundation on May 18. ``So if the death penalty was constitutional under the Eighth Amendment cruel and unusual punishments clause in 1791, when the Bill of Rights was adopted, it's constitutional now.''
Scalia is quick to rebuke colleagues who disagree. In 1989, he said Justice Sandra Day O'Connor's rationale for leaving intact an abortion-rights precedent ``cannot be taken seriously.'' Dissenting from a 2003 gay-rights ruling, he said the majority ``has taken sides in the culture war.''
Later that year, Scalia removed himself from a case involving the Pledge of Allegiance in public schools after being quoted in the media as publicly criticizing the appeals court decision the justices were preparing to review.
Scalia has had limited success in swaying his fellow justices. Of the other eight, only Clarence Thomas, 57, has embraced originalism as the guiding principle for interpreting the Constitution.
Pugnacious and Provocative
``He's unyielding, he's rigid,'' said Mary Cheh, a constitutional law professor at George Washington University in Washington. ``He likes to be pugnacious and provocative in setting out his views. It's hardly the formula for crafting coalitions.''
Scalia has friends on the court: He, Justice Ruth Bader Ginsburg and their spouses have socialized for years. Winning votes is another matter. He and Ginsburg, 73, who was appointed by President Bill Clinton, often disagree on the bench; Scalia's approach to constitutional interpretation isn't shared even by other justices appointed by Republican presidents.
In reviewing a statute, Scalia looks only to the actual text, and not to ``legislative history,'' the reports from congressional committees and transcripts of debates that might shed light on what the law's authors and those who voted for it had in mind.
When Alito invoked legislative history last week in a unanimous ruling on a federal speedy-trial law, Scalia alone refused to join that part of the opinion. Scalia said the statutory language was clear and chided his new colleague for ``intellectual piling-on.''
Reshaping Thinking
Even if he hasn't won full-fledged converts, Scalia has reshaped the way attorneys and judges think about the law, court observers say. That's especially true with cases that involve interpreting federal law, where lawyers now routinely begin arguments by discussing the words and even the punctuation used by Congress.
``He's one of those very few justices who come along in a generation who really change the law,'' said Christopher Landau, a former Scalia clerk who now practices at Kirkland & Ellis in Washington. ``He doesn't always win, but now people are arguing things on his terms.''
In recent years, Scalia has made as much news for off-the- court controversies as for legal matters. In March, a story in the Boston Herald said he made an obscene gesture in responding to a reporter's question as he left church. In a letter to the editor of the newspaper, Scalia said the Sicilian gesture meant ``I could not care less.''
Hunting With Cheney
In 2004 he took a duck-hunting trip with Vice President Dick Cheney, who was involved in a pending high court case. Scalia then rejected calls to remove himself from the matter, calling media reports about the issue ``largely inaccurate and uninformed opinion.''
In March, with the court preparing to hear arguments over military trials for detainees at Guantanamo Bay, Cuba, Scalia tangled with professors and students at a Swiss university over the rights of those inmates. Although he steered clear of the issues in the court case, Scalia spoke in personal terms by referring to his son Matthew, an Army officer who served in Iraq.
`Crazy'
``I had a son on that battlefield, and they were shooting at my son,'' Scalia said. Giving a ``full jury trial'' to an enemy soldier captured on the battlefield would be ``crazy,'' he added.
``There's a style of speaking that we expect from judges, and especially justices, a sense of self-restraint and propriety in their choice of language that Scalia does not always observe,'' said New York University law professor Stephen Gillers, a legal-ethics specialist. Scalia declined comment through a court spokeswoman.
Richard Bernstein, a former Scalia clerk who now practices law at Sidley Austin in Washington, said the justice rarely discusses anything off the bench that he hasn't already said in an opinion. In any event, said Edward Whelan III, another former clerk, Scalia is unlikely to be affected by criticisms and controversy.
``He has a very thick skin,'' said Whelan, now president of the Ethics and Public Policy Center, a Washington-based group that says it seeks to bring ``moral values'' to policy debates. ``Certainly, after 20 years of this, he's fairly used to it.''
To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.
Last Updated: June 14, 2006 09:28 EDT
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