The Supreme Court's pocket Jeremiah.
Two weeks ago, Supreme Court Justice Antonin Scalia recused himself from what would have been one of the most important church-state cases of his career. The court had agreed to hear whether the words "under God" in the Pledge of Allegiance impermissibly impose religion into the lives of public-school students. Scalia didn't explain his recusal; the justices almost never do. But it's assumed he was reacting to a pleading filed by the plaintiff in the pledge case—California atheist Michael Newdow—who sought Scalia's recusal because of a speech he'd given last February, in which he suggested the pledge case had been wrongly decided in the 9th Circuit. That speech, argued Newdow, meant Scalia could not hear the case with the open mind required by federal law.
Evidently, Scalia agreed. Either that, or he owns stock in the pledge. As a result of his recusal, the court may well split 4-4 on the case, in which case the 9th Circuit's decision will stand, for all the states in its jurisdiction.
One might have expected that—having just witnessed the results of intemperate remarks to a group of Roman Catholics at a Religious Freedom Day rally in Fredericksburg, Va.—Scalia would be inclined toward circumspection. But circumspection is not a word in the otherwise limitless Scalia vocabulary. Which is why, last Friday, in a speech to another conservative group—the Intercollegiate Studies Institute—Scalia unloaded with another scathing criticism, this time of his brethren's logic in Lawrence v. Texas, last term's decision striking down Texas' gay sodomy law. According to the Associated Press account of the speech, Scalia "adopted a mocking tone to read from the court's June ruling." Another account, in the National Review Online, takes issue with this AP characterization, but only to contend that yes, Scalia was mocking Justice Kennedy's opinion in Lawrence, but only because Kennedy's opinion was so dumb as to warrant it. There seems to be no dispute, then, that days after having to boot himself off a case for overheated remarks to an adoring crowd, Scalia was at the podium again, offering overheated remarks to an adoring crowd.
Is this brilliant jurist losing his mind? Is he so frustrated by 17 years of failure to sway an allegedly conservative court to his side on social issues that he no longer cares who he offends or how biased he may appear? Has he become so swept up by the Coulter/Limbaugh/O'Reilly game of court-bashing that he cannot see how damaging it is when played by a justice? Or is he running for elected office? What possesses Justice Scalia to eschew the reclusive public life of many justices, or at least the blandly apolitical public lives of most, to play the role of benighted public intellectual and knight gallant in the culture wars?
There is, to be sure, an important difference between Scalia's remarks on the Pledge case and his recent skewering of the Lawrence decision. The rule for improper judicial speech is set forth in Title 28, Section 455 of the U.S. Code, providing that judges must recuse themselves in any case in which their "impartiality might reasonably be questioned." With his comments in Fredericksburg, Scalia showed that—at least on the pledge case—he did not have an open mind. One of the reasons Scalia was so quick to recuse himself (and the decision was his alone to make) is that he is intellectually honest enough to know that he slipped in Virginia by discussing a case that would come before the court. There is nothing wrong, technically, with his subsequent comments condemning the decision in Lawrence. The case is already decided, and his intemperate comments were mild compared to his scorching written dissent.
But the body of his speeches and addresses makes it clear that he appears anything but "impartial" as is seemingly required by the law. One can predict his vote on most cases with great confidence. This is true of most justices, although Scalia would see it as a virtue: evidence of the consistency and predictability of his system of constitutional thinking. In some sense, then, the ethics rule punishes only judges whose views are inconsistent, who then speak at large gatherings, or at least gatherings with AP reporters present. California Supreme Court Justice Janice Rogers Brown is being similarly pilloried for controversial speeches she's made; speeches she insists do not betray her judicial ideology but were deliberately intended to "stir the pot." Whether or not judges should be held to views expressed in extrajudicial speeches and whether or not they should be forced to recuse themselves for them are once again open questions. Expect more recusal motions in the future. But the fact remains that judges who give controversial speeches imploring listeners to espouse certain views and values undermine the appearance of judicial neutrality, and Scalia is no stranger to this fact.
In 1996, with two euthanasia cases pending in the high court, Scalia was criticized for giving a speech claiming that there was "no constitutional right to die." In a 1998 speech he asserted that the entire "Incorporation Doctrine"—with which most of the Bill of Rights is held to apply to state and local governments—was not an accurate "interpretation of the Constitution" (suggesting that most of the civil rights revolution of the past 50 years, including free speech, racial integration *, and the right of assembly, were wrongly decided). And in a 2002 speech, he urged any Catholic judge who agrees with the pope on capital punishment to resign from the bench.
One explanation for Scalia's pedantic bent is his background as a law professor at the universities of Virginia and Chicago, Stanford, and Georgetown. He loves to teach. There is a didactic quality to Scalia's performance on the bench—a sense in which he uses oral argument merely to lecture and browbeat his brethren—that is hard to escape. It is Scalia's way to joke, to interrupt, and dominate his way through oral argument. He can never resist scoring the rhetorical point, answering his own, or his colleagues' questions if the oral advocate fails to do so. The papers of former Justice Thurgood Marshall reveal that Scalia's relentless sarcasm annoyed even his ideological ally, Chief Justice William H. Rehnquist. And Scalia saves his worst venom for attacks on the court's "moderates," Sandra Day O'Connor and Anthony Kennedy, whose defections to the left on social issues such as abortion and affirmative action engender a sense of almost personal intellectual betrayal. Nothing enrages Scalia more than intellectual inconsistency. A decision that doesn't fit into the existing constitutional framework is to his mind a capital offense—worse even than horse-thieving. There is a wonderful line in the film Broadcast News that invariably calls Scalia to mind. Holly Hunter's boss snarls, "It must be nice to always believe you know better, to always know you are the smartest person in the room." To which Hunter replies, "No, it's awful." Scalia comes across as similarly burdened; beaten down by the weight of his own inevitable rightness.
Another key to understanding Scalia's tendency to run off at the mouth when standing at the lectern probably lies in his fixed system of constitutional interpretation. Scalia is the court's staunchest proponent of "originalism"—the doctrine holding that the Constitution is a dead document, not to be infused with the faddish new preferences of each generation's judges. In an article in First Things, from May of 2002, Scalia makes clear that he can opine on his views of capital punishment without jeopardizing the impartiality of his votes in future cases precisely because his own vote is derived strictly from the text of the Constitution, which is unwavering. In effect, says Scalia, his only job as a judge is to get out of the Framers' way as they rule the land. By casting himself, rather ghoulishly, as crypt-keeper rather than as judge, Scalia can render his personal morality and preferences immaterial. He can make all the speeches he wants without compromising his neutrality, simply by acting as the constitutional Ouija board he was meant to be.
But one cannot ignore—and Scalia would not have us ignore—the fact that he is also a deeply religious man. Scalia worships at a conservative Virginia church that erected a monument to unborn children several years back. And he joins many of the nation's religious groups in feeling besieged and marginalized by the constitutional wall that's been erected between church and state—a wall that keeps the devout from practicing and proselytizing in the public square. He is convinced that civilization is in decline and that this banishment of religion is directly responsible. He truly believes that the coarseness and callousness of modern mores and practices have imperiled us all. And if those beliefs make him sound more Jeremiah than Judge, well, Scalia would probably welcome the comparison.
This, then, is the insidious and brilliant part of the Scalia speaking tour: Merely by virtue of his public role he is actually tearing down the wall between church and state every time he opens his mouth. Which is precisely what he wants.
Dahlia Lithwick writes about the courts and the law for Slate.
Illustration by Charlie Powell.