How Scalia lost his mojo.

The law, lawyers, and the court.
July 5 2006 3:59 PM

How Scalia Lost His Mojo

Why the Supreme Court's most exciting justice is becoming much less fun to read.

(Continued from Page 1)

And how. A quick tour of Scalia's greatest hits in dissent is in order. There's Morrison v.Olson, in which the court upheld the Independent Counsel Act. (Remember Kenneth Starr?) Scalia, writing on the short end of a 7-1 split, upbraided his colleagues for overlooking an obvious separation-of-powers problem. Some dangers come before the court "in sheep's clothing," he wrote. "But this wolf comes as a wolf."* Then there's PGA Tour, Inc., v. Martin, in which the court had to decide whether a rule requiring all golfers to "walk" the course violated the rights of a disabled golfer. In dissent, Scalia suggested that, "out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question." And few can forget Planned Parenthood v. Casey—the 1992 case upholding the core holding of Roe v. Wade—in which Scalia's dissent achieved a level of frustrated fury usually reserved for undersea volcanoes and small dogs tied to parking meters. Chastising the majority opinion's claim that it is "tempting" to limit the freedom of federal judges, he retorted that "no government official is 'tempted' to place restraints upon his own freedom of action, which is why Lord Acton did not say 'Power tends to purify.' "

It's heady stuff—and that's without even getting into Scalia's jeremiads against the use of international law, "evolving standards of decency," or the court's embrace of the "homosexual agenda." But in majority opinions, the name of the game is coalition-building, and while the Scalia who speaks in the first person plural is able to find room for a flash or two of wit, there's just no comparison with his dissents. You can read Scalia's majority opinions in Davis v. Washington or United States v. Gonzalez-Lopez, without cracking a smile, and—a line or two notwithstanding—Scalia's majority opinion in Hudson v. Michigan (which allowed unconstitutionally acquired evidence to be used at trial) could have been written by pretty much anyone.

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I don't doubt that all this newfound relevance pleases Scalia. And he may well try to have his cake and eat it too by writing lots of blistering concurrences that take shots at anyone and everyone within rifle range. But that would be pointless. You might even say it would be a bit like Demosthenes on the beach, rattling off into a big, open nothingness.

* Correction, July 6, 2006:The line from Morrison v. Olson was originally misquoted as "But this one comes as a wolf." Click here to return to the corrected sentence.

Conor Clarke is a former editor at the Atlantic and the Guardian as well as the editor, with Michael Kinsley, of Creative Capitalism.

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