Vol. 4, No. 2 (February, 1994), pp. 13-14.
JUSTICE ANTONIN SCALIA AND THE SUPREME COURT'S CONSERVATIVE
MOMENT by Christopher E. Smith. Westport, CT: Praeger, 1993. 160
pp. Cloth $47.95.
Reviewed by David Barnum, DePaul University
The purpose of Christopher Smith's short book is to establish
that Justice Scalia has been largely if not exclusively
responsible for frustrating a key component of the conservative
political agenda, namely, reversal of the liberal constitutional
precedents of the Warren and Burger Courts. In Smith's words, the
"central argument of this book is that Justice Scalia, the
creative, brilliant, and outspoken intellectual leader of the
Court's conservative majority, made a pivotal contribution to the
failure of the judicial counterrevolution that he so fervently
sought to achieve" (p. 20).
Smith focuses on two separate explanations for Scalia's
counterproductive role in the conservative effort to change the
direction of American constitutional law. The first is Scalia's
occasional tendency to reach liberal results in constitutional
cases. The second is Scalia's tendency to alienate his natural
ideological allies on the Court by dominating oral argument, by
insisting upon extreme positions in constitutional cases, and by
writing opinions laden with sarcasm and even personal invective.
The book is based on Scalia's published opinions, on law school
lectures and other published off-the-court pronouncements by
Scalia and other justices, and on articles on the Court and the
justices appearing in newspapers and news magazines (most of
which are based on interviews with individual justices or their
clerks). The book does not contain any original material, that
is, Smith did not himself interview Justice Scalia or any of the
other justices or their clerks.
Smith devotes relatively little time to examining Scalia's
unexpected support for liberal outcomes in selected cases. The
flag burning cases receive only passing mention, and in the end
Smith's sole example of Scalia's abandonment of his conservative
colleagues is ARIZONA V. HICKS (1987), in which Scalia wrote a
majority opinion concluding that certain police conduct
constituted an unreasonable search, that the question of whether
the police could benefit from a "good faith exception"
to the exclusionary rule was not before the Court, and that
therefore the disputed evidence would have to be suppressed.
Smith argues that the decision in Hicks can be traced to various
identifiable themes in Scalia's jurisprudence, including his
belief that "provisions of the Constitution have definite
and specific meanings based on their words and their original
meanings" (p. 83). Smith does not support this conclusion
with a careful analysis of Scalia's opinion in Hicks, however,
and I think one would be well advised to read the Hicks case
itself before accepting Smith's interpretation of Scalia's
position.
The core of Smith's argument that Scalia bears a heavy
responsibility for failure of the conservative counterrevolution
is based on the premise that "Scalia's philosophy, behavior,
and style made him an ineffective coalition builder within the
political decision-making processes of a collegial court in which
it takes five votes to establish a new precedent" (p. 20).
Smith provides numerous examples of the "strident"
rhetoric of Scalia's written opinions and of Scalia's tendency to
irritate his colleagues by his aggressive and overbearing style
of questioning during oral argument. On pp. 95-102, Smith
speculates that it may have been Scalia's impatient desire to
overrule ROE V. WADE that drove Justices O'Connor, Souter, and
Kennedy to author their famous defense of stare decisis in
PLANNED PARENTHOOD V. CASEY (1992). And in a subsequent section
(pp. 113-5), Smith goes one step further and argues that the
presence of O'Connor and Souter in the five-justice majority
subscribing to Kennedy's opinion in LEE V. WEISMAN (1992)
(overturning prayer at a middle school graduation ceremony) was a
product of their fear of being accused by Scalia of inconsistency
for basing their position in Casey on the principle of stare
decisis while failing to treat the issue in Lee as being governed
by the Court's original school prayer precedents in ENGEL V.
VITALE (1962) and School District v. Schempp (1963). "Given
that Kennedy, O'Connor, and Souter were about to issue an
extensive defense of stare decisis in order to respond to Scalia
in the abortion case," Smith writes (p. 114), "they
could not very well partici-
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pate in the reversal of even older precedents concerning the
Establishment Clause."
I confess that I did not find Smith's book very persuasive,
although my reservations are not based, as such, on disagreement
with his central thesis. I would summarize my criticisms of the
book in the following way. First, Smith is obliged to severely
hedge his own thesis. He argues convincingly that the addition of
Clarence Thomas to the Court's conservative lineup may have been
even more instrumental than Scalia's behavior in provoking the
emergence of a moderate bloc on the Court. He then salvages the
central thesis of the book by the somewhat lame device of
asserting (on p. 128) that "The foregoing observations about
Thomas's role in defeating political conservatives' policy goals
during the 1991 term do not conflict with the argument that
Justice Scalia had a pivotal role in contributing to the failure
of the conservative moment of opportunity." Second, Smith
reports early in the book (p. 62) that "For the most part,
Scalia has participated effectively within the Court and is
reported to be personally well liked by his colleagues."
Unfortunately, Smith never discusses the tension between this
observation and the central thesis of his book. Third, Smith
provides numerous examples of Scalia's biting rhetoric. I concede
that Scalia's writing style is exceptionally forthright and
acerbic. However, Smith's attempts to discover veiled personal
insults in selected passages of Scalia's opinions are strained at
best -- see, e.g., pp. 61-5 -- and in the end I am not persuaded
that Scalia's approach to opinion writing, although extreme, is
not well within contemporary norms of give and take among
judicial decision makers. Finally, I think Smith's book would
benefit from additional historical references. The presence on
the Supreme Court of a justice whose personal attributes or
ideological rigidity undercut his ability to enlist allies and
build coalitions is not without precedent. Antonin Scalia may
well be substantially responsible for sabotaging the very policy
objectives his appointment was designed to serve. If so, however,
he is not the first justice (nor is he likely to be the last) to
find himself in this ironic position.
Copyright 1994