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-

Page 14 follows:

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