Justice Scalia provides hard-nosed edge to role of US Supreme Court

 

Justice Antonin Scalia once described the Supreme Court as a reluctant constitutional fire brigade. "We should not be a prominent institution in a democracy," he said earlier this year. "We are called in to correct mistakes. When you have to call us in, someone has screwed up, something has gone terribly wrong."

Few would disagree that something went wrong with America's election this year. And now the Supreme Court, spearheaded by Justice Scalia, has stepped on to the centre stage of America's democracy, creating an expectation that the justices will sort the mess out and ensure the legitimacy of the next president.

The question is whether the court's controversial assertion of jurisdiction over the case will satisfy the public that the court can fairly "correct the mistakes", as Justice Scalia might put it, or whether the justices will leave much of the country believing that the Supreme Court is susceptible to partisan decision-making.

Whatever happens, history will record that no member of the court played a more pivotal role than Justice Scalia, who, by his public words and private actions, has clearly been a driving force in the court's approach to the election thus far.

He directed verbal barbs at Mr Gore's counsel during a December 1st argument. In an extraordinary published opinion supporting Mr Bush's application to stop manual recounts in Florida, he sharply criticised his liberal colleagues in the court.

And in the court's private, often complicated, decision-making on the case when it first reached the court this month, it was Justice Scalia who argued that the court's opinion should include an order vacating the Florida Supreme Court's decision to extend a deadline for manual recounts, according to an informed source.

The justice's performance has been "vintage Scalia", says Joshua Rosencranz, a former Scalia clerk who now teaches law at the Brennan Center for Justice at New York University. "He is very tough-minded and hard-nosed. He does not mince words."

Appointed to the Supreme Court in 1986 by President Reagan to fill a vacancy created by the retirement of Chief Justice Warren Burger, Justice Scalia had previously served as a judge on the US Court of Appeals for the District of Columbia Circuit, a professor of law at the University of Chicago, and editor of the conservative American Enterprise Institute's magazine, Regulation.

A man of immense intellectual candlepower, Justice Scalia brought to the court a concept of jurisprudence based on the belief that judges should keep out of issues better dealt with by democratically accountable bodies such as Congress and the state legislatures.

His doctrine of judicial restraint included a strong belief in "textualism" - the view that the constitution and the laws can be understood solely by reference to their words, rather than the additional meanings judges sometimes derive from the shifting historical circumstances in which those words might be read.

Passionately opposed to abortion and equally supportive of capital punishment, he has defended his views on both issues by referring to the text of the constitution. A privacy-based right to abortion, he has said, simply does not appear in that document, and thus the 1973 Roe v Wade decision that established a constitutional right to abortion was wrongly decided.

Similarly, he remarked this year, the death penalty, which is mentioned in the constitution, "was constitutional in the 18th century so it is constitutional now". Those views barely aroused a word of protest during his 1986 confirmation process. Liberals concentrated their energies on a futile effort to stop the ascension of William Rehnquist to Chief Justice. The Senate confirmed Justice Scalia by a vote of 98-0.

His lonely dissent from the court's 8-1 decision upholding the constitutionality of the independent counsel law in 1988 has been recognised as a tour de force in legal reasoning, an argument against what Justice Scalia considered an unaccountable fourth branch of government - a view that even many liberals have come to embrace in the wake of Kenneth Starr's pursuit of President Clinton.

For the most part, however, his opposition to abortion and strong support of recent court decisions favouring state prerogatives against encroachment by federal legislation, have made him a lightning rod for liberal criticism.

One irony of Justice Scalia's prominent role in a case that could effectively decide the presidential election is that, during the campaign, Democrats portrayed the election as, in part, a crusade to prevent any more justices like Scalia and fellow conservative Justice Clarence Thomas from being appointed by Mr Bush - who had spoken highly of both.

Though his best friend on the court is liberal Justice Ruth Bader Ginsburg - Justice Ginsburg and her spouse, and Justice Scalia and his, spend each New Year's Eve together - Justice Scalia is in no way a conciliator.

He has been a part of majorities on the court, but rarely an assembler of them. He has more often played the role of doctrinal purist, attacking what he considers the soft-headedness of his fellow justices in one sharply-worded opinion after another.

In 1992, he dissented bitterly from the court's decision in Planned Parenthood v Casey, in which his fellow Republican appointees, Sandra Day O'Connor, David Souter, and Anthony Kennedy, disappointed him by upholding Roe v Wade.

"I must respond to a few of the more outrageous arguments in today's opinion, which it is beyond human nature to leave unanswered," he wrote.

That 1992 dissent, however, contains a number of arguments that could be turned against the justice if, as appears all but certain, he forges ahead with an effort to overturn the Florida Supreme Court's decision in favour of manual recounts - an effort that would, in effect, make the US Supreme Court the arbiter of the election.

Decrying the Casey majority opinion as an act of "the Imperial Judiciary", Justice Scalia quoted approvingly from President Lincoln's first inaugural address: "The candid citizen must confess that, if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

So far, all indications are that a five-member majority of the court supports a view of the presidential election case consistent with Justice Scalia's argument.

One measure of the Gore campaign's concern, in fact, may be that they are attempting to have Justice Scalia removed from the case. Lanny Davis, a former Clinton White House counsel, suggested at the weekend that the justice should step aside because his son works for a firm that represents Mr Bush.

Mr Eugene Scalia, one of the justice's nine children, is a partner in the Washington office of Gibson, Dunn & Crutcher. Theodore Olson, also a partner there, represented Mr Bush for a second time in oral arguments on Monday.

Federal law says judges should disqualify themselves from cases in which their child is known to have "an interest that could be substantially affected by the outcome of the proceeding". But Mr Eugene Scalia said at the weekend he was not working on the Bush case.

If Justice Scalia were to rule himself unfit to hear the case and therefore rule himself out, that would presumably leave the court divided 4-4. A tie vote that would have the effect of affirming the Florida Supreme Court's ruling, giving Mr Gore a victory.