Let’s compare two Antonin Scalias. We join the first, the 50-year-old Supreme Court nominee, during his easy-as-pie confirmation hearings back in 1986. At one point during the questioning, Sen. Strom Thurmond served up one of those annoying softball questions friendly senators always ask; this one was about, of all things, the meaning of Marbury v. Madison.
As anyone who’s ever taken a high school civics class (an increasingly small percentage of the population today, unfortunately) should know, Marbury is the famous 1803 decision in which the Supreme Court, to the considerable dismay of President Thomas Jefferson, first established the principle of judicial review.
Bottom line: Asking a potential Supreme Court justice what he thinks about Marbury v. Madison is approximately equivalent to asking a major league baseball manager how many strikes a batter gets before he strikes out. We ain’t talking rocket science here.
Still, Scalia demurred. “I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison,” he insisted. His public rationale for taking this position was, of course, the same one that most present day Supreme Court nominees hide behind during confirmation hearings — that it would be inappropriate to answer any question that might give even the appearance of prejudging a case that might later come before the Court.
Fast forward twenty years to the second Antonin Scalia, the increasingly grumpy 70-year-old version we have with us today. On March 8, 2006, just a few weeks before the Supreme Court was scheduled to take up arguments on the status of Guantánamo detainees, Scalia was speaking at the University of Freiburg in Switzerland. As described by Newsweek, which broke the story, Scalia spoke dismissively of the whole “idea that the detainees have rights under the U.S. Constitution or international conventions, adding he was ‘astounded’ at the ‘hypocritical’ reaction in Europe to Gitmo.” The Newsweek report continues:
“War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts,” he says on a tape of the talk reviewed by NEWSWEEK. “Give me a break.” Challenged by one audience member about whether the Gitmo detainees don’t have protections under the Geneva or human-rights conventions, Scalia shot back: “If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.”
What a difference 20 years makes. In 1986, propriety prevented Scalia from even discussing a relatively ancient point of law, involving a now completely uncontroversial principle, from a case decided nearly 200 years earlier; but in 2006, he apparently sees no problem in publicly describing his viewpoint on an issue that’s just days away from coming before the Court.
What has changed? Well, obviously, a lot of things: In 1986, Scalia was an eager job applicant; today he’s an entrenched member of the most important court in the world, where, absent the extraordinarily unlikely remedy of impeachment, he will serve for life or until retirement, entirely at his own discretion. But there has to be more at play here than that. At the risk of sounding overly dramatic, what Scalia did in Switzerland was completely outside the pale; it was injudicious and probably unethical: What’s more, it was stupid and whatever one may think of Scalia’s career on the Court — and I for one don’t think much of it — there’s no question the man’s been brilliant.
And what’s particularly troubling about this incident, of course, is that it doesn’t stand alone. Reports of questionable conduct by Scalia just keep coming: Yesterday, it was his use of an offensive gesture, perhaps profane, although he denies this, but certainly insulting, in response to a reporter’s question.
Justices of the Supreme Court (as opposed to vice presidents) just don’t act that way in public. It would be like the Queen of England chewing with her mouth open at a state dinner; it just isn’t done.
But there’s more: Only about a month before that indiscretion, in a speech to the right wing legal group, The Federalist Society, Scalia declared that people who reject his so-called originalism approach to constitutional interpretation are “idiots.” Given that many of his colleagues on the Supreme Court quite properly reject originalism, this was again a remarkably tone-deaf thing to say.
And just a few months prior to that debacle, in a speech at an Orthodox synagogue, Scalia made the bizarre suggestion that the fact there was separation of church and state in prewar Germany helped to make the Holocaust possible.
Stephen Gillers, a legal-ethics expert, is quoted in the Newsweek article as saying, “As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the court.”
That’s a polite way to put it. To be a bit more blunt, however, if this pattern continues, and it’s hard to believe it won’t, ultimately legitimate issues will need to be raised, both in public and within the Court itself, as to what exactly is going on with Justice Scalia to cause this epidemic of inappropriate commentary and other questionable conduct (e.g., the hunting trip with Cheney). And ultimately, his fellow justices will have to decide whether the time has come for them to use their influence, which is considerable under the unique sociology of the Court, to suggest that the time has come for him to retire.
For the record, I in no way wish Justice Scalia ill. In fact, like many other liberals, I’ve tossed my share of metaphorical coins into the wishing well pleading that there be no further Supreme Court vacancies, even among the conservative justices, until the end of George W. Bush’s term, when there’s at least some reason to hope that a Democrat will take office, and thus be the one to fill any vacancies.
But if things don’t change soon with Justice Scalia, we may not have that long to wait