Scalia’s Compass Points Away From Majority Dissenter Strikes Out At Moderate Justices

He would keep Virginia Military Institute all men. He would let states bar local gay-rights laws. He would allow elected officials to fire workers who didn’t support them politically. And he would permit conversations between psychotherapists and patients to be used at trial.

That’s Justice Antonin Scalia. And that’s been just in the last six weeks.

In some of the bigger cases in the now-ending Supreme Court term, Scalia, 60, has been the conspicuous dissenter with language that is striking for its force and moral outrage.

By nature caustic and challenging, Scalia appears to have doubled his efforts in recent weeks to articulate his conservative vision and, in high moral tone, to scold the majority for decisions that he believes undermine traditional values and have no foundation in American constitutional law.

In last week’s VMI case, he defended the school’s exclusion of women and touted its gentleman’s code, saying: “(I)t is precisely VMI’s attachment to such old-fashioned concepts as manly ‘honor’ that has made it, and the system it represents, the target of those who today succeed in abolishing public single-sex education.”

When the majority struck down a Colorado anti-gay rights law in May, he questioned why a state couldn’t act on its disapproval of certain behavior, and in that argument likened homosexuality to murder: “I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct.”

When the court on Friday said politicians couldn’t fire an independent contractor for speaking his mind or for disloyalty, Scalia defended the tradition of political favoritism: “It is profoundly disturbing that the varying political practices across this vast country … can be transformed overnight by an institution whose conviction of what the Constitution means is so fickle.”

And when the court ruled earlier in June that conversations between therapists and patients could be kept out of trials, Scalia said, “When is it, one must wonder, that the psychotherapist came to play such an indispensable role in the maintenance of the citizenry’s mental health? For most of history, men and women have worked out their difficulties by talking to … parents, siblings, best friends and bartenders - none of whom was awarded a privilege against testifying in court.”

Scalia’s words are remarkable for their vehemence and their target. In the arcane and unemotional world of legal writing, Scalia’s rhetoric is white hot.

Further, he levels his attacks on people who are far from flaming liberals, either judicially or politically. This court is controlled by conservative-leaning moderates who believe in slow, incremental moves.

While Chief Justice William H. Rehnquist and Justice Clarence Thomas (in more cases) vote like Scalia, they do not write as he does.

He opened his dissent in the gay-rights case with a reference to society’s division, or cultural struggle, over homosexuality, and to the majority’s view that an “animus” drove Coloradans to forbid local laws specifically protecting gay people:

“The court has mistaken a Kulturkampf for a fit of spite.” And he followed up, “When the court takes sides in the culture wars, it tends to be with the knights rather than the villains - and more specifically with the Templars, reflecting the views and values of the lawyer class from which the court’s members are drawn.”

A constant theme for Scalia, himself a graduate of Georgetown University and Harvard Law School, is that the majority has discarded traditional American values.

“He is doing this as the moral compass or the moral conscience of the court,” said Jay Alan Sekulow, counsel to the conservative American Center for Law and Justice, who has been especially pleased with Scalia’s dissents.

Liberals are not happy with Scalia’s “moralizing to the majority,” in the words of Elliot M. Mincberg, a lawyer at People for the American Way. “But to the extent that he drives a wedge between himself and moderates on the court, that’s OK with me,” Mincberg added, noting that Scalia’s most pointed sermons come in dissenting statements.

Justices Sandra Day O’Connor and Anthony M. Kennedy, two Ronald Reagan appointees who often part company with Scalia, have regularly drawn his ire. But last week, when the court ruled VMI’s exclusion of women unconstitutional in United States vs. Virginia, Scalia even took on the chief justice for concurring in the judgment. He called Rehnquist’s terminology imprecise, his view of the evidence “simply wrong,” and his reasoning “a great puzzlement.”

Scalia’s colleagues do not return the favor. The author of a majority opinion typically does not answer Scalia’s barbs, and if the substance is addressed, it’s done coolly and with the facts as the author sees them.

Yale University law professor Stephen L. Carter said that while Scalia fails to persuade his colleagues time and again, he has carved out a special role for himself since Reagan appointed him 10 years ago: “It is clear that he has set himself up, in effect, as saying the majority doesn’t care about traditional values.”

Carter added, “There is nothing new or unusual about judges recognizing the moral content of the law. The law is enforceable morality.”

Scalia, proud of being the first Italian American on the court, an only child who became the father of nine, is, by turns, pugnacious and charming. Known as “Nino” to friends, he plays the piano and sings at parties. Off the bench, as well as on, can be very funny.

When Ruth Bader Ginsburg, after being nominated by President Clinton, was asked by the Senate Judiciary Committee about her friendly relationship with Scalia, she said he was one of the few people who could make her laugh.

Graphic: Supreme Court: A dozen divided cases