Brief cases

No Scalia wag
By HARVEY SILVERGLATE  |  November 14, 2006

This article originally appeared in the August 19, 1986 issue of the Boston Phoenix.

Antonin Scalia, President Reagan’s nominee to be an associate justice on the Supreme Court, has pretty much gotten lost in the brouhaha over the nomination of Associate Justice William H. Rehnquist to become chief justice.  Given the limited amount of energy – not to mention the short attention span and well-cultivated myopia – of most members of the Senate Judiciary Committee, it was predictable that attention would be focused on Rehnquist.  Hence, very little was learned about Scalia during the latter’s confirmation hearings, which proceeded perfunctorily for a single day.

Yet Scalia, a relatively young man (50 years old), will be with us for the rest of his life, barring an unlikely career change.  Although he has moved in Washington circles for some 18 years (including a stint in the Justice Department under President Ford), his has been a relatively low-profile career and little had been published about him until his recent nomination.  He was appointed by Reagan in 1982 to the Court of Appeals for the District of Columbia Circuit (considered the most important federal court under the Supreme Court), but his confirmation hearings then did not exactly make headlines.

What can we expect from Scalia?  Will he band together with other Reaganite justices in the next three years to gut the Bill of Rights, just in time for the bicentennial celebration of our Constitution? Will he gratify the Reaganites’ desire for a sort of national morality on abortion and other social issues? Or will he surprise everyone and turn out to be more independent and more solicitous than some of his colleagues about the American tradition of personal liberty and limited government power? Whereas it is reasonably clear that he will not turn out to be the kind of champion of citizen freedom and government responsibility and accountability that we find in Justices Brennan and Marshall, and even in Justices Blackman and Stevens, it also appears that he has some character traits that lend credence to the possibility of his growing to appreciate the potential and the grandeur of the office, as have some other Supreme Court justices throughout our history.

On what basis can one say this?

In the first place, in contrast to Rehnquist, Scalia seems to have more of the judicial conservative in him.  Rehnquist is a true believer in the omnipotence of the executive branch of government, led, on the federal level, by the president.  In any conflict between the president and Congress, he will almost always support the president.  Even though he claims to believe in “state rights,” he is likely to side with the federal executive in any conflict with the states.  He is more concerned with who wins the case than with what the law dictates.  Rehnquist will therefore go out of the way to review cases in order to vindicate such power.  He has sought at every opportunity to turn the judicial branch into a powerful ally of the executive branch. 

Scalia, on the other hand, seems genuinely to feel that the judiciary has assumed too large a role.  His concern, for example, over the Supreme Court’s abortion decision stems – according to what he said in a 1978 debate on “An Imperial Judiciary: Fact or Myth?” – not from any personal moral aversion to abortion but rather from a conviction that the courts should not establish “new” rights for which there is no clear societal consensus.

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