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Justice Scalia, the Great Dissenter, Opens Up

Supreme Court Justice Antonin Scalia has agreed to a few select interviews to promote his new book, Making Your Case: The Art of Persuading Judges, written with lexicographer Brian Garner. This is the first of a three-part interview with NPR.

Justice Antonin Scalia has carried the conservative banner in the U.S. Supreme Court for more than a quarter century. Though he has failed to persuade a majority of his colleagues on many high profile cases, supporters and critics alike agree that he has changed the terms of the debate.

What's more, with the addition of two appointees during President George Bush's time in office, he is on the verge of prevailing in most cases for the first time in his tenure on the court.


Scalia is a man of many contradictions. An only child, he is the father of nine children. Tough-minded and thick-skinned in public, in private he suffers when attacked. Often confrontational on the bench, and sarcastic in dissent, he is charming and funny in private.

Scalia has made his biggest mark, so far, in those famous biting dissents. He has mocked Chief Justice John Roberts, a fellow conservative, accusing him of "faux judicial restraint." He's said that former Justice Sandra Day O'Connor's view on abortion "cannot be taken seriously." Just this month, he derided Justice John Paul Stevens' views on the death penalty, calling them "the purest form of rule by judicial fiat," even though Stevens agreed with Scalia on the end result.

"I think when it's wrong, it should be destroyed," Scalia says, when asked whether such language might not alienate potential allies. "[If] it is profoundly wrong, [it] should be pointed out and pointed out forcefully. And I don't mind people doing that to my opinions. A good hard-hitting dissent keeps you honest."

A Dead Constitution

"My Constitution is not living, it is dead," Scalia says.


As an "originalist" and a "textualist," to Scalia the Constitution means what the framers intended back at the founding of the republic.

"Whatever they understood then is, in my view, the meaning ... and it's not up to me to say it really shouldn't mean that any more, it should mean something different. Once you get into that boat, you have no criterion," he says.

By this logic, if capital punishment was constitutional in 1791, it would be constitutional today. Theoretically, this means that putting people in stocks in the public square, a punishment used in 1791, is also constitutional.

"I would say that may be very stupid," he says, referring to the stocks, "but it's not unconstitutional, if indeed it was a punishment that was at that time accepted."

Scalia's Differences with Clarence Thomas

Contrary to public perceptions, Scalia and fellow conservative Clarence Thomas do not march in lockstep. Thomas is far less willing to abide by the court's past decisions, while Scalia says he generally does not believe in undoing old laws.

"I'm an originalist and a textualist, not a nut," he says.

His mantra is that states are free to decide for themselves whether to legalize controversial matters like abortion, homosexual conduct and assisted suicide. But when Oregon did in fact legalize assisted suicide, he dissented on other grounds.

He has accused his fellow justices of taking sides in the culture wars, but his critics say that it is he who has taken sides.

For example, in the case where the court struck down a state law that made private homosexual conduct a crime, Scalia dissented vociferously, even accusing his colleagues of setting the stage for legalizing homosexual marriage under the Constitution.

"I don't know why that's taking sides," he says, contending that it is hard to distinguish invalidating a state law banning homosexual sodomy and making homosexual marriage legal. "It's happened in Canada."

Comfort with Controversy

Scalia is no stranger to criticism. When he provided the fifth vote to strike down a law making it a crime to burn the American flag, his own wife greeted him in the morning singing "It's a Grand Old Flag."

Scalia says he "got a lot of heat from that opinion, really serious biting criticism from the quarter I normally don't get criticism from — that is to say from the right rather than the left." But his wife got a very special letter from the first President Bush, George H.W. Bush. Scalia summarized the letter as saying: "I know your husband has been getting a lot of criticism for his flag burning decision. Tell him not to worry about it. He did the right thing."

With the addition of two new Bush appointees on the Supreme Court, Scalia's views are now on the verge of prevailing more frequently than they ever have before.

"I'm not as much of a big loser as I used to be if you want to keep score," Scalia concedes.

"You know, winning and losing, that's never been my objective. It's my hope that in the fullness of time, the majority of the court will come to see things as I do."

A Future in Politics?

Scalia is so beloved by the political right that some conservatives dream of him as John McCain's vice presidential running mate. Scalia reacts to this idea with a huge guffaw, noting that he cannot imagine McCain choosing him when, in Scalia's view, McCain's signal achievement, the McCain-Feingold Campaign Finance Law, is unconstitutional in its entirety.

"When someone ... disparages what you think is your life's principal achievement, you're not likely to want him to be on your presidential ticket," Scalia says. "Besides which, ask my wife. I'd be a lousy politician."

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