The Anti-Court Court
A former student of Scalia’s, later a federal judge, Michael McConnell, said,
I will predict you will not see him running off and writing separate opinions merely because he takes exception with small issues or details…. He believes it is important to the country for the Court to get together and to speak with a single voice.
These predictions could not have been more wrong. Scalia is famous for his acerbic pen, and has often seemed to reserve his sharpest attacks for Justices O’Connor and Kennedy, by whom, one senses, he feels betrayed—but whose votes he almost always needs if his views are to become law. In his third term on the Court, he wrote that Justice O’Connor’s refusal to consider overruling Roe v. Wade in an abortion case was “irrational” and “cannot be taken seriously.”
.. Scalia called Kennedy’s approach “incoherent” and said that “interior decorating is a rock-hard science compared to psychology practiced by amateurs.” In 1994, when Kennedy and O’Connor joined an opinion holding that a New York state school district drawn exclusively for the Jewish village of Kiryas Joel impermissibly established religion, Justice Scalia dismissed the Court’s ruling as “preposterous.” He shows no inclination to pull punches in order to avoid alienating his colleagues whose votes he will need in future cases.
In part, this may be a relic of Scalia’s experience as a star debater in his youth. He was one of the nation’s best, first at Xavier High School in Manhattan, then at Georgetown University. Debaters don’t compromise. As Murphy puts it:
Success required four skills: a razor-sharp wit to cut through arguments under great pressure, a sharper tongue to deliver penetrating and concise attacks, an unflappable nature to deal with a barrage of attacks, and the ability to organize and deliver swift persuasive extemporaneous orations.
Scalia still has all four skills, but they don’t serve him quite as well on the Supreme Court.
.. The Warren Court viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process. The Roberts Court, by contrast, prefers that courts have a much smaller part in regulating American life. In pursuit of that deregulatory agenda, it often leaves the vulnerable effectively unprotected. And on this issue, there has been virtually no “uncertainty.” In the end, what most defines the Roberts Court may be its hostility to courts themselves.