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Scalia Showing His Softer Side

Justice Moves Into Public Eye With Possible Sights Set on Chief Job

By Dana Milbank
Washington Post Staff Writer
Tuesday, March 15, 2005; Page A02

Antonin Scalia was about 12 minutes into the latest phase of his recent charm offensive yesterday when he briefly returned to type.

The famously acerbic Supreme Court justice was making a nuanced point about his disagreement with the notion of "substantive due process" when he paused and frowned at some photographers in the aisle. "Could we stop the cameras?" he directed. "I thought I announced a couple of shots at the beginning is fine, but click, click, click, click, click."


The very private Supreme Court Justice Antonin Scalia allowed cameras during his speech at the Woodrow Wilson center. (Melina Mara -- The Washington Post)

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Still, it was a kinder, gentler Scalia who took questions from scholars at the Woodrow Wilson center. The extraordinarily private justice has in the past banned cameras from his speeches and was moved to apologize after reporters' tapes were confiscated at one lecture. He does not allow his speeches to be posted on the Supreme Court's Web site along with the other justices' addresses.

But lately Scalia has been stepping, squinting and blinking, into the public glare. In January, he consented to a televised debate at American University with his ideological opposite on the court, Justice Stephen G. Breyer. And there he was in a lecture hall yesterday with two rows of reporters and five television cameras.

One possibility for Scalia's conversion: a looming vacancy in the office of chief justice. The current officeholder, William H. Rehnquist, is gravely ill, and President Bush is on record praising Scalia as one of his favorite jurists. So it might be shrewd for Scalia to be pursuing a bit of image polishing in advance of a hypothetical confirmation hearing.

Toward that end, Scalia's Wilson talk was part demystification, part stump speech. "I am not a strict constructionist," he began, correcting the introduction by the center's director, Lee H. Hamilton. He also disclosed that the term "judicial activism" -- a favorite epithet of conservatives for liberal judges -- "is overused."

Scalia made the case that his "originalist" jurisprudence should be welcome to all -- even liberals. "I have my rules that confine me," he said. "When I find it, the original meaning of the Constitution, I am handcuffed." He said that's why he allows flag burning "even though I don't like to" and strong jury-trial guarantees. "Though I'm a law-and-order type, I cannot do all of the mean, conservative things I'd like to do to the society," he said.

Scalia's message to Democratic senators: Hold your filibuster.

The justice made a point of showing that he can be crosswise with conservatives, even on a matter involving sexual orientation. "Conservatives are willing to grow the Constitution to cover their favorite causes just as liberals are," he said. Slipping in a reference to his unanimous confirmation by the Senate 19 years ago, Scalia said his legal approach "has nothing to do with what your policy preferences are."

In private, Scalia is said to be charming. But his public face is his frequent dissenting opinions -- generally associated in news reports with words such as "scathing" or "cutting" -- that seem determined not just to assert disagreement but to cast doubt on the intellectual and moral integrity of the court's majority.

Disagreeing with the court's decision against a juvenile death penalty this month, he said his colleagues had engaged in "sophistry," wondering: "By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the nation?"

At other times, he has accused his fellow justices of ruling on the "flimsiest of grounds." When he disagreed with the majority on executing the mentally retarded, he awarded his peers "the prize for the Court's Most Feeble Effort to fabricate 'national consensus.' "

He seems to derive even more pleasure from run-ins with his opponents off the court. When environmentalists suggested Scalia should recuse himself from a case involving Vice President Cheney because the justice joined Cheney on a hunting trip, Scalia fired off a 21-page memo justifying his recusal refusal.

In his talk yesterday, Scalia acknowledged a certain notoriety. He expressed amusement that he is often asked " 'When did you first become an originalist?' like it's a weird affliction that seizes people, like 'When did you start eating human flesh?' " And he observed, with some pride: "My most important function on the Supreme Court is to tell the majority to take a walk."

He also showed there is no danger of him succumbing to the whims of political correctness. Discussing a case about the BMW painting process, he surmised that the vehicles' coating is "baked seven times in ovens deep in the Alps by dwarves."

But Scalia suggested that he is a last voice of reason and sanity at a time when much of the nation has been tempted into a nihilist theory of the Constitution as a "living document" capable of being stretched to fit whatever a judge wants. By contrast, he acknowledged that he is dispensing some "tough medicine" in leading people away from the "lovely fields" of former chief justice Earl Warren.

When it came time for questions, the newly visible justice made reference to his customary secrecy. Asked whether he'd like to answer on the dais or from the lectern, Scalia chose the latter. "I like to hide behind something," he said.


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