The price of Scalia's political stardom

Law professor Jonathan Turley
Sunday, January 23, 2011

on why the high court doesn't need celebrity justices

Justice Antonin Scalia is scheduled to appear before an eager freshman class Monday to talk about the Constitution. This is nothing new for Scalia, who often speaks at law schools. These students, however, are a little different.

At the invitation of Rep. Michele Bachmann (R-Minn.), Scalia will be addressing new conservative members of the House of Representatives. To them, Scalia is a nothing short of a rock star. He personifies not only conservative values but a new model for the Supreme Court: the celebrity justice.

Where Scalia has ventured with crowd-pleasing rhetoric, other justices are following. They rally their bases on the right or the left with speeches, candid interviews, commencement addresses and book tours. They appear to be abandoning the principle of strict neutrality in public life, long a touchstone of service on the highest court.

The Bachmann event takes this posturing to a new level. Scalia will be directly advising new lawmakers who came to Congress on a mission to remake government in a more conservative image. Many of them made pledges to repeal health-care reform, restrict immigration and investigate the president - pledges based on constitutional interpretations that might end up before the court.

At best, Scalia's appearance can be viewed as a pep talk. At worst, it smacks of a political alliance.

Supreme Court justices have long chosen fairly cloistered lives and avoided public speeches and appearances. Historically, most members of the highest court - where the proceedings are still not televised - were unrecognizable to citizens. In an incident that's a favorite of mine, a tourist family once asked an elderly man to take their picture at the court - and found out later that it was Justice Byron White.

Justice John Paul Stevens, who retired last year, may have been the last of the breed of judges truly committed to limiting public appearances. A couple of years ago, Stevens and I spoke to a judicial conference in Milwaukee and flew on the same plane. While we chatted at the gate, a lawyer came up and introduced himself to me. He didn't recognize Stevens, and when I introduced him to the justice, the lawyer turned scarlet and made a fast retreat. Stevens never wanted to be a legal idol. He wanted to speak only through his opinions.

But as soon as Scalia was appointed to the Supreme Court by President Ronald Reagan, it was clear that he would be a different type of justice. He was instantly recognized as the intellectual leader of the right on the court at a time of intense ideological divisions. He also chafed at the court's monastic environment. Charming and irascible, Scalia is a much valued speaker and loves to interact with lawyers and law students. He often appears at conservative events and thrills crowds by attacking liberal doctrines. Scalia gave a revealing interview, published in this month's California Lawyer magazine, speaking against claims that the 14th Amendment protects women and gays from discrimination. While that was not a new position for Scalia, he again triggered a public debate on issues that are likely to come before the court this term.

Scalia is not the first justice to cultivate a constituency. Justice William Douglas, appointed by Franklin D. Roosevelt in 1939, publicly embraced environmental causes, including the preservation of the C&O Canal. More recently, Justice Sandra Day O'Connor was criticized for condemning the death penalty. In a 2001 speech in Minnesota, O'Connor said that she questioned whether the death penalty could be "fairly administered in this country." She told her audience, "Minnesota doesn't have [the death penalty], and you must breathe a big sigh of relief every day."

Still, Scalia is the first real celebrity justice. When he appears at conservative events, supporters line up to greet a man who seems more oracle than orator. They are drawn not just to his originalist views but to the sense that he is a purist on a court of relativists. And his fans are often rewarded with a zinger from the justice that would set the hair of every liberal on fire. For example, in a 2006 talk to students in Switzerland, Scalia denounced the idea of giving Guantanamo detainees rights in federal courts, with a disturbingly personal take on the matter: "Give me a break. . . . If he was captured by my army on a battlefield, [Guantanamo] is where he belongs. I had a son on that battlefield, and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean, it's crazy."

Other justices, particularly those on the right, appear to be following Scalia's lead and presenting their politics publicly. This includes Justice Clarence Thomas, who is known for his utter silence during oral arguments. Outside the court, though, he has denounced our society's "focus on our rights" and the "proliferation of rights" protecting citizens. And the whole world saw Justice Samuel Alito shake his head and mouth "not true" as the president criticized the recent Citizens United decision on campaign finance at the State of the Union address last year.

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