To­day’s ‘most in­flu­en­tial’ jus­tice SCALIA

The Washington Times Weekly - - Culture, Etc. -

scream­ing, it could have been said in about 10 pages.” Jus­tice O’Con­nor once re­sponded to a Scalia ti­rade against hir­ing pref­er­ences based on sex and race with, “Why, Nino, how do you think I got my job?”

Ms. Biskupic sum­ma­rizes her sub­ject as “a prod­uct of his im­mi­grant back­ground, his tra­di­tional up­bring­ing, and his de­vout Catholi­cism,” and ob­serves that he has never tried to sep­a­rate his con­sti­tu­tional views from his core iden­tity.

His in­ten­sity on the bench may ac­count for the quo­ta­tion from Jus­tice Gins­burg af­ter she had served with him for a while: “I love him, but some­times I’d like to stran­gle him.” Un­like other jus­tices, par­tic­u­larly John Paul Stevens and the late Lewis F. Pow­ell Jr., who came to op­pose the death penalty, Jus­tice Scalia seems to glory in his in­flex­i­bil­ity.

Ms. Biskupic writes, “His po­si­tion on the death penalty and, sep­a­rately, on race-con­scious poli­cies en­dured term af­ter term.” She points out that Jus­tice Scalia’s op­po­si­tion to af­fir­ma­tive action grew partly from his iden­ti­fi­ca­tion with a group that did not ben­e­fit from it: As the grand­son of an Ital­ian fac­tory worker, the jus­tice has re­peat­edly ar­gued for the per­spec­tive of a white per­son sub­jected to re­verse dis­crim­i­na­tion.

Ms. Biskupic pre­dicts that Jus­tice Scalia may now be at the height of his in­flu­ence. She ar­gues that the Supreme Court is un­likely ever to go as far as he wants on racial poli­cies, and that Jus­tice Kennedy would block any re­ver­sal of Roe v. Wade. Jus­tice Scalia is also likely “to con­tinue on the los­ing side of gay rights, cour­tesy of Kennedy.”

How­ever, she says that Jus­tice Scalia, with the help of Jus­tice Kennedy and fel­low con­ser­va­tives, could yet help bring about more min­gling of church and state and less gov­ern­ment reg­u­la­tion of cam­paign fi­nanc­ing. She pre­dicts that Jus­tice Scalia will also “con­tinue to nour­ish his orig­i­nal­ism con­sti­tu­tional the­ory and bring it to wider audiences.”

Ms. Biskupic is that rare writer who can clearly and con­cisely ex­plain the is­sues in cases con­sid­ered by the court while car­ry­ing gen­eral read­ers along with the hu­man nar­ra­tive.

Priscilla S. Tay­lor is a writer in McLean, Va.

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