When the Supreme Court opened on the first Monday in October of 1986, its newest member, Antonin Scalia, had taken occupancy of the former chambers of retired Justice Potter Stewart. Scalia assumed his seat on the bench to the far left of Chief Justice Rehnquist’s center chair, moving the next junior justice, Sandra Day O’Connor, over to the far right chair. He joined a balanced Court consisting of four conservatives, four liberals, and one swing justice, who determined the Court’s holding on nearly every issue by moving back and forth between the two wings.
Leading the conservative wing was Chief Justice Rehnquist, a former member of Nixon’s Office of Legal Counsel, who was beginning his tenure as chief justice at age sixty-two after serving as an associate justice for fifteen years. While an associate justice, he built a record of solo conservative dissents on an already conservative court and became known as the “Lone Ranger.” (He was even given a doll of the character by his law clerks.) He was by far the most ideologically conservative member of the Court. Another of the Court’s reliable conservatives was, ironically, a Democrat, sixty-nine-year-old Byron White, who had been appointed to the Court in 1962 by President Kennedy. He was a former NFL football star nicknamed “Whizzer White” for his slashing running style. White’s political philosophy changed during his twenty-three years on the Court, and by 1986 he could be counted among the conservatives except for issues involving racial relations and the death penalty.1
The conservative with whom Scalia seemed ideologically to have the most in common was the youngest of the group, fifty-six-year-old Sandra Day O’Connor. Appointed by Ronald Reagan in 1981, she was the first woman to serve on the High Court. The daughter of Duncan, Arizona, cattle rancher Harry Day, a “harsh, demanding, unpredictable man,” she was dispatched at age six, during the depths of the Great Depression, to live with her maternal grandmother and attend public schools in El Paso, Texas.2 Later she attended the Radford School for Girls, eventually graduating from the El Paso public high school. In visits home to her family’s ranch, she was treated like the cowboys and expected to make her contribution by riding a horse and helping herd cattle. Out of this experience she developed a fierce sense of frontier independence that served her well when she attended Stanford University, and later graduated in the 1952 Stanford Law School class, along with Rehnquist, whom she had briefly dated.
Despite her academic success, in the sexist world of the law, O’Connor could not find a job in a private law firm and was offered only a legal secretarial position. She turned to the public sector, working as a deputy attorney general in San Mateo County, California, and eventually moved to Arizona with her husband, John O’Connor, and opened her own law firm. There she became involved in Republican Party politics, and when there was an opening in the Arizona State Senate in 1965, she was appointed to fill it. She remained there for two more terms before becoming a judge—first on the Maricopa County Superior Court, then in 1979 on the Arizona Court of Appeals, the state’s highest court.3 A lifelong Republican, appointed by President Reagan to fulfill a 1980 presidential campaign promise, O’Connor had nearly always voted with the conservative justices during her five years on the Supreme Court.
In working with these conservatives, Scalia would find his place. Since he was, in effect, replacing the conservative vote of the retired Chief Justice Warren Burger, he was expected to give the conservative group a reliable vote, maintaining the status quo.
Opposing the conservatives on almost every issue were four liberals. Anchoring the liberal wing of the Court were its two oldest members. William Brennan, age eighty, a beloved, elfinlike liberal Catholic and natural political compromiser, was appointed from the New Jersey State Supreme Court to the Court in 1957 by President Dwight Eisenhower. Brennan became the playmaking lieutenant for Chief Justice Earl Warren—another Eisenhower appointee—on the liberal, activist Court of the 1960s. Brennan was known to walk around the Court waving five fingers in the air, saying, “Five. Five votes can do anything around here.”4 For the past sixteen years, Brennan had tried, with only limited success, to prevent the conservatives under Warren Burger from wiping out his legacy from the Warren Court.5
Joining Brennan on the left was the Court’s first African American justice, the legendary seventy-eight-year-old Thurgood Marshall. A Howard Law School graduate who had successfully argued the Brown v. Board of Education school desegregation case before the Supreme Court in 1954, Marshall did almost as much for ending the Jim Crow “separate but equal” laws in the legal arena as the Reverend Martin Luther King Jr. did in the political arena.6 Marshall was appointed to the Court in 1967 by President Johnson, and he largely served as Brennan’s “wing man.” With the exception of race relations and death penalty cases, he relied heavily on his law clerks for the drafting of his opinions.
The other two members of the liberal wing were both appointments by Republican presidents who turned out not to be the conservative jurists they were expected to become. Harry Blackmun, age seventy-eight, was a former judge on the Court of Appeals for the Eighth Circuit whom Nixon appointed in 1970 to fill the seat opened by the forced resignation of liberal Abe Fortas. The humble and empathetic Blackmun liked to refer to himself as “Ole Number Three,” referring to his appointment to the Court after Nixon’s first two nominees, Clement F. Haynsworth and G. Harrold Carswell, failed to be confirmed by the Democratically controlled Senate. But to others he was initially known by another nickname, the “Minnesota Twin,” because ideologically he so closely mirrored the conservative decisions of fellow Minnesotan Chief Justice Burger, his close friend. By the early 1980s, however, Blackmun had become more liberal and eventually the Court’s most reliable liberal voter.7
The final member of the liberal bloc, John Paul Stevens, then sixty-six, was initially seen as a moderate conservative when he was appointed in 1975 to replace ultraliberal William O. Douglas by President Ford. Stevens, the son of a prominent Chicago hotel owner who had lost his fortune and gone to jail for embezzlement before his conviction was reversed on appeal, was a World War II Navy veteran who had served in the code-breaking intelligence service. He later served with distinction on the Court of Appeals for the Seventh Circuit, distinguishing himself by leading the Greenburg Commission ethics investigation of two wayward judicial colleagues, resulting in both men leaving the court.8 The combination of his father’s legal experience and the ethics investigation of fellow jurists left Stevens with a powerful sense of fairness and appreciation for due process. After joining the Supreme Court, Stevens evolved into a staunchly liberal jurist.9
With four reliable votes on each side, the swing justice often determined which side would win. Lewis Powell, age seventy-nine, held that position in 1986. He was a World War II veteran who had worked on Operation Ultra intelligence program and was the only member of that Court to come from private law practice, in Richmond, Virginia. He had been the chairman of the Richmond School Board and overseen the integration of the Richmond schools after the Brown decision. With the Court ideologically locked into a 4–4 vote, it was left to Powell, fueled by his moderate conservatism, and practical common law wisdom and fairness, to cast the tie-breaking vote and shaping compromise Court judgments on almost every issue. It was said, “As Lewis Powell goes, so goes the Court.”10
If Scalia came to the Court thinking that he might by the power of his considerable intellect and argumentative skills be able to change the minds of the senior justices in conference discussions, he was very quickly disabused of this notion. His good relations on the Court were undermined by his powerful ego, and his growing desire for public attention. Scalia discovered that the most junior jurist on the Supreme Court had little to no real influence in the decision-making process, and received little attention for his efforts. Having his swearing in come so near the start of the term, Scalia did not participate in the first meeting in which the members of the Court chose which appeals to hear early that term. When he did attend his first conference, Scalia discovered, “Not very much conferencing goes on. In fact, to call our discussion of a case a conference is really something of a misnomer. It’s much more a statement of the views of each of the nine justices, after which the totals are added and the case is assigned [for the drafting of the opinion].”11 Worse still for him, as the junior justice, he spoke and voted last, meaning that by the time he voiced his views, the outcome had almost always been determined. One of Scalia’s law clerks, Lee Liberman Otis, who served with him on both the D.C. Court of Appeals and the Supreme Court, would later say that it was “different [for him] because people on the D.C. Circuit actually did talk over cases. . . . That was the biggest surprise—the Supreme Court justices didn’t talk with one another about cases. . . . Three people [on an appeals court panel] can talk about something; nine people can’t talk about something.”12 Scalia’s sole assignment as the newest member of the Court was, by the institution’s tradition, to replace Sandra Day O’Connor as the doorkeeper for the conference room where the justices met.
Far younger at age fifty than nearly all of his new colleagues, Scalia now needed to decide how he would begin his journey among them. Contrary to his June 14 speech just before his appointment to the Supreme Court, where he laid the foundations for his original meaning alternative to Robert Bork’s intent of the Framers’ theory, Scalia’s earliest decisions on the Supreme Court, like his decisions on the federal Court of Appeals in the District of Columbia, did not follow this proposed single, central decision-making principle.13 Instead, Scalia’s decisions in those earliest terms were largely governed by his notion of textualism, to limit the discretion and power of a judge by basing one’s decisions on a close reading of the text.
Universally predicted to become a man who would use his gregarious personality and his skilled argumentation to unite the frequently disparate forces of the conservatives on the Court, Scalia, instead, had a different plan. He was determined not to be like other freshman justices who served unobtrusively as apprentices to the more senior jurists, allying with an ideological mentor and hewing to a central bloc while learning the judicial craft through noncontroversial opinion writing.14 These “Freshman Justices,” as they were called by legal scholars, often journeyed through an initial bewilderment phase, learning their fantastically difficult new job before traversing through an acclimation period for several Court terms, in what became known as the “apprenticeship” process.15 Only then was a new justice prepared to go beyond gravitating toward a centrist bloc to minimize the anxiety of the position by joining one of the two ideological cliques of the group.16
Scalia, though, hardly lacking in confidence, in his initial term decided to do the opposite. Instead of bonding with an older mentor, gravitating toward the center of the Court, and serving his apprenticeship period for several terms, Scalia aggressively signaled to his more senior colleagues from the first moment he arrived on the Court that in his mind he was their equal, if not superior.17
From his first appearance on the bench, Scalia sought to make an impression in oral argument. In the case of Hodel v. Irving, which dealt with a federal law limiting the ability of Native Americans to bequeath to their heirs small portions of their tribal land, he quickly made himself, in the words of journalist Stephen J. Adler, “the center of attention.”18 Ignoring the fact that he was one of nine justices questioning the attorneys, Scalia treated the oral argument as one of his law school classes, playing the role of the professor, grilling the attorneys as though they were his students. He prepped for each of these oral arguments as though he were arguing each case before the Court himself. Prior to every argument, Scalia had one of his law clerks draft a memo summarizing all of the issues in the case and suggesting how he should vote. Then before the formal Court appearance, the former college debater would argue the issues in the case with his clerk, sometimes for as much as an hour, to get a feel for how the upcoming discussion might develop.
The Hodel case explored the meaning of the federal Indian Land Consolidation Act of 1983, which prevented Native Americans from the Oglala Sioux tribe from passing very small portions of tribal land to their heirs upon their death, and instead having them revert to, or in legal terms escheat, back to the tribe. The question became whether this was a taking of property without just compensation in violation of the Fifth Amendment of the United States Constitution. One of the perplexing issues in this case was just who had standing, that is, how tribal members could demonstrate enough personal injury to justify their ability to sue. They were arguing a concept called “third party standing,” that even though others, members of the previous generation, had suffered injury by having their ability to pass on their land stripped from them, the loss was now visited upon the next generation, who could not receive the property. The problem with this concept from their side was that the older generation members were now dead, seemingly negating legal standing in the case unless the Court agreed with the third party standing concept.
During Assistant U.S. Solicitor General Edwin Kneedler’s presentation, legal reporters such as Stephen Adler were mesmerized by how Scalia made it clear that he was ready to insert himself into the discussion: “A roving courtroom camera would find something catlike about Scalia as he gets set to ask a question. He sits forward, deepens the furrow in his already furrowed brow, puts a hand on his forehead, then his chin, takes his glasses off and puts them in his mouth, puts them back on, opens his mouth, closes it, opens it again, and pounces.”19
With nine members on the Court doing the interrogation, and each attorney having only thirty minutes to present his case, it had generally been the practice for each justice as a courtesy to limit himself to a single question, often with a follow-up or two. Scalia instead monopolized the Court’s argument in his first appearance with ten questions and comments in a row, consuming four minutes and fifteen seconds, in making clear his skepticism about the third-party standing concept. While this performance by the newest junior justice thrilled the journalists in the audience, it failed to captivate the other members of the Court. Midway through Scalia’s questioning, Lewis Powell leaned over and whispered to Justice Marshall, “Do you think he knows that the rest of us are here?”20 The answer, they all soon learned, was that Scalia did not care. After a handful of questions from three colleagues, Scalia jumped back in, saying that he was “still hung up on the standing point,” and proceeded to ask nine more questions in a row, consuming the rest of the attorneys’ time. Scalia had signaled to his colleagues what he believed to be both the importance and the suspect nature of these seemingly routine standing questions relied on by the tribal members suing the government, by pressing the questions with the government’s representative.21 It appeared that he wanted to take control of the decision and make the case go his way.
As the months went by, Scalia’s domination of the Court’s oral argument did not abate. Later that term, Adler charted the number of questions in one eight-argument period and found that Scalia asked 126 questions, nearly one-third more than the next most active questioner, Byron White, double that of the new chief justice, and many more than the rest of the Court.22 Court journalists were captivated by the “obvious joy [Scalia] gets from a good argument and the infectiousness of this enthusiasm.” Scalia loved the job, telling his good friend Washington attorney Leonard Garment, while “roll[ing] his eyes heavenward in delight,” that he was “truly blessed to have this [Court position] in addition to everything else in his life.”23 But he still had a lot to learn about life on a nine-person Court, even if he did not realize it.
Normally the chief justice finds an easy, straightforward case to be assigned for a new justice’s maiden opinion. That Rehnquist would do, assigning Scalia to write the majority in O’Connor v. United States, a minor case dealing with an income tax question for the United States government employees and their spouses of the Panama Canal Commission, which took only twenty days to resolve.24
But Scalia chose not to be bound to the Court “apprenticeship” tradition. While he had not won his first oral argument in the Hodel v. Irving case by persuading his colleagues that the litigants had no standing, he was far from done. Justice John Paul Stevens was assigned by the chief to write an opinion seeking a majority to uphold a broad right of standing in Hodel. Scalia notified Stevens, “I think it is possible to find standing here under a more limited theory,” that is, limiting the third-party standing concept. Serving notice that as far as he was concerned, his monthlong apprenticeship period on the Court was now over, Scalia continued: “I intend to try my hand at an opinion along these lines in the hope of persuading you [Stevens] and the rest of my colleagues.”25 With these words the most junior justice on the Court served notice that he was going to write his own opinion in an effort to steal the majority in Hodel.
What should have been a relatively routine case drifted along until February 20, 1987, when Scalia finally wrote his concurring opinion. After redrafting his argument, he gained the votes of the chief justice and Thurgood Marshall, and opened up the possibility that he could add Lewis Powell, who wrote on his draft: “I am persuaded by your fine concurring opinion. With a few changes, I think I can join you.”26 Scalia made Powell’s requested change and was only one vote short of gaining a majority.27
But it was Sandra Day O’Connor who gained the majority by effecting “a compromise between Nino’s approach and the approach in my dissent” while ruling in favor of the Native Americans seeking to be compensated for their lost inheritance.28 O’Connor argued: “The regulation destroyed ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property—the right to exclude others.’ . . . In one form or another, the right to pass on property—to one’s family in particular—has been part of the Anglo-American legal system since feudal times.”29
Scalia, however, refused to give in, writing both Rehnquist and Powell that he would “join enough of [O’Connor’s] opinion to create a disposition for the Court,” but would also “have a revised concurrence in your hands by the morning, which I hope you will both continue to be able to join.”30 In short, for the second time, he would seek to undermine a more senior colleague on this case. The gambit did not work. Scalia circulated a revised concurrence expressing his disagreement with O’Connor’s interpretation of one of the precedents that she linked to the case, a 1979 case called Andrus v. Allard, in which the Court supported the “abrogation of the right to sell endangered eagles’ parts” under an environmental protection law. But Scalia then went far beyond a simple disagreement with O’Connor’s interpretation of precedent and the case’s facts to attack O’Connor’s work, saying that her draft “mistakes the object of the inquiry,” “misidentifies the interest to be balanced,” and represents “an approach which is to my knowledge unprecedented.”31
Unimpressed by Scalia’s analysis, Powell was also offended by the personal attack on O’Connor. Abandoning his normally reserved, gentlemanly demeanor, Powell scrawled, “I don’t like this” on Scalia’s draft.32 He also wrote to Scalia that his own interpretation of the precedent was “closer to Sandra’s than to yours,” and he had been “worried about this for a week or more.” Sensing that a rift was already growing between Scalia and Powell, Rehnquist felt compelled to insert himself as an intermediary between the two men. After Powell had spoken to him twice about the situation, the chief justice persuaded Scalia to make enough changes in his concurrence to keep Powell and Rehnquist in agreement with him.33
Scalia, though, was oblivious to his senior colleague’s unease and still unwilling to concede to O’Connor. He wrote O’Connor that if she minimized the reference to the Andrus precedent that he interpreted differently, he would “be able to join most of the opinion for the Court.” A frustrated O’Connor wrote to the rest of the Court that she “had hoped the redrafting in this case was finally at an end, but Nino has advised me that if I would return to where I began—with only a brief reference to Andrus v. Allard—he would be able to join most of the opinion for the Court.” Scalia’s combativeness and intransigence had turned a routine case that the Court should have handled in a month or so into a protracted six-month negotiation and opinion-drafting operation. An exasperated Powell scrawled on the memo in which O’Connor informed the Court that in the interest of harmony she had made the change demanded by Scalia, “An unhappy case for all of us!!”34 Later, Powell, seemingly recording events for future historians, would write in an account of the case on the margin of Scalia’s next draft that he “unhappily joined Nino because I had joined his full opinion earlier, and also because the C.J. [chief justice] hoped I’d stay with Nino.”35 Though Scalia in the end reduced the size of his concurrence to a paragraph, the damage to his relationship with Lewis Powell had been done. Other members of the Court could see that life was not going to be the same with Scalia as their colleague.
As the term went along, Scalia sought to carve out a leadership position over his conservative colleagues, but in doing so he annoyed them more than he influenced them. He continued to lose support from Powell. Powell’s biographer John Jeffries writes of their relationship:
While Powell admired Scalia’s formidable intelligence and obvious ability, he found his intellectual ardor vaguely unsettling. Zest for theory and new ideas did not strike a responsive chord in a man who relied chiefly on experience. . . . Scalia’s boundless energy and pugnaciousness, which his many friends admired, struck his quiet, self-deprecating older colleague as almost uncivil. . . . As one clerk who worked for both Justices put it: “Those two wouldn’t agree on whether the sky was blue.” After a pause, he added: “On second thought, they would agree, but for different reasons.”36
Seemingly unaware of the disharmony that he had already created with Powell, Scalia almost immediately resumed his uninvited tutorial of Justice O’Connor.37 The case of O’Connor v. Ortega involved the search of the office and computer of a doctor, employed by a state hospital, who was accused of improprieties. In a controlling plurality opinion, O’Connor ruled that the doctor was protected against “unreasonable seizures” from his office under the Fourth Amendment because he had a “reasonable expectation of privacy.”38 O’Connor explained that while the privacy of a public employee’s business office must be assessed “on a case-by-case basis,” the decision rule to be used here was whether the office is “so open to fellow employees or the public that no expectation of privacy is reasonable.”39 Once again, Scalia disagreed and sought to express his unhappiness with his colleague’s decision-making technique. In a concurrence, he objected to the vagueness of O’Connor’s rule, arguing that “No clue is provided as to how open ‘so open’ must be; much less is it suggested how police officers are to gather the facts necessary for this refined inquiry.” Then, taking dead aim at O’Connor, he added: “I would object to the formulation of a standard so devoid of content that it produces rather than eliminates uncertainty in this field.”40
• • •
At the beginning of his tenure on the Court, Scalia sought to establish his textualism theory as the basis for his judicial decision-making theory. In a series of impressive dissents Scalia demonstrated his new theory of basing decisions on the dictionary definition of the Constitution’s or statute’s words. Here the Court’s most junior justice demonstrated a dazzling ability to solve perplexing legal issues armed mainly with an out-of-date dictionary, demonstrating an etymologist’s skill for determining word origins, and relying on his ability to parse semantics and grammar. In seeking to determine the meaning of the Constitution, and the Bill of Rights, which were ratified in 1788 and 1791 respectively, he turned to the American dictionary published closest to the time that the words were written, Noah Webster’s American Dictionary of the English Language, published in 1828. This book, which is now reproduced for fundamentalist Christians by the Foundation for American Christian Education, is big enough and thick enough to double as a doorstop for a large church door. Measuring eight and a half inches by eleven inches and over two and a half inches thick, it contains the definitions of every word that Webster encountered in his travels around the United States, beginning in 1807.41 Ignoring the gap in time between the drafting of the words he was analyzing and the dictionary’s publication, Scalia argued that this tool enabled him to accurately determine the meaning of the words written by the Framers of the Constitution and the Bill of Rights.
Scalia demonstrated his textualism theory in a dissent for the case of Edwards v. Aguillard, a case that overturned Louisiana’s Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act, passed in 1987. This law required the teaching of creationism—the theory that the earth was created as described in the biblical book of Genesis—in public school science classes wherever Darwin’s theory of evolution by natural selection was taught. The law’s challengers argued that creationism is a religious belief, and as such, teaching it in public schools violated the First Amendment’s prohibition on establishment of religion. Writing for a seven-person majority, Justice William Brennan argued that the law violated the 1973 Lemon v. Kurtzman three-pronged test, requiring that any law suspected of connecting religion and government have a “secular purpose,” have an effect that “neither advances nor inhibits religion,” and not create an “excessive entanglement between church and state.” The failure to meet any one of these standards would put the law in violation of the First Amendment’s prohibition on establishment of religion. For the majority, the Louisiana creationism act was overturned because it violated both the purpose and effect prongs of the Lemon test: “The purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. . . . [And] the Creationism Act is designed either to promote the theory of creation science which embodies a particular religious tenet by requiring that creation science be taught whenever evolution is taught or to prohibit the teaching of a scientific theory disfavored by certain religious sects by forbidding the teaching of evolution when creation science is not also taught.”42
While Scalia did not disagree with the religious source of this law, he relied on his textual interpretation of the First Amendment to support his goal of increasing the connection, or accommodation, between church and state. Arguing in favor of judicial “self-restraint” when confronted with a duly enacted bill of a state legislature, Scalia saw a “secular purpose” to the law. He argued that the ruling, which for him unfairly assumed unconstitutional motives impelling the state legislators “each of whom had sworn to support the Constitution,” and came before the law was implemented, was too hasty. He said in his dissent, “Had requirements of the Balanced Treatment Act that are not apparent on its face been clarified by an interpretation of the Louisiana Supreme Court, or by the manner of its implementation, the Act might well be found unconstitutional; but the question of its constitutionality cannot rightly be disposed of on the gallop, by impugning the motives of its supporters.”43
Then Scalia applied his textual analysis of the term “creation science” in the statute itself to conclude: “We can only guess at its meaning. We know that it forbids instruction in either ‘creation-science’ or ‘evolution-science’ without instruction in the other . . . but the parties are sharply divided over what creation science consists of.” Arguing that both sides in the case can find “considerable support in the legislative history” of the law for their own version of the “intended meaning” of creationism, Scalia sided with the religious groups that the term “creation science” did not include religious overtones. “ ‘Creation science’ is unquestionably a ‘term of art’ . . . and thus, under Louisiana law, is ‘to be interpreted according to [its] received meaning and acceptation with the learned in the art, trade or profession to which [it] refer[s].’ . . . [The] experts [in this case] insist that creation science is a strictly scientific concept that can be presented without religious reference. . . . At this point, then, we must assume that the Balanced Treatment Act does not require the presentation of religious doctrine.”44 For him, textualism trumped Brennan’s analysis of legislative intent.
Launching a religious battle that would become a central focus for him for decades to come, Scalia also challenged the majority’s use of the prevailing Establishment Clause test in Lemon v. Kurtzman, to rule that the law violated the separation of church and state. Scalia argued that the prong of the Lemon test that required that a law should have a secular purpose should be abandoned because it had “made such a maze of the Establishment Clause that even the most conscientious governmental officials can only guess what [legislative] motives will be held unconstitutional.” No one, he argued, could determine what constituted an acceptable “secular purpose” of legislation. As for his future approach in the Establishment of Religion cases, Scalia announced, his goal was “abandoning Lemon’s purpose test.”45 Scalia’s disenchantment with the majority’s use of each element of the three-pronged Lemon test to separate church and state under the Establishment Clause of the First Amendment grew by the term.
During his first term Scalia hinted that he might be ready to move beyond just looking at the dictionary definition of the Constitution’s words to make his judgments. In the case of Booth v. Maryland, the Court overturned a death penalty sentence as a violation of the “cruel and unusual punishment” prohibition in the Eighth Amendment because the prosecutor had read a victim impact statement during the sentencing phase of the jury. For the five-person majority, led by Justice Lewis Powell, the danger was that the sentencing jury would hear evidence that had not been used in the trial and conviction phase. And so, Powell reasoned, to require this form of victim impact evidence in the penalty phase “would create the risk that a death sentence will be based on considerations that are constitutionally impermissible or totally irrelevant to the sentencing process.”46
In dissent, Scalia could find no justification for Powell’s decision in his copy of the U.S. Constitution, and seemed prepared to go beyond that document in deciding this case: “The principle upon which the Court’s opinion rests—that the imposition of capital punishment is to be determined solely on the basis of moral guilt—does not exist, neither in the text of the Constitution, nor in the historic practices of our society, nor even in the opinions of this Court.”47 Since his textualism theory would not completely resolve this issue, Scalia indicated that he was also prepared to go beyond a dictionary reading of the Bill of Rights, in this case the Eighth Amendment, to determine “the historic practices of our society” in order to decide that victim impact statements should be allowed. Just how one did this, and where it might lead, would be left for another day.
As Scalia’s first term on the Court ended in June 1987, with the nation fully involved in its Bicentennial celebration of the drafting of the Constitution, the Reagan Department of Justice began circulating a “Report to the Attorney General” dealing with the critical question of how to interpret that document. Titled “Original Meaning Jurisprudence: A Sourcebook,” it explained through a summary report containing questions and answers outlining this interpretive theory, supplemented by a compilation of writings and speeches, how judges should be limited in their interpretation of the Constitution by adhering to the meaning of the document when it was first drafted and ratified. The report generated some legal intellectual fireworks between Justice William Brennan and Reagan attorney general Edwin Meese. Having watched Robert Bork develop his restrictive “intent of the Framers” judicial interpretive theory, limiting the reach of the Constitution to the meaning understood by its authors, on October 12, 1985, Brennan, one of the last remaining liberal Warren Court holdovers, argued in a “text and teaching symposium” at Georgetown University on behalf of what he called a “public reading of the text” that was “evolutionary” in meaning. The Court, he said, should allow the constitutional protections and guarantees to grow over time and through the generations. Brennan argued:
We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history to the time of framing and the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time.48
A month later, in mid-November 1985, Attorney General Meese responded to Brennan by telling the District of Columbia Lawyers’ Division of the Federalist Society that “the text and intention of the Constitution must be understood to constitute the banks within which constitutional interpretation must flow.” Meese explained his means for constitutional interpretation in terms similar to Bork’s intent of the Framers’ process. “In the main a jurisprudence that seeks to be faithful to our Constitution—a jurisprudence of original intention, as I have called it—is not difficult to describe. Where the language of the Constitution is specific, it must be obeyed. Where there is a demonstrable consensus among the framers and ratifiers as to a principle stated or implied by the Constitution, it should be followed. Where there is ambiguity as to the precise meaning or reach of constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself.” What he argued as a “fidelity to the Constitution” was “not [a] jurisprudence of political results,” but rather one that “seeks to de-politicize the law.”49
Relying on this theory, in the 1987 Bowers v. Hardwick gay rights case, Justice Byron White argued that the Georgia anti-sodomy law at issue in the case should be upheld. In his view, there was no right protecting this behavior in the Constitution, the practice had historically been banned by the Christian religion, and similarly restrictive laws had been adopted in twenty-five other states. For White, it was a matter of following historical and societal norms:
Proscriptions against that conduct have ancient roots. . . . Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.
In dissent, Justice Harry Blackmun argued that the case was not about a “right to commit sodomy” as White argued, but rather a “right to personal autonomy privacy.” For him, the Due Process Clause of the Fourteenth Amendment protected “the right to choose for themselves how to conduct their intimate relationships” as part of the “right to be let alone.”50 It was this debate, between the intent of the Framer theorists, including textualists such as Scalia, and the living, evolving interpreters of the Constitution, such as Brennan and Blackmun, that would frame the jurisprudential arguments on the Court for decades to come. But after this case it would go on without Justice Powell, who, at age eighty, decided to retire for reasons of health at the end of the 1986–87 term.
The balance of the Supreme Court appeared about to shift definitively toward the conservative, historical interpretation side on June 23, 1987, when President Reagan announced that the nation’s most visible conservative legal theorist, Robert Bork, Scalia’s former colleague on the Court of Appeals for the District of Columbia, would replace the retiring swing justice. This appointment would provide Scalia with a reliable ally in his effort to turn judicial interpretation of the Constitution and the Bill of Rights back to the Framers’ understanding of their meaning. But the appointment was put in immediate jeopardy when, less than an hour after the announcement of Bork’s nomination, Senator Ted Kennedy went to the Senate floor to deliver a speech attacking Bork:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy. America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be.51
The confirmation battle could not have gone worse for the Republicans, largely because of the timing. Reagan was now a much less powerful lame-duck president in the final two years of his presidency, dealing with the negative fallout from the revelations of the Iran-contra scandal. After the 1986 election, the Senate was controlled by the Democrats, meaning that the Senate Judiciary Committee was no longer led by conservative Strom Thurmond of South Carolina, but rather by liberal Senator Joe Biden of Delaware. A massive coalition of liberal interest groups on abortion, race relations, and women’s rights led by Ralph Neas, called the People for the American Way, knew they would get an extended opposition hearing in the proceeding.52 And for the first time, this confirmation battle would play out on national television, making it even more of a partisan-driven media circus.
The Reagan administration failed to prepare Bork adequately for the virulence of the questions that he would face from the Senate panel.53 Bork, sporting a goatee that made him look more like an academic than a judicial candidate, was not prepared for the impact of his impenetrable, lengthy scholarly answers to simple Senate questions that did not play well on the nightly television news. Broadcasters covered Bork’s lengthy analysis of the Griswold v. Connecticut case, which ruled unconstitutional laws limiting access to birth control, with a sound bite from Biden, who responded simply with, “But judge, police in the bedrooms!” The most damaging question, beyond whether he would “roll back” the rights of women and minorities, came when Bork was asked why he wanted to be on the Supreme Court. He answered that for him it would be “an intellectual feast.” It was a response that dismayed and frightened many liberal senators.54
The hearings dragged on through the summer, and when the Senate finally voted on the nomination on October 23, Bork amassed only forty-two votes, while fifty-eight senators voted against the nomination. The vote was as much of a turning point for Scalia as it was for Bork. Scalia was now completely free of the intellectual shadow of Robert Bork. He and he alone would represent the original interpretation theory on the Supreme Court. Scalia was now a “Court of One” on the Court and in the legal conservative community. Bork would soon leave the Court of Appeals to write books, give speeches, and become a public intellectual. Scalia would decide cases, laying the groundwork for his own theory of interpreting the Constitution. He would write the text for judicial originalism, relegating Bork’s work to its footnotes.