Having alienated Kennedy and O’Connor, Scalia was left for the next several terms doing the equivalent of judicial singing in the shower. He would write opinions that would repeat and refine his originalism and textualism, but he made no effort to attract new voices to his choir. In case after case, Scalia still behaved as a “Court of One,” failing to lead the conservatives on the Court or forge a voting majority including them.1
But Scalia continued writing more attention-getting attacks. By now, he had worked out an efficient and highly effective system for writing his judicial opinions. The task of judging had changed from the era of Justice Louis Brandeis, who said in the early part of the twentieth century that “The reason why the public thinks so much of the justices is that they are almost the only people in Washington who do their own work.” Now, nearly all of the Supreme Court justices in the 1990s relied on their law clerks to help draft their judicial opinions.2 By his own admission, Scalia “almost never wr[o]te the first draft” of his opinion.3 The reason, he explained, was simple: “That’s why you have law clerks. Why should I spend my time, you know, reciting all of the facts and blah blah blah blah? I tell them, this is the arguments [sic] I want to make, and they recite the facts, [and] make the arguments.” From there, the clerks frame a logical set of arguments in the justice’s voice based on their conversations with him about the case: “[The clerk] pretty much knows what my thoughts are on the case because we’ve discussed it intensively before the conference that voted on the case, OK? But nonetheless, I will usually say, you know, this is—this is what I think the opinion ought to say and, you know, go off and write it that way.” After the law clerk delivered the first draft, there was still a great deal for Scalia to do: “I take the opinion apart and put it back together. I don’t think anybody claims to be unable to recognize a Scalia opinion.” No one would deny this to be true.
From there, it became a process of negotiation as the draft bounced back and forth between the justice and the clerk. Once that editing process was concluded, Scalia put the draft through one final step before sending it around to the other justices seeking votes: “I go through the whole thing, and I send it back to the law clerk and say, have I cut out any muscle in your view? And sometimes the clerk says yet [sic] and I put something else in and then, you know, send it around, see if anybody salutes it.” It was a process by which Scalia produced tightly argued opinions, filled with quotable phrases and memorable metaphors that ensured that his opinions would be noticed by the press, included in constitutional law casebooks, and studied in law school classes for generations to come.
One memorable example of this process came in a school religion case in the 1992–93 term in which Scalia had once again failed to persuade his colleagues to abandon their attachment to the prevailing Lemon three-prong test measuring the separation between church and state. The case was Lamb’s Chapel v. Center Moriches Union Free School District, dealing with a Long Island public school district that would not allow an evangelical church to use school facilities to show films of lectures by conservative Christian author James Dobson. The Court majority, speaking through Byron White, held that the school district’s decision violated the Free Speech Clause of the First Amendment because singling out this one religious group among many other groups who were permitted to use school facilities gave the appearance that this was not a “content neutral” action, but rather discrimination against this one viewpoint. The Court also found no violation of the Establishment of Religion Clause, ruling under the three-pronged Lemon test that “the challenged governmental action has a secular purpose, does not have the principal or primary effect of advancing or inhibiting religion, and does not foster an excessive entanglement with religion.”4
For Scalia, it made no difference that a pro-religion argument was being presented by another member of the conservative wing; he wanted no part of the Lemon test. “As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under.”5 His belittling attack continued: “The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. . . . Such a docile and useful monster is worth keeping around, at least in a somnolent state, one never knows when one might need him.”6 Years later, when the legal publication Green Bag offered its subscribers a bobblehead figurine of Scalia, celebrating his dissents, he was portrayed standing with a howling wolf to his right, symbolizing the “actual wolf” instead of one in sheep’s clothing as he described in the Morrison v. Olson independent counsel case, with his left hand spearing a large lemon with a red pencil bearing the name of the school district in the Center Moriches case, thus signifying his determination to end the Lemon v. Kurtzman test.
At the end of the 1992–93 term, Byron White retired from the Court. Though White was appointed to the Court by John F. Kennedy in 1962, during his thirty-one years on the Court he became a reliable conservative vote on all issues except race relations and death penalty issues. Rather than following the recent practice of timing his retirement to make the seat available to an appointing president most in line ideologically with his judicial viewpoint, White retired while Democratic president Bill Clinton was in office, thus returning the vacancy to the political party that had been in power when he was appointed. After a lengthy search process, Clinton narrowed the list of potential nominees down to two. The first was Court of Appeals for the District of Columbia judge Ruth Bader Ginsburg, the “Thurgood Marshall of the National Organization for Women (NOW),” comparing her work on behalf of women’s rights with Marshall’s work for civil rights for the Legal Defense Fund of the NAACP. Ginsburg had a compelling life story, having been as victimized by gender discrimination in her teaching career at Columbia Law School as Justice O’Connor had been early in her legal career. The other candidate was Stephen G. Breyer, the chief judge for the Court of Appeals for the First Circuit, who had won supporters on both sides of the political aisle in the Senate for his work under Senator Ted Kennedy of Massachusetts as chief counsel for the Senate Judiciary Committee. Unfortunately for Breyer, his efforts to be interviewed for the position were hampered by a bicycle accident that landed him in the hospital.7
Ginsburg received the appointment on June 14. “Throughout her life,” said President Clinton, “she has repeatedly stood for the individual, the person less well-off, the outsider in society, and has given those people greater hope by telling them they have a place in our legal system.”8 Initially there was hope by the liberal community that because Ginsburg’s liberal vote replaced the generally conservative vote of Byron White, the new appointment would move the Court to the left. Almost immediately, though, to the bewilderment and disappointment of the liberal movement, Ginsburg adopted a more moderate stance as a justice than she had shown in her work as a pro–women’s rights attorney. Still, with two career-oriented women on the Court, women’s rights supporters believed that they now had better prospects before that body.
By 1993–94, the public bickering in opinions among the justices became even more noticeable. Former deputy solicitor general Philip Allen Lacovara, in an article titled “Un-Courtly Manners,” wrote, “Far too many divided opinions of the Court are afflicted with insinuations or outright accusations that the justice authoring a divergent opinion is not simply wrong but benighted, or disingenuous.” He added, “recent opinions by the justices often are peppered with accusations that statements by colleagues are ‘simplistic,’ ‘facile,’ ‘not rational,’ ‘misleading,’ or ‘just not true.’ ” After noting some of these tough exchanges, Lacovara wrote that the Court had “a schoolyard ring to it, just with better vocabulary.”9
Lacovara made clear in his piece that the justice he believed was most responsible for the disintegration of the Court’s relations was Antonin Scalia. Scalia was, in his words, the “Master of the Barbed Opinion,” a man in a league by himself in his confrontational and at times hostile assaults on his colleagues. This was especially true, Lacovara noted, in Scalia’s relationships with the swing justices in the middle of the Court: “The strained relationship between Justices Scalia and Sandra Day O’Connor, for instance, is now approaching an embarrassing intensity. Once expected to become jurisprudential allies, today they rarely say a civil word about one another in their opinions.”10 Lacovara saw almost a “Jekyll and Hyde” quality to Scalia’s personality on the Court, saying, “It is particularly ironic that some of the harshest attacks on fellow justices emanate from the sharp pen of Justice Antonin Scalia—ironic because his official style differs so dramatically from the gregarious and witty person that his friends and associates know.”11 But, of course, those friends and associates were not the ones now frustrating Scalia’s goals on the Court.
One case at the end of the 1993–94 term demonstrated Scalia’s intense disagreements with the Court’s moderate conservatives. The Board of Education of Kiryas Joel Village School District v. Grumet dealt with an upstate New York special village school district that had been created by the state legislature in 1989 to allow an ultra-Orthodox Satmar Hasidic Jewish sect that had emigrated from Eastern Europe to run its own public schools. Speaking for a six-justice majority, centrist David Souter argued: “Because this unusual Act is tantamount to an allocation of political power on a religious criterion and neither presupposes nor requires governmental impartiality toward religion, we hold that it violates the prohibition against establishment [of religion].”12 Bypassing the three-pronged Lemon test, the Court only evaluated whether a state “pursue[s] a course of ‘neutrality’ toward religion, favoring neither one religion over others nor religious adherents collectively over non-adherents.”13 While Souter and the majority conceded that “the Constitution allows the State to accommodate religious needs by alleviating special burdens,” he added that “accommodation is not a principle without limits, and what petitioners seek is an adjustment to the Satmars’ religiously grounded preferences that our cases do not countenance.” The Court did not agree that “an otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation.”14
In dissent, Scalia argued that state accommodation of religion was what the Founders intended in the First Amendment, and so it was what he was determined to provide. He began by characterizing Souter’s majority opinion as a historically untethered example of judicial activism at its worst: “The Founding Fathers would be astonished to find that the Establishment Clause—which they designed ‘to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters’ . . . has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.”15 Then, as he had done so many times before with others, Scalia vigorously attacked his colleague’s argumentation: “JUSTICE SOUTER’s steamrolling of the difference between civil authority held by a church and civil authority held by members of a church is breathtaking. To accept it, one must believe that large portions of the civil authority exercised during most of our history were unconstitutional, and that much more of it than merely the Kiryas Joel school district is unconstitutional today. . . . It is preposterous to suggest that the civil institutions of these communities, separate from their churches, were constitutionally suspect.”16 For Scalia, “There is no evidence (indeed, no plausible suspicion) of the legislature’s desire to favor the Satmar religion, as opposed to meeting distinctive secular needs or desires of citizens who happened to be Satmars. If there were, JUSTICE SOUTER would say so; instead, he must merely insinuate.”17
By now, the genteel Souter had lost his patience with Scalia’s continual lecturing, and he was ready to say so in his majority opinion:
Justice Cardozo once cast the dissenter as “the gladiator making a last stand against the lions.” . . . JUSTICE SCALIA’s dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining. We do not disable a religiously homogeneous group from exercising political power conferred on it without regard to religion. . . . The reference line chosen for the Kiryas Joel Village School District was one purposely drawn to separate Satmars from non-Satmars. Nor do we impugn the motives of the New York Legislature . . . which no doubt intended to accommodate the Satmar community without violating the Establishment Clause; we simply refuse to ignore that the method it chose is one that aids a particular religious community, as such . . . rather than all groups similarly interested in separate schooling.18
That said, Souter once again made clear how little he thought of Scalia’s historical originalist decision-making approach in the religion area:
[T]he license [JUSTICE SCALIA] takes in suggesting that the Court holds the Satmar sect to be New York’s established church . . . is only one symptom of his inability to accept the fact that this Court has long held that the First Amendment reaches more than classic, 18th-century establishments. . . . Our job, of course, would be easier if the dissent’s position had prevailed with the Framers and with this Court over the years. An Establishment Clause diminished to the dimensions acceptable to JUSTICE SCALIA could be enforced by a few simple rules, and our docket would never see cases requiring the application of a principle like neutrality toward religion as well as among religious sects. But that would be as blind to history as to precedent.19
Unwilling to give Souter the last word, Scalia maintained the hope that a more religion accommodationist Supreme Court would make it possible for the Satmars, and by extension other minority religions, to find assistance from the government: “Contrary to the Court’s suggestion . . . I do not think that the Establishment Clause prohibits formally established ‘state’ churches and nothing more. I have always believed, and all my opinions are consistent with the view, that the Establishment Clause prohibits the favoring of one religion over others. In this respect, it is the Court that attacks lions of straw.”20 He concluded: “The Court’s decision today is astounding. . . . The Court casts aside, on the flimsiest of evidence, the strong presumption of validity that attaches to facially neutral laws, and invalidates the present accommodation because it does not trust New York to be as accommodating toward other religions (presumably those less powerful than the Satmar Hasidim) in the future.”21
• • •
In early April 1994, Justice Harry Blackmun, then eighty-six years old, announced his intention to retire at the end of the Court term, giving the appointment of his replacement to President Clinton. It was the liberal justice’s last bit of revenge in keeping his seat away from the Republican Party, whose leader at the time, Richard Nixon, had appointed him, and the conservative Court wing against whom he had battled for so long.22 The new opening on the Court provided Judge Stephen Breyer another chance for an appointment. This time, he received the nomination on May 13, and was overwhelmingly confirmed by the Senate that summer. Breyer promised to have the expansive constitutional rights point of view, as well as the necessary intelligence and willingness to debate Scalia. The trade of Breyer’s generally moderate-liberal vote for the ultraliberal vote of the retiring Harry Blackmun, though, would not change the overall ideological balance of the Court.
The newly constituted Court had a chance to rule on First Amendment free speech rights in the election process in April 1995 in the case of McIntyre v. Ohio Elections Commission.23 This case dealt with an Ohio law banning the distribution of anonymous campaign literature that was applied to a woman named Margaret McIntyre, who had been distributing unsigned leaflets opposing a local school tax levy in Westerville, Ohio. There was no allegation of fraud, libel, falsity, or any pernicious effect on the election process. Writing for a seven-person majority, Justice Stevens upheld the right of anonymous free speech, saying:
The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. . . . Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.24
For the Court, a state law banning such anonymous electoral speech, which is neither false nor libelous, must be overturned because it “occupies the core of the protection afforded by the First Amendment.”25
Stevens argued that while the law might have reason at times to ban anonymous speech “on the eve of an election, when the opportunity for reply is limited,” the ban on all anonymous speech, such as Mrs. McIntyre’s local leaflets, seemed to be overly broad: “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.” Since the state of Ohio had “not shown that its interest in preventing the misuse of anonymous election-related speech justifie[d] a prohibition of all uses of that speech” here, this “blunderbuss approach” of “indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented” was ruled to be unacceptable.26
Normally a self-proclaimed champion of nearly unlimited free speech, Scalia used his originalism theory to argue in dissent that the Court had gone too far here in exercising its constitutional authority.27 He decried that “the Court discovers a hitherto unknown right-to-be-unknown while engaging in electoral politics,” even though “there is inadequate reason to believe . . . those of the society that begat the First Amendment or the Fourteenth” saw such a right.28 Scalia searched through the Founding Era history and argued that “Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far as I am aware evidence that it was generally regarded as such is nonexistent.”29 Unable to find a historical protection of anonymous electioneering, Scalia assumed a long-standing presumption of constitutionality for legislative restriction on such action: “I can imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity. . . . To strike down the Ohio law in its general application—and similar laws of 49 other States and the Federal Government—on the ground that all anonymous communication is in our society traditionally sacrosanct, seems to me a distortion of the past that will lead to a coarsening of the future.”30 Scalia’s position was curious for an originalist, given the anonymous political essays by the authors of the Federalist and anti-Federalist papers.
Life on the Court came apart again for Scalia at the end of the 1995–96 term. Having just turned sixty, and facing his tenth year on the Court, this was a personal and career turning point for him. For four years, the Court had been moving in two ways. Scalia was drifting to the right while the Court’s moderates were shifting their center, with O’Connor and Kennedy drifting a bit toward the conservative coalition after the additions of Ginsburg and Breyer. As the Court trended to a 5–4 majority on the right, Scalia moved even further to the right by staking out even more extreme positions.
• • •
As tough as it had been for Scalia to deal with his colleagues on the Court, something else happened in early April that particularly unsettled him. On April 8, during Holy Week, Time magazine published an issue bearing a portrait of Jesus and the title “The Search for Jesus.” The lead article was titled “The Gospel Truth?” and discussed what the authors called “The Jesus Seminar,” a study of “the historical Jesus,” and argued that “it will repeat the assertion, published by the 75-person, self-appointed Seminar three years ago, that close historical analysis of the Gospels exposes most of them as inauthentic; that, by inference, most Christians’ picture of Christ may be radically misguided. That their Jesus, in fact, is an imaginative theological construct, into which have been woven traces of that enigmatic sage from Nazareth—traces that cry out for recognition and liberation from the firm grip of those whose faith overpowered their memories.”31 While the article concluded that the forces of religion were more than holding their own, the notion that religion was being questioned, coming on the top of the losses in the Court, seemed to disturb Scalia profoundly.
He decided to lash out against this anti-religion message in a public address in a unique setting. On April 9 he journeyed to Jackson, Mississippi, to speak at a prayer breakfast for 650 students and faculty at the Southern Baptist–affiliated Mississippi College School of Law’s Christian Legal Society. The traditional, pre–Vatican II Catholic Scalia spoke from his pulpit. Quoting the Apostle Paul in I Corinthians, he said: “We are fools for Christ’s sake, but you are wise in Christ; we are weak, but you are strong; you are honorable, but we are despised.”32 Scalia argued that America had become a society of the “worldly wise” who scorned the religious as “cretins,” which he told the audience was derived from the French word for “Christians.” Of this characterization, Scalia said: “To be honest about it, that is the view of Christians taken by modern society. Surely those who adhere to all or most of these traditional Christian beliefs are to be regarded as simpleminded.”33
Scalia sounded on this occasion more like a parish priest than a Supreme Court justice, and a sarcastic one at that: “They just will not have anything to do with miracles. . . . The worldly wise do not believe in the resurrection of the dead. It is really quite absurd [to them]. . . . So everything from the Easter morning to the Ascension had to be made up by the groveling enthusiasts as part of their plan to get themselves martyred. The wise do not investigate such silliness. They ‘do not believe.’ One can be sophisticated and believe in God. Reason and intellect are not to be laid aside where matters of religion are concerned.” Scalia went on to preach: “A general belief in God is one thing, [but] it is quite another matter to embrace the miracles of the Virgin birth of Christ, His raising the dead and His own ascension from the grave. Yet it is ‘irrational’ to reject miracles a priori. One can be sophisticated and believe in God. Reason and intellect are not to be laid aside where matters of religion are concerned. What is irrational to reject [is] . . . the possibility of miracles and the Resurrection of Jesus Christ, which is precisely what the worldly wise do.” Scalia closed by quoting again from St. Paul in Corinthians, “We must pray for the courage to endure the scorn of the sophisticated world. ‘We are fools for Christ’s sake.’ ” Upon hearing that, the devoted audience of believers collectively rose to their feet to give their speaker a rousing standing ovation.
Coming as this address did from a sitting justice who routinely dealt with cases raising religion issues on the Court, it drew a sharp rebuke from the press. Colman McCarthy, a columnist for The Washington Post, wrote: “This was less a speech than an outburst. . . . By declaring himself and his prayer breakfast audience ‘fools for Christ’s sake,’ Scalia can further advance his martyr complex when critics dissent from his opinion: scorn of his views equals bias against religion.”34 The Post’s Richard Cohen wrote that he found the comments “jarring,” explaining: “I think this Supreme Court Justice is a cheap shot artist. . . . Whatever his intentions, he showed himself to be a man who misjudges the nature and the motives of those who insist on a constitutional wall between church and state. It seems his mind is made up on such matters and anyone who thinks Scalia will give First Amendment issues a fair and reasoned hearing is, it seems, proceeding in a way Scalia would appreciate: solely on faith.”35
Criticism of Scalia came from religious leaders as well. James Dunn, the director of the Baptist Joint Committee in Washington, said: “This is becoming a modern myth: that religion is somehow persecuted in American life. It’s a right-wing litmus test. If you don’t say religion is being beat up on, then you aren’t politically correct. Everyone is competing to see who can whine the loudest.”36 Barry Lynn of the group Americans United for Separation of Church and State said of the speech: “This clearly undermines public confidence in his objectivity regarding religious controversies.”37
Unfazed, three weeks later, in early May, Scalia maintained his focus on religious issues, traveling to Rome to speak on a panel titled “Left, Right, and the Common Good” at the Gregorian Pontifical University. Scalia’s topic was “The Common Christian Good,” as he turned this issue into an ideological one: “The burden of my remarks is not that a government of the right is more Christ-like, only that there is no reason to believe that a government of the left is. To tell you the truth, I don’t think Christ cares very much what sort of political system we live under. He certainly displayed very little interest in that subject during his time among us, as did his apostles. Accordingly, we should select our economic and political systems on the basis of what seems to produce the greatest material good for the greatest number, and leave theology out of it.”38 In the question and answer period, the issue turned to the role of religion in government in America when one of the audience members asked, “I want to ask you what is the proper behavior of the Christian in an active political commitment, both regarding poverty or regarding life. Earlier abortion was cited. I don’t know, for example, what you would think about a Catholic official who signs a law allowing abortion, whether he should resign or not.” With respect to the abortion issue, Scalia responded: “I do not like the phrase ‘the active political commitment of a Christian.’ I should have thought that it’s obvious from what I have said that the commitment of a Christian reflects itself in his personal life and in his persuasion of others, not in his acting through the instrument of government. Now the debate in the United States over abortion and over Roe v. Wade is a totally different issue from whether the government should prohibit abortion if the people do not want it prohibited. What Roe v. Wade held was that even if the people want it prohibited, the states could not prohibit it, because the United States Constitution forbids them to prohibit it. That’s a totally different issue from what you and I are talking about.”
In a follow-up question, an audience member asked: “In looking for the best government, that Christ is not interested in the type of government that we choose and that the government that we should look for is the one that seeks the interest of the greatest majority. But I think that here also there is a problem because what do we do with the minority? I think that is a very crucial problem.” Feeling at that point as if he was in the minority both on the Court and in his conservative religious views in America, Scalia responded:
The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection. Thus in the United States Constitution we have removed from the majoritarian system of democracy the freedom of speech, the freedom of religion, and a few other freedoms that are named in the Bill of Rights. The whole purpose of that is that the people themselves, that is to say the majority, agree to the rights of the minority on those subjects—but not on other subjects. If you want minority rights on other subjects, you must persuade the majority that you desire those minority rights. Or else take up arms and conquer the majority.
To “take up arms and conquer the majority”—that was Scalia’s continuing goal on the Supreme Court, forgetting that in raw numbers he had been part of a conservative majority since his appointment in 1986, but his own actions had split their votes for years. To his way of thinking, the force of his words and the power of his arguments were all he should need.
• • •
Scalia was alone on his ice floe in 1996 as he drifted away from the iceberg where the centrist justices now controlled the Court’s majority. The matter came to a head almost like clockwork at the end of the 1995–96 term, in what had become one of his periodic “Ninofits.” Reminiscent of the 1988–89 and 1991–92 terms, when the Court’s majority moved away from Scalia’s position, by the middle of May 1996, Scalia had already filed three dissents and would file eight more by the end of the term. Five of those cases dealt with topics important to him: gay rights, the Fourteenth Amendment’s Due Process Clause, women’s rights, and two dealing with the First Amendment right of free speech. Each one of those losses was hard for him to accept.
The run of late-term dissents began on May 20, with the announcement of two cases in which the majority’s interpretation of the Constitution differed dramatically from Scalia’s. The first of those cases involved an issue that Scalia thought had been settled nine years before. In the 1987 case of Bowers v. Hardwick, through which the constitutionality of Georgia’s anti-sodomy law for same-sex couples engaged in intimate relations was tested, the Court issued an opinion by conservative Byron White favoring state laws banning the practice on moral grounds.
Ironically, it was Anthony Kennedy, the successor to Lewis Powell, the man whose changed vote had tipped the opinion against gay rights, who would become the leading spokesperson on the Court for protecting the constitutional and privacy rights for gays and lesbians. The new case, Romer v. Evans, involved Amendment 2 to the Colorado constitution, which was passed by the voters in a statewide referendum in 1992 and designed to remove from the books state and local laws protecting gay rights.39 The advocates for Amendment 2 argued that this would end special protections for this group, while gay rights opponents argued that it effectively removed legal protection for a class of people from the Colorado state constitution.
Speaking for a 6–3 majority, Kennedy was persuaded by a legal brief from Harvard professor Laurence Tribe that the Equal Protection Clause of the Constitution prevented states from denying gays the protection of the law. Beginning with the statement by Justice John Harlan in the late nineteenth century that the Constitution “neither knows nor tolerates classes among citizens,” Kennedy argued that “those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake.” For the majority this meant that the state constitutional amendment must be overturned because it did “more than repeal or rescind [existing state] provisions [protecting gays and lesbians]. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect [gays and lesbians].”40 Kennedy complained about this amendment’s “damage to civic life” by arguing “even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.”41 Kennedy stated that “Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”42
This was too much for Scalia, who saw no rights for gays and lesbians in his copy of the Constitution, his interpretation of the Founding Era for the Constitution, or his public policy understanding of how the states must be permitted to operate. “The Court has mistaken a Kulturkampf for a fit of spite,” he began, referring to the “culture struggle” of Protestant German chancellor Otto von Bismarck against the Catholic Church in his effort to exert governmental control over the Church following the 1870 Vatican Council’s announcement of the doctrine of “papal infallibility.”43 Scalia argued that rather than simply expressing their anger over the wave of protective laws for gays, which would be an unconstitutional denial of equal protection based on class, the Colorado voters were articulating their changing cultural values. In his view, this amendment represented “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” For him, this “objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced . . . they have been specifically approved by the Congress of the United States and by this Court.”44
For Scalia, with gay rights unmentioned in the Constitution, this was simply an expression of one state’s democratic majority, and “this Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality . . . is evil.”45 For him, “the amendment prohibits special treatment of homosexuals, and nothing more.” This being the case, he did not see a constitutional violation here, because:
The only denial of equal treatment [that the Court] contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court’s opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged “equal protection” violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.46
Having thus defined the amendment, Scalia used the lesser “rational basis” test to measure the reasonableness of the amendment. In his opinion, the state had sufficiently “reasonable” justifications, a desire to preserve its view of morality, for such an amendment denying legal protection to gays, meaning that “No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice.” Also “reasonable” for Scalia was the moral choice being made by the majority of the state population here:
The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.47
Scalia’s linkage here of gay rights to the crimes of “murder . . . polygamy, or cruelty to animals,” picking up on Byron White’s language in Bowers v. Hardwick, became a staple of his later speeches on the subject.48 It would lead to charges by some, including gay congressman Barney Frank of Massachusetts, that he was a homophobe.49
For Scalia, the elitist majority of the Court was just imposing on the states what he viewed as the pro–gay rights posture of the legal community. Opening himself up to later charges of intemperate behavior and homophobia, he argued:
When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins [peasants]—and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court’s Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation’s law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant’s homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: “assurance of the employer’s willingness” to hire homosexuals.50
• • •
The next loss for Scalia came in a case dealing with the question of an excessive damages ruling against car manufacturer BMW. The case, BMW of North America v. Gore, had an unusual set of facts that became a staple of Scalia’s later speeches on constitutional decision making. Dr. Ira Gore Jr. had purchased a $41,000 black BMW only to discover that before his purchase the car had been repainted, presumably because of its exposure to acid rain. Believing that his car was now worth less, Gore sued for damages and was awarded $4,000 by the jury to compensate him for the reduced value in his car, and $2 million in punitive damages to punish BMW for not revealing the damage.51
For the Court, the question was whether this large punitive damages award by a state court “exceed[ed] the constitutional limit” in trying to impose a national policy on a corporation. Speaking for the Court, John Paul Stevens argued, “While we do not doubt that Congress has ample authority to enact such a [deceptive trade practices prohibition] policy for the entire Nation, it is clear that no single State could do so, or even impose its own policy choice on neighboring States. . . . We think it follows from these principles of state sovereignty and comity that a State may not impose economic sanctions on violators of its laws with the intent of changing the tort feasors’ lawful conduct in other States.”52 Unwilling to create a “bright line” for determining what would be an “excessive penalty,” but empowering a state to rule this way within its own borders, the Court sent the case back to the Alabama courts to determine the awarded damages.
For Scalia, in dissent, the question was the same as he had just argued in the Romer v. Evans gay rights case: just where in the Constitution was there a limitation on awarding “excessive damages”? Using his originalism tools, he sought to prove that his colleagues in the majority had gone far beyond their constitutional powers. “Today we see the latest manifestation of this Court’s recent and increasingly insistent ‘concern about punitive damages that run wild,’ ” Scalia wrote, adding, “Since the Constitution does not make that concern any of our business, the Court’s activities in this area are an unjustified incursion into the province of state governments.”53 For Scalia, the Fourteenth Amendment due process claims granted to Mr. Gore by the majority had limits: “I do not regard the Fourteenth Amendment’s Due Process Clause as a secret repository of substantive guarantees against ‘unfairness’—neither the unfairness of an excessive civil compensatory award, nor the unfairness of an ‘unreasonable’ punitive award. What the Fourteenth Amendment’s procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable.”54
Ever the originalist, Scalia believed that the Court’s decision here strayed from the historical understanding of the Fourteenth Amendment, as he argued: “At the time of adoption of the Fourteenth Amendment, it was well understood that punitive damages represent the assessment by the jury, as the voice of the community, of the measure of punishment the defendant deserved. . . . Today’s decision, though dressed up as a legal opinion, is really no more than a disagreement with the community’s sense of indignation or outrage expressed in the punitive award of the Alabama jury, as reduced by the State Supreme Court.”55 Scalia could not find in his copy of the Constitution either the power for the state to negate what it believed to be an unreasonable damages award by a jury, or the power of his Court to allow it to do so. In his words, “If the Court is correct, it must be that every claim that a state jury’s award of compensatory damages is ‘unreasonable’ (because not supported by the evidence) amounts to an assertion of constitutional injury. . . . That is a stupefying proposition.”56
Later, Scalia would explain in his speeches that his actions in the two cases on May 20, 1996, disagreeing first with the Court’s liberals in the Romer case, then the conservatives in the BMW case, proved that he was being fair and neutral: “I dissented in both cases because I say, ‘A pox on both their houses.’ It has nothing to do with what your policy preferences are; it has to do with what you think the Constitution is.”57
• • •
At the end of the Court term, Scalia once again differed with the majority of the Court, this time including its two female justices, in United States v. Virginia, on the question of whether the single-sex admissions policy of the state’s all-male military prep college, Virginia Military Institute (VMI), violated the Fourteenth Amendment’s Equal Protection Clause. VMI was established in 1839 to train male citizen soldiers. It surprised no one when the two female justices who had been victimized by discrimination in the beginning of their legal careers, Sandra Day O’Connor and Ruth Bader Ginsburg, voted to require VMI to admit women. They were joined by John Paul Stevens, Stephen Breyer, and Anthony Kennedy. Speaking for the majority, Justice Ginsburg argued that discrimination on the basis of sex required “heightened review” to ensure the Fourteenth Amendment’s equal protection guarantee was not violated without there being an “important governmental objective” for doing so. Virginia argued that “Single-sex education at VMI serves an ‘important governmental objective,’ leading the state to maintain that the exclusion of women is not only ‘substantially related,’ it is essential to that objective.” But Ginsburg disagreed, arguing: “[T]he Commonwealth’s great goal is not substantially advanced by women’s categorical exclusion, in total disregard of their individual merit, from the Commonwealth’s premier ‘citizen-soldier’ corps. Virginia . . . ‘has fallen far short of establishing the “exceedingly persuasive justification” ’ . . . that must be the solid base for any gender-defined classification.”58
The state argued that its parallel Virginia Women’s Institute for Leadership at the all-women’s Mary Baldwin College provided an equal form of college-level military training for young women in the state. Using the separate but unequal logic that the Court had employed in the 1954 Brown v. Board of Education case, Ginsburg argued that Virginia had not truly provided an equal military educational facility for women: “VMI, too, offers an educational opportunity no other Virginia institution provides, and the school’s ‘prestige’—associated with its success in developing ‘citizen-soldiers’—is unequaled. Virginia has closed this facility to its daughters and, instead, has devised for them a ‘parallel program,’ with a faculty less impressively credentialed and less well paid, more limited course offerings, fewer opportunities for military training and for scientific specialization.” This being the case, Ginsburg concluded, “Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth’s obligation to afford them genuinely equal protection.”59
In dissent, Scalia—who understood the tradition of “Virginia Gentlemen” from his years of teaching at the University of Virginia Law School and who had witnessed that school becoming a coed institution—reached into his originalism playbook for reviewing history, in seeking to preserve the tradition of the existence of a state-supported all-male military school. “Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people.”60 Scalia would leave such matters to the democratic voting process for determination of the best course of action, rather than leave it to the courts for their decision:
The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. . . . So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society’s law-trained elite) into our Basic Law.61
For Scalia, Virginia’s policy of an all-male military school was historically acceptable: “The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.”62 And so, he vehemently objected: “Today . . . change is forced upon Virginia, and reversion to single-sex education is prohibited nationwide, not by democratic processes but by order of this Court. Even while bemoaning the sorry, bygone days of ‘fixed notions’ concerning women’s education . . . the Court favors current notions so fixedly that it is willing to write them into the Constitution of the United States by application of custom-built ‘tests.’ This is not the interpretation of a Constitution, but the creation of one.”63
As tough as these three consecutive losses were for Scalia, they were just the prelude for two final defeats that he was about to endure. Both cases explored the balance between First Amendment freedom of association rights and a vindictive city or county political patronage system. They followed up on a 1990 case called Rutan v. Republican Party of Illinois, dealing with the Chicago public employees’ hiring and promotion policy as it was affected by the city’s political patronage system. The Court’s ruling that the First Amendment prevented the Illinois governor from refusing to hire based on political affiliation had vexed Scalia six years earlier. Nothing in his version of the First Amendment’s freedoms of speech or association in that case had barred hiring and firing based on political patronage.64 Now the question was whether independent contractors who worked for the city could be forced to support the governing party by the manipulation of their city contracts, or whether that was also a violation of the First Amendment’s freedom of association.
In one case, the owner of a towing company who had been on a city’s list of preferred operators refused to contribute to the reelection campaign of that administration, instead supporting its opponents. As a result, his company was removed from that list.65 In the other case, an independent trash hauler had his contract ended by city officials whose administration he had criticized.66 The question was whether the independent contractors who were benefiting from business with the city retained or forfeited their First Amendment right to associate with any political party they wished. The two centrist justices, O’Connor and Kennedy, both of whom had signed Scalia’s pro–patronage dissent in Rutan, now abandoned him to provide a majority for an anti-patronage, pro–First Amendment, free association rights position.
In the O’Hare Truck Service v. City of Northlake case, Justice Kennedy spoke for the seven-justice majority in arguing that the First Amendment freedom of association rights of independent city contractors protected them from being excluded from city contractor lists based on their party affiliation: “Independent contractors, as well as public employees, are entitled to protest wrongful government interference with their rights of speech and association. . . . The absolute right to enforce a patronage scheme, insisted upon by respondents as a means of retaining control over independent contractors . . . has not been shown to be a necessary part of a legitimate political system in all instances. . . . We decline to draw a line excluding independent contractors from the First Amendment safe-guards of political association afforded to employees.”67
In the other case, Board of County Commissioners v. Umbehr, dealing with the free speech rights of trash haulers in the face of political party vindictiveness, Justice O’Connor added weight to Kennedy’s pro–First Amendment argument, saying, “Because the courts below assumed that Umbehr’s termination (or nonrenewal) was in retaliation for his protected speech activities, and because they did not pass on the balance between the government’s interests and the free speech interests at stake, our conclusion [is] that independent contractors do enjoy some First Amendment protection. . . . We recognize the right of independent government contractors not to be terminated for exercising their First Amendment rights.”68
Having already lost so many key cases at the end of this term, Scalia seemed deeply affected by the reduced support for his earlier dissenting position because of the switched votes of the two centrist justices. He criticized both of them: “Taken together, today’s [two] decisions . . . demonstrate why this Court’s Constitution-making process can be called ‘reasoned adjudication’ only in the most formalistic sense.”69 Scalia saw these cases as unacceptable extensions of the anti-patronage, pro–First Amendment rights ruling in the Rutan case just six years earlier: “One would think it inconceivable that [the Court would extend] far beyond Rutan to the massive field of all government contracting. Yet amazingly, that is what the Court does in these two opinions—and by lopsided votes, at that. It is profoundly disturbing that the varying political practices across this vast country, from coast to coast, can be transformed overnight by an institution whose conviction of what the Constitution means is so fickle.”70
By now, Scalia was again in near total despair. As he later explained to biographer Joan Biskupic, “Things were bad. We were losing all of the cases I cared about. At the end of the term . . . the hard ones, the important ones, always come then. Boom! Boom! Boom! Four of those in a row, and you’re really down.”71 “The wins . . . The wins. Damn few,” Scalia would lament to Biskupic.72 So Scalia struck back by concluding his dissent in the political patronage cases with a stern comment on all of the Court’s work that term with which he disagreed: “This Court has begun to make a habit of disclaiming the natural and foreseeable jurisprudential consequences of its path-breaking (i.e., Constitution-making) opinions. Each major step in the abridgment of the people’s right to govern themselves is portrayed as extremely limited or indeed sui juris. . . . The people should not be deceived. While the present Court sits, a major, undemocratic restructuring of our national institutions and mores is constantly in progress.”73
For Scalia, his colleagues were now operating under a different rule book, arrogating power to themselves that he did not believe the Founders had intended to grant to the Supreme Court. And, for him, the results of the use of that power were profoundly disturbing: “They say hard cases make bad law. The cases before the Court today set the blood boiling, with the arrogance that they seem to display on the part of elected officials. Shall the American System of Justice let insolent, petty-tyrant politicians get away with this? . . . Favoritism such as this happens all the time in American political life, and no one has ever thought that it violated—of all things—the First Amendment to the Constitution of the United States. The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”74
Even retired colleagues on the Supreme Court who were opponents could see that it had been a difficult year for Scalia. Ever the gentleman, retired Justice Harry Blackmun sent Scalia a sympathetic note: “I know that this has not been an easy year for you. But it is over with, and next October one will be rejuvenated and a new chapter will unfold. As a group or individually, we cannot get discouraged. May the summer be a good one for you.”75 It was an act of kindness by Blackmun, and much appreciated. A clearly moved Scalia responded immediately with his own handwritten note:
Dear Harry:
How kind of you to write the nice note you did! You are right that I am more discouraged this year than I have been at the end of any of my previous nine terms up here. I am beginning to repeat myself, and don’t see much use in it any more.
I hope I will feel better in the fall. A cheering note from an old colleague—and one whom, God knows, I was not always on the same side with—sure does help. Many thanks—and have a pleasant summer. Respectfully, Nino76
But it was clear to Scalia, with all that had happened on the Court to him that term, that if he was going to stay on the Court he would need a new plan of attack. And, as it happened, it was already in motion.