His charm offensive now over, for the first time Scalia knew what position he would hold for the rest of his professional life. As the composition of the Court continued to change, so would its ideological direction. With O’Connor’s vacancy to fill, on October 3, 2005, President Bush selected White House counsel Harriet Miers, his former deputy White House chief of staff. The nomination ran into immediate trouble because of concerted opposition from conservatives. When the opposition grew, much of it on conservative internet blog sites, owing to the lack of certainty as to Miers’s legal views, Bush withdrew the nomination on October 27.
Three days later, determined not to repeat the Miers debacle, Bush nominated a Federalist Society favorite, fifty-six-year-old Samuel Alito, who was then serving on the federal Court of Appeals for the Third Circuit. Alito’s confirmation was not without incident. During the confirmation hearing, his fate briefly seemed to be in jeopardy when the Senate Judiciary Committee focused on a “Personal Qualifications Statement” Alito had filed in 1985, hoping to get a job as an assistant attorney general in the Reagan administration. It mentioned his membership for over a decade in the conservative Concerned Alumni of Princeton, or CAP, which opposed the admission of minorities and women to the school. This was interpreted by the Senate Democrats, including Richard “Dick” Durbin of Illinois, as an indication that Alito did “not evidence an open mind.” The grilling was so severe that when conservative South Carolina Republican Lindsey Graham later tried to rehabilitate the candidate by asking, “Are you a bigot?,” Alito’s wife, Martha-Ann, began to cry.1 Despite an attempted filibuster by Massachusetts senator John Kerry and opposition from the ACLU, Alito, the son of Italian immigrant schoolteachers from New Jersey, was confirmed by the Senate to become the second Italian American to serve on the U.S. Supreme Court on January 31, 2006. Alito’s ethnic heritage, his conservative Catholic faith, and his ultraconservative political views initially seemed to be so similar to Scalia’s that he was nicknamed “Scalito.”
The jurisprudential and ideological comparison of the new justice to Scalia ultimately did not prove to be accurate, given Alito’s lack of appreciation for the senior jurist’s originalism theory.2 However, the replacement of the conservative Alito for the more moderate swing justice, Sandra Day O’Connor, would soon tilt the Court more clearly to the conservative side. As it did, Justice Anthony Kennedy, who since 1994 had voted consistently to the conservative side of Sandra Day O’Connor, would become the new pivotal swing justice, determining with his vote the outcome in key cases.
For his part, still an associate justice, and with nothing to gain or lose, Scalia was free to be whoever he wanted to be, and behave any way he desired without worrying about the consequences.3 He had something to say, and now there was no rule or person to prevent him from saying it. He was ready to go back to the only place where he had been able to control his own agenda and receive some personal and professional adulation and solace—a personal speaking tour. In the fall of 2005, Scalia embarked on a series of speeches and public appearances criticizing his living Constitution colleagues in what blogging pundits labeled his “Dead Constitution Tour.”4
On October 21, just eleven days after the controversial television interview with Maria Bartiromo, Scalia made another appearance halfway around the world. At Trinity College in Melbourne, Australia, he gave the Sir John Young Oration for the prestigious Boston, Melbourne, Oxford Conversazioni on Culture and Society, an annual debate among academics and lawyers from the three countries about the meaning of politics and law. The topic that year was “Judicial Activism: Power Without Responsibility,” with the question for the speaker and his respondent, Australian barrister Julian Burnside, being “From what does government derive the right to rule?” The title of Scalia’s new speech said it all. No longer would this be just the “Constitutional Interpretation” speech he had given the year before. Now he titled his address: “Mullahs of the West: Judges as Authoritative Expositors of the Natural Law?”5 With this title, he could link, and thus disparage, both extremist Muslims and activist, liberal jurists around the world, including his own liberal colleagues.
The theme of Scalia’s new verbal crusade was that the living, evolving Constitutionalists were nothing but “judge moralists” who had created a “judicial hegemony” that was now spreading to other courts in the Western industrialized countries, such as the new European Union court. To him, their version of an evolving Constitution had led to a malleable, partisan policy–oriented, religious-type ideology that warped the meaning of the Constitution.
Scalia began with a provocative thesis: “In the first half of the last century, American political theory was obsessed with the expert. The key to effective government, it was thought, was to take the direction of government agencies out of the hands of the politicians, and to place it within the control of men experienced and knowledgeable within the various fields of government regulation.” American policymakers, Scalia proposed, had become obsessed with the notion of a rule by experts, only to discover that there were “no right or wrong answers that experts can discover.” Over time, he argued, in the United States, “and indeed throughout the world, belief in the expert has been replaced by belief in the judge-moralist.” In trying to rule on social questions using natural law, these judges soon raised the question “who, in a democratic society, should have the power to determine the government’s view of what the natural law is.”
For him, the American and European societies and governments had become “addicted to abstract moralizing” by judges. As an example of this technique, he argued against a case that became a staple in his newly developed speech. The European Union Court of Human Rights, in the 1981 case Dudgeon v. United Kingdom, had overturned a nineteenth-century law allowing a conviction for “gross indecency” for any same-sex intimate behavior. The court overturned the law using Article 8 of the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms, protecting “the right to respect for . . . private and family life,” because it banned consensual sexual acts.6 Scalia’s objection to this decision was that judges were overturning long-standing laws based solely on their own interpretation of morality and the meaning of privacy.
For Scalia, the proper process for the rejection of such laws should come from the people, not the courts. However, European judges, like those on his American Supreme Court, used their own evolving judicial interpretation of laws to uphold the rights of abortion, same-sex intimate behavior, and assisted suicide, to limit the application of the death penalty, and to ban single-sex military schools. “Until relatively recently the meaning of laws, including fundamental laws or constitutions, was thought to be static,” said Scalia. But for him the living Constitution theory, by which some of his colleagues measured laws according to “the evolving standards of decency that mark the progress of a maturing society,” led to new, but not necessarily better, judgments by people he viewed as no more qualified to make such decisions than the average person. “Judges have no greater capacity than the rest of us to determine what is moral,” explained Scalia.7
It was ironic that Scalia, the man who put no stock or faith in the use of foreign sources in deciding American constitutional cases, was now imploring those foreign judges to reconsider their approach. He “question[ed] the propriety—indeed, the sanity—of having a value-laden decision . . . made for the entire society (and in the case of Europe, for a number of different societies) by unelected judges. There are no scientifically demonstrable ‘right’ answers to such questions, as opposed to answers that the particular society favors.” The result, Scalia predicted, would be an increase in the partisanship of judicial nominations and the confirmation process for Supreme Court appointments. As he put it to the Australian audience, “If judges are routinely providing the society’s definitive answers to moral questions on which there is ample room for debate—rather than merely determining the meaning, when enacted, of democratically adopted texts—then judges will be made politically accountable.” In short, voters would soon “be looking for people who agree with [them] as to what the annually revised Constitution ought to say.” Scalia concluded, “What I do want . . . is the selection of judges who view it as their role to abide by the texts that the people have adopted, and in the sense that the people [who adopted them] intended.”
What Scalia did not explain in this newer speech was that by relying solely on his interpretation of Founding Era sources to determine the public meaning of the Constitution, he was just as activist as they were, imposing his own version of late-eighteenth-century-based judicial morality to restrict twenty-first-century rights. Sometimes, in certain individual rights cases, such as those dealing with the Confrontation Clause, and the free speech aspects of flag burning, he expanded rights through this process.
In the months that followed, Scalia continued to deliver more outspoken versions of his “Mullahs of the West” attack. Each speech became more strident and virulent, as did his answers to questions that followed. It was some of these off-the-cuff responses, rather than the speech itself, that were reported widely. In a speech delivered in Puerto Rico on February 13, 2006, at a meeting of the Federalist Society for Law and Public Policy Studies, Scalia was quoted as giving a new twist to one of his most familiar points by saying: “The argument of flexibility . . . goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that.”8 Subsequent articles about the speech reported that Scalia thought all “non-originalists are idiots.”9 He later defended himself by claiming that he had been misquoted. He did not think people who believed in a living Constitution were idiotic; only the arguments supporting their view were.10
On March, 8, 2006, Scalia, then on the verge of turning seventy years old, spoke at Switzerland’s only Roman Catholic university, the University of Fribourg in Geneva, as a result of an invitation by one of the school’s law professors, Samantha Besson. More than a half century earlier, he had studied there for a year as part of Georgetown University’s study abroad program. Now that he was back, he planned to offer his impromptu thoughts on the U.S. Constitution to a gathering of European students and faculty.11 Undoubtedly expecting the gathering to draw little or no notice at home, he spoke freely.
The occasion began just after 5:00 P.M. with a short introduction by an earnest-looking Swiss junior professor, who explained in labored English how the school’s bureaucracy had forced this impromptu address by their distinguished speaker to be moved into the stadium-seating auditorium rather than taking place in front of “the Fireplace,” the school’s traditional speaker forum. For Scalia, who thought that many of the students in the French-German bilingual school would not be adept enough at English to understand him, let alone be aware of the nuances of American law and politics, this was going to be a quick, routine appearance. Stepping to the podium with a bemused expression on his face, he began by saying to a round of laughter, “I didn’t know I was here to give a speech. I assume that most of you are here to practice your English. So it doesn’t matter what I say.”12
But Scalia could not have been more wrong. Unbeknownst to him, Scalia was about to face every public speaker’s nightmare: an audience that he had underestimated. The audience was filled with European students fluent in English, and sprinkled with distinguished English-speaking professors and graduate students, nearly all of whom were well versed in American politics. One was a law professor who had just spoken at Harvard, a couple more were senior professors with considerable international contacts, and at least one was a visiting American student. Almost to a person the audience members were angry about the Bush administration, America’s foreign policy, and the conduct of the American wars in Iraq and Afghanistan as well as its overall “War on Terror.” To this audience, Scalia was an ultraconservative American justice who had helped to put Republican George W. Bush into the White House, and was as a result inextricably linked to that administration’s policies. His visit represented their best chance to vent their anger about the course of American policy and politics.
In speaking, the senior jurist failed to be concerned about the two geeky-looking young men in the second row to his immediate right who were recording him on their handheld digital camera. As it turned out, they were recording the occasion for a small European broadcast service, called the Bureau Audiovisuel Francophone, or BAFWEB, thus making it possible for them to transmit their shaky video of Scalia’s seemingly private remarks around the world two days later.13 Like it or not, Scalia would be speaking to a much wider audience than the group sitting before him.
Blissfully unaware of the underlying tensions in the room and the certainty of the international distribution of his remarks, Scalia almost absentmindedly rattled through a shortened version of his “Dead Constitution” speech. To the delight of his audience, he proclaimed, “The only good Constitution is a dead Constitution. The problem with a living Constitution in a word is that somebody has to decide how it grows and when it is that new rights are—you know—come forth. And that’s an enormous responsibility in a democracy to place upon nine lawyers, or even thirty lawyers.” Waving his finger in the air, Scalia added, “Why should it be up to me to decide whether there ought to be, and hence there is, because the Constitution is a living instrument, a right to suicide?” Now warming up to the day’s topic, he began bouncing up and down, saying, “There never has been, for 200 years, nobody ever thought the Bill of Rights gave that—gave that right to people. Why should we . . . what did I learn at Harvard Law School that makes me more qualified to decide that profound moral question than Joe Six Pack. Joe Six Pack is the common man. It’s the American name for the common man. Joe Six Pack knows just as much about whether there should be a right to suicide as I do.”14
The pace of Scalia’s opening remarks, all delivered without notes, was so confidently measured, and spoken with such an appearance of authority, that it made his eloquent address even more persuasive. “Some people think it is the living Constitution,” said Scalia, characterizing the views of those jurists, adding:
I don’t know why, because they like lawyers, let’s have lawyers decide everything. But judges are wonderful, they should decide whether there is a right to abortion, a right to suicide, or death penalty. So when I do lecture I point out that the main problem with the “Living Constitution” is this, or to put it another way, the main virtue of my Constitution, which I will not call the “Dead Constitution,” I will call it the “Enduring Constitution,” the main benefit of the “Enduring Constitution” is that I have a criterion. When a case comes to me, I don’t do whatever I feel like doing. I have a standard. The standard is what would the people at the time the Constitution was enacted have said.
In a handful of sentences Scalia had summed up his entire judicial philosophy and had offered a nutshell version of the hundreds of speeches on this issue that he had given over the last two decades.
To avoid losing his European audience’s attention, Scalia then turned to the most controversial topic he could think of for them to consider. “So, the question comes up, is there a Constitutional right to homosexual conduct? Not a hard question for me.” Waving his right hand in the air he said, “It’s absolutely clear that nobody ever thought when the Bill of Rights was adopted, they gave a right to homosexual conduct. Homosexual conduct was criminal for 200 years in every state. Easy question.” At this point, Scalia began sawing his open hands back and forth as though he was wiping dirt from his palms.
Scalia was now ready to drive home his final point about his role as a Supreme Court justice. “If you don’t use my criterion, what is your criterion? And you know what?” he said, lowering his voice to a raspy whisper, “There isn’t any other. I mean think about it, what can you possibly use, other than the understood meaning of the text when it was adopted? If you don’t use that, if you say, ‘Oh no, it changes, it grows,’ okay fine. What criterion are you going to tell your judges to use as to when it changes? Are they going to take a public opinion poll?” For Scalia, the choice was clear: “You either use the original meaning of the text, the original understanding of the text, or else you tell your judges, ‘Oh, wise judges, you went to Harvard Law School or Stanford Law School. You must be experts in all of these moral questions for the whole society. You decide it for us, five out of nine of you. Decide for the whole country, whether there can be abortion, or there must not be abortion. Whether there can be the death penalty or there must not be the death penalty.’ ”
In concluding, Scalia attacked “the Constitutional Courts of the world,” by which he meant the European courts, as the “Mullahs of the West.” Referring to his recent speech in Australia, he criticized those who “mak[e] moral judgments for the whole society on the basis of, you know, empty phrases or inspiring phrases such as ‘the right of privacy.’ ” The audience could clearly see that Scalia included among these “Mullahs” his liberal colleagues on the U.S. Supreme Court. He argued: “I love the right of privacy, it’s a wonderful phrase, but what does it mean? . . . You just ask these judges, ‘do you think there should be a right to suicide?’ I mean my reaction is ‘Why ask me?’ If the people elected me, I could vote for a law that permits it or doesn’t permit it. I haven’t been elected, I’m just a lawyer.”15
With that, one of the world’s most visible and outspoken jurists ended his less than fourteen minutes of informal remarks. In offering these comments, Scalia displayed both his brilliant, argumentative eloquence and his magnetlike attraction to controversy. Next, he opened the discussion up for questions, saying to considerable laughter: “I used to be a law professor. I used to get paid money for teaching this class. So if you’re bored and falling asleep, it’s not because I’m not experienced. It’s just because I’m not good.”16
Once the floor was thrown open, the early questions were respectful and tentative, and tied to the theme of his remarks. As he answered them, Scalia walked across the stage and adopted an aggressive debating posture, making clear he was prepared for more discussion.17 He took a question from a student with very limited English skills, who asked about a newly passed South Dakota law that banned abortion: “When do you think that Roe v. Wade will be overturned by the Supreme Court?” Scalia appropriately demurred, saying that the issue might one day come before his Court. On the larger issue of the future of the Roe decision, though, Scalia added, “I have no idea . . . and no idea whether it will be. . . . There are still five justices on our court who voted in favor of Roe v. Wade. If I had to guess, I would say, ‘not yet . . . maybe not ever, but certainly not yet.’ The American dream is still to come.” For his part, though, Scalia argued that he “could not find a legal right to abortion in the Constitution,” adding, “It is not contained in the Constitution of the United States.” Contrary to those on the Court following a living Constitution who supported the right of abortion, Scalia warned “it is an enormous responsibility, in a democracy, to entrust that to nine lawyers.”18
After the discussion of Roe v. Wade, the direction of the questioning by the audience took an unexpectedly aggressive turn. About halfway up the auditorium a distinguished-looking gentleman launched into a rambling tirade about “president [George W. Bush, who] stands up and lies in front of the Congress because of going into Iraq . . . [and] President Clinton goes to Court in the Paula Jones case and he’s lied in front of the Court.” Explaining that he was not being “anti-American,” the man wanted “to understand how the Americans think about this.”
Scalia tried initially to deflect the nationalistic hostility with a joke, “Like using the budget of a French government to keep a mistress in Paris? Which everybody knows about, and there is not a scandal. The difference is in America, there is a scandal. In Paris, hey,” Scalia gestured with his arms in a “who cares” motion to the laughter of the crowd. But humor did not work, as the questioner just kept on ranting with his list of grievances against American policy. “Is this a question, or a diatribe against—” Scalia asked. But before he could finish, he was cut off.
“My question is how do you see that?” said the man.
Scalia made clear by the exasperated expression on his face that he had heard enough. “The answer is that it is not so,” he exhorted sharply. “The answer is that you have been reading too much of the anti-American left wing press in Europe, I mean it’s as simple as that. For example, you come up and state as a matter of fact—” Before he could explain, he was cut off again. Scalia now realized from the aggressiveness of the questioner, and the rising chorus of supportive murmurs throughout the audience, that the tone of the gathering had changed in an ugly direction. No longer was he answering the respectful questions of a crowd in awe of his position on the Supreme Court. Instead he had become a lightning rod drawing verbal fire as a representative of the current administration. In moments, Scalia was literally backed against the wall in the face of a critical cacaphony. But the pride of the Georgetown University Philodemic Society’s debate team, and the U.S. Supreme Court was more than up to the task.
“I heard this on television, on CNN . . .” pressed the man.
Scalia had heard enough. Looking both aggrieved and offended, now gesturing his arms forcefully, he fired back:
I listened to you and now you listen to me. You said that the President of the United States lied to the Congress about Iraq. . . . That’s certainly not an established fact at all. It’s a huge controversy about whether or not he believed, as the intelligence service of every country in the world believed, that weapons of mass destruction were possessed by Iraq. To come and state as a fact that the President lied about it, I mean if that’s the body of fact on which you base your question I mean it’s no use answering it. And as for the morality of the American people, I would put it up against the morality of other people in the world. . . . Clinton got into a lot of trouble. He was almost impeached. He was almost impeached.19
Though he realized that the entire auditorium was now largely allied against him, Scalia never once looked like he was the least bit intimidated. The verbal fireworks continued when the next person to regain the floor said: “I’d like you maybe to comment in the same way for the case of CIA prison flights and prison transfer of terrorism suspects in Europe. . . . What do you think about it on a constitutional and judicial . . .”
“Easy answer,” crackles Scalia, now ignoring the stricture against commenting on issues that might come on appeal to his Court. “The Constitution, if these are foreigners and the action is occurring abroad, they are not covered by the United States Constitution. Now whether it’s a good idea or a bad idea, whether it should be done or shouldn’t be done, is a different question. That’s above my pay grade.”
“No way,” barked a heckler wearing a baseball cap embroidered with a St. Louis logo, abandoning all sense of courtesy and protocol for their distinguished visitor.
“We don’t like Europeans in old St. Louis Rams baseball caps,” Scalia tried to joke. “We have a policy against it.” The joke fell flat, but Scalia had let them know that he just did not care what these unruly Europeans thought.
Moments later, a young woman joined the fray. “I just would like to say that honestly after listening to some of the things you’ve said, I am scared. Guantanamo Bay and all these examples, I think that the law should have the obligation to make a cut from politics, and not be the point of view of a person in your government, or a group of people in relevance to this moral point of view . . .”
“Having heard you, I am scared,” responded Scalia. “A world in which these moral sentiments would be given full expression by unelected judges would scare the devil out of me. I have a Constitution that I live under. It’s been adopted by my people. I have statutes that my people have democratically adopted. And my job is to give a fair interpretation to them. You want a world run by an oligarchy, that’s fine, but it scares me.”
“That’s exactly the point,” said the woman. “We have Geneva Rights, we have human rights in the convention, it’s just like it’s not . . .”
“What do they mean?” Scalia responded.
“They mean a lot.”
“They mean almost anything,” said the justice.
At this point the moderator lost control of the audience as random comments were shouted out from among the sea of new hands in the air. But Scalia stood his ground, clearly unwilling to concede any ground.
“If my brother or father . . . was not even proven guilty or not guilty . . .” continued the same woman.
With that comment, Scalia had had enough. Putting aside his role as a U.S. Supreme Court justice, and no longer answering as just an American defending his president and his country abroad, he adopted a different role—an intensely personal one. Speaking over the questioner’s voice he began, “If he is captured by my army, on a battlefield, that is where he belongs,” the justice spat out with considerable emotion while pointing his now empty Styrofoam cup at the woman. “I had a son on that battlefield. And they were shooting at my son. And I am not about to give this man who was captured in a war, a full jury trial. I mean it’s crazy.”20 It was an understandable comment from a father whose son had been at risk on the battlefield from these suspects, but an unfortunate one for a justice who was about to decide a case called Hamdan v. Rumsfeld21 dealing with that very issue. But he wasn’t done yet.
“Well I think that what happened. Well I think that Guantanamo is a very, very sad error of the humanity [sic],” the woman concluded.
“I think that you’re absolutely wrong,” responded Scalia. “Guantanamo is sad. Guantanamo is a problem for only one reason. Not because people captured in a war are being held without trial. That happens all the time.” When someone interrupted him yet again, the justice pleaded, “Please let me finish. The problem with Guantanamo, and I don’t know how to solve this problem, is that there may be no end to this war. Other wars you have an army fighting under a leader, and when the leader lays his sword down, or is blown up in a bunker, the war is over. And the two countries make peace and the captured soldiers are returned home. Okay, who makes peace in this war? That’s the problem, how long are you going to keep these people in Guantanamo? That’s the problem that I worry about. And that is a serious moral problem if you like,” he said, motioning to the other questioner on this point. “But, it is certainly not the problem, my goodness, that we are not giving people captured on the battlefield a civil trial.”22 For nearly an hour Scalia had responded to hostile questions about everything from Roe v. Wade to Guantanamo. Finally, the moderator tried to sum up the shattered pieces of what was intended to be a civilized conversation among academics, lawyers, and a sitting Supreme Court justice about American law and politics. All in all, it was a magnificent performance. Regardless of one’s views of Scalia, or his interpretation of the issues, it was a stirring demonstration by one man arguing against a hundred angry Europeans in defense of his country, his president, his Court, his view of the law, and everything he believed and held dear, including a son in the army.
Just outside the auditorium, the two men who had been video-recording the performance from their seats in the second row asked Scalia on camera what he thought of the audience. “Oh, I thought it was a fine audience,” the justice responded. “They asked some hostile questions, but I often provoke hostile questions. I guess I’m a provocative person.”23
Two days after the speech, a story about it appeared on a website called LifeNews.com: “Speaking to a group of professors and students in Switzerland, pro-life Supreme Court Justice Antonin Scalia said the Supreme Court may never overturn the Roe v Wade decision.”24
Soon another pro-life site, LifeSiteNews.com, picked up the report and provided a link to the BAFWEB video of the speech.25 It would take nearly three weeks before the mainstream American press discovered the Internet video. When the press reported on the speech, Scalia would once again be embroiled in controversy. One newspaper criticized the speech as “Scalia’s Ill-Chosen Words.”26 A report also appeared on Newsweek’s website on Sunday, March 26, later published as an article titled “Scalia Speaks His Mind.” The article said that the justice had “dismissed the idea that the detainees [at Guantanamo] have rights under the U.S. Constitution or international conventions, adding that he was ‘astounded’ at the ‘hypocritical’ reaction in Europe to Gitmo.” Professor Samantha Besson of Fribourg, who had invited Scalia to speak, was quoted as saying: “The comments provoked ‘quite an uproar.’ ”27 Shortly after these reports, the site and the video disappeared from the internet.28
Once more there were calls for him to step down from hearing the Hamdam v. Rumsfeld case, which dealt with presidential war powers and the legal rights of captured enemy combatants in the “War on Terror.” “This is clearly grounds for recusal,” said Michael Ratner of the liberal human rights group Center for Constitutional Rights, cofounded by defense attorney William Kunstler. New York University’s legal ethics expert, Professor Stephen Gillers, added, “As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the [Supreme] Court.”29 A CNN internet story titled “Report: Scalia Against Rights for Gitmo Detainees,” added: “Ethics experts said the impression that Scalia had already made up his mind before the hearing should mean that he will voluntarily drop out of the proceedings.”30 Shortly thereafter, a group of retired U.S. military generals filed a formal court petition asking Scalia to recuse himself from the Hamdan case. The generals argued that Scalia’s Fribourg comments “give rise to the unfortunate appearance that, even before briefing was complete, he had already made up his mind,” and that it gave the appearance of “personal bias arising from his son’s military service.”31
While the argument was technically accurate in that Scalia’s comments did preview his ultimate decision, the recusal petition from the generals showed a lack of appreciation for the context of these remarks and the nature of the situation that caused them. Even if one argues that in a perfect world Justice Scalia should not have said this, Antonin Scalia, the father of a soldier fighting in Iraq and an American under verbal assault at the time, felt he had every right to defend himself in that situation. If Scalia could be faulted, it would be for agreeing to speak to that group in the first place, for so badly misjudging the level of knowledge and mood of his audience, and for making comments that gave the appearance of bias.
This was the third time in four years that Scalia’s comments or actions had led to calls for his recusal from a case. His “under God” comments on the Pledge of Allegiance case at a Knights of Columbus Religious Freedom Day rally in January 2003 had forced his recusal from that case. A year later, a recusal petition stemming from his duck hunting expedition with Vice President Dick Cheney in Louisiana failed to persuade him to step out of the case dealing with the vice president’s Energy Task Force. Now, after Fribourg, Scalia was once more faced with the dictates of the federal judicial recusal rules that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”32 But no one really expected Scalia to recuse himself here.33 And they were right.
After a full six months of speaking and appearing on his contentious “Dead Constitution Tour,” Scalia hit bottom. On Sunday, March 26, 2006, Scalia had just left Boston’s Catholic Cathedral of the Holy Cross, where, along with six hundred parishioners, including other prominent members of the legal profession, he had attended a Red Mass, a special Catholic Mass dating back to the Middle Ages and meant to bless and guide those who practice the legal profession. As he emerged, waiting for him were two reporters, Peter Smith, a Boston University professor and freelance photojournalist working for the Archdiocese of Boston’s weekly newspaper, The Pilot; and Laurel Sweet, a reporter from the Boston Herald. Upon seeing Scalia, Sweet asked what he would say “to those people who objected to [his] taking part in such public religious ceremonies as the Red Mass [that he] had just attended.”34 Realizing that there was a camera pointed at him, Scalia glared at the lens for a moment, then simultaneously smirked and said, “You know what I say to those people?” With that, he flicked the fingers of his right hand backward from under his chin toward the reporter and photographer.
Just what Scalia said next, and meant by it, as he made the crude Italian gesture became a matter of dispute. According to Sweet, he said, “That’s Sicilian. It’s none of their business. This is my spiritual life. I shall lead it the way I like.”35 However, the photographer, Smith, recalled Scalia saying, “To my critics, I say, Vaffanculo.” While this Italian slang word has many meanings, the most common one is “Fuck you.” It was then that Scalia realized his error as he heard the clicking sound signifying that Smith’s camera had captured his gesture. Sweet recalled later that a “jocular” Scalia added, “Don’t publish that.” The photographer later explained, “[Scalia] immediately knew he’d made a mistake, and said, ‘You’re not going to print that, are you?’ ” However, the image Smith had captured was just too good not to find its way into print.36
The Boston Herald decided to print Smith’s photo on the front page along with the headline: “THE GESTURE: Obscene? You Be the Judge: The picture justice didn’t want to get out.” It was a new public relations low for Scalia. Whatever the actual meaning of his Italian chin-flipping gesture, no member of the distinguished United States Supreme Court had ever before been photographed making one.
As he had done before, in complaining about Tony Mauro’s critical article on Congress’s consideration of a judicial honorarium ban in 2000, Scalia tried to deal with the swirling controversy by sending a letter of protest to the editor of the Herald. He began by arguing that the story’s claim that he had “made an obscene gesture—inside Holy Cross Cathedral (Boston, Massachusetts), no less,” was “false,” and so he was asking that the paper reprint his letter in full. In fact, the Herald had reported that he had made the gesture “leav[ing]” and “outside of” the cathedral, but that detail did not prevent Scalia from calling the reporter “an up-and-coming ‘gotcha’ star.”37 Scalia claimed that he “responded, jocularly” with his gesture, and upon “seeing that she did not understand, I said, ‘That’s Sicilian,’ and explained its meaning—which was that I could not care less.” Scalia made clear his sense of outrage over what he viewed as a faulty interpretation of his action: “How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: ‘ “That’s Sicilian,” the Italian jurist said, interpreting for the “Sopranos” challenged.’ From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene—especially when made by an ‘Italian jurist.’ (I am, by the way, an American jurist.)” When in doubt, the justice liked to turn the tables, this time accusing others of discrimination.
The overwhelming interpretation gleaned from the days-long debate in the press and the blogosphere was that it was an offensive gesture, and inappropriately used by a sitting member of the U.S. Supreme Court, especially while he was coming out of church.38 While the publication of the photo caused the photographer to lose his job with the church, the controversy made clear once again that Scalia was the poster child for misbehavior and controversy on the United States Supreme Court.39
• • •
Only days after the controversial hand signal, the appeal of Salim Ahmed Hamdan was argued before the Court. In another “I couldn’t care less” gesture, Scalia resisted the pressure to recuse himself after his comments in Fribourg and chose to hear the case along with his colleagues.
At issue was the portion of the 2002 Authorization for Use of Military Force (AUMF) that granted the president the authority “to use all necessary and appropriate force against those nations, organizations, or persons determined to have planned, authorized, committed or aided the September 11, 2001, al Qaeda terrorist attacks, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”40 The Bush administration interpreted this congressional resolution to allow indefinite military detention of terrorism suspects without benefit of the protections in the Bill of Rights, and military tribunals to adjudicate such cases, should they ever come to trial.
Hamdan was a Yemeni citizen who had been Osama bin Laden’s chauffeur and bodyguard. He was captured on a battlefield in Afghanistan, charged with being an enemy combatant against the United States, and detained at the U.S.-run Guantanamo Bay prison in Cuba. He was held there for over two years before being charged with one count of conspiracy to “commit . . . offenses triable by military commission.” Hamdan’s appeal claimed that he should not be tried in a military tribunal, but rather in civilian U.S. courts, with all of the rights guaranteed by the United States Constitution.41
A preliminary question in the appeal was whether the Supreme Court had jurisdiction. The question arose as the result of the Detainee Treatment Act of 2005 (DTA), passed on December 30, 2005, a law that was designed to compel the military to follow anti-torture guidelines when conducting interrogations. It also stated that “no court, justice, or judge shall have jurisdiction to hear or consider” the habeas application of a Guantanamo Bay detainee seeking to bring their case to federal civilian court. If that law was upheld, it would deny the Supreme Court the jurisdiction to hear habeas corpus appeals from Hamdan or prisoners like him in Guantanamo. The four liberals on the Court, together with Anthony Kennedy, in a 5–3 vote (with Roberts not participating), used legislative history to summarily dispose of that argument by saying that the Court had jurisdiction because Hamdan’s case was already pending when the DTA was passed.
Moving to the merits of the case, Justice Stevens wrote for the Court that the government had failed to prove its “case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission. . . . Because the charge does not support the commission’s jurisdiction, the commission lacks the authority to try Hamdan.”42 The Court majority went on to rule that the president did not meet the requirements for setting up and operating military tribunals during times of armed conflict under the Uniform Code of Military Justice and the Geneva Conventions. After ruling that the Court was not “address[ing] the Government’s power to detain [Hamdan] for the duration of active hostilities in order to prevent . . . harm,” the majority concluded that “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the rule of law that prevails in this jurisdiction.”43 Thus, Hamdan might never get his day in court, but if he did, it would be in a civilian court.
Scalia disagreed. He did not even bother with the final disposition of the case because, he argued, the majority’s decision on the issue of jurisdiction was “patently erroneous.” His reading of the text of the statute denying the Supreme Court’s jurisdiction was “unambiguous,” leading him to heartily disapprove of the majority’s “reliance on the legislative history of the DTA to buttress its implausible reading” that the cases could be reviewed. Once more, Scalia challenged the idea of deciding a case using congressional legislative history comprised of statements, often made by a single senator or representative on the chamber floor, as representative of the entire body with respect to the meaning of a law. As he argued: “Of course this observation, even if true, makes no difference unless one indulges the fantasy that Senate floor speeches are attended (like the Philippics of Demosthenes) by throngs of eager listeners, instead of being delivered (like Demosthenes’ practice sessions on the beach) alone into a vast emptiness.”44 By allowing such pending habeas corpus petitions from Guantanamo to be heard in federal court, Scalia maintained, “The Court’s interpretation transforms a provision abolishing jurisdiction over all Guantanamo-related habeas petitions into a provision that retains jurisdiction over cases sufficiently numerous to keep the courts busy for years to come.”45 Just as he promised in Fribourg months before, Scalia in his official capacity would do nothing on behalf of an enemy that he argued had been shooting at his son on the battlefield.
• • •
Shortly before the Court term ended in June, the new chief justice, John Roberts, made clear his vision for what he wanted his Court to become. Giving the Commencement Address at the Georgetown University Law Center graduation, Roberts argued that the Supreme Court gained more power and prestige from exercising its power by consensus rather than partisan division. Clearly referring to the polarized Court he had joined, Roberts argued that the Court gained more from unanimity in its decision making
Because there are clear benefits to a greater degree of consensus on the Court. Unanimity, or near unanimity, promote clarity and guidance for the lawyers and for the lower Courts, trying to figure out what the Supreme Court meant. Perhaps most importantly, there are jurisprudential benefits. The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground. It’s when the decision moves beyond what’s necessary to decide the case that Justices tend to bail out. If it’s not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.
Drawing on his vast knowledge of the Court’s history, Roberts turned to one of the institution’s greats to argue that the Court should seek to avoid issuing decisions that it would later have to reverse. “In Felix Frankfurter’s words, ‘a narrow decision’ helps insure that we quote ‘not embarrass the future too much.’ The rule of law is strengthened when there’s greater coherence and agreement about what the law is.” In order to promote “broad agreement” on the Court and avoid “embarrass[ing] the future too much,” Roberts argued that his role as chief justice was clear:
In my view the important point is that the key to achieving this broader consensus on a collective and collegial Court does not rest with any individual member, Chief Justice or not, but with the Court as a whole. It is the obligation of each member on the Court to be open to the considered views of the others. We are a collegial and collegiate Court, not simply because we act after voting but because we work together to function as a Court in deciding the cases, and in crafting the opinions.46
Scalia did not require a speech to respond. When asked by Jan Crawford Greenburg later that year about Roberts’s plea for “more unanimity, more narrow opinions” on the Court, he responded:
Lots of luck. Of course that’s desirable and I think we work hard to achieve it. . . . We work hard, we work hard to do that. Beyond that, you know, you can get more agreement of course by deciding less. If you wanted to decide almost nothing at all, and decide the case on such a narrow ground that it will be of very little use to the bar in the future, you can get nine votes. So, it’s really always a tradeoff between how helpful you want the opinion to read, do you want it to take on the big question that’s really the source of the disagreement in the lower courts? If you do that, it’s going to be harder to get a 9–0 vote. If you want to decide this case based on the little technicalities of this case, you’ll decide this case but you won’t help the bar at all. . . . I’d rather have a 5–4 or a 6–3 decision that gives that guidance than a 9–0 opinion that doesn’t.47
Of course, the other reason for the sharply divided Court was the unwillingness by members of the ideologically polarized wings on the Court to compromise on any issue, large or small. And chief among those jurists driving a wedge between the two ideological sides was Antonin Scalia, who would still be going his own way, and brooking no compromise.