(10 of 11)
As an appeals judge, Scalia has been almost gratuitously antipress. He dissented from an opinion by his rival for the high court, Judge Bork, that threw out a suit by Bertell Ollman, a New York University professor who had been vilified as a Marxist by Columnists Rowland Evans and Robert Novak. Bork held that the column was merely opinion and thus protected speech; Scalia argued that it was "a coolly crafted libel." In his 100-page dissent, Scalia wondered why columnists, "even with full knowledge of the falsity or recklessness of what they say, should be able to destroy private reputations at will." Describing Scalia as "the worst enemy of free speech in America today," New York Times Columnist William Safire implied that he seemed to be running for the Supreme Court by writing press-bashing opinions, though Safire noted that at least Scalia's animus against the press was sincere.
Religion. Burger could be found on both sides of the separation between church and state. In 1984 he wrote the decision permitting Pawtucket, R.I., to erect a creche as part of its Christmas display but struck down a Connecticut law giving workers the right to a day off on their Sabbath. Scalia is expected to agree with Rehnquist's view that there is no "wall" between church and state.
In some areas, Burger and Scalia are close. Burger has been a foe of elaborate procedural safeguards for the criminally accused, and so has Scalia. But in many areas of the law, the effect of last week's appointments is simply unknowable. There is no doubt, however, that Reagan is hoping to provide Rehnquist with reinforcements. "The selection of Rehnquist is a selection for the future," contends Sheldon Goldman, professor of political science at the University of Massachusetts at Amherst. "The Reagan Administration is counting on being able to make another one or two appointments before the President's term ends. When they do that, they're going to have their court."
Justices Brennan and Marshall are determined not to give Reagan that opportunity. "They will have to be carried out," says a former Brennan clerk, who adds that both of the old liberals are in reasonably good health. Powell, 78, and Blackmun, 77, are said to be a bit weary, yet neither has given any indication that he is ready to retire. Some court watchers say the elderly Justices are afraid the next Reagan appointee will have Scalia's ideological bent without his judicial skills and acumen. Though A.E.I.'s Fein contends that the Justices should be reassured that the White House has so far picked jurists of quality, Harvard's Tribe argues the opposite. "More likely," he says, "they feel that having made a nomination of such distinction, the President will think he has a free ride" to appoint a crony like Meese or Senator Laxalt. The choices made by Reagan, or his successor after 1988, will be immensely important, not just to the court but to the country. For the Rehnquist Court appears poised at the sort of historic divide that occurs only once every few decades.