King Solomon, in his wisdom, would listen to the details of each dispute, carefully weigh the competing interests and then render a decision perfectly tailored to the circumstances. Great king. Lousy judge--at least by the lights of Justice Antonin Scalia.
The term that ends this month marks Scalia's 10th year on the Supreme Court. He has tirelessly argued that case-by-case, seat-of-the-pants jurisprudence turns judges into illicit legislators who substitute their policy preferences for those of the people's democratically elected officials. Last week, for example, he refused to join the rest of the court in holding that the tax-supported, men-only Virginia Military Institute violated women's right to equal protection of the laws. A democratic system, Scalia wrote, "is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution."
Judges--not all of whom have the wisdom of Solomon--should apply general, unvarying rules to every case, Scalia says. And the Constitution, he maintains, consists of just such rules. Where others see highly abstract terms, intentionally written to evolve with the nation they're meant to govern, Scalia--who describes himself as a textualist and originalist--sees a text of fixed and narrow meaning: in the Bill of Rights, "liberty" cannot comprise the privacy and personal autonomy to choose to have an abortion or to engage in homosexual relations because it did not in 1791. The 14th Amendment's "equal protection" cannot overrule the decision by the people of a state that a single-sex public college is a good idea. The Constitution, wrote Scalia, "takes no sides in this educational debate." Only by such a literal reading can the Constitution's protections be preserved, Scalia insists, because if judges can add rights, they can also take them away. "The Constitution is not an empty bottle," he tells his frequent lecture audiences. "It is like a statute, and the meaning doesn't change."
Along with his philosophy of judicial restraint, Scalia boasts a resume bursting with brilliance (valedictorian at Georgetown, a Law Review editor at Harvard, esteemed law professor at the University of Chicago) and a reputation for gregariousness and charm. So in 1986 the Reagan Administration believed that the 50-year-old circuit court of appeals judge was the perfect candidate to lead a new conservative majority on the high court into the 21st century. That he was an Italian-American father of nine whose appointment would please an ethnic constituency was a bonus. At the time, Chicago law professor Geoffrey Stone predicted in the ABA Journal that his former associate's collegial spirit would help build consensus among the Justices: "He has the personal skills, intelligence, patience and manner to work out compromises and find common ground."