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Spirited Scalia not one to shy away

He's answered protesters with a "quack," loves to bum a smoke, and discusses cases while jogging. And he's not about to step down from the Cheney case.

By BILL ADAIR, Times Staff Writer
Published April 25, 2004

[AP photo]
Antonin Scalia has refused to recuse himself from a case involving the vice president before the court Tuesday.

WASHINGTON - When Supreme Court Justice Antonin Scalia arrived at Amherst College to deliver a speech two months ago, he was greeted by protesters wearing feathers and quacking.

They were behaving like waterfowl to poke fun at Scalia's January duck-hunting trip with Vice President Dick Cheney. The demonstrators wanted the justice to recuse himself from a case about the secrecy of Cheney's energy task force.

Scalia told the Amherst students and faculty he had done nothing wrong because the case was against Cheney's office, not against the vice president personally. Scalia could not resist making a lighthearted jab at the protesters.

"That's all I'm going to say for now," he told his audience. "Quack, quack."

Eighteen years after President Ronald Reagan appointed him to the nation's highest court, Scalia has earned a reputation as the most conservative - and most colorful - justice. He recused himself from the recent Pledge of Allegiance case because he appeared to take sides during a Virginia speech, but he has stubbornly refused to skip the Cheney case.

With the court scheduled to hear the Cheney case Tuesday, many eyes will be on Scalia to see whether he is his usual argumentative, sometimes impish, self.

Scalia "is the court's provocateur," said Ken Foskett, author of a forthcoming biography of Justice Clarence Thomas. "He really relishes that role."

Conservatives hail Scalia as a thoughtful judge. Paul Rosenzweig, a senior legal research fellow with the conservative Heritage Foundation, calls him "a principled jurist who defines what he thinks is right and doesn't change his views for the public viewpoint du jour."

But liberal groups are wary because of Scalia's conservative record and his wily style. Elliot Mincberg, legal director of People for the American Way, calls him "extremely clever - but extremely dangerous."

Grateful for a smoke

Scalia - his friends call him Nino - loves opera and a spirited argument.

His pursuits away from the court hint that he's a far more complex personality than the stereotype of a rigid ideologue.

His closest friend on the court is Ruth Bader Ginsburg, generally considered one of the liberal justices. With their spouses, they often go to the opera and celebrate New Year's each year. He also plays poker with Chief Justice William Rehnquist.

"The thing you have to know about Nino is that he has a remarkable civility," said Hadley Arkes, a longtime friend who teaches at Amherst. "He has a wide range of friendships. The political differences don't get in the way of the friendships."

Scalia, 68, and his wife, Maureen, have nine children. The Supreme Court Historical Society says he "plays an aggressive game of tennis."

When it comes to debating and discussing cases, Scalia is never off duty. Steven Calabresi, a law clerk for him in 1987, says they used to discuss cases when they went jogging.

Scalia is a smoker who likes to visit his friend Arkes because he is welcome to smoke. "He tries to restrain himself from smoking" elsewhere, Arkes said, "but he can get cigarettes at my house."

New kid on the block

Lately, Scalia has been dogged by controversy.

Besides the flaps about Cheney and the Pledge of Allegiance case, he recently apologized to a wire service reporter in Mississippi after a federal marshal erased her tape of a speech he was making. "I have learned my lesson," he wrote.

Scalia grew up in New York, the only child of Eugene Scalia, a college professor, and his wife, Catherine, an elementary school teacher. He graduated first in his class at Georgetown University and was an editor of Harvard Law Review.

He practiced corporate law, then taught at the University of Virginia. He served in the Nixon and Ford administrations and, after he returned to academia, became renowned for his conservative views. He opposed what many conservatives call "judicial activism," when courts make sweeping rulings that supposedly overturn legislation or executive action.

Reagan appointed him to a federal appellate court in 1982 and to the Supreme Court in 1986.

He brought new energy to the highest court. The justices had traditionally been quiet during oral arguments, posing occasional questions. But Scalia, a compact man with heavy eyebrows and an ever-present twinkle in his eye, often interrupted the attorneys in mid sentence with barbed questions and powerful analogies.

"At first, it was something of a problem for the older justices to have the new kid of the block - who was so much younger - talking so much," said Calabresi, Scalia's former clerk. "It startled them. But it leads to a better opinion and a better work product."

Scalia "is a man of ideas," said Edward Lazarus, a former clerk for Justice Harry Blackmun and the author of Closed Chambers, a behind-the-scenes account of the court. "He likes the intellectual back-and-forth and he's a lot of fun in that respect."

Scalia was not available for an interview with the St. Petersburg Times, but he told writer Foskett that he believed he had been instrumental in livening up the court's arguments.

Foskett said Scalia seems happiest when he is debating. "He finds it uncomfortable when he is in a group and everybody is agreeing."

Blasting his colleagues

Scalia, who helped organize the conservative Federalist Society while a professor at the University of Chicago in the early 1980s, has been one of the nation's most prominent voices for judicial restraint. Ralph Neas, president of People for the American Way, calls him "the intellectual of the Right."

On the court, Scalia has taken what he calls a "textualist" approach, opposing actions by the government that are not explicitly authorized in the law. He opposed the law authorizing an independent counsel to investigate theexecutive branch. He wrote, "Once we depart from the text of the Constitution, just where short of that do we stop?"

He has cited his philosophy to oppose abortion rights and take other conservative stands, according to the Supreme Court Historical Society. But his philosophy has also led to occasional alliances with liberal justices on issues such as flag burning (he said it was a form of political expression) and opposition to mandatory drug testing.

Still, critics say he is not a purist and has abandoned his principles to suit his political aims - most notably in the Bush vs. Gore case that settled the 2000 presidential election.

His writing is often called eloquent, but he doesn't hesitate to fire a few zingers at his colleagues when he dissents. Last year, he blasted his colleagues for supporting gay rights, saying the court "has largely signed on to the so-called homosexual agenda."

Critics say those comments have reduced his influence with Justices Sandra Day O'Connor and Anthony Kennedy, who are often the swing votes.

"He writes vicious dissents and impugns the intellectual integrity of his opponents," said Neas of People for the American Way. "It is so vicious in tone that it just undermines whatever he is trying to do."

Lazarus, the author of Closed Chambers, says Scalia "is an arrogant guy - I think he would say that himself. He can be very dismissive of those who don't see things his way."

But supporters say he is merely sticking to his principles.

"I thought he had a very good relationship with O'Connor and Kennedy while I was there," said Calabresi. "I don't think he has in any way alienated O'Connor and Kennedy."

Ready to rumble

Even Scalia's opponents have a healthy respect for the combative justice.

Michael Newdow, the California physician who filed the Pledge of Allegiance case, prevailed with the unusual motion convincing Scalia to recuse himself. But Newdow regretted that as a result, he would not have an opportunity to spar with Scalia.

"When he said he was going to recuse, I said, "That's great. But I'm going to miss tangling with him."'

Scalia's readiness to rumble was vividly demonstrated in the Cheney case. It involves a long-running effort by environmentalists and a watchdog group to force Cheney to reveal the members of an energy task force that he led in the early months of the Bush administration.

Rather than simply announcing that he would stay on the case despite the duck-hunting excursion with Cheney, Scalia issued a 21-page memorandum in March that recounted cases over the years when presidents and justices socialized.

The trip to Louisiana was a large duck-hunting party, he wrote, and "I never hunted in the same blind with the vice president."

Besides, Scalia wrote in a letter to the Los Angeles Times, "the duck hunting was lousy."

- Times researcher Caryn Baird contributed to this report.

[Last modified April 25, 2004, 01:10:38]

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