The Nine [176]
Curiously, the person most affected by the two appointments appeared to be Scalia, who had just turned seventy. In public, Scalia had joked about the possibility of becoming chief justice, but the recognition that his career had reached a final plateau seems to have encouraged him to shed his inhibitions. For all his theatrics in oral arguments and the panache of his dissenting opinions, Scalia simply did not love the job as much as his colleagues did. As far back as 1996, he had written to Harry Blackmun, “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 anymore.” Ten years later, Scalia was still repeating himself, and he was bored.
It should have been a glorious time for Scalia, with two new like-minded justices joining the Court. But as Scalia contemplated his twentieth anniversary on the bench, his legacy looked modest. Although his famous dissents often produced admiring chuckles among his readers, the dissents only rarely become law. In two decades on a generally conservative Court, his number of important majority opinions was almost shockingly small; asked at a public forum his favorite of his opinions—a common question for the justices in such settings—he came up with an esoteric case interpreting the Confrontation Clause of the Sixth Amendment.
Nor did Scalia have much influence on his colleagues. Most famously, from the beginning of his tenure, Scalia had actively repelled O’Connor, pushing her toward her moderate, swing role. He had a similar effect on Kennedy. Even Thomas had long since passed Scalia, en route to a kind of nineteenth-century conservatism.
And the two new justices, though they almost always voted with Scalia in their early days on the bench, seemed to be cutting independent paths. In his confirmation hearing, Roberts issued a nearly Breyer-style denunciation of Scalia’s originalism, saying, “I think the framers, when they used broad language like ‘liberty,’ like ‘due process,’ like ‘unreasonable’ with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.” Moreover, Roberts’s much-advertised minimalism clashed with Scalia’s more sweeping approach to writing opinions. As part of his “textualism,” Scalia shunned any reference to the legislative history of laws, preferring to interpret only the actual words of a statute rather than the congressional debates leading to a law’s passage. But in one of his very first opinions, Alito did cite legislative history, and Scalia, as he always did, dissociated himself from the reference.
Outside of the Court, Scalia’s frustration manifested itself in juvenile petulance. Few on the Court traveled as much as he did, and no one more enjoyed mixing it up with critical audiences. These confrontations did not always bring out the best in the justice. He called those who did not share his originalist approach “idiots” he invited those disappointed with the result of Bush v. Gore to “get over it” he called the international constitutional courts in Europe “the mullahs of the West.” In one episode, on March 26, 2006, at a church in Boston, a reporter shouted a question to him about his religious beliefs. “You know what I say to those people?” he replied, and then flicked his fingers under his chin at the questioner. “That’s Sicilian,” he explained. The next day, the Boston Herald wrote that Scalia had made an “obscene” gesture. Two days later, Scalia wrote a letter to the editor of the paper that read in part:
It has come to my attention that your newspaper published