The Nine [30]
Scalia was fifty-six years old in 1992, a veteran of six years on the Court, at the height of his intellectual and physical powers. He was squat and neckless, with a five o’clock shadow that was almost as pronounced as Souter’s. He dominated the Court’s oral arguments with barbed questions and jokes, and his opinions were forceful, oratorical, and a pleasure to read. He was the dominant personality on the Court, and he had the clearest, most identifiable judicial philosophy among the justices. But by the time of Casey it was clear that Scalia’s zest, passion, and intelligence did not translate into the most important thing one member of a court of nine could have—influence.
O’Connor, still in her uncertain early years as a justice when Scalia joined the Court, was the first to be alienated by him. In the Webster case, Scalia had written that her opinion declining to address Roe “cannot be taken seriously.” Later, as she became more confident, O’Connor would ignore Scalia’s taunts—“That’s just Nino,” she would say—but at first his contempt burned her. Scalia’s breach with Kennedy was even more surprising. Both men were born in 1936, observant Catholics, contemporaries at Harvard Law School, and appointed to the Court a year apart; Kennedy bought a home in the same Virginia suburb as Scalia. For a time, the portly New Yorker and rangy Californian were even unlikely jogging partners. But Kennedy, a politically as well as temperamentally moderate person, came to be repelled by Scalia’s dogmatism.
In time, Scalia would revel in his isolation and wear it almost as a badge of honor. His judicial philosophy was so clear and consistent, and his obligation to follow it so principled, that he could not bring himself to bargain with his colleagues. “Originalists have nothing to trade!” he would say. “We can’t do horse-trading. Our view is what it is, and we write our dissents.”
But originalism never caught on with anyone else on the Court, except Thomas. Justices like O’Connor, Souter, and Kennedy believed there was more to constitutional interpretation than just divining the intent of the framers, including such factors as subsequent decisions of the Court, the expectations of the public, and the underlying values in the Bill of Rights, not just its text. In short, these justices believed in a “living Constitution,” a concept for which Scalia had nothing but contempt. “A ‘living Constitution’ judge,” Scalia once explained, is a “happy fellow who comes home at night to his wife and says, ‘The Constitution means exactly what I think it ought to mean!’ ”
Scalia thought Roe was the worst example of the living Constitution run amok—until he read Kennedy’s section of the joint opinion in Casey. Kennedy had a weakness for high-flown, sometimes rather meaningless rhetoric, and he was at his airy best (or worst) in Casey. “Liberty finds no refuge in a jurisprudence of doubt,” he began. In plain English, Kennedy meant that law had to be consistent and predictable, but there was in fact a noble lineage to “a jurisprudence of doubt.” Theorists like Oliver Wendell Holmes Jr. and Learned Hand thought it was critical for judges to reflect doubt that their conclusions were correct for all time. Worse, from Scalia’s perspective, was Kennedy’s defense of the right to privacy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Even many supporters of Roe would have trouble defining “the mystery of human life,” much less asserting that it was protected by the Constitution, but such phrases sent Scalia into a genuine rage. In the last days before Casey was announced, traditional notions of Court etiquette were tossed aside in the heat of the battle. Scalia visited Kennedy at home to try to talk him out of his position; one of Scalia’s law clerks waylaid Souter in the hallway to lobby him to change his mind. Nothing worked.
Indeed, the exclamation point to the troika’s victory in Casey came after a typically astute behind-the-scenes maneuver by Stevens. Through