Temperamental Justice

Do we have Justice Antonin Scalia to thank for the fact that Roe v. Wade was not overturned in 1992? For a while, in the run-up to the decision in Planned Parenthood v. Casey1—a decision upholding Roe v. Wade—it had seemed as though there were six votes on the Supreme Court for saying that the central holding of Roe was wrong and that women did not have a constitutional right to abortion. Scalia himself, Chief Justice William Rehnquist, Justice Clarence Thomas, and Justice Byron White clearly thought this. It appeared that Anthony Kennedy and Sandra Day O’Connor also shared this view, both having expressed reservations about Roe in earlier cases.2 Indeed at one stage there might even have been seven votes. During David Souter’s confirmation hearings, pro-choice advocates held up placards saying “Stop Souter or women will die,” so strong an impression did he give of being skeptical about abortion rights. But Souter quickly confounded the hopes of the constitutional conservatives. By 1992, it was just the votes of Kennedy and O’Connor they thought they could secure.

But that was until Justice Scalia ruined everything. “Some scholars,” says Jeffrey Rosen, “argued that Scalia’s relentless personal attacks on O’Connor and Kennedy dissuaded them from overturning Roe v. Wade.” An endnote in Rosen’s book reveals that “some scholars” is Christopher E. Smith, who teaches in the School of Criminal Justice at Michigan State University. Smith had this to say about the failure of the conservatives to secure O’Connor’s and Kennedy’s support in Casey:

Kennedy switched positions only after Justice Scalia attacked his conservative allies for not being forthright in their actions and after Scalia openly advocated immediate reversal for the sake of his vision of the Court’s role in the governing system…. Their attempt to encourage O’Connor to join their efforts to overturn Roe was hampered, if not torpedoed, by Scalia’s decision to make O’Connor the focus of sustained personal attacks and public derision in his Webster concurring opinion…. O’Connor was not likely to feel persuaded to adopt Scalia’s viewpoints when his means of convincing her was to implicitly accuse her…of hypocrisy, disingenuousness, and cowardice…. By forcing the issue in a strident and personal way, Scalia pushed his colleagues away by offending them.3

Rosen does not say explicitly that he accepts Smith’s account. But he gives the impression that he thinks it is correct and it is grist to the mill of the thesis of his new book: that judicial temperament is all-important and that Justice Scalia is seriously deficient in this regard.

Rosen’s portrait of Justice Scalia is very unflattering, in my opinion scurrilously so. He tells us that Scalia is “an intellectual pit bull who is more concerned with ideological purity than building coalitions,” and “more interested in stirring up controversy outside the Court than building coalitions inside of it.” He is a “maverick and a loner.” He has “no volume knob.” “By repeatedly inserting his own personality into the public debate, he call[s] his…

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