ONE ANGRY MAN

By JAMES S. KUNEN

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."

It hasn't worked out that way. When fellow Reagan appointee Anthony Kennedy wrote, for the 6-to-3 majority in Romer v. Evans in May, that a state constitutional amendment denying legal redress for discrimination based on homosexuality violated the equal-protection clause, Scalia wrote a withering dissent. He scoffed at the majority opinion's "grim, disapproving hints that Coloradans have been guilty of animus or animosity toward homosexuality, as though that has been established as un-American" and derided Kennedy's reasoning as "preposterous" and "comical," then dismissed the holding as "terminal silliness."

Such insulting language has become Scalia's signature style. It does not win friends or influence jurists--except perhaps to move them off the fence into alignment against him. Georgetown University law professor Mark Tushnet, who has studied the personal papers of the late Justice Thurgood Marshall, says Scalia "annoyed everybody at one time or another...They'd get over it and say, 'That's just how Nino is,' and then he'd do something else. It has to have left some residue of unwillingness to accommodate him."

In fact, a decade of exertions has not won a single Justice to Scalia's originalist point of view; his only dependable ally is Clarence Thomas, who shared his philosophy in the first place. On the nine-seat court, Scalia is one of seven Justices chosen by Republican Presidents. Yet "he has this view of himself as embattled," observes Yale law professor Robert Burt, "always fighting the desperate fight."

Scalia's siege mentality was manifest in his speech this spring at a Mississippi prayer breakfast. "We are fools for Christ's sake...We must pray for the courage to endure the scorn of the sophisticated world," he declared, explaining that in educated circles Christians are regarded as "simpleminded." The speech echoed one he gave last year at Princeton University, where he maintained that his views on the proper role of judges were regarded as "simpleminded" in "sophisticated circles."

Despite his self-image as a member of a beleaguered group, Scalia, as a matter of judicial principle, consistently leaves minorities, including religious minorities, at the mercy of majority rule. Only when the majority's duly passed laws contravene an explicit provision of the Constitution does Scalia believe he must step in--sometimes against his own political preferences: he cast the fifth vote to overturn laws prohibiting flag burning because they violated freedom of speech ("A result that I'm quite sure in his heart of hearts he hated," says Chicago's Stone).

In the absence of a clear constitutional imperative, however, he is willing to grant broad powers to the majority and demonstrates, as George Kannar, a law professor who has written extensively on Scalia, has noted, "an affection for established norms, and for 'normalcy' in general, extending to the most private part of private life." Therefore it was not surprising when, dissenting from the court's holding last month that psychotherapists should have a privilege against disclosing their clients' confidences in court proceedings, Scalia wrote, "Ask the average citizen: Would your mental health be more significantly impaired by preventing you from seeing a psychotherapist, or by preventing you from getting advice from your mom? I have little doubt what the answer would be. Yet there is no mother-child privilege."

On the highly contentious issue of affirmative action, however, Scalia has been accused of abandoning both his fidelity to original intent and his habitual deference to the legislature. He argues that the 14th Amendment's equal-protection clause forbids virtually any racial classifications in law despite the fact that the very Congress that passed the 14th Amendment went on to pass laws using just such classifications.

Scalia's objections to set asides and preferential treatment run deep. "My father came to this country when he was a teenager," he once wrote. "Not only had he never profited from the sweat of any black man's brow, I don't think he had ever seen a black man." The only child of an Italian-immigrant father who became a professor of Romance languages at Brooklyn College and of an Italian-American mother who taught public school, Scalia remains determinedly anti-elitist--he dines in a downtown pizza joint and keeps his name listed in the phone book. He can be a forceful advocate for those working-class white males he described in one gender-based case as affirmative action's "losers...unknown, unaffluent, unorganized."

But to other "losers" in life, the poor, Scalia appears less sympathetic, consistently voting against claimants to government aid. Because welfare comes without the efforts at moral uplift that accompanied religious charity, he told an audience in May, "the result is often the elimination of poverty without the elimination of the vices that produce the poverty."

Though he sometimes sounds like a champion of the status quo, with all its inequities, Scalia points out that it is not the court's job to decide what is right, only what is constitutional. When his fellow Justices cast themselves as moral arbiters, as he insisted they did in the V.M.I. case, their enterprise, he wrote, "is not the interpretation of a Constitution, but the creation of one." The one we have suits Scalia just fine.

--With reporting by Viveca Novak/Washington

With reporting by Viveca Novak/Washington