Scalia the Terrible

Think of the Clinton administration as an expanding universe created by last November's big bang that is steadily spawning more programs, more ideas and more experiments, driven by the conviction that an active executive and a venturesome Congress can change the nation's course. Now train the telescope of your mind on the Supreme Court, where you'll find eight stars of widely varying magnitude, plus Antonin Scalia in a galaxy all his own.

As the cosmos of government grows, Scalia's seems to contract. Although the nation's new watchword may be more, he responds with less, always less. Scalia, more than anyone else on the Court, has embraced lessness as a philosophical principle. He decides cases on the narrowest procedural grounds, the narrowest reading of laws. While others seek to enlarge the Court's influence, Scalia's greatest goal is to shrink it.

When Ronald Reagan nominated Scalia in 1986, conservatives were overjoyed. A former law professor with a fondness for combat, Scalia seemed just the man to spearhead a right-wing charge against decades of liberal domination. He had already denounced Roe vs. Wade as an abomination, denied that the Constitution contains the slightest hint of abortion rights and excoriated racially based affirmative action as "the most evil fruit of a fundamentally bad seed." (After one of his subsequent tirades on the subject, Justice Sandra Day O'Connor said, in the privacy of the conference room, "But, Nino, if it weren't for affirmative action, I wouldn't be here.")

Many conservatives—and not a few worried Court watchers on the left—thought Scalia would eventually emerge as the leader of the conservative counterrevolution, in the same way that Justice William Brennan had become the embodiment of liberal thought. But they were wrong.

For one thing, the counterrevolution never jelled, thanks largely to the unexpected moderation of several other Republican appointees, mainly O'Connor, Anthony Kennedy and David Souter. Each of these three has stressed the importance of continuity over ideology in the work of the Supreme Court, and each has acknowledged, in his or her way, the profound intellectual and emotional influence of William Brennan and Thurgood Marshall.

For another, Scalia has proved unpredictable, sometimes straying astonishingly far from the conservative camp—for example, he proclaimed flag burning to be protected by the First Amendment. Whichever side he chances to land on, he frequently stakes out his position with an angry intransigence that isolates him from his peers. Scalia's isolation will deepen further with the imminent retirement of Justice Byron White and the arrival of President Clinton's first appointee.

In one sense, Scalia has simply fallen victim to the political wars that produced him. More fundamentally, however, his current status reflects the limits of his philosophy. With his rigid insistence on the literal meaning of legal texts, Scalia himself is a textbook example of what can happen when justice fails to meet human needs.

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When Scalia came to the Supreme Court, he was bursting with energy, itching for a fight and supremely certain of his own wisdom. To see him in full cry now is to see the same man, his diminished influence notwithstanding. If mind were muscle and Court sessions were televised, Scalia would be the Arnold Schwarzenegger of American jurisprudence.

When he listens to hapless litigants, he tilts his head at a show-me angle or taps his fingers on the desk in front of him as if he were playing the piano, which he enjoys doing when off the bench. When he speaks, he lunges forward with a jabbing forefinger to emphasize key words. Justice Scalia is the Court's self-appointed prosecutor, interrogator, elucidator or inquisitor— depending on who's catching his flak. One attorney who recently came before him found his style startling.

"The Supreme Court is a formal setting," she said. "When you walk into that room, it's almost like a church. The only person who's not formal is Scalia. He keeps squirming in his chair and constantly talks to other justices like it's a cocktail party. As I watched him, I was reminded of a big cat batting around a ball of yarn, kind of toying with it and being powerful, not in a mean way but in a disinterested way, detached from the realities of the case."

Or, in a memorable description from Turning Right, David Savage's book about the evolution of the Court's conservative majority: "On a bench lined with solemn gray figures who often sat as silently as pigeons on a railing, Scalia stood out like a talking parrot."

Scalia stands out everywhere he goes. In one widely cited incident, reporters spotted him leaving the Court one evening and commented on his stylish tuxedo. "Ah, yes," Scalia replied expansively, "esteemed jurist by day, man about town at night." Among friends and in the ample bosom of his family—he and his wife, Maureen, have nine children—he is called Nino. He is known for his buoyant humor, which can mask a steely will to prevail, whether at poker, which he plays with ferocious intensity, or on the tennis court, where he overachieves to offset being overweight.

The only child of an Italian-American mother and an Italian-born father who translated poetry and taught Romance languages at Brooklyn College (on his deathbed, his father recited Gray's Elegy Written in a Country Churchyard), Scalia was born in an Italian enclave of Trenton, New Jersey. Later, when the family moved to the borough of Queens in New York City, he attended Xavier High School in Manhattan and got a double dose of authority: Xavier is a Catholic military academy. Even at the age of 17, Nino was, a classmate recalls, "an archconservative Catholic. He could have been a member of the Curia. He was brilliant, way above everybody else."

This brilliance showed throughout his academic career: He was first in his class at Xavier and again at Georgetown University, where he studied history. He graduated magna cum laude from Harvard Law School, where he became an editor of the Law Review. After Harvard he practiced law for six years. He went on to teach law at the University of Virginia for four years. In 1971 he was appointed general counsel for the Office of Telecommunications Policy in the Nixon administration.

During Watergate, President Nixon appointed him to head the Justice Department's Office of Legal Counsel, which gives legal advice to the president and attorney general. Soon afterward, Nixon resigned under threat of impeachment, and Scalia's appointment was confirmed by Congress during the succeeding administration of Gerald Ford. In one of his first acts on the job, Scalia issued an opinion that all of the potentially incriminating Watergate documents and tapes were owned by Nixon himself—a position that the Supreme Court eventually rejected, but one that Nixon still cites in his battle to keep the remaining tapes secret.

When Jimmy Carter moved into the White House in January 1977, Scalia left the Justice Department and made a name for himself in academic circles. He taught and wrote about administrative law, first at the American Enterprise Institute in Washington and later at the University of Chicago, where he bought a former fraternity house to provide enough living space for his family. Scalia was so outspoken on conservative issues—he denounced liberal justices on the Supreme Court for making decisions "tied together by threads of social preference and predisposition"—that he caught and firmly held the gimlet eye of the Reagan administration. In 1982 President Reagan named him to the bench of the United States Court of Appeals for the District of Columbia.

That court is widely considered to be the most powerful federal tribunal in the country after the Supreme Court. It's also a stepping-stone to the Supreme Court, and as soon as Scalia got there, he started stepping with alacrity. Liberal opponents reacted to his broadsides with horror, as if he were the ideological equivalent of a goose-stepper in jackboots. But even traditional conservatives were worried about some of the extreme positions Scalia took on behalf of government and at the expense of individual rights. In 1985 New York Times columnist William Safire, a former Nixon speechwriter, branded him "the worst enemy of free speech in America today."

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To the White House, that may have sounded like a ringing endorsement. When President Reagan nominated Scalia to the Supreme Court in 1986, he had every reason to view him as intellectually formidable, readily confirmable (then, as now, Scalia's personal charm could distract from his combativeness) and ethnically desirable (the Court's first Italian-American). And Scalia was not just dependably conservative but a faithful follower of William Rehnquist, whom Reagan had elevated to chief justice.

At least the president was right on the first two counts. Given the impressive credentials that Scalia brought to his Senate hearings, the Senate confirmed him willingly, almost eagerly, with none of the rancor that had marked the debates over Rehnquist.

But dependably conservative, let alone a Rehnquist clone? Within a few months of his arrival, Scalia was following Rehnquist's lead 75 percent of the time. He was also voting with Brennan, keeper of the Court's liberal flame, more than 60 percent of the time. (Voting alliances on the Court often overlap.) In one case that startled Scalia's supporters, he joined the liberals in a decision that significantly restricted police power to conduct searches. And he didn't just join them, he spoke for them by writing the majority opinion, in which he lectured his fellow Reagan appointees, Rehnquist and O'Connor, on the meaning of strict interpretation of the Constitution. (Strict or narrow: It's the former when you agree with Scalia, the latter when you don't.)

As for Safire's concern for free speech, that, too, turned out to be misplaced. Not that Scalia hadn't given the Fourth Estate reason to brand him as a press basher. During his tenure as a federal appellate judge, he had denounced the Freedom of Information Act for eliminating what he called "institutional privacy." What's more, in voting to reinstate a libel verdict against The Washington Post, he had suggested that one way to detect a newspaper's malicious intent was to see if the (continued on page 148) Antonin Scalia (continued from page 126) paper favored "hard-hitting investigative stories."

But those were free-speech issues involving governmental or commercial institutions, both of which Scalia is inclined to protect. His thinking changed when a case involved free speech as a constitutional principle. Once installed on the Supreme Court, for example, he had no problem joining Brennan's 5–4 majority in the flag-burning case, where he drew a sharp distinction between the Flag, which is a national symbol, and flags, which are pieces of fabric manufactured in flag factories. (If God is in the details, Scalia is in the sharp distinctions.)

Scalia also voted with the Court's liberals to uphold a law requiring employers to give unpaid leave to women temporarily disabled by pregnancy or childbirth, to invalidate the racially discriminatory annexation policy of an almost all-white town in Alabama and to apply, retroactively, a landmark ruling that prosecutors may not remove prospective black jurors because of race. He cast the deciding vote to free nonprofit advocacy corporations from laws that limit spending in political campaigns.

On the left, this provoked amazement and delight. Harvard Law School professor Laurence Tribe, a liberal's liberal if ever there was one, proclaimed himself more in agreement with Scalia during Scalia's first months on the Court than with any other justice. "The clarity of his analysis," Tribe said, "puts him in a class by himself." On the right, it produced dismay. "Let's hope," said conservative legal activist Daniel J. Popeo with nervous humor, "he doesn't get too friendly with the wrong crowd."

Popeo needn't have worried. Soon enough, Scalia was coming down harder than ever on the side of strong government and writing majority opinions or dissents that were implacably hostile to individual rights. He rejected the claim of a former soldier who had unwittingly been fed LSD by the Army in a secret experiment. He found no constitutional barrier to executing 15-year-olds. He crafted a bulletproof shield for federal government and military contractors that protected them against suits from service personnel and their families—even if soldiers or sailors had been killed by defects in a contractor's product.

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How to explain these contradictions? How to comprehend someone who has seemed, at times, to share Brennan's heroic concern for individual liberties, but who, on so many other occasions, has behaved like a heartless fanatic of the extreme right?

One starting point is passion. Throughout Brennan's long tenure, from 1956 to his retirement in 1990, there was never the slightest doubt about what he stood for: Brennan's passion for the Bill of Rights led him to defend individual freedom at every turn. Scalia is much cooler, sterner and more abstract. His passion is for order, consistency and "bright-line rules"—principles that can be applied simply and clearly. He does not join the liberal camp out of the goodness of his heart or the softness of his head but because he feels that he has found a principle that's clear and compelling enough for him to follow, no matter where it may lead.

The best example of this process came last year, when Scalia wrote a majority opinion that The New York Times called a "landmark" and The Village Voice hailed as "a startling triumph for free speech."

The case began with a cross burning in the predawn darkness of June 21, 1990, on the lawn of a home owned by the only black family in a middle-class neighborhood in St. Paul, Minnesota. Police arrested two white teenagers, described later as skinheads, and charged them with violating a city hate-crime ordinance. The older boy pleaded guilty. The younger one, a juvenile identified as Robert A. Viktora, was represented by a court-appointed attorney named Edward J. Cleary, who challenged the ordinance as unconstitutional.

Cleary, a self-described Irish Catholic Kennedy Democrat, was appalled by the crime that his client was accused of. But he also believed—without reservation—in free speech. As he studied the text of St. Paul's hate-crime ordinance—with its proscription of Nazi swastikas, of cross burnings and of words intended to arouse "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender"—he saw a law that, with the best of intentions, contravened the First Amendment.

"When St. Paul said 'We don't want fighting words on the topic of race in our city,'" the 39-year-old lawyer explained recently, "they signaled that they didn't want fringe expression on the far right. That's what I felt was wrong. If you allow cities to pick and choose what they want to hear and to set political standards, you open the door to loss of liberty."

If the city had brought trespass or arson charges against Cleary's client, he would almost certainly have gone to jail. But the district attorney had chosen to prosecute him for the symbolic content of his act, and a county judge agreed with Cleary, finding St. Paul's ordinance unduly broad, impermissibly content-based and in violation of the young man's right to free speech.

When the judge's decision was reversed by the state's high court, Cleary appealed to the United States Supreme Court with a brief of uncommon clarity and eloquence. The Supreme Court agreed to hear the case and, in oral arguments, Cleary's position was promptly embraced by Scalia.

"The ideological issue that I addressed, and Scalia welcomed, was government betraying its proper neutrality," said Cleary. "Scalia played cross-examiner, but I'm a trial lawyer. I could see where he was taking me and I thought, Go ahead, take me there. When I said that defenders of these bias laws would claim that swastikas or burning crosses are only symbols rather than viewpoints being discriminated against, Scalia's basic question was, 'Well, they're not mere symbols, are they?' He was strengthening my argument, which was a sign that he sympathized with me."

In June of last year, when the Supreme Court struck down the St. Paul ordinance, Scalia used the case to redefine First Amendment protection. Writing for a majority that included Rehnquist, Kennedy, Souter and Thomas, Scalia stated flatly, as is his habit, that government may not silence "speech on the basis of its content."

Although the Court was unanimous in finding the St. Paul ordinance unconstitutional, it divided sharply on its reasons. Four justices—White, Blackmun, O'Connor and Stevens—accepted the ordinance's goal, while conceding that its language was sloppily drafted and overbroad.

To Scalia, however, the language was beyond repair because the goal—punishing some fighting words but not all—was fundamentally flawed. "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible," he wrote. "But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."

Reaction to the decision was mixed. Like The Village Voice, The New Republic rejoiced, calling it "an occasion for the friends of free expression to dance in the streets." In St. Paul, however, the decision was greeted with anger and widespread sympathy for the victims; the local newspaper reported the story under the headline Hate crime law struck down.

It's almost impossible to overstate the eventual impact of Scalia's decision, which seems to have invalidated most campus codes that try to dictate politically correct speech. It also challenges the constitutionality of so-called enhancement laws that increase penalties for certain crimes if the crimes were committed with a motive of bias.

That's what happened in Wisconsin when a group of black youths who had just seen Mississippi Burning assaulted a white youth and left him permanendy brain damaged. Because of enhancement laws, the leader of the group, a 19-year-old named Todd Mitchell, was sentenced to four years in prison instead of two. But 24 hours after Scalia's cross-burning decision was announced, Wisconsin's enhancement law was thrown out by that state's supreme court. Mitchell's sentence was thereby reduced to the original two years. Subsequently, attorneys general from 31 states joined the Wisconsin prosecutors in urging the Supreme Court to review that ruling. The Court agreed, and arguments were heard last spring. A decision is expected by July; only then will it be clear whether harsher criminal penalties for hate crimes will survive Scalia's landmark defense of free speech.

The bright-line logic of his opinion could hardly be clearer. Free can only mean totally free; neutral means neutral. As landmark opinions go, however, this one is singularly uninspiring. Even Ed Cleary felt puzzled when he read it. By any reasonable measure, the document was a remarkable victory for free speech and a triumph for Cleary. Yet the solo practitioner from St. Paul found himself wishing that Scalia, in all his lofty, steely rigor, had loosened up enough to talk about ordinary people's pain, as Brennan might have done, to say that the First Amendment can demand terrible sacrifice in exchange for its protection.

"Apart from the last paragraph of the opinion," Cleary noted, "where he says racism is reprehensible, Scalia doesn't really acknowledge the depth of the black experience. I'm sure he felt it was irrelevant to the intellectual arguments."

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That's Scalia through and through. In content and style, his opinions are marked by bizarre bloodlessness and expressions of scorn. When Nancy Cruzan's parents tried to have their comatose daughter taken off life support, Scalia acknowledged that the case presented agonizing questions, but he yanked himself back from the brink of empathy. The answers, he added, "are neither set forth in the Constitution nor known to the nine justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory."

He has also been quick to vent his spleen on his peers. When O'Connor's carefully hedged position in Webster vs. Reproductive Health Services prevented the Court from overturning Roe vs. Wade, Scalia denounced her refusal to address the broader issues of abortion as "perverse" and "irrational," and concluded in a furious dissent: "It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe vs. Wade, must be disassembled doorjamb by doorjamb and never entirely brought down, no matter how wrong it may be."

Scalia's anger in this case was especially naked, thanks to his boundless hatred of Roe vs. Wade. It's important to note, however, that despite his personal beliefs as a Roman Catholic, he has never advocated making abortion illegal. Here again, Scalia's passion is for simplicity and order. In his view, abortion is a political matter rather than a legal one, a hopelessly messy, ambiguous, contentious issue that the Supreme Court should leave to state lawmakers.

The trouble is that much of modern life is an ambiguous, contentious mess, and Scalia's loathing of disorder leads him to quick, simplistic fixes. Nowhere is this more apparent than in a test of religious freedom that began in 1985, when Al Smith, a Native American, and Galen Black, a non-Indian who had recently converted to the Native American Church, were working in Roseburg, Oregon as substance-abuse counselors for a private agency.

Recovering alcoholics themselves, they were forbidden by the terms of their employment from using alcohol or illegal drugs. When they revealed that they'd ingested peyote during religious ceremonies, they were fired. (Although some states have sanctioned the religious use of peyote, Oregon has not.)

"After I got terminated," said Smith, a member of the Klamath tribe, "I went down to unemployment to apply for benefits, and the guy says 'No, you're not entitled to unemployment because you've been fired for misconduct.' I said, 'What, for going to church? No way that's misconduct.' But he goes, 'Sorry,' so I started looking for an attorney, an Indian attorney."

Finding someone to handle the case was difficult, Smith recalled during a lull at a powwow in Siletz, Oregon. The problem was that Indian lawyers were too busy representing entire tribes to worry about one man's unemployment benefits. Eventually, though, Smith, who is now a trim and fit man of 72, got help from Legal Aid in Roseburg and brought suit against the state, claiming that his constitutional rights to the "free exercise" of religion had been violated. He won, but the state of Oregon appealed, and the United States Supreme Court agreed to hear the case.

On the surface, Al Smith's collision with the state resembled many other religious-freedom cases the Supreme Court had heard over the years. Usually the Court dealt with such conflicts by attempting to balance the importance of specific religious beliefs with the government's so-called compelling interest in enforcing certain laws. Jewish soldiers could not, therefore, wear yarmulkes on duty and Christian Scientist parents could not withhold medical treatment from their critically ill children, but neither could states compel Amish children to attend public schools.

Scalia detests such judicial balancing acts. While still an appellate judge, Scalia had contended that when a judge tries to balance all the factors in a case, "he begins to resemble a finder of fact more than a determiner of law."

Al Smith's attorney, Craig Dorsay, did his best to portray the religious use of peyote as harmless and worthy of a special exemption from Oregon's general law. But Scalia would have none of it. When he wrote his opinion for a majority that included Rehnquist, Kennedy, Stevens and White, he rejected Smith's right to use peyote in religious ceremonies. Then Scalia went further than any of his colleagues might have imagined: He also threw out the traditional test of compelling interest.

"Any society adopting such a system would be courting anarchy," he wrote, adding that "we cannot afford the luxury" of judges' devising exemptions for every minority religion. In the future, Scalia decreed, the only test of laws that conflict with religious beliefs would be whether the statutes in question were generally applicable and neutral rather than aimed at religion to begin with. As the opinion noted, states remained free to enact any laws they saw fit to protect religious practices, just as many had already done with peyote. But the Constitution, Scalia maintained, did not require them to do so.

The opinion shocked many legal scholars and religious leaders. In Scalia's relentless search for bright-line rules, he had taken a minor case and used it to rewrite the First Amendment's guarantee of religious freedom.

This provoked an emotional dissent from O'Connor. As she saw it, the state did have a compelling interest in enforcing its drug laws, so it was justified in firing the two drug counselors, but compelling interest was the key. To cast aside the Court's established balancing test as "a luxury" was, she said, "to denigrate the very purpose of a Bill of Rights."

Scalia conceded that his ruling would discriminate against minority religions in favor of those in the mainstream, since the nation's largest religious groups would always have the political clout to get legal protection. But the author of this stunning, sweeping and ultimately simpleminded decision declared the possibility of discrimination an "unavoidable consequence of democratic government." It was still preferable, Scalia said, to judges' being required to weigh the importance of individual laws against the importance of religious beliefs, or to a system in which "each conscience is a law unto itself."

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In one of his most strenuous campaigns against ambiguity, Scalia drew a bead on the Eighth Amendment, which forbids the use of "cruel and unusual punishment." The case involved a man named Ronald Allen Harmelin, who had served as an honor guard in the Air Force but who, after leaving the military, became a pool hustler and a cocaine addict. In 1986 police in a Detroit suburb pulled Harmelin over for a traffic violation. When the cops checked the trunk of his car, they found 672 grams of cocaine and charged him with drug possession. To no one's surprise, prosecutors won a conviction.

The big shock came at sentencing. If federal sentencing guidelines had prevailed, a first-time offender such as Harmelin might have faced ten years in prison. But Michigan law mandated the toughest penalties in the nation for possessing more than 650 grams—about a pound and a half—of cocaine. Thus the judge had no choice but to give him the same punishment he would have meted out for first-degree murder—life in prison without parole.

Harmelin appealed to the Supreme Court, filing what is known as a pauper's petition from his prison cell. He claimed that his sentence violated the Eighth Amendment because it was disproportionate to his offense and to punishments elsewhere in the country.

The Court agreed to hear his case, which was unusually straightforward, since Harmelin never denied his guilt. He presented one issue only: Does the Constitution require the punishment to fit the crime?

It seemed clear to his attorney, Carla J. Johnson, that Harmelin's best hope lay in a 1983 case, Solem vs. Helm. There, a 5–4 majority of the Court had ruled that a criminal's sentence must indeed be proportionate to the severity of his offense. Johnson also took encouragement from a previous opinion, written by Scalia, which held that the death penalty for a juvenile was not cruel and unusual because several states allowed it. In Harmelin's case the opposite was true. Michigan was the only state to mandate a life sentence without parole for possession of 650 grams of illegal drugs.

But Scalia, the tireless advocate of states' rights, refused to buy the proposition. "Maybe Michigan has a bigger problem with drugs," he told Johnson during oral arguments. "Isn't a state entitled to feel more deeply about a problem that can cause a loss of human life?" And states' rights prevailed, in a decision of tortuous logic.

Of all the opinions Scalia has written during his seven years on the Supreme Court, Harmelin's may be the most interesting to students of English and American history, and the most alarming to students of the human heart. In 35 pages of exhaustively researched, narrowly reasoned text, Scalia, like some latter-day Marquis de Sade, lays out a compendium of man's cruelty to man that goes back to the Bloody Assizes of 17th century England, and includes such dire punishments—perfectly legal at the time—as drawing and quartering, burning of women felons, beheading, disemboweling, pillorying, flaying alive, scourging to death, breaking on the wheel and rendering asunder with horses.

It is not that Scalia takes kindly to these techniques. On the contrary, he stresses their cruelty. But he also observes that the Eighth Amendment forbids punishment that is "cruel and unusual," not cruel or unusual. In Scalia's reading of history, the word unusual means illegal much more often than it means unfair. Thus he concludes that Harmelin's sentence, however cruel, was neither unusual, in the grand and ghastly scheme of things, nor illegal, inasmuch as the state of Michigan had enacted it into law.

And what of the already shaky precedent of Solem vs. Helm? "We conclude from this examination," Scalia wrote, "that Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee." In other words, his answer to the age-old question of whether the punishment must fit the crime was a resounding no.

"In my opinion," said Harmelin in his prison cell, "Judge Scalia used my case to change Solem. I'm just an uneducated guy trying to read and understand what they're talking about, but that's the way I've interpreted it." His interpretation is correct. To Scalia, the seeker of bright-line law, Solem represented pure sophistry, because it required the Court to balance subjective judgments of the gravity of crimes against those of the cruelty of punishments.

But Harmelin is also right when he criticizes the news media for saying that the Supreme Court was trying to stiffen drug laws. "That wasn't true. In reality they were just saying they should stay out of it." One of Scalia's crusades has been removing the Court from conflicts that he believes are best resolved by elected lawmakers. By holding out the possibility of "retroactive legislation reduction" in Harmelin's case, Scalia's opinion emphasized a point he has made many times before: When the Court does get itself out of the business of balancing acts, individual states are free to change their own laws as they see fit.

That's what seems to be happening in Michigan. Shocked into action by Scalia's ruling and sympathetic to the plight of Harmelin and others like him, jurists and legislators have begun to reconsider the humanity and wisdom of the state's mandatory life sentences.

So far the most tangible result has been one narrow ruling by the Michigan Supreme Court, but it's a crucial one for Harmelin because it says that people in his situation are now eligible for parole after ten years. Harmelin, who is now 47 years old, has already served eight years, and he may be credited with one more for good conduct. He should be meeting a parole board in less than 24 months.

The possibility of parole, Carla Johnson said in her brief, makes a difference of kind rather than degree. Without it, a prisoner's life is "shattered beyond all hope." With it, a prisoner "can still plan and dream." Harmelin has started to plan and dream again, thanks, in a way, to Scalia, who insisted so pitilessly on the letter of the law that he encouraged the quality of mercy in others.

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What's wrong with that? Not a thing, as far as this case is concerned. Then what's wrong with getting the Court completely out of the business of balancing conflicting interests that can never really be weighed accurately, let alone be put in equilibrium? That question raises a larger one: What is the Supreme Court's proper business?

Scalia's answer is simple: To judge appropriate issues—legal issues, not political ones—on the basis of a strict, literal reading of relevant law. Like his scholarly father, Scalia is first, last and always a man of the word. He has made a career of scrutinizing words, especially those in the Constitution, for their precise meaning. As we've also seen, however, he reads them with an eerie detachment from their human consequences. It's almost as if, somewhere back in childhood, little Nino had sat on his father's knee, watching him translate the glories of Dante into English. But Nino misconstrued the nature of the work, in the literal way that children do, and assumed it was merely a matter of defining what words mean rather than divining the spirit behind them.

This detachment has taken its toll: The most frequent criticism of Scalia's work is that it's mean-spirited. A more accurate term might be nonspirited, since he usually chooses, in the name of clarity and intellectual consistency, to exclude mysteries of the human psyche. Either way, though, that's what has made him a dwindling force in an expanding universe. Before Reagan and Bush embarked on their downsizing of the American spirit, the proper business of the Supreme Court was dispensing justice to ordinary citizens who could find it nowhere else. If Earl Warren, William Brennan and their allies had left it to the states to end segregation, blacks would still be sipping water from separate fountains. Now, ordinary people are hoping for justice once again.

They may have it sooner than anyone would have guessed a near or so ago. In addition to the retirement of Byron White, Justice Harry Blackmun may leave the Court soon, giving President Clinton two new appointments. Even though two new justices out of nine are more likely to moderate the Court's climate than to revise its arithmetic, fundamental change is sure to come, and Scalia may yet be a part of it. As a jurist who won't turn 80 until the year 2016, he has plenty of time to expand his horizons. For now, though, Scalia stands as the Supreme Court's clearest expression of where we were for the past 12 years, and the sharpest reminder of what those years cost us.