Before heading to work this morning, I read Tom Curry's article Scalia's friends and foes prepare for battle. Well, I read most of it except for the last paragraph or two--I'd finished brushing my teeth and was ready to go. (This detail is important.)

The part I read this morning actually did make me think. Scalia is an interesting character; I don't agree with most of the opinions he reaches. But when reading his dissents it is often hard to argue with his logic (especially after reading some of the contortions that the Justices in the majority go through to reach their conclusions). My Supreme Court class professor said reading him was for many students a "guilty pleasure," and he was right. (I'll likely post some detailed examples of what I am talking about at some point...)

So since some people are bringing him up for Chief Justice, it is a scary thought--I disagree with the results of his opinions so much and wouldn't want that dominating the Court, but if his opinions are sound then why shouldn't he have the job?

My professor hinted at something in class with which I agree: Scalia is great at dissents, because he just has to pick at the arguments of the majority. He is free to pick and choose those portions that are weak, which makes his arguments look stronger. There's a certain luxury in being on the losing side. Someone good at dissenting, though, won't necessarily make a good Chief Justice.

I also dislike the role Scalia played in Bush v. Gore and the utter hypocrisy of using an Equal Protection claim in that decision while opposing that claim in so many others--and then stressing that it sets no precedent. (The details of his role are found in a Vanity Fair article giving behind-the-scenes details of the case.)

The Curry article also includes a quote giving another reason for why Scalia shouldn't be Chief Justice:

Kim Gandy, president of the National Organization for Women, said last week, “I hate to give them any ideas, but Scalia would probably be the least effective choice out of that crowd for the Bush administration, strange as it may sound, because he is so divisive. He is so disrespectful of his fellow and sister justices on the court. The level of disdain for the other justices in his opinions comes through loud and clear. I’m not sure how they would take being herded by someone who had such disdain for them.”

To me, this is the big one; read his dissent in Planned Parenthood v. Casey:

Beyond that brief summary of the essence of my position, I will not swell the United States Reports with repetition of what I have said before; and applying the rational basis test, I would uphold the Pennsylvania statute in its entirety. I must, however, respond to a few of the more outrageous arguments in today's opinion, which it is beyond human nature to leave unanswered...One might have feared to encounter this august and sonorous phrase in an opinion defending the real Roe v. Wade, rather than the revised version fabricated today by the authors of the joint opinion...I cannot agree with, indeed I am appalled by, the Court's suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced - against overruling, no less - by the substantial and continuing public opposition the decision has generated.

Whether the argument he makes are sound or not, the snarky tone he uses--while sometimes fun to read--seems inappropriate for a United States Supreme Court Justice, much less a Chief Justice. Some of his writings would be more fitting for, say, a blog.

Anyway, remember how I said I hadn't read the last few paragraphs of the article? When I got home and turned my computer on, the web page was still on the screen so I went ahead and finished it:

If the court has become a super-legislature, then, Scalia said, “We can have a sort of plebiscite each time a new nominee to that body is put forward.”

And if Scalia is nominated to be chief justice, it will be a sort of plebiscite; not a debate over whether he’s qualified, because, after all, the Senate unanimously confirmed him in 1986, but a struggle over his decisions and dissents on abortion, the death penalty, racial preferences and the exercise of religion.

This type of reporting is what gets to me. Earlier in the article, Curry quotes someone as providing a quite valid reason of why Scalia--even if he is qualified to be a Justice--may not be qualified to be a Chief Justice. So this last paragraph is just wrong and an oversimplification, and it even contradicts the article that contains it!

The desire to make an amazing insight in the last paragraph of some piece of writing--which I am clearly doing here--is a natural one. But amazing insights tend to be more amazing and insightful if they are actually the culmination of the rest of the piece in which they are contained. In fact, Curry should look no further than a Scalia opinion to learn this lesson. Scalia's dissent is Casey ends:

[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.