Scalia: The disorderly justice

He says and does what he wants and to heck with judicial propriety.

We're not exactly sure what critics (mostly conservative) of "activist" judges mean when they use that term. Most of the time it seems to mean a judge delivered a ruling with which they disagree. We presume the underlying reasoning is that they feel the judge has based his or her ruling on personal beliefs or prejudices, rather than the law and legal precedent.

So where does that put Supreme Court Justice Antonin Scalia? We don't expect Supreme Court justices to be mummies, but when it comes to prejudging issues and disregarding such basic court policies as avoiding the appearance of partiality, the outspoken uber-conservative justice has no peers.

Last month, Scalia was an active participant in a significant case argued before the Supreme Court involving a former limousine driver for Osama bin Laden. The man, Salim Ahmed Hamdan, is one of hundreds of terrorism suspects being held at Guantanamo Bay, Cuba. He has appealed to the courts for a jury trial, as opposed to the military tribunals being used to determine the guilt of the detainees.

Set aside for the moment that the treatment of these detainees by the United States falls far short of what this country would demand for its own soldiers being held captive. This is a crucial legal question, what with the Bush administration insisting that the detainees are not entitled to constitutional rights typically granted to people charged with crimes. A cross-section of advocacy groups disagree with this view, but Scalia's views on the issue are not in doubt. Earlier last month, speaking at the University of Freiburg in Switzerland, he declared that the idea that so-called military detainees are entitled to a full jury trial is "crazy."

Well, case closed, at least as far as Scalia's concerned. Yet, despite his apparently having made up his mind on the issue before even hearing the arguments, Scalia refused to recuse himself from the appeal. To heck with what such cavalier - and public - disdain for court practice does to the reputation and credibility of the court. Scalia will do it his way.

Indeed, Wednesday, at the University of Connecticut Law School in Hartford, Scalia defended another controversial decision not to recuse himself as the "proudest thing" he's done on the court. That would be the case in 2004 when Scalia went duck hunting with Vice President Dick Cheney at the same time the court was considering Cheney's appeal of a lower court ruling on his energy strategy committee. Cheney and the White House fought to keep from revealing details of the private meetings. The high court upheld the White House view, but Scalia saw no problem with his creating an appearance of partiality.

There have been other Scalia moments that make one question whether his primary commitment is to preserving the honor and dignity of the court or sculpting his own maverick reputation. He recently responded to a question about church-state issues with a hand gesture that everyone but he thought was vulgar. He has described people who look upon the Constitution as an evolving document, as opposed to his preference for the theory of original intent, as "idiots." He inexplicably snubbed the swearing-in of Chief Justice John Roberts to take a trip to a luxury resort in Colorado, sponsored by the Federalist Society.

Roberts, by the way, properly recused himself in the Hamdan case because he had participated in a lower court ruling on the same issue before being elevated to the high court. Come to think of it, that concept of elevating the reputation of the court rather than the reputation of individual justices may well be why Roberts, not Scalia, was chosen for chief justice.