WASHINGTON, April 16 (UPI) -- Let's face it. Life around the old Supreme Court would be a lot duller without Justice Antonin Scalia.
But, repeating the theme of an earlier column, the time has come when Scalia's activities outside the Supreme Court have seriously begun to interfere with his duties as a member of the high court.
Don't get me wrong. I'm a Scalia fan.
If Scalia wasn't on the Supreme Court we'd have to invent someone closely like him.
He provides the necessary balance, the right-wing intellect to even out the heavyweight brainpower of lefties such as Justice Stephen Breyer. And he's more than a match for the liberals when it comes to snappy repartee.
If the Supreme Court were a salad, the four-member liberal bloc -- Breyer and Justices Ruth Bader Ginsburg, John Paul Stevens and David Souter -- would be the olive oil, soothing and mellow.
The swing votes, Justices Sandra Day O'Connor and Anthony Kennedy, would be the greens -- lettuce or arugula, take your choice -- either buttery and sweet when they meld with the court as a whole or peppery and feisty when they choose to be. Their votes determine which way the court goes on affirmative action, gay rights and other key issues.
Chief Justice William Rehnquist, a solid conservative, is a great big crouton, or maybe a sliced onion. They don't come much crunchier. Cross him at your peril.
Justice Clarence Thomas, another conservative, doesn't like to draw much attention to himself. Call him just a hint of garlic.
Scalia is a big splash of balsamic vinegar.
Few things in the legal world are as fascinating as watching Scalia debate from the bench with a lawyer whose position he doesn't like. He also tends to take over the argument from a lawyer whose position he likes but whose case isn't going well.
When the crowd in the courtroom breaks into a laugh, it's usually from something Scalia has said. And Scalia is the only justice who will actually attack a fellow court member using sarcasm in his opinions.
But for all his entertainment value and his admitted contribution to the court, Scalia has been having one of what Britain's Queen Elizabeth calls the "annis horribilis."
Last summer, even though he knew the Supreme Court would likely decide the issue, Scalia gave a speech in which he belittled the effort to remove the phrase "under God" from the Pledge of Allegiance. Consequently, he had to withdraw from the case when a California man argued before the Supreme Court earlier this year that the phrase violates the First Amendment's separation of church of state.
Even though he knew the Supreme Court had accepted a case involving Vice President Dick Cheney, Scalia went on a duck-hunting trip with Cheney in December. That prompted the Sierra Club to demand Scalia's withdrawal from the Cheney case as well.
The Sierra Club is one of two groups trying to force Cheney to open up records of the National Energy Policy Advisory Board, claiming he invited Enron executives and other energy industry figures to participate in the board's meetings. The Supreme Court hears the Cheney case April 27 and should rule on it by the end of June.
After much public debate and ridicule, Scalia ultimately refused to withdraw from the Cheney case, citing past instances in which justices refused to recuse just because they were friends of government officials involved in disputes before the high court.
Last week, Scalia gave a speech at the Presbyterian Christian School in Hattiesburg, Miss. A federal marshal, knowing Scalia didn't like journalists recording his speeches, approached two print reporters and demanded that they erase their audio recorders.
Thoroughly intimidated, the two reporters complied.
After the very predictable media explosion, Scalia wrote a letter of apology to the two reporters and another letter to the Reporters Committee for Freedom of the Press.
In his letter to the committee, Scalia said the marshal's action "was not taken at my direction; I was as upset as you were."
Scalia carefully avoided saying whether he was aware of the incident while it was happening. Since the two reporters were sitting in the front row of the audience and the marshal was carrying out Scalia's policy of no audio recorders, you'd think it would be pretty hard to miss.
The justice said in his letter to the committee that he is changing his policy "so as to permit recording for use of the print media." Apparently, Scalia has just become aware that print reporters use recorders to get accurate quotes.
Scalia told the committee, in "regard to your further suggestion that I direct security personnel not to confiscate recordings -- presumably even those made in violation of clearly announced rules," that he does not direct security personnel, and can only make suggestions.
He said he hoped the electronic media would continue to respect "my First Amendment right not to speak on radio or television when I do not wish to do so ... "
Wait a minute. What's wrong with this picture?
Reporters are invited to write stories about Scalia's speeches by the organizations playing host to the justice's visit. The organizations want the publicity. That makes them public events.
Scalia's letter to the Reporters Committee, for all its jocular tone and attempt at reconciliation, nevertheless takes a swat at the two print reporters for using audio recorders "in violation of clearly announced rules."
What makes Scalia think that a public official who collects his salary from the taxpayers has the legitimate power to restrict how journalists cover a speech given at a public event? The mere idea should stick in our craw.
If it doesn't, if we can accept this kind of deference to a justice operating away from the Supreme Court, then we've come a long way toward kissing the rings on the fingers of public officials.
What's wrong with this picture? Wait for it now, and I'll tell you. There's something vital missing from Scalia's public appearances.
A sense of judgment.
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(Mike Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.)
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