As Supreme Court justices circulate draft opinions among themselves and respond to each other’s writing, no two justices engage in a tit-for-tat like Antonin Scalia and John Paul Stevens.

These defenders of conservatism and liberalism, respectively, disagree on big issues, of course, but they are also the two most likely to tussle down in the weeds — on the meaning of a statute, interpretation of precedent or nuances of a legal test. It is not unusual for Scalia to make some assertion that sets off Stevens, who then fires back in his opinion, which prompts Scalia to return the volley, which gets Stevens going again.

That happened in this week’s case of Shady Grove Orthopedic Associates v. Allstate Insurance, a complicated dispute that led to a 5-4 decision letting certain class-action lawsuits barred from state court be heard in federal court. Scalia wrote for a plurality and needed Stevens’s fifth vote for the judgment. Stevens penned a separate concurring opinion. The two feuded over legal reasoning, and by the time Scalia was done answering Stevens’s escalating arguments he had crafted a whole separate section of his opinion that opened with the sentence: “A few words in response to the concurrence.” Several hundred words followed.

As they poked holes in each other’s rationale, Scalia charged Stevens with being “unfaithful” to statute and “greatly exaggerat[ing]” how Scalia had spurned a precedent. Stevens labeled Scalia’s legal test “empty” and said his interpretation of the disputed law was “not much more determinative than mine.” The case had been argued on Nov. 2, and some of this back-and-forth likely led to its being unresolved for nearly four months.

Their dueling rhetoric contributed to the delay in Citizens United v. Federal Election Commission, which came out January 21, after the case had been argued in September and put on a fast-track of sorts. As I noted in an earlier post (Jan. 24), Stevens devoted much of his dissenting opinion in that case to Scalia’s concurrence. (Justice Anthony Kennedy had written the majority opinion.)

Stevens, 89, and Scalia, 74, are two of the more intellectual members of the bench, and they like and respect each other. Scalia revels in this verbal jousting. Stevens finds it more wearying. “He’s got to have the last word,” he once told me of Scalia. “But is it really worth it?”

I think they’ll both miss it when Stevens is gone.

Before Sandra Day O’Connor was a Supreme Court justice or even an Arizona state court judge, she was an elected legislator and often talked about women and political power. In the 1970s, when she was in her early 40s, O’Connor would echo anthropologist Margaret Mead, “If women want real power and change, they must run for public office and use the vote more intelligently.” Years later, as O’Connor was nearing the end of her 25 years on the bench, she wrote, “Power [is] the ability to do. For both men and women, the first step in getting power is to become visible to others – and then to put on an impressive show.”

Justice O’Connor turns 80 today. In the half-decade since her retirement from the Court she has continued to demonstrate her deep work ethic, bred on the Lazy B ranch, and the ability to put on “an impressive show.”

She is still going strong in her campaign to reform state judicial elections, minimize the effect of big money in races, and create more independent state courts. (Justice Ruth Bader Ginsburg recently endorsed this effort.) O’Connor’s long-planned civics website for students is up and running. I just took a look to see what was new. Under an item that said, “Justice O’Connor wants to hear about your budget priorities,” several students had written in this month, including Anthony B., age 7, of New York, who said: “i would spend more money on charity. i would save money by buying stuff I need and only need.”

O’Connor remains an advocate for Alzheimer’s research. Her husband, John, who was afflicted by the disease, died last November. And when she isn’t appearing at legal conferences, before university audiences or at congressional hearings, she is taking her show to David Letterman or Jon Stewart, trying to reach a wider audience.

I’ve continued to cross her path, and at the start of the term I was on a panel with her in Williamsburg. She said she believed the current Court was “dismantling” some of her past opinions, and I asked her how she felt about that.

“What would you feel?” she responded, in her tart, turn-the-tables way, but then she continued: “I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh dear.’ But life goes on. It’s not always positive.” Somehow, even at 80, Justice O’Connor — it seems to me — is finding ways to remain positive. Many Happy Returns, Justice O’Connor.

As legal analysts argue over the possible success of constitutional challenges to the U.S. health care overhaul signed today, I am reminded of how even conservative justices have disagreed through the years on how much the federal government should be involved in state activities.

Justice Scalia voted in the 1995 United States v. Lopez to overturn a U.S. law that regulated guns near schools because it encroached on state authority, yet voted in the 2005 Gonzales v. Raich to uphold federal drug law that voided California’s medical-marijuana policy, over protests from dissenters that the law infringed on the states. Scalia opposed the federal government usurping local handgun regulation but let it override state choices about drug laws.

Justice Sandra Day O’Connor, a former Arizona legislator and champion of state power, declared those two positions “irreconcilable” in her 2005 dissenting opinion in Gonzales v. Raich. Justice Clarence Thomas, also dissenting, derided the Court majority’s rationale invalidating California’s medical-marijuana policy: “If Congress can regulate this under the Commerce Clause — then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers. … One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the states.”

That was five years ago. It’s a whole new bench, with more conservative, yet not necessarily predictable, justices. And by the time challenges to the landmark health care law reach them, there may be more changes in their ranks.

I was reminded twice in the past week of the culture of notes and letters at the Supreme Court. When I spoke to a group of mid-career journalists at the National Press Foundation on Monday, a reporter asked who at the Court I would call or e-mail if I wanted to interview a justice. I said I often wrote a letter to the justice detailing my request. “A letter?” she said with disbelief and a tone of who-does-that-anymore? But this is an old-fashioned bunch and that is how they regularly communicate with each other and the outside world. Many of them e-mail and even text now, but they still write letters — handwritten letters on heavy, engraved stationery.

I was also reminded of the practice when I read Adam Liptak’s story last Tuesday in the New York Times about studies of oral dissents. In my research for the O’Connor biography, I was tipped off to the timing of her first-ever dissent from the bench (in 1991, a decade after being sworn in) by a personal letter she wrote to then-retired Justice Lewis Powell. I found it in his archive at Washington and Lee University. O’Connor had been the lone dissent in the case of Pacific Mutual Life Insurance v. Haslip, upholding a punitive damages award, and she let Powell know she was so disturbed she took the unusual (for her) step of reading portions of her statement from the bench. She lamented what she perceived as a lack of standards for such damages: “Rarely is a jury told anything more specific than ‘do what you think best.’”

To this day, Justice Ruth Bader Ginsburg is a prolific letter writer, as is Chief Justice John Roberts. The late Chief Justice William Rehnquist would often pen whimsical notes to colleagues as he sat on the bench, and earlier when he was an associate justice (1972-1986), he wrote letters to friends when oral arguments bored him.

One of my favorite Rehnquist letters was written to Powell when he was recuperating from cancer surgery:

“We have now finished our January argument calendar, of course, and I must say I can’t ever remember a less interesting or stimulating group of cases. If you had to miss one oral argument session, I don’t think you could have picked a better one to miss. Even the conference today got a little bit testy, as it does at times. Some of the Chief [Warren Burger]’s discussion is quite good, when he feels very strongly about something and when he feels he has a majority with him; but some of it can be singularly uninspiring. Sometimes when he runs out of things to say, but he doesn’t want to give up the floor, he gives the impression of a southern Senator conducting a filibuster.

“I sometimes wish that neither the Chief nor Bill Brennan would write out all their remarks beforehand and deliver them verbatim from the written page. Bill is usually thorough, but as often as not he sounds like someone reading aloud a rather long and uninteresting recipe. Then of course Harry Blackmun can usually find two or three sinister aspects of every case which ‘disturb’ him, although they have nothing to do with the merits of the question. And John Stevens, today, as always, felt very strongly about every case, and mirabile dictu had found just the right solution to every one. As you might imagine, my conference discussion was, as always, perfectly suited to the occasion: well researched, cogently presented, and right on target!”

In 1996, Justice Scalia wrote a particularly dispirited note to Harry Blackmun that I and other researchers have used over the years: “ … I am more discouraged this year than I have been at the end of any of my previous nine terms up here. I am beginning to repeat myself, and I don’t see much use in it any more.”

One particularly amusing personal note from Justice Scalia came in 2001, after I had switched from the Washington Post to USA Today. He was not happy with some of my coverage at the Post but said he wouldn’t hold it against me:  “Nursing grudges is a very Sicilian vice, but … not one of mine.”

Justice Scalia has been voicing his disdain for legislative history for a quarter century now. Today we celebrate the latest case in point — and his birthday.

Scalia does not believe federal judges trying to interpret a statute should look to congressional committee reports, floor speeches and other artifacts of the legislative process. He says judges should look solely at the text of the law and related statutes to determine Congress’s intention.

With his usual punch, he reminded his colleagues this week of that view, in the case of   Milavetz, Gallop & Milavetz v. United States, regarding a 2005 bankruptcy law. Scalia joined the majority in a two-part decision that said the law barring certain professionals from advising clients “to incur more debt in contemplation of” filing for bankruptcy applies to attorneys, and that the law can be narrowly construed to avoid a First Amendment violation. But Scalia took exception to footnote 3 of the decision Justice Sonia Sotomayor wrote for the Court.

Sotomayor opened footnote 3 by declaring that, “Although reliance on legislative history is unnecessary in light of the statute’s unambiguous language, we note the support that record provides for the government’s reading.”

In his concurring opinion, Scalia countered, “The Court acknowledges that nothing can be gained by this superfluous citation … But much can be lost. Our cases have said that legislative history is irrelevant when the statutory text is clear. The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say. Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.”

Beginning in the mid-1980s, after he became an appeals court judge yet remained on the academic lecture circuit, Scalia regularly spoke out against legislative history. In one stock speech (a signed copy of which is in the University of Chicago law library), he contended, “The use of legislative history to give meaning to a statute is a relatively new development in our common-law system.”

And in a metaphor tied to the maturation of certain creatures that somehow seems apt as we today celebrate his 74th year, Scalia continued, “Some creatures that seem pleasant and tractable in their infancy – tiger cubs, for example – are better abandoned when they reach their full natural development. Now that legislative history has reached its adulthood, perhaps it is time to reconsider whether we want to live with it.”

Many happy returns, Justice Scalia.

For the past three Supreme Court appointments – and those going back even further – top White House aides reached out to potential candidates and methodically scrutinized records before any definite assurance of a vacancy. I have no doubt that’s happening right now, given the odds that Justice John Paul Stevens will soon announce his retirement.

Republican administrations have been highly systematic in their selection processes in recent decades. George W. Bush’s team came into the White House with lists of names and background reviews for Supreme Court and top U.S. appeals courts posts. Samuel Alito was first interviewed in June 2001 for the Supreme Court by Bush’s then-White House Counsel Alberto Gonzales. That was more than four years before a vacancy arose. Bush officials interviewed Alito again in May 2005, in July 2005, and, finally, in October 2005. He was initially passed over for the seat being vacated by retiring Justice Sandra Day O’Connor in summer 2005 (John Roberts won that nomination first). But Alito was tapped in October when Bush decided to switch Roberts to the chief justice spot after William Rehnquist died.

For Roberts, interviews began on April 1, 2005, three months before the White House knew it definitely had a vacancy. (O’Connor sent her letter revealing her intention to retire on July 1, 2005.) Roberts eventually was questioned by nearly a dozen top officials, including Dick Cheney and Karl Rove. President Bush interviewed Roberts shortly before announcing his nomination for the O’Connor seat on July 19, 2005.

Democratic administrations have not been as methodical as Republicans in their judicial selection (Ronald Reagan set that pattern thirty years ago), but President Obama’s aides laid some early groundwork in 2009. White House counsel Gregory Craig contacted then-Appeals Court Judge Sonia Sotomayor on April 27, four days before word of Justice David Souter’s planned retirement would leak out. Once Souter’s news was official on May 1, Sotomayor had daily telephone calls and questions from White House staff. President Obama interviewed Sotomayor on May 21. He offered her the job on May 25, and it all went public on May 26.

President Obama also interviewed Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano, and U.S. Appeals Court Judge Diane Wood. Past experience may offer another lesson here: Just as Samuel Alito became the nominee after being passed over, so did Stephen Breyer during the Clinton administration. Breyer lost out to Ruth Bader Ginsburg in 1993 but won the nomination in 1994. That was nearly the same story with Robert Bork during Reagan’s second term. Bork lost the nomination in 1986 to Antonin Scalia, only to gain it in 1987. That timing contributed to Bork’s fate. He was defeated 58-42 by the Senate, which had been majority-Republican in 1986 but turned majority-Democratic by the time of his nomination.

“Have you ever heard a turkey gobble?” Justice Scalia asked me during a visit to his chambers. “It’s a very strange sound, like a wooden rattle. [You] hear that far away and then make sounds like a hen to induce [the turkey] to come closer and closer. Finally, he sticks his head over a log, and you have to take your shot, or else you’ve lost him. Turkeys are very wily creatures. They have superb eye-sight and they’re very cautious. You get one shot. If you miss, the whole day’s ruined.”

In anticipation of  tomorrow’s arguments in the Supreme Court’s new Second Amendment case, it seems fitting to recall how Scalia, author of the Court’s 2008 Second Amendment case, explains his love of hunting: “It gets me outside of the Beltway, gets me into the woods, far away from all this stuff… [Hunting] gives you an objective for … getting there in darkness and watching the woods gradually lighten up, or being knee deep in cold water in the marshes and watching the rosy sunrise. It’s wonderful.”

Justice Scalia took a leading role in District of Columbia v. Heller, which established for the first time an individual right to bear arms. Yet, another piece of Scalia’s writing has also drawn attention on this second round of the Second Amendment. In his commentary in the 1997 book A Matter of Interpretation, edited by Amy Gutmann, Scalia included in a footnote about the Second Amendment: “Of course, properly understood, it is no limitation upon arms control by the states.”

And, of course, that goes right to the question in the case to be argued Tuesday, McDonald v. City of Chicago: whether the new right to keep guns in the home for self-defense extends to states, or applies only to regulation by the U.S. government and its enclaves, such as Washington, D.C., whose handgun ban was struck down in 2008. (For an overview of the new case, see my preview story here. For an article highlighting Scalia’s 1997 comment about whether the Second Amendment is incorporated against the states, see this story by Jess Bravin in the Wall Street Journal.)

In Scalia’s commentary of more than a decade ago, his references to the Second Amendment rested on where lower U.S. courts were at the time. Judges largely considered the right to bear arms to cover state militia, such as the National Guard, not individuals. So Scalia also wrote in his 1997 commentary, “[W]e value the right to bear arms less than did the Founders (who thought the right to self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard.”

But that never happened. Five conservative justices, led by Scalia, held that the Second Amendment right covered individuals seeking to protect themselves in their homes. Because of that ruling in Heller, I believe that it is now unlikely that Justice Scalia will hew to the view that the Second Amendment is “no limitation” on the states. Scalia is only becoming more influential on this Court. I doubt he would pass up – with this new guns case — another good shot.

When I asked Justice Scalia in an interview last year about his combative style during oral arguments, he defended himself by making comparisons with other justices. “I don’t think it’s true that I am the most talkative,” he said, adding that such distinction would go to Justice Breyer, who asks long hypothetical questions. Then Scalia became more animated and said, “You ever hear Ruth excoriate somebody who is arguing a … case? She can be really tough.”

I was reminded of that assessment this week as Justice Ginsburg forcefully questioned lawyers at the lectern and would not let up on a line of attack in several cases. She was, as usual, deep into the nooks and crannies of the disputes. At one point during arguments over a City of Chicago test for firefighters that hurt African American applicants, she told Deputy U.S. Solicitor General Neal Katyal, siding with challengers to the city, “I think you had a footnote in your reply brief that said if your position prevails here …” A few minutes later, when city lawyer Benna Ruth Solomon took the lectern, Ginsburg asked seven questions in a row, probing flaws in the city’s case.

The next day, Justice Ginsburg challenged Georgetown University law professor David Cole as he defended the Humanitarian Law Project’s desire to support nonviolent activities of the Kurdistan Workers’ Party. The PKK, as it is called, is a militant separatist group in Turkey that the U.S. Secretary of State has designated a “foreign terrorist organization.”

“There are a lot of groups on the (foreign terrorist organization) list,” Ginsburg noted. “I think the Al-Qaeda was one instance that was mentioned and, at least according to the briefs, you conceded that if you wanted to do just what you describe with respect to the Kurdish group or the Tamil group, the (U.S. government’s) ban (on any support of the organization) would be permissible.”

Cole responded, “We didn’t actually concede that, your honor.” Cole then tried to explain the difference between humanitarian support for Al-Qaeda or the Taliban, as opposed to the PKK. Before he could clarify, other justices raised questions.

Then Cole, seeing the white light at the lectern and knowing he had less than five minutes left, said to Chief Justice Roberts, “If I could reserve the rest of my time” for rebuttal.

But Ginsburg wasn’t going to let him sit down just yet: “Do you want to give an answer to the Taliban and the Al-Qaeda?”

“Oh, I’m sorry. I’m sorry, Justice Ginsburg,” Cole said. “The answer would be we are in a military conflict with the Al-Qaeda and the Taliban. … Therefore treason law might be applicable. … Number two, it is not clear that Al-Qaeda engages in any lawful activities … .”

When Solicitor General Elena Kagan stepped up to defend the disputed prohibition on not only financial support but training and advice to designated organizations, Ginsburg poked holes in her claim that the government was not targeting speech.

“How about what’s involved here?” Ginsburg asked. “I think they (Humanitarian Law Project members) said that they want to train them (the Kurds) how to … pursue their goals in a lawful, rather than a terrorist, way. And that is speech. It is not conduct. They want to engage in advocacy of peaceful means … .”

When other justices joined the fray with hypothetical questions about assistance for arguably lawful activities, including (as Justice Sotomayor suggested) teaching the harmonica, Scalia scoffed and asked Kagan:

“Why do these hypotheticals make any difference? Clearly the broad scope of this statute is constitutional, and whatever aspects of speech it may run afoul of are minimal. That being the case, of what relevance are these hypotheticals? It’s a lot of fun and it’s very interesting, but we can deal with all of that when the situations arise, can’t we?”

Kagan responded, “I do think that the answer to that is ‘yes,’ Justice Scalia.”

But then Ginsburg interjected, reminding her old friend Scalia that not all justices were as supportive of the government’s position: “The answer on the other side is, all we want to do is speak about lawful activity.”

When I once asked Ginsburg about Scalia, she said, “I love him. But sometimes I’d like to strangle him.”

A professor at Gettysburg College last week said she had heard that the Justice Scalia had never hired a single female law clerk.  On several radio shows, I’ve been asked about Scalia and Opus Dei. Then there’s the assertion I hear constantly that Justices Scalia and Clarence Thomas vote in lockstep.

On many controversies (duck-hunting with Dick Cheney, for example), Justice Scalia is guilty as charged. But not on those above:

1. Justice Scalia has, in fact, hired several women clerks over the years, some of whom have gone on to prominent positions in academia, such as Joan Larsen at the University of Michigan. It is true, however, that clerks for a majority of the justices, including Scalia, have been overwhelmingly male (and white) through the years.

2. Justice Scalia is a conservative Roman Catholic who told me the Second Vatican Council (which excised Latin and liberalized the Catholic liturgy) was not on his “hit parade.” He was always looking around for the right place to worship. When his nine children were young, he hauled the clan from their suburban Virginia home to downtown Washington, D.C., for a remaining Latin mass at St. Matthew’s Cathedral and, when living other places, drove miles each Sunday to a just-right church. His visiting mother-in-law once said, “Why don’t you people ever seem to live near churches?”
 Yet, Scalia  is not a member of the secretive Opus Dei. As far as I know, none of the Catholic justices is, although those rumors – accelerated by Dan Brown’s portrayal of Opus Dei in The Da Vinci Code — constantly swirl.

3. Scalia and Thomas are indeed together on many cases (see their joint concurring opinion today in Wilkins v. Gaddy on what constitutes cruel and unusual punishment), but Thomas is more conservative than Scalia and often writes solo dissenting opinions. That happened in the recent case of  Citizens United v. Federal Election Commission (on the disclosure requirements of the disputed law) and in last term’s Voting Rights Act case, Northwest Austin Municipal Utility District No. 1 v. Holder.
 The two justices say they have an easy friendship, and Scalia told me that when they are aligned in dissent, it can have a psychic benefit: “There are times when I think I’ve been a comfort to him and he’s been a comfort to me. Nobody else seemed to see things our way. It’s nice to have a least one other person who you can sympathize with.”

And about Scalia’s relationship with Dick Cheney? The Scalia-Cheney bond – which put the justice in hot water in 2004 when Cheney had a case at the Court and the pair went hunting — traces to the mid-1970s when they both worked in the Ford Administration. Scalia was an assistant attorney general, and Cheney became White House chief of staff. Scalia told me they have remained friendly over the years but not close personal friends, as Scalia has, say, with then-deputy attorney general Laurence Silberman (now D.C. Circuit appeals court judge). Of Cheney, Scalia said, “He knew who I was. He knew my qualifications. He knew I was on the right team.”

I know exactly where I was when I first saw the headline of an ABC news story earlier this month that said, “White House Prepares for the Possibility of Two Supreme Court Vacancies.” I was in the San Francisco radio studio of Ronn Owens about to go on the air to talk about Justice Scalia, the Citizens United case and current term. Owens said the ABC story had just appeared on-line that February 4 morning and predicted the retirement subject would draw calls. “Two vacancies?” I said doubtfully. “Really?” As people who have since read the posting by longtime ABC producer Ariane de Vogue know, it said: “Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health.”

Ariane’s post became part of a new round of speculation among those of us who would rather be first, than second, third, or really left in the dust, on a retirement story but who simply do not know the full intentions of these older justices. Justice Ginsburg has told me and others that she does not want to leave the Court in the next couple of years, and seeing how vigorously she approaches the job, I cannot believe she is seriously thinking of retiring. Yet she has twice battled serious cancer and will turn 77 in March. I believe she is healthy but I don’t know for certain — and the Ginsburg rumor is still going.

As I have previously written in these posts, I think Justice Stevens will retire at the end of this term. The question for me is: When would he announce it? He will turn 90 on April 20, and oral arguments for the term will be over at the end of April. Maybe he would choose then to let President Obama know. Maybe he would wait until the end of the term in June, when retiring justices used to do it.

The opportunity of a lifetime appointment to the Supreme Court doesn’t come around often for presidents, or for the reporters who cover it. Nomination stories become such big deals to us that I can say without much exaggeration that since I began writing about the Court in 1989, I can remember almost every minute of the days that we got a retirement announcement. Here, going back about a quarter-century, is when retiring justices told us when they were going:

June 17, 1986: Chief Justice Warren Burger publicly revealed his retirement, effective at the end of that current term. Burger had privately told President Reagan three weeks earlier, on May 27, that he would step down.
June 26, 1987:  Justice Lewis Powell announced his retirement on the last day of the annual term.
July 20, 1990: Justice William Brennan retired during a summer recess, after he had suffered a stroke.
June 27, 1991: Justice Thurgood Marshall announced his retirement on the last day of the term. At a news conference the next day, he answered a question about his health with memorable gruffness: “I’m getting old and falling apart.”
March 19, 1993: Justice Byron White wrote to President Clinton to let him know he would retire that summer. This was the earliest official notification in recent decades. White said he wanted Clinton to have plenty of time to choose his successor for the next term. (Clinton selected Ginsburg.)
April 6, 1994: Justice Harry Blackmun informed the White House he would retire at the end of the term.
July 1, 2005: A few days after the annual term ended, Justice Sandra Day sent a letter to President Bush saying she would retire. (I was finishing my manuscript of her biography at the time, and I really remember every moment of this astonishing day.) She said she needed to leave to care for her ailing husband but would not step down until her successor was named. It turned out she stayed on until January 2006, when Samuel Alito was sworn in.
September 3, 2005: Chief Justice William Rehnquist died in office, giving President Bush a second seat, along with O’Connor’s, to fill.
May 1, 2009: Justice David Souter sent a note to President Obama confirming that he was retiring, after news reports the previous night said Souter already had informally passed the word.