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'It's Hard To Get It Right'

Dick Cheney isn't Supreme Court Justice Antonin Scalia's only friend in Washington. For years the justice has socialized with Sen. Patrick Leahy, the ranking Democrat on the powerful Judiciary Committee. Their sons played soccer together and, despite the senator and the justice's obvious philosophical differences, the men have enjoyed each other's company. But when Leahy heard that Scalia went duck hunting with the veep a few months before the court was slated to hear a case involving Cheney, he sent a sharp letter to Chief Justice William Rehnquist. Leahy questioned whether Scalia could be "fair and impartial" in the case, which the court will take up this week. "Sometimes you get so isolated that you lose a sense of how things appear to the rest of the world," Leahy says.

He may be a blunt-spoken jurist who enjoys mingling with the Washington establishment, but Scalia likes the sheltered life of the court. A gregarious academic before he ascended to the bench, he believes deeply in the British common-law tradition that judges keep a low public profile. And if he'd stuck closer to that ideal, the past few months might have been less painful. Shortly after the duck-hunting flap, a member of his security detail erased reporters' recordings of one of his speeches; Scalia issued a rare apology. Publicly, Scalia remains as combative as ever, refusing to recuse himself from the Cheney case in a feisty 21-page memo. But privately, the justice feels bruised. He was stung by the actions of Leahy--who never picked up the phone to confer with his pal "Nino"--and other friends on the Hill. And he grew dismayed that he'd become the butt of late-night jokes: as Dick Cheney went through the White House metal detector "security made him empty his pockets and, oops, out fell Justice Antonin Scalia," Jay Leno cracked. He still refuses to cede any legal ground over the Cheney case, believing it would set a terrible precedent to recuse under political pressure. But, NEWSWEEK has learned, he has said privately that if he had it to do over again, he'd skip the duck hunt.

Because Scalia doesn't see himself as a raging partisan, he seems baffled that anyone else would. His brand of conservatism is more about the law--and a strict reading of the Constitution--than about political ideology. Scalia likes to hire liberal clerks who spar with him in his book-lined chambers. And though his final opinions are full of swagger, the first drafts often reflect more hand-wringing. "It's hard to get it right," he often remarks in chambers, former clerks say. If Scalia's strict reasoning leads him to a seemingly "liberal" result--as it has in cases involving flag burning, search-and-seizure and pornography--then so be it. "I don't think Justice Scalia is a politician in a black robe," says E. Joshua Rosenkranz, who clerked for him on the U.S. Court of Appeals for the D.C. Circuit.

In fact, Scalia is often impolitic--at least when it comes to the withering dissents he pens. He once wrote that Justice Sandra Day O'Connor's opinion "cannot be taken seriously" and that her point was "irrational." But friends say the jabs aren't personal: Scalia simply enjoys a good intellectual brawl. Despite the friction of divisive cases like Bush v. Gore, Scalia has said the nine justices are closer now than when he joined the court nearly 20 years ago.

Still, with Scalia so often on the losing side these days, some have wondered whether he's frustrated enough to quit the court. But friends say he shows no signs of leaving. Empower America codirector Bill Bennett used to join Scalia in a low-stakes Washington poker game ("I don't do that anymore," Bennett says) and found the justice to be a skilled player. "He doesn't like to fold," Bennett says. Odds are, he'll keep upping the ante on the bench for years to come.