When Chief Justice William Rehnquist last week turned down The Citadel's effort to keep Shannon Faulkner from becoming a cadet, the school's lawyers thought they knew just where to turn.
Supreme Court rules forced them to first seek help from Rehnquist, but the chief justice's refusal meant lawyers for the South Carolina school were free to file the same emergency request with any one of the court's eight other members.Although they ended up losing, the decision by the Citadel's lawyers to turn next to Justice Antonin Scalia seemed logical at the time.
After all, Scalia is not only the court's most conservative member, but he was the only justice on record as sympathetic to The Citadel's claim that its male-only policy was worth saving.
Scalia voiced such sympathy when the high court in 1993 rejected an appeal by the Virginia Military Institute, the nation's only other state-supported and male-only military school.
Although he agreed with the court's action two years ago, he did so only because of the appeal's timing.
"Whether it is constitutional for a state to have a men-only military school is an issue that should receive the attention of this court before, rather than after, a national institution as venerable as the Virginia Military Institute is compelled to transform itself," Scalia wrote in a concurring opinion.
The Citadel's lawyers must have had those words in mind when they confidently predicted success for their Supreme Court gambit.
But Scalia, like Rehnquist, turned down the emergency request without comment. Faulkner became a cadet the next day, shattering the school's 152-year history of male exclusivity.
The school passed up its right to get turned down by each and every other justice.
Did Scalia have a change of heart? He's not offering an explanation, but the prospect of countermanding the chief justice in such circumstances is not an attractive one. There also would have loomed the embarrassing possibility of being reversed by the full court.
The Citadel this week filed a formal Supreme Court appeal, but its fate could be determined by the court's handling of an already-pending appeal in the VMI dispute.
In it, the Clinton administration is challenging Virginia's plan, approved by a federal appeals court, to create a "women's VMI" at another school while keeping VMI all-male.