Antonin Scalia

Antonin Scalia
Associate Justice of the United States Supreme Court
Incumbent
Assumed office September 26, 1986
Nominated by	Ronald Reagan
Preceded by	William Rehnquist
Judge of the United States Court of Appeals for the District of Columbia Circuit
In office August 17, 1982 – September 26, 1986
Nominated by	Ronald Reagan
Preceded by	Roger Robb
Succeeded by	David Sentelle
United States Assistant Attorney General for the Office of Legal Counsel
In office 1974–1977
President	Richard Nixon Gerald Ford
Preceded by	John Harmon
Personal details
Born	(1936-03-11) March 11, 1936 Trenton, New Jersey, U.S.
Political party	Republican Party
Spouse	Maureen Scalia (née McCarthy)
Children	Ann Forest Banaszewski Eugene Scalia John Francis Scalia Catherine Elisabeth Courtney Mary Clare Scalia Paul David Scalia Matthew Scalia Christopher James Scalia Margaret Jane Scalia
Alma mater	Georgetown University University of Fribourg Harvard Law School
Signature

Antonin Gregory Scalia (pronounced /skəˈlijə/ ; born March 11, 1936) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice. Appointed to the Court by President Ronald Reagan in 1986, Scalia has been described as the intellectual anchor of the Court's conservative wing.

Scalia was born in Trenton, New Jersey, and attended public grade school and Catholic high school in New York City, where his family had moved. He attended Georgetown University as an undergraduate and obtained his Bachelor of Laws degree from Harvard Law School. After spending six years in a Cleveland law firm, he became a law school professor. In the early 1970s, he served in the Nixon and Ford administrations, first at minor administrative agencies, and then as an assistant attorney general. He spent most of the Carter years teaching at the University of Chicago, where he became one of the first faculty advisers of the fledgling Federalist Society. In 1982, he was appointed as a judge of the United States Court of Appeals for the District of Columbia Circuit by President Ronald Reagan.

In 1986, Scalia was appointed by Reagan to the Supreme Court to fill the associate justice seat vacated when Justice William Rehnquist was elevated to Chief Justice. Whereas Rehnquist's confirmation was contentious, Scalia was asked few difficult questions by the Senate Judiciary Committee, and faced no opposition. Scalia was unanimously confirmed by the Senate, and took his seat on September 26, 1986.

In his quarter-century on the Court, Scalia has staked out a conservative ideology in his opinions, advocating textualism in statutory interpretation and originalism in constitutional interpretation. He is a strong defender of the powers of the executive branch, believing presidential power should be paramount in many areas. He opposes affirmative action and other policies that treat minorities as groups. He files separate opinions in large numbers of cases, and, in his minority opinions, often castigates the Court's majority in scathing language.

Early life

An only child, Antonin Scalia was born in Trenton, New Jersey, on March 11, 1936. His father, Salvatore Eugene Scalia, was an immigrant from Sicily who was a graduate student and clerk at the time of his son's birth, but who later became a professor of Romance languages at Brooklyn College. His mother, Catherine Scalia (née Panaro), was born in the United States to Italian immigrant parents, and worked as an elementary school teacher.

When Antonin was six years old, the Scalia family moved to Elmhurst, Queens, in New York City. Antonin's parents drove the boy to excel in his schoolwork. After completing eighth grade in public school, he obtained a scholarship to Jesuit-run Xavier High School in Manhattan, where he graduated first in his class. Scalia later stated that he spent much of his time on schoolwork, and admitted, "I was never cool."

Classmate and future New York State official William Stern remembered Scalia in his high school days:

This kid was a conservative when he was 17 years old. An archconservative Catholic. He could have been a member of the Curia. He was the top student in the class. He was brilliant, way above everybody else.

Rejected from his first-choice school, Princeton University, Scalia enrolled at Georgetown University in 1953. He graduated valedictorian and summa cum laude with a Bachelor of Arts in history from Georgetown in 1957. While at Georgetown, he also studied at the University of Fribourg, Switzerland and went on to study law at Harvard Law School, where he was a Notes Editor for the Harvard Law Review. He graduated magna cum laude from Harvard Law in 1960, becoming a Sheldon Fellow of Harvard University. The fellowship allowed him to travel throughout Europe during 1960–1961.

On September 10, 1960, Scalia married Maureen McCarthy, whom he met on a blind date while he was at Harvard Law School. Maureen Scalia had been an undergraduate at Radcliffe College when the two met, and subsequently obtained a degree in English from the school. The couple raised nine children, five boys and four girls.

Legal career

Scalia began his legal career at Jones, Day, Cockley and Reavis in Cleveland, Ohio, where he worked from 1961 to 1967. He was highly regarded at Jones Day and would most likely have made partner, but later stated he had long intended to teach. He became a Professor of Law at the University of Virginia in 1967, moving his family to Charlottesville, Virginia.

After four years in Charlottesville, in 1971, Scalia entered public service. President Richard Nixon appointed him as the general counsel for the Office of Telecommunications Policy, where one of his principal assignments was to formulate federal policy for the growth of cable television. From 1972 to 1974, he was the chairman of the Administrative Conference of the United States, a small independent agency that sought to improve the functioning of the federal bureaucracy. In mid-1974, Nixon nominated him as Assistant Attorney General for the Office of Legal Counsel. After Nixon's resignation, the nomination was continued by President Gerald Ford, and Scalia was confirmed by the Senate on August 22, 1974.

In the aftermath of Watergate, the Ford administration was engaged in a number of conflicts with Congress. Scalia repeatedly testified before congressional committees, defending Ford administration assertions of executive privilege in refusing to turn over documents. Within the administration, Scalia advocated a presidential veto for a bill to amend the Freedom of Information Act, greatly increasing its scope. Scalia's position prevailed and Ford vetoed the bill, but Congress overrode it. In early 1976, Scalia argued his only case before the Supreme Court, Alfred Dunhill of London, Inc. v. Republic of Cuba. Scalia, on behalf of the U.S. government, argued in support of Dunhill, and that position prevailed.

Following Ford's defeat by President Jimmy Carter, Scalia worked for several months at the American Enterprise Institute. He then returned to academia, taking up residence at the University of Chicago Law School from 1977 to 1982, though he spent one year as a visiting professor at Stanford Law School. In 1981, he became the first faculty adviser for the University of Chicago's chapter of the newly founded Federalist Society.

Judge and nominee

President Reagan and then-nominee Scalia, July 7, 1986

When Ronald Reagan was elected President in November 1980, Scalia hoped for a major position in the new administration. He was interviewed for the position of Solicitor General of the United States, but the position went to Rex E. Lee, to Scalia's great disappointment. Scalia was offered a seat on the Chicago-based United States Court of Appeals for the Seventh Circuit in early 1982, but declined it, hoping to be appointed to the highly influential United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). Later that year, Reagan offered Scalia a seat on the D.C. Circuit, which Scalia accepted. He was confirmed by the United States Senate on August 5, 1982, and was sworn in on August 17, 1982.

On the D.C. Circuit, Scalia built a conservative record, while winning applause in legal circles for powerful, witty legal writing, which was often critical of the Supreme Court precedents he was bound as a lower-court judge to follow. Scalia's opinions drew the attention of Reagan administration officials, who, according to The New York Times, "liked virtually everything they saw and ... listed him as a leading Supreme Court prospect." In 1985, though there was then no vacancy on the Court, Reagan administration officials put Scalia on a short list with fellow D.C. Circuit Judge Robert Bork, to be considered if a justice left the Court. In 1986, Chief Justice Warren Burger informed the White House of his intent to retire. Reagan first decided to nominate Associate Justice William Rehnquist to become Chief Justice. This choice meant that Reagan would also have to choose a nominee to fill Rehnquist's seat as associate justice. Attorney General Edwin Meese, who advised Reagan on the choice, only seriously considered Bork and Scalia. Feeling that this might well be Reagan's last opportunity to pick a Supreme Court justice, the President and his advisers chose Scalia over Bork as Scalia was ten years younger, and would likely serve longer on the Court. Scalia also had the advantage of not having Bork's "paper trail"; the elder judge had written controversial articles about individual rights. Scalia was called to the White House, and accepted Reagan's nomination.

When Senate Judiciary Committee hearings on Scalia's nomination opened in August 1986, he faced a committee that had just wrangled over the Rehnquist nomination. Witnesses and Democratic senators contended that, before becoming a judge, Rehnquist had engaged in activities designed to discourage minorities from voting. Committee members had little taste for a second battle over Scalia and were in any event reluctant to oppose the first Italian-American Supreme Court nominee. The judge was not pressed heavily on controversial issues such as abortion or civil rights. Scalia, who attended the hearing with his wife and nine children seated behind him, found time for a humorous exchange with Democratic Ohio Senator Howard Metzenbaum, whom Scalia had defeated in a tennis match in, as the nominee put it, "a case of my integrity overcoming my judgment".

Scalia met no opposition from the committee. The full Senate debated Scalia's nomination only briefly, and he was confirmed 98–0 on September 17, 1986. This vote followed Rehnquist's confirmation as Chief Justice by a vote of 65–33 on the same day. One committee member, Democratic Delaware Senator (and future Vice President) Joe Biden, later stated that he regretted not having opposed Scalia "because he was so effective".

Legal philosophy and approach

Judicial performance

During oral argument before the Court, Scalia asks more questions and makes more comments than any other justice—and a 2005 study found that he provokes laughter more often than any of his colleagues. His goal during oral arguments is to get across his position to the other justices. Kansas University social psychologist Lawrence Wrightsman wrote of Scalia's style, "he communicates a sense of urgency on the bench, and his style is forever forceful". Since Chief Justice John Roberts joined the Court in 2005, he has taken to questioning counsel in a manner similar to Scalia's and sometimes the two question counsel in seeming coordination. Dahlia Lithwick of Slate described Scalia's technique:

Scalia doesn't come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say.

Scalia has, from the start of his career on the Supreme Court, written large numbers of opinions. During his tenure, he has written more concurring opinions than any other justice, and only two justices have written more dissents. According to Kevin Ring, who compiled a book of Scalia's dissenting and concurring opinions, "His opinions are ... highly readable. His entertaining writing style can make even the most mundane areas of the law interesting." Conor Clarke of Slate comments on Scalia's written opinions, especially his dissents:

His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of all, Scalia's opinions read like they're about to catch fire for pure outrage. He does not, in short, write like a happy man.

At the Supreme Court, justices meet after the case is briefed and argued, and vote on the result. The task of writing the opinion is assigned by the Chief Justice, or if he is in the minority or not participating, by the senior justice in the majority. After the assignment, the justices generally communicate about a case by sending notes and draft opinions to each others' chambers. In the give and take of opinion writing, Scalia does not compromise his views in order to attract five votes for a majority (unlike the late Justice William J. Brennan, Jr. who would accept less than he wanted in order to gain a partial victory). Scalia attempts to influence his colleagues by sending them "Ninograms"—short memoranda aimed at trying to get them to include his views in their opinions.

Scalia enjoys a warm relationship with fellow Justice Ruth Bader Ginsburg, a liberal, with the two attending the opera together, and even appearing together onstage as extras in Washington National Opera's 1994 production of Ariadne auf Naxos. Ginsburg was a colleague of Scalia's on the D.C. Circuit, and the Scalias and Ginsburgs have dinner together every New Year's Eve.

Statutory and constitutional interpretation

Judge and Mrs. Scalia (left) and President Reagan (right) watch as Chief Justice Warren Burger swears in William Rehnquist as his successor, September 26, 1986.

Scalia describes himself as an originalist, meaning that he interprets the Constitution of the United States as it would have been understood when it was adopted. According to Scalia, "It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution." However, Professor Randy Barnett of Georgetown University has questioned Scalia's fidelity to these principles.

Constitutional amendments, such as the 1868 Fourteenth Amendment, according to Scalia, are to be interpreted based on their meaning at the time of ratification. Scalia is often asked how this approach justifies the result in the 1954 case of Brown v. Board of Education, which held that segregated schools were unconstitutional, and which relied on the Fourteenth Amendment for the result. In a 2009 public "conversation" with Justice Stephen Breyer, Breyer questioned Scalia regarding this approach, indicating that those who ratified the Fourteenth Amendment did not intend to end school segregation. Scalia has called this argument "waving the bloody shirt of Brown", and indicated that he would have joined the first Justice Harlan's solitary dissent in Plessy v. Ferguson, the 1896 case that Brown overruled.

Scalia vociferously opposes the idea of a living constitution, or the power of the judiciary to modify the meaning of constitutional provisions to adapt them to changing times. Scalia has warned that if one accepts that constitutional standards should evolve with a maturing society, "the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views." He compares the Constitution with statutes, which he contends are not understood to change their meaning through time.

Scalia is a textualist in statutory interpretation, believing that the ordinary meaning of the statute should govern. In interpreting statutes, he does not look to legislative history. In the 2006 case of Zedner v. United States, Scalia joined the majority opinion written by Justice Samuel Alito—all except one paragraph of the opinion, in which Justice Alito cited legislative history. In a concurring opinion in that case, Scalia noted, "The use of legislative history is illegitimate and ill advised in the interpretation of any statute."

Scalia's originalist approach has come under attack from critics, who say that he only sees in the Constitution that which supports his personal beliefs. Those critics have stated that Scalia's true agenda is to reverse the decisions of the Warren and Burger Courts, which shaped the law in the 1960s and 1970s. Ralph Nader has stated that Scalia's claim to an originalist philosophy is inconsistent with the justice's acceptance of the extension of certain constitutional rights to corporations when at the time of the Fourteenth Amendment's ratification, corporations were not commonly understood to possess constitutional rights. Nader's view, however, preceded the Court's 2010 decision in Citizens United v. Federal Election Commission. Scalia, in his concurrence in that case, traced his understanding of the rights of corporations at the time of the adoption of the Bill of Rights. His argument is based on the lack of an exception for corporations in the free speech guarantee in the Bill of Rights, and on several examples of corporate political speech from the time of the adoption of the Bill of Rights. Professor Thomas Colby of The George Washington University National Law Center stated that Scalia's votes in Establishment Clause cases (the provision of the First Amendment that governs the relationship between church and state) do not stem from originalist views, but from conservative political convictions.

Jurisprudence in practice

Governmental structure and powers

Separation of powers

The 2009–2010 Court, with President Obama, Vice President Biden and retiring justice David Souter with Scalia fourth from right

It is Scalia's view that clear lines of separation among the Executive, Legislative, and Judicial Branches follow directly from the Constitution, with no branch allowed to exercise powers granted to another branch. In his early days on the Court, he authored a powerful—and solitary—dissent in 1988's Morrison v. Olson, in which the Court's majority upheld the Independent Counsel law. Scalia's thirty-page draft dissent surprised Justice Harry Blackmun for its emotional content; Blackmun felt it could be cut down to ten pages if Scalia omitted "the screaming". Scalia indicated that the law was an unwarranted encroachment on the Executive Branch by the Legislative. He warned, "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing ... But this wolf comes as a wolf."

The 1989 case of Mistretta v. United States challenged the United States Sentencing Commission, an independent body within the Judicial Branch whose members (some of whom were federal judges) were removable only for good cause. The petitioner argued that the arrangement violated separation of powers, and that the United States Sentencing Guidelines promulgated by the Commission were invalid. Eight justices joined in the majority opinion written by Blackmun, upholding the Guidelines as constitutional. Scalia dissented, stating that the issuance of the Guidelines was a lawmaking function that Congress could not delegate, and dubbed the Commission "a sort of junior-varsity Congress".

In 1996, Congress passed the Line Item Veto Act which allowed the President to cancel items from an appropriations bill (a bill authorizing spending) once passed into law. The statute was challenged the following year. The matter rapidly reached the Supreme Court, which struck down the law as violating the Presentment Clause of the Constitution, which governs what the President may do with a bill once it has passed both Houses of Congress. Scalia dissented, seeing no Presentment Clause difficulties and feeling that the act did not violate separation of powers. Scalia indicated that he felt that authorizing the President to cancel an appropriation was no different from allowing him to spend an appropriation at his discretion, which had long been accepted as constitutional.

Detainee cases

In 2004, in Rasul v. Bush, the Court held that federal courts had jurisdiction to hear habeas corpus petitions brought by detainees at the Guantanamo Bay detainment camp. Scalia accused the majority of "spring[ing] a trap on the Executive" by ruling that it could hear cases involving persons at Guantanamo when no federal court had ever ruled that it had the authority to hear cases involving people there.

Scalia (joined by Justice John Paul Stevens) also dissented in the 2004 case of Hamdi v. Rumsfeld, involving Yaser Hamdi, an American citizen detained in the United States on the allegation he was an enemy combatant. The Court held that the post-9/11 congressional Authorization for the Use of Military Force (AUMF) amounted to authorization for the suspension of the writ of habeas corpus and the Government could continue to detain Hamdi. Scalia wrote that the AUMF could not be read to suspend habeas corpus and that the Court, faced with legislation by Congress which did not grant the President power to detain Hamdi, was trying to "Make Everything Come Out Right".

In March 2006, Scalia gave a talk at the University of Fribourg, in Switzerland, where he was asked about detainee rights. He responded, "Give me a break ... I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." Though Scalia was not referring to any particular individual, the Supreme Court was about to consider the case of Salim Ahmed Hamdan, supposed driver to Osama bin Laden, who was challenging the military commissions at Guantanamo Bay. A group of retired military officers asked Scalia to recuse himself, or step aside from hearing the case, which he declined to do. The Court held, 5–3, in Hamdan v. Rumsfeld, that the federal courts had jurisdiction to consider Hamdan's claims; Scalia, in dissent, contended that any ability by the Court to consider Hamdan's petition had been eliminated by the jurisdiction stripping Detainee Treatment Act of 2005.

Federalism

In federalism cases, pitting the powers of the federal government against those of the states, Scalia has often taken the states' positions. In 1997, the Supreme Court considered the case of Printz v. United States, a challenge to certain provisions of the Brady Handgun Violence Prevention Act which required chief law enforcement officers of localities in states to perform certain duties. In Printz, Scalia wrote the Court's majority decision. The Supreme Court ruled the provision which imposed those duties unconstitutional as violating the Tenth Amendment, which reserves to the states and to the people those powers not granted to the Federal Government. In 2005, Scalia concurred in Gonzales v. Raich, which read the Commerce Clause to hold that Congress could ban the use of marijuana even where states approve its use for medicinal purposes. Scalia opined that the Commerce Clause, together with the Necessary and Proper Clause, permitted the regulation. In addition, Scalia felt that Congress may regulate intrastate activities if doing so is a necessary part of a more general regulation of interstate commerce.

Scalia has taken a broad view of the Eleventh Amendment, which bars certain lawsuits against states in the federal courts. In his 1989 dissent in Pennsylvania v. Union Gas Co., Scalia stated that there was no intent on the part of the Framers to have the states surrender any sovereign immunity, and that the case that provoked the Eleventh Amendment, Chisholm v. Georgia, came as a surprise to them. Professor Ralph Rossum, who wrote a survey of Scalia's constitutional views, suggests that the justice's view of the Eleventh Amendment is actually contradictory to the language of the Amendment.

Individual rights

Abortion

Scalia has argued that there is no constitutional right to abortion, and that if the people desire legalized abortion, a law should be passed to accomplish it. Scalia wrote in his dissenting opinion in the 1992 case of Planned Parenthood v. Casey,

The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.

Scalia has repeatedly called upon his colleagues to strike down Roe v. Wade. Scalia hoped to find five votes to strike down Roe in the 1989 case of Webster v. Reproductive Health Services, but was not successful in doing so. Justice Sandra Day O'Connor authored the decision of the Court, allowing the abortion regulations at issue in the case to stand, but not overriding Roe. Scalia concurred only in part. Scalia wrote that, "Justice O'Connor's assertion, that a 'fundamental rule of judicial restraint' requires us to avoid reconsidering Roe, cannot be taken seriously." He noted, "We can now look forward to at least another Term of carts full of mail from the public, and the streets full of demonstrators."

The Court returned to the issue of abortion in the 2000 case of Stenberg v. Carhart, in which it invalidated a Nebraska statute outlawing partial-birth abortion. Justice Stephen Breyer wrote for the Court that the law was unconstitutional as it did not allow an exception for the health of the mother. Scalia dissented, comparing the Stenberg case with two of the most reviled cases in Supreme Court history: "I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child ... proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion."

In 2007, the Court upheld a federal statute banning partial-birth abortion in Gonzales v. Carhart. University of Chicago law professor Geoffrey R. Stone, a former colleague of Scalia's, criticized Gonzales, stating that religion had influenced the outcome as all five justices in the majority were Catholic, whereas the dissenters were Protestant or Jewish. This angered Scalia to such an extent that he stated he would not speak at the University of Chicago as long as Stone is there.

Race, gender, and sexual orientation

Scalia has generally voted to strike down laws which make distinctions by race, gender, or sexual orientation. In 1989, he concurred with the Court's judgment in City of Richmond v. J.A. Croson Co., in which the Court applied strict scrutiny to a city program requiring a certain percentage of contracts to go to minorities, and struck down the program. Scalia did not join the majority opinion, however. He disagreed with O'Connor's opinion, for the Court, that states and localities could institute race-based programs, if they identified past discrimination, and if the program was designed to remedy the past racism. Five years later, in Adarand Constructors, Inc. v. Peña he concurred in the Court's judgment and in part with the opinion which extended strict scrutiny to Federal programs. Scalia noted in that matter his view that government can never have a compelling interest in making up for past discrimination by racial preferences,

To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

In the 2003 case of Grutter v. Bollinger, involving racial preferences in the University of Michigan's law school, Scalia mocked the Court majority's finding that the school was entitled to continue using race as a factor in admissions so as to promote diversity, and to increase "cross-racial understanding". Scalia noted,

This is not, of course, an "educational benefit" on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.

Scalia has argued that laws that make distinctions between genders should be subjected to intermediate scrutiny, requiring that the gender classification be substantially related to important government objectives. When, in 1996, the Court upheld a suit brought by a woman who wished to enter the Virginia Military Institute in the case of United States v. Virginia, Scalia filed a lone, lengthy dissent. Scalia felt that the Court, in requiring Virginia to show an "extremely persuasive justification" for the single-sex admissions policy, had redefined intermediate scrutiny in such a way "that makes it indistinguishable from strict scrutiny".

In one of the final decisions of the Burger Court, the Court ruled in 1986 in Bowers v. Hardwick that homosexual sodomy was not protected by the right of privacy and could be criminally prosecuted by the States. In 1995, however, that ruling was effectively gutted by Romer v. Evans, which struck down a Colorado state constitutional amendment, passed by popular vote, which forbade anti-discrimination laws being extended to sexual orientation. Scalia dissented from the opinion by Justice Kennedy, believing that Bowers had protected the right of the states to pass such measures, and that the Colorado amendment was not discriminatory, but merely prevented homosexuals from gaining favored status under Colorado law. Scalia later said of Romer, "And the Supreme Court said, 'Yes, it is unconstitutional.' On the basis of—I don't know, the Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth."

In 2003, Bowers was formally reversed by Lawrence v. Texas, from which Scalia dissented. According to Mark V. Tushnet in his survey of the Rehnquist Court, during the oral argument in the case, Scalia seemed so intent on making the state's argument for it that the Chief Justice intervened: "Maybe we should go through counsel." In his dissent, Scalia ridiculed the majority for being so ready to cast aside Bowers when many of the same justices had refused to overturn Roe in Planned Parenthood v. Casey.

Criminal law

Scalia (right) at the Harvard Law School on November 30, 2006

Scalia believes the death penalty is constitutional and opposes attempts to declare it unconstitutional. He dissents in decisions that hold the death penalty unconstitutional as applied to certain groups, such as those who were under the age of 18 at the time of offense. In Thompson v. Oklahoma (1988), he dissented from the Court's ruling that the death penalty could not be applied to those aged 15 at the time of the offense, and the following year authored the Court's opinion in Stanford v. Kentucky sustaining the death penalty for those who killed at age 16. However, in 2005, the Court overturned Stanford in Roper v. Simmons and Scalia again dissented, mocking the majority's claims that a national consensus had emerged against the execution of those who killed while under age, and noted that less than half of the states that permitted the death penalty prohibited it for underage killers. He castigated the majority for including in their count states that had abolished the death penalty entirely, stating that doing so was "rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue." In 2002, in Atkins v. Virginia, the Court ruled the death penalty unconstitutional as applied to the mentally retarded. Scalia dissented, stating that it would not have been considered cruel or unusual to execute the mildly mentally retarded at the time of the 1791 adoption of the Bill of Rights, and that the Court had failed to show that a national consensus had formed against the practice.

Scalia strongly disfavors the Court's ruling in Miranda v. Arizona, which held that a confession by an arrested suspect who had not been advised of his rights was inadmissible in court, and voted to overrule Miranda in the 2000 case of Dickerson v. United States, but was in a minority of two with Justice Clarence Thomas. Calling the Miranda decision a "milestone of judicial overreaching", Scalia stated that the Court should not fear to correct its mistakes.

Although, in many areas, Scalia's approach is unfavorable to criminal defendants, he has taken the side of defendants in matters involving the Confrontation Clause of the Sixth Amendment, which guarantees defendants the right to confront their accusers. In multiple cases, Scalia has written against laws that allowed alleged victims of child abuse to testify behind screens or by closed-circuit television. In a 2009 case, Scalia wrote the majority opinion in Melendez-Diaz v. Massachusetts, holding that defendants must have the opportunity to confront lab technicians in drug cases; a certificate of analysis is not enough to prove a substance was drugs.

Scalia maintains that every element of an offense that helps determine the sentence must be either admitted by the defendant or found by a jury under the Sixth Amendment's jury guarantee. In the 2000 case of Apprendi v. New Jersey, Scalia wrote the Court's majority opinion that struck down a state statute that allowed the trial judge to increase the sentence if he found the offense was a hate crime. Scalia found the procedure impermissible because whether it was a hate crime had not been decided by the jury. In 2004, he wrote for the Court in Blakely v. Washington, striking down Washington state's sentencing guidelines on similar grounds. The dissenters in Blakely foresaw that Scalia would use the case to attack the federal sentencing guidelines (which he had failed to strike down in Mistretta), and they proved correct, as Scalia led a five-member majority in United States v. Booker, which made those guidelines no longer mandatory for federal judges to follow (they remained advisory).

In the 2001 case of Kyllo v. United States, Scalia wrote the Court's opinion in a 5–4 decision that cut across ideological lines. That decision found thermal imaging of a home to be an unreasonable search under the Fourth Amendment. The Court struck down a conviction for marijuana manufacture based on a search warrant issued after such scans were conducted, which showed that the garage was considerably hotter than the rest of the house because of indoor growing lights. Applying that Fourth Amendment prohibition on unreasonable search and seizure to arrest, Scalia dissented from the Court's 1991 decision in County of Riverside v. McLaughlin, allowing a 48-hour delay before a person arrested without a warrant is taken before a magistrate, on the ground that at the time of the adoption of the Fourth Amendment, an arrested person was to be taken before a magistrate as quickly as practicable. In a 1990 First Amendment case, R.A.V. v. St. Paul, Scalia wrote the Court's opinion striking down a St. Paul, Minnesota hate speech ordinance in a prosecution for burning a cross. Scalia noted, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."

Other cases

Scalia joined the majority per curiam opinion in the 2000 case of Bush v. Gore, which effectively ended recounts of ballots in Florida following the 2000 US Presidential election, and also both concurred separately and joined Rehnquist's concurrence. In 2007, he said of the case, "I and my court owe no apology whatever for Bush v. Gore. We did the right thing. So there!  ... get over it. It's so old by now."

During an interview on the Charlie Rose show, he defended the Court's action:

The decision was not close, it was 7–2 on the principal issue of whether there had been a constitutional violation....But what if it was unconstitutional to have that recount? You're going to let it continue and come to a conclusion? And then overturn it? The reason to stop it sooner was not, "Ooh, we're worried that it's going to come out the wrong way." ... you forget what was going on at the time. We were the laughingstock of the world. The world's greatest democracy that couldn't conduct an election. We didn't know who our next president was going to be. The lengthy transition that has become standard when you change from one president to another could not begin because you didn't know who the new president was going to be. It was becoming a very serious problem. The issue before the United States Supreme Court is: having decided the case, having decided this is unconstitutional, should we nonetheless let the election go on? Or is it time cut it off and let's move on?

Scalia concurred in the 1990 case of Cruzan v. Director, Missouri Department of Health in which the family of a woman in a vegetative state sought to have her feeding tube removed so she would die, believing that to have been her wish. The Court found for the State of Missouri, requiring clear and convincing evidence of such a desire. Scalia stated that the Court should have remained away from the dispute, and that the issues "are [not] better known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory".

Scalia in 2010.

In 2008, the Court considered a challenge to the gun laws in the District of Columbia. Scalia wrote the majority opinion in District of Columbia v. Heller, which found an individual right to own a firearm under the Second Amendment. Scalia traced the word "militia", found in the Second Amendment, as it would have been understood at the time of its ratification, and stated that it then meant "the body of all citizens". The Court upheld Heller's claim to own a firearm in the District.

Scalia's opinion for the Heller Court was widely criticized by liberals, and applauded by conservatives. However, Seventh Circuit judge Richard Posner, a conservative, disagreed with Scalia's opinion, stating that the Second Amendment "creates no right to the private possession of guns". Posner called Scalia's opinion "faux originalism" and a "historicizing glaze on personal values and policy preferences". Scalia, on the other hand, has stated that the court's originalists only needed to show that at the time the Second Amendment was ratified, the right to bear arms did not have an exclusively military context, and that they were successful in so showing.

Public attention

Requests for recusals

Scalia (right) works with Bryan A. Garner on a book.

Scalia recused himself in Elk Grove Unified School District v. Newdow, a claim brought by atheist Michael Newdow alleging the recitation of the Pledge of Allegiance (including the words "under God") in school classrooms, violated the rights of his daughter, who he said was also an atheist. Shortly after the United States Court of Appeals for the Ninth Circuit ruled in Newdow's favor, Scalia, speaking at a Knights of Columbus event in Fredericksburg, Virginia, stated that the Ninth Circuit decision was an example of how the courts were trying to excise God from public life. The school district requested that the Supreme Court review the case, and Newdow asked that Scalia recuse himself, which he did without comment.

Scalia refused to recuse himself in Cheney v. United States District Court for the District of Columbia (2005), a case concerning whether Vice President Dick Cheney could keep secret the membership of an advisory task force on energy policy. Scalia was asked to recuse himself because he had gone on a hunting trip with various persons including Cheney, during which he traveled one way on Air Force Two. Scalia refused to recuse himself, stating that though Cheney was a longtime friend, he was merely being sued in his official capacity, and that were justices to step aside in the cases of officials who are parties because of official capacity, the Supreme Court would cease to function. Scalia indicated that it was far from unusual for justices to socialize with other government officials, recalling that the late Chief Justice Fred M. Vinson played poker with President Harry Truman and that Justice Byron White went skiing with Attorney General Robert F. Kennedy. Scalia stated that he was never alone with Cheney during the trip, the two had not discussed the case, and the justice had saved no money since he had bought round-trip tickets, the cheapest available. Scalia was part of the 7–2 majority once the case was heard which generally upheld Cheney's position.

Religion

Scalia resides in McLean, Virginia, and is a devout Catholic. His son, Paul, is a Catholic priest. Uncomfortable with the changes brought about following Vatican II, Scalia regularly attends the Tridentine Latin Mass in both Chicago and Washington, and has driven long distances to parishes that he felt were more in accord with his beliefs.

In 2006, Scalia, approached by a reporter upon leaving church, was asked if being a traditional Catholic had caused problems for him. He responded by asking, "You know what I say to those people?", and with a gesture, cupping his hand under his chin and flicking his fingers out. The gesture, which was captured by a photographer, was initially reported by the Boston Herald as obscene. Scalia responded to the reports with a letter to the editor accusing the news staff of watching too many episodes of The Sopranos and stating that the gesture was a strong brush-off. Roger Axtell, an expert on body language, described the gesture as possibly meaning "I've had enough, go away" and noted, "It's a fairly strong gesture."

Assessment

The 2009 Supreme Court, Scalia seated second from right

After nearly a quarter century on the Court, and now past the age of seventy, Scalia characterizes his victories as "[d]amn few". His biographer, Joan Biskupic, speculates that Scalia, given good health, may remain on the Court for another decade.

Writing in The Forward, J.J. Goldberg described Scalia as "the intellectual anchor of the court's conservative majority". Scalia travels to the nation's law schools, giving talks on law and democracy. His appearances on college campuses are often standing room only. Ginsburg indicates that Scalia "is very much in tune with the current generation of law students ... Students now put 'Federalist Society' on their resumes." John Paul Stevens, who served throughout Scalia's tenure until his 2010 retirement; says of Scalia's influence, "He's made a huge difference. Some of it constructive, some of it unfortunate." Of the nine sitting justices, Scalia is most often the subject of law review articles.

Whereas Scalia is widely admired among conservatives, many liberals dislike his views. In March 2009, openly gay Congressman Barney Frank described Scalia as a "homophobe". Maureen Dowd described Scalia in a 2003 column as "Archie Bunker in a high-backed chair."

Rossum, writing in 2006, before George W. Bush appointees Roberts and Alito had time to make an impact, said that Scalia had failed to win converts among his conservative colleagues for his use of originalism. Roberts and Alito, however, are younger men who take an originalist approach and who greatly admire Scalia and how he battles for what he believes in.

Scalia's dislike of legislative history may be a reason why other justices have become more cautious in its use. Gregory Maggs wrote in the Public Interest Law Review in 1995 that by the early 1990s, legislative history was being cited in only about forty percent of Supreme Court cases involving the interpretation of statutes, and no case of that era used legislative history as an essential reason for the outcome. Maggs suggested,

With Justice Scalia breathing down the necks of anyone who peeks into the Congressional Record or Senate reports, the other members of the Court may have concluded that the benefit of citing legislative history does not outweigh its costs. It is likely for this reason that the percentage of cases citing it has decreased dramatically. No one likes an unnecessary fight, especially not one with as formidable an opponent as Justice Scalia.

Works

• Scalia, Antonin, and Gutmann, Amy, ed., (1997) A Matter of Interpretation: Federal Courts and the Law (Princeton N.J.: Princeton University Press) ISBN 0-691-00400-5.
• Scalia, Antonin; Garner, Bryan A. (2008) Making Your Case: The Art of Persuading Judges (St. Paul: Thomson West) ISBN 978-0-314-18471-9.

References

• Biskupic, Joan (2009), American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, Sarah Crichton Books, ISBN 978-0-374-20289-7. {{citation}}: Check |isbn= value: invalid character (help)
• Ring, Kevin (2004), Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice, Regnery Publishing, Inc., ISBN 0-89526-053-0. {{citation}}: Check |isbn= value: invalid character (help)
• Rossum, Ralph (2006), Antonin Scalia's Jurisprudence: Text and Tradition, University Press of Kansas, ISBN 0-7006-1447-8. {{citation}}: Check |isbn= value: invalid character (help)
• Staab, James (2006), The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court, Rowman & Littlefield, ISBN 0-7425-4311-0. {{citation}}: Check |isbn= value: invalid character (help)
• Toobin, Jeffrey (2008), The Nine: Inside the Secret World of the Supreme Court (revised ed.), Anchor Books, ISBN 978-1-4000-9679-4. {{citation}}: Check |isbn= value: invalid character (help)
• Tushnet, Mark (2006), A Court Divided: The Rehnquist Court and the Future of Constitutional Law (revised ed.), W.W. Norton & Co., ISBN 0-393-05868-9. {{citation}}: Check |isbn= value: invalid character (help)

External links

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