Antonin Scalia

Antonin Scalia
Associate Justice of the Supreme Court of the United States
In office September 26, 1986 – February 13, 2016
Preceded by	William Rehnquist
Succeeded by	Neil Gorsuch
Judge of the United States Court of Appeals for the District of Columbia Circuit
In office August 17, 1982 – September 26, 1986
Preceded by	Roger Robb
Succeeded by	David Sentelle
United States Assistant Attorney General for the Office of Legal Counsel
In office August 22, 1974 – January 20, 1977
President	Gerald Ford
Preceded by	Roger C. Cramton
Succeeded by	John Harmon
Born	March 11 1936(1936-03-11) Trenton, New Jersey, U.S
Died	February 13 2016 (aged 79) Shafter, Texas, U.S.
Spouse	Maureen McCarthy (m. 1960)
Children	9 (including Eugene)
Signature

Antonin Gregory Scalia (/ˌæntənɪn skəˈliːə/; March 11, 1936 – February 13, 2016) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual anchor for the originalist and textualist position in the Court's conservative wing.

Scalia was born in Trenton, New Jersey. A devout Catholic, he received his undergraduate degree from Georgetown University. He then obtained his law degree from Harvard Law School and spent six years in a Cleveland law firm before becoming a law professor at the University of Virginia. In the early 1970s, he served in the Nixon and Ford administrations, eventually becoming 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, President Ronald Reagan appointed Scalia as a judge of the U.S. Court of Appeals for the District of Columbia Circuit. In 1986, he was appointed to the Supreme Court by Reagan and was unanimously confirmed by the Senate, becoming the Court's first Italian-American justice.

Scalia promoted a conservative jurisprudence and ideology, advocating textualism in statutory interpretation and originalism in constitutional interpretation. This made him a strong defender of the powers of the executive branch, and that the Constitution permitted the death penalty and did not guarantee the right to abortion or same-sex marriage. Scalia viewed affirmative action and other policies that afforded special protected status to minority groups as unconstitutional. These positions earned him a reputation as one of the most conservative justices on the Court. He filed separate opinions in many cases, often castigating the Court's majority using scathing language. Scalia's most significant opinions include his lone dissent in Morrison v. Olson (arguing against the constitutionality of an Independent-Counsel law), his majority opinion in Crawford v. Washington (defining a criminal defendant's confrontation right under the 6th Amendment), and his majority opinion in District of Columbia v. Heller (holding that the 2nd Amendment to the U.S. Constitution guarantees a right to individual handgun ownership).

Early life and education

Antonin Scalia was born on March 11, 1936, in Trenton, New Jersey, as an only child. His father, Salvatore Eugene Scalia (1903–1986), an Italian immigrant from Sommatino, Sicily, graduated from Rutgers University and was a graduate student at Columbia University and clerk at the time of his son's birth. The elder Scalia would become a professor of Romance languages at Brooklyn College, where he was an adherent to the formalist New Criticism school of literary theory. His mother, Catherine Louise (née Panaro) Scalia (1905–1985), was born in Trenton to Italian immigrant parents and worked as an elementary school teacher.

In 1939, Scalia and his family moved to Elmhurst, Queens, where he attended P.S. 13 Clement C. Moore School. After completing eighth grade in public school, he obtained an academic scholarship to Xavier High School, a Jesuit military school in Manhattan, where he graduated first in the class of 1953 and served as valedictorian. While a youth, he was also active as a Boy Scout and was part of the Scouts' national honor society, the Order of the Arrow.

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 arch-conservative 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."

In 1953, Scalia enrolled at Georgetown University, where he graduated valedictorian and summa cum laude in 1957 with a Bachelor of Arts in history. While in college, he was a champion collegiate debater in Georgetown's Philodemic Society and a critically praised thespian. He took his junior year abroad at the University of Fribourg, Switzerland. Scalia studied law at Harvard Law School, where he was a Notes Editor for the Harvard Law Review. He graduated magna cum laude in 1960, becoming a Sheldon Fellow of Harvard University. The fellowship enabled him to travel in Europe during 1960 and 1961.

Early legal career (1961–1982)

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

After four years in Charlottesville, Scalia entered public service in 1971. President Richard Nixon appointed him 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 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 regarding its refusal to turn over documents. Within the administration, Scalia advocated a presidential veto for a bill to amend the Freedom of Information Act, which would greatly increase the act's scope. Scalia's view 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 US government, argued in support of Dunhill, and won. Following Ford's defeat by President Jimmy Carter, Scalia worked for several months at the American Enterprise Institute.

He returned to academia, taking up residence at the University of Chicago Law School from 1977 to 1982, spending one year as a visiting professor at Stanford Law School. During Scalia's time at Chicago, Peter H. Russell hired him on behalf of the Canadian government to write a report on how the United States was able to limit the activities of its secret services for the McDonald Commission, which was investigating abuses by the Royal Canadian Mounted Police. The report—finished in 1979—encouraged the commission to recommend that a balance be struck between civil liberties and the essentially unchecked activities of the RCMP. In 1981, he became the first faculty adviser for the University of Chicago's chapter of the newly founded Federalist Society.

U.S. Court of Appeals for the D.C. Circuit (1982–1986)

President Reagan and his Supreme Court nominee Scalia in the Oval Office, 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 U.S. 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 felt 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."

Supreme Court of the United States (1986–2016)

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. That 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, seriously considered only Scalia and Robert Bork, a fellow judge on the DC Court of Appeals. 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. Many factors influenced the decision. Reagan wanted to appoint the first Italian-American justice. In addition, 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 argued divisively 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 he 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, confirming him 98–0 on September 17, 1986, making him the first Italian-American Justice. That vote followed Rehnquist's confirmation as Chief Justice by a vote of 65–33 on the same day. Scalia took his seat on September 26, 1986. One committee member, Democratic Delaware Senator Joe Biden, later stated that he regretted not having opposed Scalia "because he was so effective."

Governmental structure and powers

Separation of powers

It was Scalia's view that clear lines of separation among the legislative, executive, 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 is permitted to 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. He argued 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

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

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 although Congress had authorized Hamdi's detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant [Hamdi] the right to contest that detention before a neutral decision maker. Scalia opined that the AUMF (Authorization for Use of Military Force Against Terrorists) could not be read to suspend habeas corpus and that the Court, faced with legislation by Congress that 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. When 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." Although 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 that supported Hamdan's position asked Scalia to recuse himself, 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 Court authority 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 often took 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 unconstitutional the provision that imposed those duties 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 when 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. He based that decision on Wickard v. Filburn, which he now wrote "expanded the Commerce Clause beyond all reason".

Scalia rejected the existence of the negative Commerce Clause doctrine, calling it "a judicial fraud."

Scalia took 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 was actually contradictory to the language of the Amendment.

Individual rights

Abortion

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

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 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. 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, "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 because it did not allow an exception for the health of the woman. Scalia dissented, comparing the Stenberg case to 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 because 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 was there.

Race, gender, and sexual orientation

Scalia generally voted to strike down laws that 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 programs were 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 that 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 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 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 said that the Court, in requiring Virginia to show an "extremely persuasive justification" for the single-sex admission 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, that forbade antidiscrimination 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 overruled 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. According to his biographer, Joan Biskupic, Scalia "ridiculed" the majority in his dissent for being so ready to cast aside Bowers when many of the same justices had refused to overturn Roe in Planned Parenthood v. Casey.

Same-sex marriage

In 2013, Scalia dissented from the majority opinion in United States v. Windsor. In Windsor, the Court held Section Three of the Defense of Marriage Act (DOMA) (which—for federal government purposes—defined the terms "marriage" and "spouse" as applicable only to opposite-sex unions) unconstitutional under the Due Process Clause of the Fifth Amendment. Scalia's dissent, which was joined in full by Justice Thomas and in part by Chief Justice Roberts, opened:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.

Scalia argued that the judgment effectively characterized opponents of same-sex marriage as "enemies of the human race": He argued that the Court's ruling would affect state bans on same-sex marriage as well:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

Scalia concluded by saying that the Supreme Court "has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat."

In 2015, Scalia dissented from the majority opinion in Obergefell v. Hodges, in which the Court ruled that the fundamental right to marry was guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In his dissent, Scalia stated that the Court's decision effectively robbed the people of "the freedom to govern themselves," noting that a rigorous debate on same-sex marriage had been taking place and that—by deciding the issue nationwide—the democratic process had been halted. Addressing the claimed Fourteenth Amendment violation, Scalia asserted that because a same-sex marriage ban would not have been considered unconstitutional at the time of the Fourteenth Amendment's adoption, such bans are not unconstitutional in 2015. He claimed there was "no basis" for the Court to strike down legislation that the Fourteenth Amendment did not expressly forbid, and directly attacked the majority opinion for "lacking even a thin veneer of law". Lastly, Scalia faulted the actual writing in the opinion for "diminish[ing] this Court's reputation for clear thinking and sober analysis" and for "descend[ing] from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

Criminal law

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

Scalia believed the death penalty to be constitutional. He dissented 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.

Scalia strongly disfavored 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 he 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 was unfavorable to criminal defendants, he took 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 wrote 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 and that a certificate of analysis is not enough to prove a substance was a drug.

Scalia maintained 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 the judge 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; Scalia led a five-member majority in United States v. Booker, which made those guidelines no longer mandatory for federal judges (instead of 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".

Second Amendment

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, stating 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 criticized by liberals and applauded by conservatives. Seventh Circuit Judge Richard Posner 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." In October 2008, Scalia stated that the court's originalists needed to show only 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.

Litigation and standing

Following the death of Scalia, Paul Barrett, writing for Bloomberg Businessweek, reported that: "Translating into liberal argot: Scalia changed the rules for who could sue". The issue elevated the recognition of Scalia as a notable influence on establishing and determining the conditions under which cases could be brought to trial and for litigation—and by whom such litigation could take place. David Rivkin, from the conservative standpoint, said, "He (Scalia) did more to clarify and limit the bounds and scope of judicial power than any Supreme Court Justice in history, particularly in the area of standing and class actions". Scalia indicated his long-held position from the time of his 1983 law review article titled "The Doctrine of Standing as an Essential Element of the Separation of Powers". As summarized by Barrett, "He (Scalia) wrote that courts had misappropriated authority from other branches of government by allowing too many people to sue corporations and government agencies, especially in environmental cases". In a practical sense, Scalia brought to the attention of the Court the authority to restrict "standing" in class action suits in which the litigants may be defined in descriptive terms rather than as well-defined and unambiguous litigants.

Bush v. Gore

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, concurring in a separate opinion and joining 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 in 2010

Legal philosophy and approach

Judicial performance

During oral argument before the court, Scalia asked more questions and made more comments than any other justice. A 2005 study found that he provoked laughter more often than any of his colleagues. His goal during oral arguments was to get across his position to the other justices. University of Kansas social psychologist Lawrence Wrightsman wrote that Scalia communicated "a sense of urgency on the bench" and had a style that was "forever forceful." After Chief Justice John Roberts joined the Court in 2005, he took to quizzing lawyers in a manner similar to Scalia's; sometimes the two questioned counsel in seeming coordination. Dahlia Lithwick of Slate described Scalia's technique as follows:

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. And he uses the hour allocated for argument to bludgeon his brethren into agreement.

During his tenure, Scalia wrote more concurring opinions than any other justice. 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.

In the give-and-take of opinion-writing, Scalia did 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 what he wanted in order to gain a partial victory). Scalia attempted to influence his colleagues by sending them "Ninograms"—short memoranda aimed at persuading them of the correctness of his views.

In an October 2013 issue of New York magazine, Scalia revealed that he scanned The Wall Street Journal and The Washington Times, obtained most of his news from talk radio, and did not read The New York Times or The Washington Post. He described The Washington Post as "shrilly liberal."

Statutory and constitutional interpretation

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

Textualism

Scalia was a textualist in statutory interpretation, believing that the ordinary meaning of a statute should govern any ruling. In 1998, Scalia vociferously opposed 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 warned that if one accepted 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 compared the Constitution to statutes he contended were not understood to change their meaning through time. Constitutional amendments, such as the 1868 Fourteenth Amendment, according to Scalia, were to be interpreted based on their meaning at the time of ratification. Scalia was often asked how that approach justified 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. Scalia responded to this argument in two ways. He noted research by Michael McConell that "persuasively establishes that this was the original understanding of the post Civil War Amendments." However, Scalia continues by arguing that even if non-originalist methods occasionally produce better results than Originalism, "It is in no way remarkable... that taking power from the people and placing it instead with a judicial aristocracy can produce some creditable results that democracy might not achieve. The same can be said of monarchy and totalitarianism. But once a nation has decided that democracy... is the best system of government, the crucial question becomes which theory of textual interpretation is compatible with democracy. Originalism unquestionably is. Non-originalism, by contrast, imposes on society statutory prescriptions that were never democratically adopted. When applied to the Constitution, nonoriginalism limits the democratic process itself, prohibiting... acts... that 'We The People' never, ever, voted to outlaw.

Originalism

Scalia described himself as an originalist, meaning that he interpreted the United States Constitution as it would have been understood when it was adopted. According to Scalia in 2008, "It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution."

Scalia's originalist approach came under attack from critics, who viewed it as "a cover for what they see as Scalia's real intention: to turn back some pivotal court decisions of the 1960s and 70s" reached by the Warren and Burger Courts. Ralph Nader argued in 2008 that Scalia's originalist philosophy was 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 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 groups of individuals at the time of the adoption of the Bill of Rights. His argument was based on the lack of an exception for groups such as 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 George Washington University National Law Center argued that Scalia's votes in Establishment Clause cases do not stem from originalist views but simply from conservative political convictions. Scalia responded to his critics that his originalism "has occasionally led him to decisions he deplores, like his upholding the constitutionality of flag burning," which according to Scalia was protected by the First Amendment.

The Roberts Court (October 2010 – February 2016). Front row: Clarence Thomas, Antonin Scalia, John Roberts (Chief), Anthony Kennedy, Ruth Bader Ginsburg. Back row: Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, Elena Kagan.

In 2009, after nearly a quarter century on the Court, Scalia characterized his victories as "damn few."

Writing in The Jewish Daily Forward in 2009, J.J. Goldberg described Scalia as "the intellectual anchor of the court's conservative majority." Scalia traveled to the nation's law schools, giving talks on law and democracy. His appearances on college campuses were often standing room only. Ginsburg indicated that Scalia was "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, said of Scalia's influence, "He's made a huge difference. Some of it constructive, some of it unfortunate." Of the nine sitting justices, Scalia was most often the subject of law review articles.

Public attention

Religious views

Scalia was a devout Roman Catholic, and his son Paul entered the priesthood. Uncomfortable with the changes brought about following Vatican II, Scalia drove long distances to parishes he felt were more in accord with his beliefs, including parishes that celebrated the Tridentine Latin Mass in Chicago and Washington, and one celebrating the Latin version of the Mass of Paul VI at St. Catherine of Siena in Great Falls, Virginia. In a 2013 interview with Jennifer Senior for New York magazine, Scalia was asked whether his beliefs extended to the Devil, and he stated, "Of course! Yeah, he's a real person. Hey, c'mon, that's standard Catholic doctrine! Every Catholic believes that." When asked whether he had seen recent evidence of the Devil, Scalia replied: "You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He's making pigs run off cliffs, he's possessing people and whatnot ... What he's doing now is getting people not to believe in him or in God. He's much more successful that way." In another 2013 interview, Scalia said, "In order for capitalism to work, in order for it to produce a good and stable society, traditional Christian virtues are essential."

In 2006, upon leaving church, Scalia was asked by a reporter whether being a traditionalist Catholic had caused problems for him, and 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 got 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." The gesture was parodied by comedian Stephen Colbert during his performance at the White House Correspondents' Association Dinner later that year, with the justice in attendance: cameras showed that unlike most of the butts of Colbert's jokes that evening, Scalia was laughing.

Scalia recused himself from Elk Grove Unified School District v. Newdow (2004), a claim brought by atheist Michael Newdow alleging that 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 but before the case came before the Supreme Court, Scalia spoke at a Knights of Columbus event in Fredericksburg, Virginia, stating 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 because of this prior statement, which he did without comment.

1996 presidential election

According to John Boehner, as chairman of the House Republican Conference, he sought to persuade Scalia to run for election as vice president with Bob Dole in 1996. As related by Boehner, Scalia listened to the proposal and dictated the same reply Justice Charles Evans Hughes had once given to a similar query: "The possibility is too remote to comment upon, given my position." Dole did put Scalia on his list of potential running mates but eventually settled on Jack Kemp.

Personal life

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

On September 10, 1960 Scalia married Maureen McCarthy at St. Pius X church in Yarmouth, Massachusetts. The two had met on a blind date while he was at Harvard Law School. Maureen was an undergraduate student at Radcliffe College when they met; she subsequently obtained a degree in English from the school.

The Scalias had five sons and four daughters. Two of their sons, Eugene Scalia and John Scalia, became attorneys, with Eugene later becoming Secretary of Labor in the Trump administration. Paul Scalia became a Catholic priest, Matthew Scalia had a military career, and Christopher Scalia became a writer. All four Scalia daughters—Catherine, Ann, Margaret, and Mary—have families. According to Scalia, Maureen raised all nine children "with very little assistance from me." The family resided in McLean, Virginia, a suburb of Washington, D.C.

Scalia enjoyed a warm friendship with fellow Justice Ruth Bader Ginsburg, considered a member of the court's liberal wing, with the two attending the opera together and appearing together onstage as supernumeraries in Washington National Opera's 1994 production of Ariadne auf Naxos. Ginsburg was a colleague of Scalia on the D.C. Circuit, and the Scalias and Ginsburgs had dinner together every New Year's Eve.

Scalia also enjoyed a friendship with fellow Justice Elena Kagan, also considered a member of the court's liberal wing. When Justice David Souter retired, Scalia told David Axelrod, an adviser to then-President Barack Obama, that he hoped that Obama would nominate Kagan to replace him. While Obama nominated Sonia Sotomayor instead, a year later when Justice John Paul Stevens retired, Obama nominated Kagan. An avid hunter, Scalia taught Justice Kagan how to hunt; the two hunted ducks, birds, deer, and antelope together.

Death and funeral

Scalia died in his sleep at age 79. His body was discovered on the morning of February 13, 2016, in his room at Cibolo Creek Ranch in Shafter, Texas. He had gone quail hunting the afternoon before, and then dined as the guest of John B. Poindexter, owner of the ranch.

County Judge Cinderela Guevara pronounced Scalia dead of natural causes. She did not see the body, which under Texas law is not required, nor did she order an autopsy. Bishop, as well as David Beebe, another justice of the peace, later disagreed with the decision not to order an autopsy for Scalia. Guevara, who conferred by telephone with Scalia's physician, stated that she made the determination to pronounce Scalia dead from natural causes after being told by county sheriff Dominguez on the scene that "there were no signs of foul play" and that Scalia "was having health issues."

Scalia's son, Father Paul Scalia, celebrated a Catholic funeral Mass and delivered the homily on February 20, 2016, at the Basilica of the National Shrine of the Immaculate Conception in Washington, D.C. The Obama administration was represented at the funeral by Vice President Joe Biden; President Barack Obama did not attend, though he was at the homily. Scalia's remains were interred at a private ceremony at Fairfax Memorial Park in Fairfax, Virginia.

According to NBC News, tributes to "larger-than-life Supreme Court Justice Antonin Scalia poured in [from] both sides of the political aisle" following his death. All eight of Scalia's fellow justices released statements honoring him following his death. Justice Clarence Thomas said, "'Justice Scalia was a good man; a wonderful husband who loved his wife and his family; a man of strong faith; a towering intellect; a legal giant; and a dear, dear friend. In every case, he gave it his all to get the broad principles and the small details right. … It is hard to imagine the court without my friend. I will miss him beyond all measure'." Justice Ruth Bader Ginsburg said:

From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the [Supreme] Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the "applesauce" and "argle bargle"—and gave me just what I needed to strengthen the majority opinion... It was my great good fortune to have known him as working colleague and treasured friend.

Succession

Scalia's death, only the second death of a serving justice in a span of sixty years, left eight justices remaining on the Supreme Court, split 4–4 between fairly conservative and fairly liberal, during a presidential election year. Cases that were pending before the Court at Scalia's death were decided by the remaining eight members. A 4–4 deadlock would result in the ruling of the lower court being upheld, but no precedent being set, and the justices would not publish written opinions on the merits of the case.

In a 2012 interview, Scalia had said he would prefer Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals as his successor. On March 16, 2016, President Barack Obama, a Democrat, nominated Merrick Garland, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to fill Scalia's seat, but the Republican-controlled Senate declined to take any action on the nomination; the nomination expired with the end of the 114th Congress on January 3, 2017. On January 31, 2017, Republican President Donald Trump announced the nomination of Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to succeed Scalia. Gorsuch was confirmed by the Senate on April 7, 2017.

Legacy

Influence

For catalyzing an originalist and textualist movement in American law, he has been described as one of the most influential jurists of the twentieth century, and one of the most important justices in the Supreme Court's history. Scalia was posthumously awarded the Presidential Medal of Freedom in 2018, and the Antonin Scalia Law School at George Mason University was named in his honor.

Writing in the American Spectator, Adam Carrington noted that, "Since his death in February of 2016, Scalia’s influence of course continues through his three decades of judicial opinions. But he still exerts great influence in another, less-discussed way. In 2012, he co-authored the book Reading Law: The Interpretation of Legal Texts with Bryan A. Garner. This work describes numerous “canons,” or rules regarding how to interpret legal documents ... A mere seven years since its publication, Reading Law has been cited in over 1,000 state and federal cases. Just this spring, for instance, Supreme Court justices referenced the work in 10 cases."

Scalia's promotion of textualism and originalism on the high court led to a shift in the American judiciary's approach to textual interpretation, with greater attention paid to the text itself. the liberal political philosopher Ronald Dworkin said that because of Scalia, "we are all originalists now."

Posthumous tributes

In May 2016, George Mason University renamed its law school the "Antonin Scalia Law School" after an anonymous donor pledged $20 million to the school, with an additional $10 million donated by the Charles Koch Foundation, contingent upon the name change in Scalia's honor. The dedication ceremony occurred on October 6, 2016, and was attended by Supreme Court justices. At the ceremony, Justice Elena Kagan called Scalia "one of the most important Supreme Court justices ever, and also one of the greatest."

In October 2016, the Italy–USA Foundation posthumously awarded Scalia its America Award. The ceremony was conducted in front of the Italian parliament in Rome.

John Strand's play The Originalist was performed in Washington, DC in 2015; it received a positive review from The New York Times. The play depicted Justice Scalia's interaction with a (fictional) liberal court clerk and their mutual criticism and eventual support of each other. The play had a cross-country tour from Washington, D.C. to the Pasadena Playhouse. The play was scheduled to air on PBS in 2017.

In 2018, President Donald Trump posthumously awarded the Presidential Medal of Freedom to Scalia.

Books by Antonin Scalia

• Scalia, Antonin, Amy Gutmann (ed.) A Matter of Interpretation: Federal Courts and the Law. Princeton NJ: Princeton University Press, 1997. ISBN 0691004005
• Scalia, Antonin, and Bryan A. Garner. Making Your Case: The Art of Persuading Judges. St. Paul: Thomson West, 2008. ISBN 978-0314184719
• Scalia, Antonin, and Bryan A. Garner. Reading Law: The Interpretation of Legal Texts. St. Paul: Thomson West, 2012. ISBN 978-0314275554
• Scalia, Antonin, Christopher J. Scalia, and Edward Whelan. Scalia Speaks: Reflections on Law, Faith, and Life Well Lived. New York, NY: Crown Publishing Group, 2017. ISBN 978-0525573326

References

ISBN links support NWE through referral fees

• Biskupic, Joan. American Original: The life and constitution of Supreme Court Justice Antonin Scalia. New York, NY: Sarah Crichton Books/Farrar, Straus and Giroux, 2009. ISBN 978-0374202897
• Brisbin, Richard. Justice Antonin Scalia and the Conservative Revival. Baltimore, MD: John Hopkins University Press, 1998. ISBN 978-0801860942
• Murphy, Bruce Allen. Scalia: A court of one. New York, NY: Simon & Schuster, 2014. ISBN 978-0743296496
• Nemacheck, Christine L. Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W. Bush. Charlottesville, VA: University of Virginia Press, 2008. ISBN 978-0813927435
• Ring, Kevin (ed.). Scalia Dissents: Writings of the Supreme Court's wittiest, most outspoken justice. Washington, DC: Regnery Publishing, Inc., 2004. ISBN 0895260530
• Rossum, Ralph A. Antonin Scalia's Jurisprudence: Text and tradition. Lawrence, KS: University Press of Kansas, 2006. ISBN 978-0700614479
• Scalia, Antonin, and Bryan K. Garner. Reading Law: The Interpretation of Legal Texts. Egan, MN: West Publishers, 2012. ISBN 978-0314275554
• Scalia, Antonin. Jeffrey S. Sutton and Edward Whelan (eds.). The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. Crown Forum, 2020. ISBN 978-1984824103
• Staab, James. The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court. Lanham, MD: Rowman & Littlefield, 2006. ISBN 0742543110
• Toobin, Jeffrey. The Nine: Inside the secret world of the Supreme Court, revised ed. New York, NY: Anchor Books, 2008. ISBN 1400096790
• Toobin, Jeffrey. The Oath: The Obama White House and the Supreme Court. New York, NY: Doubleday, 2012. ISBN 9780385527200
• Tushnet, Mark. A Court Divided: The Rehnquist court and the future of constitutional law. revised ed. New York, NY: W.W. Norton Co., 2005. ISBN 978-0393058680
• Wallison, Peter. Ronald Reagan: The power of conviction and the success of his Presidency. New York, NY: Basic Books, 2004. ISBN 978-0813390475

External links

All links retrieved August 11, 2023.

• Antonin Scalia Oyez
• Justice Antonin Scalia, Known For Biting Dissents, Dies At 79 NPR
• Antonin Gregory Scalia Find a Grave

Legal offices
Preceded by: Roger C. Cramton	Chair of the Administrative Conference of the United States 1972–1974	Succeeded by: Robert Anthony
Preceded by: Roger C. Cramton	United States Assistant Attorney General for the Office of Legal Counsel 1974–1977	Succeeded by: John Harmon
Preceded by: Roger Robb	Judge of the United States Court of Appeals for the District of Columbia Circuit 1982–1986	Succeeded by: David Sentelle
Preceded by: William Rehnquist	Associate Justice of the Supreme Court of the United States 1986–2016	Succeeded by: Neil Gorsuch

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