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Scalia, Antonin

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Significance: The first Italian American justice on the Supreme Court, Scalia has been committed to conservative values and has advocated constitutional interpretations based on textual analysis and original understanding. He has endeavored to constrain congressional delegation of power to the federal bureaucracy and to promote moral order through restrictions on expressive liberties, criminal defendants’ rights, and affirmative action programs.


The only child of S. Eugene Scalia, a professor of Latin-based languages, and Catherine Panaro Scalia, an elementary teacher, Antonin Scalia attended public schools in Queens, New York, and a Jesuit preparatory school. He earned his bachelor's degree at Georgetown University in 1957 and his law degree at Harvard Law School in 1960. After several years of practice with an elite law firm in Cleveland, Ohio, he joined the faculty of the law school at the University of Virginia. In 1972, President Richard M. Nixon named Scalia general counsel for telecommunications policy in the executive office of the president. The next year, Scalia was named chairman of the administrative conference of the United States. In 1974, President Gerald R. Ford appointed him as assistant attorney general in charge of the Office of Legal Counsel, a post in which he developed policies on the authority of administrative agencies and other issues of executive power. Scalia became a scholar in residence at the American Enterprise Institute in early 1977, and later that year he became a law professor at the University of Chicago. While at Chicago, he served as chairman of the American Bar Association section on administrative law, and he published commentary on administrative law and regulatory politics while serving as editor of a journal, Regulation, as well as in law reviews. In July, 1982, President Ronald Reagan nominated Scalia to serve as a judge on the U.S. Court of Appeals for the District of Columbia. Quickly confirmed by the Senate, Scalia served four years on the circuit bench. He wrote opinions in 133 cases, of which ninety addressed the statutory powers of federal agencies.


Appointment to the Supreme Court

When President Reagan nominated associate justice William H. Rehnquist to serve as chief justice in 1986, he also nominated Scalia to fill Rehnquist's associate justice seat on the Court. Because Democrats and liberals focused so much energy in attacking and trying to stop Rehnquist's confirmation, Scalia's nomination sailed through the Senate Judiciary Committee with almost no criticism. The senators voted 98-0 in favor of his confirmation, and he took his seat on September 26, 1986. As an associate justice, Scalia soon voiced a distinctive jurisprudence. A strong critic of the notion of a “living Constitution,” he argued that constitutional cases should be decided according to a literal reading of the constitutional text, informed by its original understanding as far as possible. Critics observed that when he rendered decisions, his theories of jurisprudence were often modified by his conservative ideological commitments. An advocate of judicial restraint, Scalia usually supported judicial deference to legislative decisions and expressed disdain for “sociological jurisprudence.” In addition, he accepted a broad view of executive prerogatives in matters of national security and foreign relations. When dealing with separation of powers, Scalia advanced a four-part perspective. First, he argued that judges, when interpreting legislation, should respect the plain meaning of statutes, uphold judicial precedents, and use the doctrine of standing to limit interest group challenges to legislation. Second, he sought expansive presidential direction of federal agencies’ policy making. Third, he tried to ensure that agencies not construe statutory language to expand their discretion. Finally, as in his dissenting opinion in Morrison v. Olson (1988), he strongly objected to legislation that results in a blurring of the specific boundaries between the powers of the branches that he located in the Constitution. Although Scalia respected the principle of federal supremacy, his opinions supported the Rehnquist Court's effort to augment the policy-making powers of state governments. Especially he sought to reformulate “dormant” or “negative” commerce clause doctrine and constrain federal prohibition of state policy making and, in Printz v. United States (1997), to restrict congressional authority to mandate state policy making. However, through his interpretation of the takings clause, in cases such as Lucas v. South Carolina Coastal Council (1992) and Kelo v. City of New London (2005), he supported greater protection for the interests of property owners against restrictive state environmental protection legislation.


Constitutional Rights

In matters of criminal procedures, Scalia has consistently voted against defendant rights in cases involving search and seizure, double jeopardy, self-incrimination, and forfeitures. In 2002 and 2005, he wrote dissenting opinions when the Court's majority forbade execution of minors and persons with mental disabilities. Also, he supported a diminishment of habeas corpus relief for prisoners. When the Court's majority continued to require the police to give Miranda warnings in Dickerson v. United States (2000), he condemned the ruling and wrote that it gave needless protection to “foolish (but not compelled) confessions.” In contrast, when the Court approved a confrontation clause exception for child abuses cases in Maryland v. Craig (1990), he denounced the majority for ignoring an explicit constitutional mandate and substituting current opinion. Scalia has taken complex positions on First Amendment liberties. In Employment Division, Department of Human Resources v. Smith (1990) he replaced strict scrutiny with the criterion of rationality, which diminished protection for religious expression. When interpreting the establishment clause, in contrast, he consistently wanted to allow more governmental support for religious organizations. In Zelman v. Simmons-Harris (2002), for example, he endorsed the use of tax-supported vouchers for parochial schools. Usually he voted to approve restrictions on pornography and obscenity. Dissenting in McConnell v. Federal Election Commission (2003), however, he insisted that the political use of money constitutes a form of speech, and he voted to strike down a limit on contributions to political parties. In other freedom of expression cases, including flag burnings, protests at abortion clinics, and regulations of hate speech, he has defended broad constitutional protection for unpopular expressive actions. Scalia has advocated a “color-blind” approach to racial equality and opposed affirmative steps to counter the continuing effects of racial discrimination. He was especially opposed to preferential policies aimed at increasing racial and gender diversity in employment and education, as seen in his strong dissents in Johnson v. Transportation Agency (1987) and Grutter v. Bollinger (2003). When dealing with de facto racial segregation of the public schools based on housing patterns, he strongly opposed court-ordered busing and other forms of judicial relief aimed at achieving racial integration. As the use of busing declined, he wrote concurring opinions in support of ending judicial supervision of school systems in which racial segregation persisted. Many of his opinions about legislation designed to end discrimination in employment and voting opposed the government's remedies. In United States v. Virginia (1996), moreover, he was the only dissenter, arguing that male-only state-supported education did not violate the equal protection clause. Scalia unequivocally opposed the development of broad private rights (or liberty interests) under the doctrine of substantive due process. When dealing with abortion cases, as in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and Stenberg v. Carhart (2000), he expressed great animosity to the theory that the due process clause implied that a woman had a right to an abortion. In cases such as Gonzales v. Oregon (2006), he rejected notions about a constitutional right to die or to have the assistance of a physician in hastening death. Likewise, in Lawrence v. Texas (2003), when the Court held that states may not outlaw homosexual sodomy, Scalia insisted that states had the authority to validate moral choices and commented that the Court “has largely signed on to the so-called homosexual agenda.” Critics have accused Scalia of promoting a conservative political agenda. This was particularly true in regard to his part in the controversial case of Bush v. Gore (2000), which helped ensure the election of President George W. Bush. When the Florida Supreme Court ordered a recount of disputed ballots, which might have added to the votes of Albert Gore, Scalia wrote the emergency injunction that stopped the recount; he explained that the recount might do “irreparable harm” to the country and to President Bush “by casting a cloud upon what he claims to be the legitimacy of his election.” Even Scalia's most bitter critics concede his intelligence and verbal skills. He has enjoyed public debates and has not hesitated to use abrasive language when expressing disagreements. Sometimes he has taken public positions that have detracted from a sense of judicial neutrality. However, he has also often made court-watching more enjoyable than it might otherwise be.



Further Reading

  • Brisbin, Richard A., Jr. Justice Antonin Scalia and the Conservative Revival. Baltimore: Johns Hopkins University Press, 1997.
  • Hensley, Thomas R. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2006.
  • Rossum, Ralph A. Antonin Scalia's Jurisprudence: Text and Tradition. Lawrence: University Press of Kansas, 2006.
  • Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law--An Essay. Edited by Amy Gutmann. Princeton, N.J.: Princeton University Press, 1997.
  • Scalia, Antonin. “The Rule of Law as a Law of Rules.” University of Chicago Law Review 56 (1989): 1175-1188.
  • Staab, James Brian. The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court. New York: Rowman & Littlefield, 2006.
  • Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. New York: W. W. Norton, 2005.