- Antonin Scalia
name = Antonin Gregory Scalia
office = Associate Justice of the United States Supreme Court
September 26 1986
William H. Rehnquist
successor = Incumbent
birthdate = birth date and age|1936|03|11
birthplace = Trenton,
spouse = Maureen McCarthy Scalia
Harvard Law School
Audio|Scalia Name.ogg|Antonin Gregory Scalia (born
March 11, 1936[ [http://www.supremecourthistory.org/02_history/subs_current/images_b/002.html Supreme Court Historical Society] ] ) is an American juristand the second most senior Associate Justice of the Supreme Court of the United States. Appointed by Republican President Ronald Reagan, he is considered to be a core member of the conservative wing of the court.
Justice Scalia is a vigorous proponent of
textualismin statutory interpretationand originalismin constitutional interpretation, and a passionate critic of the idea of a Living Constitution. He sometimes has a more favorable view of national power and a strong executive than his more ardent states' rightsconservative colleague, Clarence Thomas.
Antonin Scalia was born in
Trenton, New Jersey. His mother, Kathy Panaro, was born in the United States; his father, S. Eugene, a professor of romance languages, was born in Sicily. He was an only child, as he recalled on 60 Minutes, he did not have any cousins. When Scalia was five years old, his family moved to the Elmhurst section of Queens, New York City, during which time his father worked at Brooklyn Collegein Flatbush, Brooklyn. [Talbot, Margaret. [http://www.newyorker.com/archive/2005/03/28/050328fa_fact_talbot "Profiles, Supreme Confidence"] , " The New Yorker", March 28, 2005, p. 40. Accessed October 22, 2007. "Tells about Scalia’s childhood in Trenton, New Jersey and Elmhurst Queens. His father, Eugene, was a professor at Brooklyn College and a believer in the principles of the New Criticism."]
Scalia started his education at Public School 13 in Queens. A practicing member of the
Roman Catholic Church, Scalia attended Xavier High School, a Catholicand Jesuit school in Manhattan. He graduated first in his class and " summa cum laude" with an A.B. from Georgetown College at Georgetown Universityin 1957. While at Georgetown, he also studied at the University of Fribourg, Switzerlandand went on to study law at Harvard Law School(where he was a Notes Editor for the Harvard Law Review). He graduated magna cum laudefrom Harvard Law in 1960, becoming a Sheldon Fellowof Harvard Universitythe following year. The fellowship allowed him to travel throughout Europe during 1960–1961.
September 10, 1960, Scalia married Maureen McCarthy, an English major at Radcliffe College. Together they have nine children – Ann Forrest (born September 2, 1961), Eugene (labor attorney, former Solicitor of the Department of Labor), John Francis, Catherine Elisabeth, Mary Clare, Paul David (now a priestin the Catholic Dioceseof Arlington at St. John's Church in McLean), Matthew (a West Pointgraduate and U.S. Army Majorcurrently serving as an ROTCinstructor at the University of Delaware), Christopher James (currently an English professor at the University of Virginia's College at Wise), and Margaret Jane (studying at the University of Virginia).
Scalia began his legal career at
Jones, Day, Cockley and Reavisin Cleveland, Ohio, where he worked from 1961 to 1967, before becoming a Professor of Law at the University of Virginiain 1967. In 1971, he entered public service, working as the general counsel for the Office of Telecommunications Policy, under President Richard Nixon, where one of his principal assignments was to formulate Federal policy for the growth of cable television. He also suggested policy which would give the White House more influence over the Corporation for Public Broadcasting, ranging from well-chosen appointees to the Board of Directors to giving more power to local stations instead of the national organization. [Rick Perlstein, "Nixonland", 2008, p. 596.] From 1972 to 1974, he was the chairman of the Administrative Conference of the United States, before serving from 1974 to 1977 in the Ford administration as the Assistant Attorney General for the Office of Legal Counsel.
Following Ford's defeat by
Jimmy Carter, Scalia returned to academia, taking up residence first at the University of ChicagoLaw School from 1977 to 1982, and then as Visiting Professor of Law at Georgetown University Law Centerand Stanford University. He was chairman of the American Bar Association's Section of Administrative Law, 1981–1982, and its Conference of Section Chairmen, 1982–1983.
In 1982, President
Ronald Reaganappointed Scalia to be a Judge of the United States Court of Appeals for the District of Columbia Circuit. Four years later, in 1986, Reagan nominated him to replace William Rehnquistas an Associate Justice of the Supreme Court of the United Statesafter Rehnquist had been nominated by Reagan to serve as Chief Justice of the United States. Scalia, whose nomination was backed by liberals such as Mario Cuomo, was approved by the Senate in a vote of 98-0 (with Barry Goldwaterand Jake Garnabsent) and he took his seat on September 26, 1986, becoming the first Italian-AmericanJustice on the Supreme Court of the United States. It should not noted that there was very little controversy to his rise to Supreme Court Justice, partly attributed to the elevation of Rehnquist to Chief Justice, who received a lot more coverage.
law clerks have included prominent figures such as Paul Clement, the Solicitor General under George W. Bush; Lawrence Lessig, a legal activist and professor of law at Stanford University Law School; Joel Kaplan, former Marine Officer and currently the Deputy Chief of Staff for Policy under President George W. Bush; Joseph D. Kearney, Dean and Professor at Marquette University Law School; and Stephen G. Calabresi, professor of law at Northwestern University School of Lawand founder of the Federalist Society.
Legal philosophy and approach
tatutory and constitutional interpretation
A formalist, Scalia is considered the Court's leading proponent of
textualismand originalism(he is careful to distinguish his philosophy of original meaningfrom original intent). These schools of jurisprudence emphasize careful adherence to the text of both the Constitution of the United Statesand federal statutes as that text would have been understood to mean when adopted. Scalia will typically use dictionaries contemporaneous with the text's adoption to discern its meaning.
By implication from his originalism, Scalia vigorously opposes the idea of a
living constitution, which says that the judiciary has the power to modify the meaning of constitutional provisions to adapt, as expressed in " Trop v. Dulles", to "the evolving standards of decency that mark the progress of a maturing society." For Scalia, this idea misunderstands and negates what he calls the "anti-evolutionary purpose" of a constitution. A society that adopts a constitution, he says, "is skeptical...that societies always 'mature,' as opposed to rot." ["A Matter of Interpretation", pp. 40–41.] Scalia notes further that many important social advances, such as women's suffrage, were achieved not by judicial fiat but constitutional amendments — whose adoption, Scalia adds, is slow and cumbersome by design. The idea is that amending of the Constitution allows for democratic change as opposed to top-down rule by judges.
Scalia often relies upon tradition and history to discern the original meaning of unclear constitutional provisions, [Ring, p. 2.] but when interpreting statutory language, he considers
legislative historyto be an irrelevant and unreliable interpretive tool: the "New York Times" wrote Scalia "believes that legislative history is basically fraudulent and that judges should never consider it."cite news
title = Souter Anchoring the Court's New Center
publisher = "New York Times"
url = http://query.nytimes.com/gst/fullpage.html?res=9E0CE2DE1F3AF930A35754C0A964958260
accessdate = 2008-06-27 ] This aversion for legislative history is a central tenet of textualism and is infused with both an appreciation for
public choice theory[William Eskridge, [http://www.jstor.org/cgi-bin/jstor/printpage/00426601/ap030574/03a00050/0.pdf?backcontext=page&dowhat=Acrobat&config=jstor&userIDfirstname.lastname@example.org/01cc99331300501afa069&0.pdf Politics without Romance: Implications of Public Choice Theory for Statutory Interpretation] , "Virginia Law Review", Vol. 74, No. 2, p. 277.] and of the realities of legislative compromise (i.e., the statutory text being the only reliable evidence of the deal that was struck). [ [http://www.jstor.org/cgi-bin/jstor/printpage/0017811x/ap040842/04a00030/0.pdf?backcontext=page&dowhat=Acrobat&config=jstor&userIDemail@example.com/01cce4405d00501afaa59&0.pdf "Why Learned Hand Would Never Consult Legislative History Today,"] "Harvard Law Review", Vol. 105, No. 5 (March 1992), p. 1005.] This position often puts him at odds with Justice Breyer, who is perhaps the Court's most steadfast proponent of attempting to discern the overarching legislative objectives of statutes and who values legislative history in that pursuit.
Consistent with his formalist sensibilities, Scalia seeks to maximize the role of the legislature in shaping law and to minimize judicial discretion in its interpretation. For this reason he favors bright-line rules over abstract balancing tests [Cass Sunstein, [http://www.jstor.org/cgi-bin/jstor/printpage/00440094/ap030825/03a00060/0.pdf?backcontext=page&dowhat=Acrobat&config=jstor&userIDfirstname.lastname@example.org/01cce4405d00501afaa59&0.pdf "Justice Scalia's Democratic Formalism,"] "The Yale Law Journal", Vol. 107, No. 2 (Nov. 1997), p. 530.] (one of his most frequently-cited works off the bench is an essay titled "The Rule of Law as a Law of Rules," [56 U. Chi. L. Rev. 1175] which also neatly encapsulates Scalia's formalist view of law), and frowns upon judicially-crafted compromises between the requirements of the Constitution and perceived expediency (see, e.g., his dissent in "
Maryland v. Craig"); he has frequently pointed out that, regardless of whether or not moderate views are a good idea in politics, they are at root incompatible with the job of a judge: " [w] hat is a 'moderate interpretation' [of the Constitution] )? Halfway between what it says and what you want it to say?" [Boston News March 15 2006 http://www.boston.com/news/local/massachusetts/articles/2006/03/15/scalia_critical_of/]
Scalia's originalism frequently puts him on the conservative side of the Court in constitutional cases, and he is generally perceived as a conservative member of the court. He has received the lowest
Segal-Cover scoreof the current justices, and the lowest of all Supreme Court nominees measured; whereby the lower the score the more conservative a justice is presumed to be, and the higher the score the more liberal a justice is presumed to be. [http://ws.cc.stonybrook.edu/polsci/jsegal/qualtable.pdf] In a 2003 statistical analysis of Supreme Court voting patterns, Scalia and Justice Thomasemerged as the most conservative. [See http://pooleandrosenthal.com/the_unidimensional_supreme_court.htm .] [Lawrence Sirovich, "A Pattern Analysis of the Second Rehnquist Court," Proceedings of the National Academy of Sciences 100 (24 June 2003), available online at http://www.pnas.org/cgi/reprint/1132164100v1 .] However, his originalism occasionally brings results that defy conservative administrations. Judged by results alone, like his colleague Justice Clarence Thomas, Scalia has handed down decisions that might be called liberal in certain cases.
Hamiltonian political principles
In contrast to
libertarianconservatives, Scalia has a rather positive view of governmental power. At a 1982 conference on federalism, Scalia challenged conservatives to reexamine what he regarded as their hostile view toward national power. At a time when the presidencyand Senate were in the hands of Republicans, Scalia maintained that a "do nothing" approach toward national policymaking was "self-defeating" for purposes of achieving conservative policy goals. Scalia urged the members of the audience— "as Hamilton would have urged you—to keep in mind that the federal governmentis not bad but good. The trick is to use it wisely." [ Antonin Scalia, "The Two Faces of Federalism," "Harvard Journal of Law & Public Policy" 6 (1982): 19–22.] As a judge, Scalia has coupled his positive view of governmental power with a defense of Hamiltonian political principles.
In Court opinions and extra-judicial writings, he has defended a formalistic view of
separation of powers, which protects the least powerful institutions from overreaching by Congress, and which gives the executive branch substantial freedom to act with energy. Scalia has defended an energetic executive, whose powers are not limited to the explicit grants of authority under Article II and which is regarded as the sole organ in foreign affairs. He has defended a "political" conception of public administration that rejects the Progressive idea of administration as a neutral science, and he has embraced the three central components of Hamilton's administrative theory—unity, discretion, and policymaking. Scalia has defended a strong and independent federal judiciary, which is unafraid of striking down state and federal laws that conflict with the Constitution, but which is ultimately regarded as the least dangerous branch of government. And Scalia has defended a conception of the U.S. federal system where the federal government’s authority is dominant and the states are primarily protected against federal encroachment by the political process and the structural provisions of the Constitution. [James B. Staab, "The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court", pp. xxiv-xxxi.]
While Scalia's approach to textual interpretation is famously categorical, his approach to "
stare decisis" is not easily described, not least because originalists have not arrived at a singular answer on "stare decisis". In "An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good", 36 N.M. L. Rev. 419 (2006), Prof. Lee Strang argued, echoing Justice Frankfurter's formulation in " Coleman v. Miller", ["Coleman v. Miller" 307 U.S. 433, 460 (1939) (Frankfurter, concurring) ("In endowing [the Federal] Court [s] with 'judicial Power' the Constitution presupposed an historic content for that phrase ... Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union").] that "stare decisis" was sufficiently embedded in the common law understanding of courts to be implicit in Article III's grant of the judicial power, which means that originalists must find some account for "stare decisis"; Scalia's approach is best described as "moderate".
Unlike Justice Thomas, who is prone to reject "stare decisis" when he feels that a previous case has misinterpreted the Constitution, Scalia has steered a more moderate course. On the one hand, he has called for overruling many entrenched precedents that he considers unprincipled, most notably on
abortion, criminal procedure, the Eighth Amendment, and campaign finance regulations. [See, e.g., Scalia's opinions in " Stenberg v. Carhart" (calling for overruling " Planned Parenthood v. Casey"), " Dickerson v. United States" (calling for overruling " Miranda v. Arizona"), and " South Carolina v. Gathers" (calling for overruling " Booth v. Maryland"), and Justice Thomas's opinion which Scalia joined in " Randall v. Sorrell" (calling for overruling " Buckley v. Valeo").] Moreover, having a formalist preference for clear rules rather than malleable balancing tests, as described above, he has rejected certain Court-instituted doctrines. For example in " Tennessee v. Lane" (2004) he rejected the Congruence and Proportionality test (adopted by the Court seven years earlier for reviewing Congressional enforcements of the Fourteenth Amendment) as a "standing invitation to judicial arbitrariness and policy-driven decisionmaking." [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-1667 FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code ] ] However, in his solo dissent in that case, his explanation—"principally for reasons of "stare decisis"—of his ultimate choice of a standard to replace Congruence and Proportionality hints at a willingness to allow "stare decisis" to trump his own judicial philosophy. [Cf. Rossum, p. 97.] More notably, he has declined to revisit several New Deal-era precedents—on federalism—which according to many originalists unconstitutionally expanded Congress's power and restricted states' powers using overbroad interpretations of the Commerce Clause. [See, e.g., Justice Thomas's opinions in " Gonzales v. Raich" and " Hillside Dairy v. Lyons", which Scalia declined to join.] This might be explained, however, by Scalia's Hamiltonian political principles and, in particular, his favorable view of national power.
That Scalia would uphold some and overrule other precedents that contradict his judicial philosophy is an apparent inconsistency that has led Scalia's critics to note that the written constitution is not silent on precedent, and they conclude that originalism cannot be reconciled with "stare decisis". [
Laurence Tribein Antonin Scalia and Amy Guttman, "A Matter of Interpretation", Princeton (1998), p. 83.] Scalia has responded that "stare decisis" is a "pragmatic exception" to, not a part of, originalism. [Scalia in "ibid"., p. 140.] For example, overruling New Deal precedents would be impractical because entrenched Congressional enactments and federal regulations, such as the Social Security Act, would be invalidated (this is, however, the "modus operandi" encouraged by purists). In any event, it seems Scalia will vote to uphold entrenched statutes even if they may violate originalism (like New Deal legislation), but he will also vote to uphold statutes that violate entrenched precedent as long as they satisfy originalism (like certain regulations on abortion).
Because Scalia's approach to precedent has the intent, if not the effect, of deferring to popularly enacted statutes in many cases, he has drawn praise as a
judicial restraintist but criticism as a majoritarian. [Randy Barnett at http://volokh.com/archives/archive_2005_06_26-2005_07_02.shtml#1119812379 (by implication, referring to the " [un] willingness" of a "majoritarian like Scalia" to "judicially enforce federalism limitations on Congress").] [Adam Pritchard and Todd Zywicki, "Finding the Constitution: An Economic Analysis of Tradition's Role in Constitutional Interpretation," North Carolina Law Review, Vol. 77, 1998 SSRN|141857 ("Justice Scalia has articulated a majoritarian view of tradition that looks to the legislative practices of state legislatures").] [Ralph A. Rossum at http://www.claremont.org/writings/crb/fall2005/correspondence.html ("...Scalia has a 'vulgar majoritarian' understanding of democracy").] [James Huffman, "A Case for Principled Judicial Activism," Heritage Foundation Lecture #456 (20 May 1993), available online at http://www.heritage.org/Research/LegalIssues/HL456.cfm (characterizing Scalia as a "judicial restraintist" by implication, and asking "Why should the judiciary defer to democracy, as Justice Scalia would have it?").]
Jurisprudence in practice
Scalia claims to defend rights explicit in the Constitution or recognized by longstanding social or legal traditions, but refuses to enforce other rights on the presumption that the courts are the default vindicators of any claim deemed rightful. One exception to this is the Right to Privacy, which is not explicitly mentioned in the Constitution but is a long-standing legal tradition. Scalia has said on several occasions that he does not believe the Constitution guarantees a right to privacy. He has vociferously asserted that the Fourteenth Amendment's
Due ProcessClause does not protect abortion, sodomy, [ [http://www.firstthings.com/ftissues/ft0205/articles/scalia.html FIRST THINGS: A Journal of Religion, Culture, and Public Life ] ] [ [http://www.joink.com/homes/users/ninoville/pc1-25-02.asp NINOVILLE - an Antonin Scalia reference site ] ] assisted suicide, [See, e.g., " Washington v. Glucksberg".] parental control over child visitation, [Ring, p. 314.] [See " Troxel v. Granville" where Scalia explained that, while he recognized in the Ninth Amendment the right to direct the upbringing of one's children, the courts had no authority to invalidate duly passed laws violating that right. He contended that, instead, the legislature was not the proper venue for arguing against infringement of the right.] or manufacturers from large punitive damages. [See " BMW v. Gore".] With respect to the First Amendment, Scalia has voted to strike down laws restricting flag-burning, cross-burning, campaign contributions, and abortion protests.
With respect to procedural rights, he has resisted his colleagues' attempts to restrict the employment of the
death penaltyfollowing the Eighth Amendment's prohibition of "cruel and unusual Punishment." [ [http://ap.google.com/article/ALeqM5hSKKtDg6GlOtxvQADw_pW5FWEJ9wD8UP28A80] Dead link|date=March 2008] He holds that the Constitution does not bar capital punishment of people who were juveniles at the time of the crime, as he was the author of Stanford v. Kentucky, and he dissented in both " Thompson v. Oklahoma" and " Roper v. Simmons". On the Fifth Amendment, Scalia has criticized the Miranda warning. [See " Dickerson v. United States".] Conversely, he has ardently defended procedural rights explicit in the Constitution, for example arguing in " Hamdi v. Rumsfeld" (joined in dissent by his usual ideological opponent, Justice Stevens) that the government's detention of a U.S. citizen as an enemy combatantwithout charge was unconstitutional because Congress had not suspended the writ of habeas corpus. Scalia is similarly wary of government violations of the procedural guarantees of the Fourth, Fifth, and Sixth Amendments (e.g. the Confrontation Clausein "Maryland v. Craig" discussed above).
eparation of powers
Regarding the Constitution's allocation of power among the Executive, Legislative and Judicial branches, Scalia favors clear lines of separation over pragmatic considerations. In a 1989 dissent he argued that the
U.S. Sentencing Commission, which authorized federal judges to make policy in an executive capacity, violated the separation of power of the Judicial branch from the Executive. [Ring, pp. 43-44] In a 1987 dissent he criticized the Independent Counsel law as an unwarranted encroachment on the Executive branch by the Legislative. Justice Scalia has defended a formalistic interpretation of separation of powers primarily on the ground that it will make government officials more accountable and thereby better protect liberty. But there appears to be another reason for Scalia's formalism: to protect the powers of the executive branch. A central purpose of the framers' system of separation of powers was to guard against legislative tyranny, which has not been lost on Justice Scalia. He has said that the doctrine of separation of powers "not only protects, but pre-eminently protects, the Executive obligation to "take care that the Laws be faithfully executed," and he has warned that if government officials (particularly, the members of Congress) do not begin giving "more than lip service" to the doctrine "we will soon find ourselves living not under the Constitution but under a parliamentary democracy...." [David Ryrie Brink, Antonin Scalia, and Richard B. Smith, Brief for American Bar Association as Amicus Curiae in INS v. Chadha, and "1976 Bicentennial Institute--Oversight and Review of Agency Decisionmaking," "Administrative Law Review" (1976) 28 (No. 4): 569-742, 694. ] Some claim there exists a double standard in Justice Scalia's separation of powers jurisprudence, alleging that he has been much less concerned about enforcing a formalistic interpretation of separation of powers when the executive branch's authority is called into question, and that he has shown more concern about congressional conferrals of core legislative power on the executive branch than he has shown about congressional usurpation of core executive functions. The latter, critics claim, was most apparent in his dissenting opinion in " Clinton v. City of New York", where he supported (against Presentment Clauseobjections) the conferral of line-item vetoauthority on the president. [James B. Staab. "The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court,"pp. 35-88.]
Scalia was a former Professor of Administrative Law at the University of Chicago. He is very dubious of agency authority to, in his view, create law. As his dissent in the "Brand X" cable TV ISP case indicates, he was suspicious that the
FCCrules to make one service telecommunications servicerather than an information servicein an arbitrary way by analogizing from the example of home delivered pizza. Scalia reasoned that the majority's view would have courts divide the delivery service apart from the pizza baking service.
This section lists cases which form an essential introduction to Scalia's jurisprudence, views and writing style.
Edwards v. Aguillard", 482 U.S. 578 (1987) (dissenting)
United States v. Taylor" 487 U. S. 326 (1988) (concurring)
Morrison v. Olson", 487 U. S. 654 (1988) (dissenting)
Thompson v. Oklahoma", 487 U. S. 815 (1988)
Coy v. Iowa", 487 U. S. 1012 (1988) (cf. " Maryland v. Craig", 497 U.S. 836 (1990), dissenting)
Stanford v. Kentucky", 492 U.S. 361 (1989)
Texas v. Johnson", 491 U.S. 397 (1989) (concurring)
Oregon v. Smith", 494 U.S. 872 (1990) (author of majority opinion)
Rutan v. Republican Party of Illinois", 497 U.S. 62 (1990)
Harmelin v. Michigan", 501 U. S. 957 (1991) (concurring in part and writing for the Court in part)
Lee v. Weisman", 505 U. S. 577 (1992) (dissenting)
Planned Parenthood v. Casey", ussc|505|833|1992 (dissenting)
Lamb's Chapel v. Center Moriches School District", 508 U.S. 384 (1993) (concurring)
Mertens v. Hewitt Associates", ussc|508|243|1993
Romer v. Evans", 517 U.S. 620 (1996) (dissenting)
United States v. Virginia", 518 U. S. 515 (1996) (dissenting)
Wabaunsee County v. Umbehr", 518 U. S. 668 (1996)
United States v. Playboy Entertainment Group", 529 U.S. 803 (2000)
Troxel v. Granville", ussc|530|57|2000
Stenberg v. Carhart", 530 U. S. 914 (2000) (dissenting)
Bush v. Gore", 531 U.S. 98 (2000)
PGA Tour, Inc. v. Martin", 532 U.S. 661 (2001) (dissenting)
Rogers v. Tennessee", 532 U.S. 451 (2001) (dissenting)
Kyllo v. United States", 533 U.S. 27 (2001)
Adarand Constructors v. Peña", [http://straylight.law.cornell.edu/supct/html/93-1841.ZS.html 515 US 200] (1995) (concurring)
Atkins v. Virginia", 536 U.S. 304 (2002) (dissenting)
*"McConnell v. Federal Elections Commission", 540 U. S. 93 (2003)
Lawrence v. Texas", 539 U. S. 558 (2003), (dissenting)
Hamdi v. Rumsfeld" 542 U. S. 507 (2004), (dissenting, joined by Justice John Paul Stevens)
Crawford v. Washington", 541 US 36 (2004)
Roper v. Simmons", ussc|543|551|2005 (dissenting)
*"Brand X", (dissenting)
Gonzales v. Raich", Docket No. 03-1454, (concurring)
McCreary County v. ACLU of Kentucky", Docket No. 03-1693, (dissenting)
District of Columbia v. Heller", Docket No. 07-290 (author of majority opinion)
Gonzales v. Oregon", (dissenting)
Georgia v. Randolph", (dissenting)
Hamdi v. Rumsfeld", (dissenting)
American Trucking Associations v. Scheiner", (dissenting)
ixth Amendment case study
There is a particularly striking line of cases, beginning in 1989 and reaching its logical conclusion in 2005 with "Booker", which illustrates Scalia's writing style and views on a particular subject, viz., the requirement that a jury must determine all facts which relate to a sentence, a Constitutional guarantee which endangered (in "Blakely") and then led to the toppling (in "Booker") of the
Federal Sentencing Guidelinesas the sole means of determining a sentence for a federal crime. That line of cases is as follows:
Mistretta v. United States", 488 U.S. 361 (1989) (dissenting)
Neder v. United States", ussc|527|1|1999 (dissenting)
Apprendi v. New Jersey", ussc|530|466|2000 (concurring)
Harris v. United States", ussc|536|545|2002 (concurring)
Ring v. Arizona", ussc|536|584|2002 (concurring)
Blakely v. Washington", ussc|542|296|2004
Schriro v. Summerlin", ussc|542|348|2004
United States v. Booker" ussc|543|220|2005 (concurring in part and dissenting in part)
(Refer to Morano, [http://sentencing.typepad.com/sentencing_law_and_policy/files/justice_scalias_insaturation.doc "Justice Scalia: His Instauration of the Sixth Amendment in Sentencing"] for pre-"Booker" discussion of this line of cases).
Judicial temperament and personality
Scalia's approach to textual interpretation is not the only substantial change he has brought to the bench. In a position that has often been characterized by substantial circumspection in writing and public behavior, Scalia has been especially willing to display his personality and wit and to attract, if not embrace, public controversy. Scalia is sometimes referred to by the nickname "Nino", and his colleagues refer to the frequent short case-related memos he sends as Ninograms. [Edward Lazarus,
C-SPANBooknotes, [http://www.booknotes.org/Transcript/?ProgramID=1417 "Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court"] , June 14, 1998. Retrieved Nov. 29, 2006.] Despite ideological differences, he is socially friendly with Ruth Bader Ginsburg, who considers Scalia her closest confidant and colleague, and keeps in her office pictures of herself and Scalia together at the Washington Operaand on a trip to India. [Oyez.org, [http://www.oyez.org/tour/rbg-room/rbg_opera/ "Justice Ruth Bader Ginsburg's Chambers: At the Opera"] . Retrieved Mar. 11, 2007.] [Oyez.org, [http://www.oyez.org/tour/rbg-room/rbg_elephant/ "Justice Ruth Bader Ginsburg's Chambers: Scalia & Ginsburg on elephant"] . Retrieved Mar. 11, 2007.]
At oral argument and in written opinions
Scalia is well known for his lively questioning during arguments before the court; one litigator who argued before the Court compared Scalia's questioning style to "a big cat batting around a ball of yarn." [OYEZ Biography http://www.oyez.org/oyez/resource/legal_entity/103/print] It has been observedWho|date=July 2008 that his aggressive questioning style at oral argument was virtually unknown upon his arrival at the Court, but has become virtually the norm in the succeeding twenty years as new Justices arrived.
In his concurring and dissenting opinions, he frequently refers to fellow Justices personally, quoting them from past opinions to point out what he considers inconsistencies in their reasoning or broad judicial philosophy, or accusing them of inventing legal standards out of thin air. " [Alt] hough Scalia's judicial philosophy resemble [s] that of
Hugo Black, his temperament [i] s closer to that of William O. Douglas, and that proved to be his undoing." Rosen, "The Supreme Court" 183 (2007). His strongest commentary has often been directed at his more moderate fellow conservatives, Justices Sandra Day O'Connorand Anthony Kennedy, for reasons including what he saw as the former's equivocation on abortion and the latter's willingness to take persuasive guidance from foreign law in his opinions. [See, e.g., Bill Adair, "Spirited Scalia not one to shy away," "St. Petersburg Times" (Florida), April 25, 2004.] His written opinions are also known, in the context of judicial custom, for their unusually commonplace phrasing. The combination of Scalia's often pointed, uncompromising and corrosive writing with his layman approach to penmanship have led some to deduce an intention of influencing future lawyers and legal practitioners to accord with his judicial philosophy. [Joan Biskupic at http://www.usatoday.com/news/washington/2002-09-17-scalia-1acover_x.htm "No Shades of Gray for Scalia" in USA Today] Already affecting legal discourse and practice is Scalia's persistent criticism of the use of legislative history in statutory interpretation, according to Judge Alex Kozinski, who has said that "legislative history just ain't worth what it was a few years ago." [*Judge Alex Kozinski, [http://alex.kozinski.com/articles/My_Pizza_with_Nino.pdf "My Pizza With Nino,"] 12 "Cardozo L. Rev." 1583 (1991)] Scalia has even earned respect from political liberals; Senate Democratic leader Harry Reidhas said, " [T] his is one smart guy. And I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute." [ [http://www.msnbc.msn.com/id/6646457/ "Meet the press"] , Dec. 5, 2004.] [Richey, Warren, "One scenario: Chief Justice Scalia?", "Christian Science Monitor", May 13, 2005.] Others have commented that Justice Scalia's aggressive criticisms of Justices Kennedy and O'Connor may have diminished the willingness of those Justices to form a stable conservative coalition on the Court. [Savage, David, [http://www.latimes.com/news/nationworld/nation/la-na-scalia20feb20,0,2904604.story?coll=la-home-headlines "Supreme Court's new tilt could put Scalia on a roll,"] "Los Angeles Times", Feb. 20, 2007.]
Relations with the electronic media
Strongly protective of his privacy, Scalia formerly severely restricted the
electronic mediafrom recording his speaking engagements, citing his "First Amendment right not to speak on the radio or television when I do not wish to do so."
In April 2004, at a Scalia speech in
Hattiesburg, Mississippi, U.S. Marshal Melanie Rube, acting as security detail, confiscated the audio tape of a reporter covering the event. After some controversy over the incident, Scalia apologized and stated he did not order the Marshal to do so. He has since amended his policy so that print reporters are now allowed to record his speeches to "promote accurate reporting."
More recently, he appears to be relaxing the electronic media stricture as well—at least two of his recent speeches have been covered by
C-SPAN. This is possibly related to the graduation from college of the last of his children, whose privacy has potentially been a factor in Scalia's desire for privacy (see discussion in Mark Tushnet, "A Court Divided"), and Scalia has recently been quoted as saying that "My kids have been working on me to get out and do more public appearances...They think it makes it harder to demonize you—and I agree." [ [http://www.nydailynews.com/news/gossip/story/368170p-313281c.html Celebrity Scandals and Gossip - NY Daily News ] ]
Views on televising Supreme Court sessions
Like Justice Souter—who has averred that "the day you see a camera come into our courtroom, it's going to roll over my dead body" [Harper, Liz. [http://www.pbs.org/newshour/indepth_coverage/law/supreme_court/justices/souter.html Profile: Justice David H. Souter] . "The Online Newshour". Retrieved Aug. 24, 2008.] [AP. [http://query.nytimes.com/gst/fullpage.html?res=9A00E6D71539F933A05750C0A960958260 On Cameras in Supreme Court, Souter Says, 'Over My Dead Body'] . "New York Times". Mar. 30, 1996. Retrieved Aug. 24, 2008] —Scalia has opposed the introduction of live television broadcasts of Supreme Court oral arguments. In an early 2005 roundtable discussion with Justices O'Connor and Breyer at the National Archives, also carried by
C-SPAN, he noted that he would approve of both audio and television broadcasts if he could be confident that it would go out "and be watched" gavel-to-gavel. He characterized his objections as relating to the possibility for sensationalism, excerptation, and the fostering of an inaccurate picture of the Supreme Court's operation.
Recusals and non-recusals
Perhaps more than any other recent Justice, Scalia's choices regarding whether to recuse himself from upcoming cases following controversial statements and acts have garnered public attention.
*Scalia did recuse himself in one case, "
Elk Grove Unified School District v. Newdow," following public comments in Virginia while the case was pending that were characterized (by the Mayor who introduced Scalia at the appearance) as making it "clear that he [Scalia] thought anyone who did not want school children to say the Pledge of Allegiance with the words 'under God' in it deserved a spanking." [Tony Mauro, Legal Times, [http://www.law.com/jsp/article.jsp?id=1066080440869 "Scalia Recusal Revives Debate Over Judicial Speech, Ethics"] , October 20, 2003. Retrieved Nov. 29, 2006.] It is not universally accepted that Scalia was under any obligation to do so, and in light of subsequent events, some have suggested that he should not have done so. [Brian T. Fitzpatrick, The National Law Journal, [http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1145621801235 "Scalia's mistake"] , April 24, 2006. Retrieved Nov. 29, 2006.]
*Scalia refused, however, to recuse himself in the case of "
Cheney v. United States District Court for the District of Columbia", a case dealing with the right of the Vice-President to keep secret the membership of an advisory task force on energy policy. Scalia was asked to recuse because he had previously gone on a hunting trip with various persons including Cheney; Scalia refused, and took the relatively uncommon step of defending his refusal to recuse himself from the case with a public memorandum, focusing on the distinction between official capacity and personal capacity suits, and concluding that because Vice President Cheney was sued in his official capacity, any personal relationship that existed between the two men was irrelevant to Scalia's ability to render an impartial judgment. "I do not believe my impartiality can reasonably be questioned," concluded Scalia. [ [http://www.supremecourtus.gov/opinions/03pdf/03-475scalia.pdf "CHENEY v. UNITED STATES DIST. COURT FOR D. C."] , March 18, 2004. Retrieved Nov. 29, 2006.] Failed verification|date=July 2008 Scalia, concurring with the majority, supported Cheney's position in the case.
*Scalia was again asked to recuse from "
Hamdan v. Rumsfeld". While the case was pending before the court, Scalia answered a question during a Q&A session at the University of Fribourg in Switzerland, where he rejected in principle that detainees at Guantanamo Bay have the right to be tried in civil courts. Having noted that the Constitution applies to Americans the world over and to all persons in the United States, Scalia explicitly rejected the notion that the Constitution protects non-Americans outside of the United States, and added:::War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break. If he was captured by my [America's] army on a battlefield, that is where he belongs.:Also of concern to those petitioning for recusal in "Hamdan" was an additional comment that "I had a son [Matthew Scalia] on that battlefield; 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." Scalia declined to recuse himself from "Hamdan", this time without comment. [ BBC News, [http://news.bbc.co.uk/1/hi/world/americas/4848834.stm "Judge 'rejects Guantanamo rights'"] , 27 March 2006. Retrieved Nov. 29, 2006.] [Mark Coultan, Sydney Morning Herald, [http://smh.com.au/news/world/comments-on-rights-of-detainees-cast-doubt-on-judges-role-on-court/2006/03/27/1143441083311.html "Comments on rights of detainees cast doubt on judge's role on court"] , March 28, 2006. Retrieved Nov. 29, 2006.] This incident led law professor and conservative commentator Ron Cass to complain that it was becoming fashionable in certain circles for those who oppose Scalia to demand that Scalia recuse himself as a strategy to nullify his vote. [Ronald A. Cass, Real Clear Politics, [http://www.realclearpolitics.com/articles/2006/03/stalking_justice.html "Stalking Scalia"] , March 30, 2006. Retrieved Nov. 29, 2006.]
Views on the death penalty
Antonin Scalia delivered a speech at the University of Chicago Divinity School in 2002 expressing his views on the subject of the death penalty. In a speech refuting many common lines of thought, Scalia declares himself neutral on the death penalty, but defends its usage as not being immoral. [Scalia, Antonin. [http://www.firstthings.com/article.php3?id_article=2022 God's Justice and Ours] . "First Things". May, 2002. pp. 17-21. Retrieved Aug. 24, 2008]
*Ring, Kevin A., "Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice" (Regnery Publishing, Inc., November 25, 2004); ISBN 0-89526-053-0
*Rossum, Ralph, "Antonin Scalia's Jurisprudence: Text and Tradition" (University Press of Kansas, Feb. 6, 2006); ISBN 0-7006-1447-8
*Scalia, Antonin, and Amy Gutmann, ed., "A Matter of Interpretation: Federal Courts and the Law" (Princeton, July 27, 1998); ISBN 0-691-00400-5
*Staab, James B. "The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court" (Rowman & Littlefield, 2006) (ISBN 0-7425-4311-0).
*Tushnet, Mark, "A Court Divided" (W. W. Norton & Company, January 30, 2005); ISBN 0-393-05868-9
*Gordon, Robert (November 1, 2005). [http://www.slate.com/id/2129107/nav/tap1/ "Alito or Scalito?"] . "Slate".
* [http://www.supremecourtus.gov/about/biographiescurrent.pdf Official Supreme Court biography] (PDF)
* [http://www.oyez.org/oyez/resource/legal_entity/103/biography Biography] from the Oyez Project
* [http://www.supremecourthistory.org/myweb/justice/scalia.htm Biography] from the Supreme Court Historical Society
* [http://civilliberty.about.com/od/ussupremecourt/ig/Know-Your-Supreme-Court/Justice-Antonin-Scalia.htm Biography] from About.com
*A [http://csmonitor.com/cgi-bin/durableRedirect.pl?/durable/1998/03/03/us/us.3.html Profile] of Scalia, from the "
Christian Science Monitor" (1998)
Alex Kozinski, "My Pizza With Nino", [http://alex.kozinski.com/articles/My_Pizza_with_Nino.pdf 12 Cardozo L. Rev. 1583] (1991)
* [http://www.joink.com/homes/users/ninoville Ninoville] - general repository of speeches and written materials; nascent index of Scalia opinions.
* [http://members.aol.com/schwenkler/scalia/index.htm/ Cult of Scalia] — fan site
* [http://dmoz.org/Society/Law/Legal_Information/Legal_History/Scalia,_Antonin/ Open Directory Project — "Antonin Scalia"] directory category
* [http://dir.yahoo.com/Government/U_S__Government/Judicial_Branch/Supreme_Court/Justices/Scalia__Antonin/ Yahoo — "Antonin Scalia"] directory category
Works by Scalia
*"Making Your Case: The Art of Persuading Judges" -- Co-authored with
Bryan A. Garner-- Thomson West
* [http://www.firstthings.com/ftissues/ft0205/articles/scalia.html God's Justice & Ours] (discussing Catholicism and the Death Penalty)
* [http://www.firstthings.com/article.php3?id_article=245 Law & Language] (reviewing Steven D. Smith's book "Law’s Quandary")
* [http://www.joink.com/homes/users/ninoville/lesserevil.asp Originalism: The Lesser Evil] (57 U. Cin. L. Rev. 849) (1989)
* [http://web.archive.org/web/19961109083140/http://www.lawsch.uga.edu/speeches/scalia.html Scalia lecture at Univ. of Georgia School of Law, 1989]
* [http://web.archive.org/web/19970528234317/http://courttv.com/library/rights/scalia.html Scalia lecture at the Catholic Univ. of America, 1996]
*"A Matter of Interpretation: Federal Courts and the Law" (ISBN 0-691-00400-5)
Periodical articles and miscellaneous content
* [http://everything2.com/index.pl?node_id=1069202 Antonin Scalia considers the meaning of golf] - Article at
* [http://www.newamerica.net/index.cfm?pg=article&DocID=2291 Supreme Confidence] By Margaret Talbot, and [http://www.newyorker.com/online/content/index.ssf?050328on_onlineonly01 Related interview]
* [http://www.usatoday.com/news/washington/2002-09-17-scalia-1acover_x.htm No Shades of Grey]
* [http://www.slate.com/id/2090532/ "Scaliapalooza"] by Dahlia Lithwick
* [http://www.slate.com/id/2123935/ The Souter Factor]
* [http://www.nytimes.com/2005/12/31/politics/31mirth.html?hp&ex=1136005200&en=1a35bc2f8ef21419&ei=5094&partner=homepage So, Guy Walks Up to the Bar, and Scalia Says...] - study concludes Scalia is funniest justice
* [http://famosity.blogspot.com/2006/08/antonin-scalia-and-case-of-albemarle.html Antonin Scalia and the Case of the Albemarle Pippins]
* [http://www.youtube.com/watch?v=vsCEmijppzo Associate Justice Scalia on Guantanamo Bay]
* [http://www.legalaffairs.org/issues/November-December-2003/argument_frost_novdec03.msp What Would Aristotle Make Of Scalia?] by Michael Frost.
* [http://www.claremont.org/publications/crb/id.1097/article_detail.asp The Wit and Wisdom of Justice Scalia] , by Ralph A. Rossum, "Claremont Review of Books" (on two books that collect Scalia's opinions, dissents, and concurrences)
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