Antonin Scalia

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Antonin Gregory Scalia (born March 11, 1936) is an American jurist on the Supreme Court of the United States who has been a prominent conservative and originalist voice of textualism in statutory interpretation and original meaning in constitutional interpretation. He is of Sicilian heritage and is the first Italian American to be appointed to the Supreme Court.

Early life

Antonin Scalia was born in Trenton, New Jersey. His mother, Catherine, was born in the United States; his father, S. Eugene, a professor of romance languages, emigrated from Sicily at age 15. 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 College in Flatbush, Brooklyn.

A member of the Roman Catholic Church, Scalia attended Xavier High School, a Catholic and Jesuit school in Manhattan. He graduated first in his class and summa cum laude with an A.B. from Georgetown University in 1957. While at Georgetown, he also studied at the University of Fribourg, Switzerland and went on to study law at Harvard Law School (where he was a Notes Editor for the Harvard Law Review). He graduated magna cum laude from Harvard in 1960, becoming a Sheldon Fellow of Harvard University the following year. The fellowship allowed him to travel throughout Europe during 1960-1961.

On September 10, 1960, Scalia married Maureen McCarthy, an English major at Radcliffe College. Together they have nine children – Ann Forrest, Eugene (labor and employment law attorney), John Francis, Catherine Elisabeth, Mary Clare, Paul David (now a priest in the Catholic Diocese of Arlington at St. Rita's Catholic Church), Matthew (a West Point graduate and Army officer currently serving in ROTC at the University of Delaware), Christopher James, and Margaret Jane.

Scalia is sometimes referred to by the nickname "Nino", and his colleagues refer to the frequent short case-related memos he sends as Ninograms. [link]

Legal career

Scalia began his legal career at Jones, Day, Cockley and Reavis in Cleveland, Ohio, where he worked from 1961-1967, subsequently becoming a Professor of Law at the University of Virginia in 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. 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 Chicago Law School from 1977-1982, and then as Visiting Professor of Law at Georgetown University Law Center and 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 Reagan appointed him 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 as an Associate Justice of the Supreme Court of the United States to fill in the vacancy left by Reagan's nomination of Associate Justice William Rehnquist to be 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 and he took his seat on September 26, 1986, becoming the first Italian-American Justice on the Supreme Court of the United States.

Legal philosophy and approach

A formalist, Scalia is considered the Court's leading proponent of textualism and originalism (he is careful to distinguish his philosophy of original meaning from original intent). These schools of jurisprudence emphasize careful adherence to the text of both the Constitution of the United States and federal statutes as that text would have been understood to mean when adopted.

Scalia often relies upon tradition and history to discern the original meaning of unclear constitutional provisions, and when interpreting statutory language, he considers legislative history to be an irrelevant and unreliable interpretive tool. This aversion for legislative history is a central tenet of textualism, and is infused with both an appreciation for public choice theory and of the realities of legislative compromise (i.e., the statutory text being the only reliable evidence of the deal that was struck). 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.

These precepts lead Scalia to seek out bright-line rules rather than abstract balancing tests (one of his most frequently-cited works off the bench is an essay titled "The Rule of Law as a Law of Rules", 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?" [link]

Scalia's originalism frequently puts him on the conservative side of the Court in constitutional cases, but 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 libertarian in certain cases. For example:

• In Texas v. Johnson, which ruled that flag burning was protected speech, he joined the majority without qualification.
• In Kyllo v. United States, Scalia's opinion for the Court held that the government could not use a thermal imaging device to scan a person's home unless there was a search warrant.
• In Hamdi v. Rumsfeld, Scalia wrote a dissenting opinion that the President's detention of enemy combatants was unconstitutional because Congress had not suspended the writ of habeas corpus (the only other member of the court to share that view was John Paul Stevens, one of the Court's more liberal justices). Scalia's view in Hamdi was the most restrictive of any of the Justices upon the government's power to deal with U.S. citizens alleged to be "unlawful combatants," arguing that there was no legal basis for such a designation absent Congressional suspension of the writ, and that in the absence of such a suspension, ordinary criminal process must prevail.
• In a series of cases - most prominently Ring v. Arizona and Blakely v. Washington, Scalia expressed his view that under the Sixth Amendment only a jury — and not a judge — could impose the death penalty, writing in Ring that "[w]e cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it." Leading on directly and logically from Ring and earlier Scalia opinions devoted to preservation of a meaningful right to jury trial, Scalia finally wrote for a majority in Blakely, which ruled that sentences could not be increased because of facts determined by judges rather than juries.

By contrast, Scalia's decisions on abortion or gay rights issues could be characterized as opposing a libertarian viewpoint; for example, in Lawrence v. Texas, Scalia denied that the Constitution protected the right to engage in sodomy, and in various cases - most comprehensively in Webster v. Reproductive Health Services and Planned Parenthood v. Casey - he has argued that the Constitution does not protect a right to have an abortion (arguing that the Constitution neither forbids a state from permitting abortion nor requires it to.[link][link]). However, these seemingly conflicting trends become rational when considered in terms of process rather than results; Scalia strongly defends rights explicitly protected by the Constitution (such as the Fourth amendment rights at issue in Kyllo, or the sole prerogative of the Congress to suspend the writ in Hamdi) but is unwilling to protect rights that the Constitution does not explicitly guarantee on the presumption that the courts are the default vindicators of any claim deemed rightful.

Important cases

This section lists cases which form an essential introduction to Scalia's jurisprudence, views and writing style.

• United States v. Taylor 487 U. S. 326 (1988) (concurring)
• Morrison v. Olson, 487 U. S. 654 (1988)
• 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)
• Oregon v. Smith, 494 U.S. 872 (1990)
• Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)
• Harmelin v. Michigan, 501 U. S. 957 (1991)
• Lee v. Weisman, 505 U. S. 577 (1992)
• Planned Parenthood v. Casey, 510 U. S. 1309 (1992)
• Lamb's Chapel v. Center Moriches School District, 508 U.S. 384 (1993) (concurring)
• Romer v. Evans, 517 U.S. 620 (1996)
• United States v. Virginia, 518 U. S. 515 (1996)
• Wabaunsee County v. Umbehr, 518 U. S. 668 (1996)
• United States v. Playboy Entertainment Group, 529 U.S. 803 (2000)
• Troxel v. Granville, [530 U.S. 57] (2000)
• Stenberg v. Carhart, 530 U. S. 914 (2000)
• PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (dissenting)
• Adarand Constructors v. Peña, [515 US 200] (1995) (concurring)
• Atkins v. Virginia, 536 U.S. 304 (2002)
• 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)
• Roper v. Simmons, Docket No. 03-633 (dissenting)
• Gonzales v. Raich, Docket No. 03-1454, (concurring)
• McCreary County v. ACLU of Kentucky, Docket No. 03-1693

• Current Term
• Gonzalez v. Oregon, (dissenting)
• Georgia v. Randolph, (dissenting)
• Hamdan v. Rumsfeld, (dissenting)

Sixth Amendment case study

There is a particularly strong line of cases, beginning in 1989 and reaching its logical conclusion last term in 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 outright overturning (in Booker) of the Federal Sentencing Guidelines. That line of cases is as follows:

• Crawford v. Washington, 541 US 36 (2004)
• Mistretta v, United States, 488 U.S. 361 (1989) (dissenting)
• Neder v. United States, [527 U.S. 1] (1999) (dissenting)
• Apprendi v. New Jersey, 530 U.S. 466 (2000) (concurring)
• Harris v. United States, 536 U.S. 545 (2002) (concurring)
• Ring v. Arizona, 536 U.S. 584, 613 (2002) (concurring)
• Blakely v. Washington
• Schriro v. Summerlin
• United States v. Booker (concurring in part and dissenting in part)

(Refer to Morano, ["Justice Scalia: His Insaturation 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.

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" [link]. It has been observed 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. His strongest commentary has often been directed at his more moderate fellow conservatives, Justices Sandra Day O'Connor and 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.

Relations with the electronic media

Strongly protective of his privacy, Scalia formerly severely restricted the electronic media from 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 structure as well -- at least two of his recent speeches have been covered by CSPAN. This is possibly related to the graduation from college of the last of his children, whose privacy has potentially been a major factor in the strongly family-oriented 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." [link]

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",[link][link] - Scalia has opposed the introduction of live television broadcasts of Supreme Court oral arguments. In a Spring 2005 roundtable discussion with Justices O'Connor and Breyer at the National Archives -- also carried by CSPAN -- he noted that he would approve of both audio and televisual 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 garned 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."[link] 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. [link]

• 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 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 judgement. "I do not believe my impartiality can reasonably be questioned," concluded Scalia. [link]

• 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 Freiburg 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. [link] [link] This incident led law professor and conservative commentator Ron Cass to complain that it was becoming fashionable in certain circles that oppose Scalia to demand that Scalia recuse himself as a strategy to nullify his vote. [link]

The hand gesture incident

In March 2006, a Boston Herald reporter approached Scalia after a Red Mass, asking if he faced questioning over impartiality on matters of church and state. Scalia replied, "You know what I say to those people?" and made a gesture originally misreported by both liberal and conservative sources as the bird.[link] Subsequent reports clarified that it was the traditional Italian gesture of disdain, "cupping the hand under the chin and flicking the fingers like a backward wave".[link]

After the Herald ran the article (which, inter alia, referred to Scalia as an "Italian jurist" [link][link]) Scalia submitted a letter to the editor of the Herald, stating "from watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene -- especially when made by an 'Italian jurist'. (I am, by the way, an American jurist.)" His letter quoted from the Luigi Barzini book, The Italians: "The extended fingers of one hand moving slowly back and forth under the raised chin means 'I couldn't care less. It's no business of mine. Count me out.'"[link][link][link]

The gesture was captured by a freelance photographer for the Pilot, the Archdiocese of Boston's newspaper.[link] The photograph [link] shows Scalia making the gesture referred to in his letter - not giving the finger. The photographer said later that Scalia accompanied the gesture with the utterance "vaffanculo"; a nearby Boston Herald reporter, however, stated that he heard no such utterance. [link]

At the 2006 White House Correspondents Dinner, comedian and fake news pundit Stephen Colbert parodied this incident in his routine. Scalia himself was in the audience and was seen laughing at the parody.

Further reading

• Ring, Kevin A., Scalia Dissents : Writings of the Supreme Court's Wittiest, Most Outspoken Justice (Regnery Publishing, Inc., November 25, 2004); ISBN 0895260530
• Tushnet, Mark, A Court Divided (W. W. Norton & Company, January 30, 2005); ISBN 0393058689

References

• Gordon, Robert (Nov. 1, 2005). ["Alito or Scalito?"]. Slate.
• Scalia, Antonin (2001). ["KYLLO V. UNITED STATES (99-8508) 533 U.S. 27 (2001) 190 F.3d 1041, reversed and remanded."]. Retrieved Nov. 2, 2005.

External links

Biographical

• [Supreme court official biography] (PDF)
• [Biography] from the Oyez Project
• [Biography] from the Supreme Ct. historical society
• A [Profile] of Scalia, from the Christian Science Monitor (1998)
• Judge Alex Kozinski, My Pizza With Nino, [12 Cardozo L. Rev. 1583] (1991)

Websites

• [Ninoville] - general repository of speeches and written materials; nascent index of Scalia opinions.
• [Cult of Scalia] — fan site
• [Open Directory Project — Antonin Scalia] directory category
• [Yahoo — Antonin Scalia] directory category

Works by Scalia

• [God's Justice & Ours] (discussing Catholicism and the Death Penalty)
• [Law & Language] (reviewing Steven D. Smith's book Law’s Quandary)
• [Originalism: The Lesser Evil] (57 U. Cin. L. Rev. 849) (1989)
• [Scalia lecture at Univ. of Georgia School of Law, 1989]
• [Scalia lecture at the Catholic Univ. of America, 1996]

A Matter of Interpretation: Federal Courts and the Law

Newspaper articles and miscellaneous content

• [Supreme Confidence] By Margaret Talbot, and [Related interview]
• [No Shades of Grey]
• ["Scaliapalooza"] by Dahlia Lithwick
• [The Souter Factor]
• [So, Guy Walks Up to the Bar, and Scalia Says...] - study concludes Scalia is funniest justice

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