Scalia: A jurist of immense consequence
Antonin Scalia, who combined a zest for intellectual combat with a vast talent for friendship, was a Roman candle of sparkling jurisprudential theories leavened by acerbic witticisms.
The serrated edges of his most passionate dissents sometimes strained the court’s comity and occasionally limited his ability to proclaim what the late Justice William Brennan called the most important word in the court’s lexicon: “Five.”
Scalia was, however, one of the most formidable thinkers among the 112 justices who have served on the court, and he often dissented in the hope of shaping a future replete with majorities steeped in principles he honed while in the minority.
Those principles include textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them. These principles of judicial modesty were embraced by a generation of conservatives who recoiled from what they considered the unprincipled creation of rights by results-oriented Supreme Court justices and other jurists pursuing their preferred policy outcomes.
Today, however, America’s most interesting and potentially consequential argument about governance is not between conservatives and progressives but among conservatives. It concerns the proper scope of the judicial supervision of democracy.
Scalia worried more than some other conservatives do about the “counter majoritarian dilemma” supposedly posed by judicial review — the power of appointed justices to overturn the work of elected legislators. Many Scalia-style conservatives distill their admiration into a familiar phrase of praise: “judicial restraint.” Increasing numbers of conservatives, however, reason as follows: Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution.
But as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that “governments are instituted among men.”
Scalia’s death will enkindle a debate missing from this year’s presidential campaign, a debate discomfiting for some conservatives: Do they want a passive court that is deferential to legislative majorities and to presidents who claim untrammeled powers deriving from national majorities? Or do they want a court actively engaged in defending liberty’s borders against unjustified encroachments by majorities?
This is an overdue argument that conservatism is now prepared for because of Scalia’s elegant mind. He was crucial to the creation of an alternative intellectual infrastructure for conservative law students. The Federalist Society, founded in 1982, has leavened the often monochrome liberalism of law schools, and Scalia has been the jurisprudential lodestar for tens of thousands of students in society chapters coast to coast.
Students of the court understand that, given Sen. Harry Reid’s demonstrated disdain for Senate rules, if Republicans had not won Senate control in the 2014 elections, the Nevada Democrat as majority leader would very likely now extend the institutional vandalism he committed in 2013. Then he changed Senate rules, by a simple majority vote and in the middle of a session, to prevent filibusters of judicial nominees other than Supreme Court nominees.
This enabled President Barack Obama to pack the nation’s second-most important court, that of the U.S. Court of Appeals for the District of Columbia Circuit. Were Reid still majority leader, the Senate’s only rule would be the whim of the majority of the moment, and his caucus would promptly proscribe filibusters of Supreme Court nominees.
One consequence would be this: The United States today is one Supreme Court vote away from a radical truncation of the First Amendment’s protection of freedom of speech. A Democratic president in 2017 would nominate to replace Scalia someone pledged to construe the amendment as permitting Congress to regulate political campaign speech, which would put First Amendment jurisprudence on a slippery slope to regarding ALL speech as eligible for regulation by the administrative state.
Scalia lived 27 years after the person who nominated him left office, thereby extending the reach of Ronald Reagan’s presidency and reminding voters of the long-lasting ripples that radiate from their presidential choices. — George Will is a columnist with the Washington Post Writers Group. Reach him at .
March 11, 1936 – February 12/13, 2016) was an Associate Justice of the Supreme Court of the United States from 1986 until his death in 2016. Appointed to the Court by President Ronald Reagan in 1986, Scalia 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. He attended public grade school, Xavier High School in Manhattan, and then college at Georgetown University in Washington, D.C. He obtained his law degree from Harvard Law School and spent six years in a Cleveland law firm, before he became a law school professor at the University of Virginia. In the early 1970s, he served in the Nixon and Ford administrations, eventually as an Assistant Attorney General. He spent most of the Carter years teaching at the University of Chicago, where he became one of the first faculty advisers of the fledgling Federalist Society. In 1982, Ronald Reagan appointed him as judge of the United States Court of Appeals for the District of Columbia Circuit. In 1986, Reagan appointed him to the Supreme Court. Scalia was asked few difficult questions by the Senate Judiciary Committee, and was unanimously confirmed by the Senate, becoming the first Italian-American justice.
Scalia served on the Court for nearly thirty years, during which time he espoused a conservative jurisprudence and ideology, advocating textualism in statutory interpretation andoriginalism in constitutional interpretation. He was a strong defender of the powers of the executive branch, believing presidential power should be paramount in many areas. He opposed affirmative action and other policies that treated minorities as special groups. He filed separate opinions in many cases and often castigated the Court's majority in his minority opinions using scathing language.
Scalia was born in Trenton, New Jersey, and was an only child. His father, Salvatore Eugene Scalia (1903–1986), an Italian immigrant from Sommatino, Sicily, 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 (Panaro) Scalia (1905–1985), was born in Trenton to Italian immigrant parents and worked as an elementary school teacher.
In 1939, Scalia's family moved to the Elmhurst section of Queens, New York, where he attended P.S. 13. After completing eighth grade in public school, he obtained a scholarship to Xavier High School, a Jesuit military school in Manhattan, where he graduated first in the class of 1953 and served as the valedictorian. He later stated that he spent much of his time on schoolwork, and admitted, "I was never cool." While a youth, he was also active as a Boy Scout and was part of Scouting's national honor society the Order of the Arrow.
Classmate and future New York State official William Stern remembered Scalia in his high school days:
In 1953, Scalia enrolled at Georgetown University, where he graduated valedictorian and summa cum laude in 1957 with a Bachelor of Arts degree 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 theHarvard Law Review. He graduated magna cum laude from Harvard in 1960, becoming a Sheldon Fellow of Harvard University. The fellowship allowed him to travel throughout Europe during 1960–1961.
Scalia began his legal career at the international law firm Jones, Day, Cockley and Reavis in Cleveland, Ohio, where he worked from 1961 to 1967. He was highly regarded at the law firm and would most likely have been made a partner, but later stated he had long intended to teach. He became a Professor of Law at the University of Virginia in 1967, moving his family to Charlottesville.
After four years in Charlottesville, Scalia entered public service in 1971. President Richard Nixon appointed him as the General Counsel for the Office of Telecommunications Policy, where one of his principal assignments was to formulate federal policy for the growth of cable television. From 1972 to 1974, he was the chairman of the Administrative Conference of the United States, a small independent agency that sought to improve the functioning of the federal bureaucracy. In mid-1974, Nixon nominated him as Assistant Attorney General for the Office of Legal Counsel. After Nixon's resignation, the nomination was continued by President Gerald Ford, and Scalia was confirmed by the Senate on August 22, 1974.
In the aftermath of Watergate, the Ford administration was engaged in a number of conflicts with Congress. Scalia repeatedly testified before congressional committees, defending Ford administration assertions of executive privilege 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, greatly increasing its 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 U.S. government, argued in support of Dunhill, and that position was successful. Following Ford's defeat by President Jimmy Carter, Scalia worked for several months at the American Enterprise Institute. He then returned to academia, taking up residence at the University of Chicago Law School from 1977 to 1982, though he spent one year as a visiting professor at Stanford Law School. In 1981, he became the first faculty adviser for the University of Chicago's chapter of the newly founded Federalist Society.
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 US 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." In 1985, though there was then no vacancy on the Court, Reagan administration officials put Scalia on a short list with fellow D.C. Circuit Judge Robert Bork, to be considered if a justice left the Court. In 1986, Chief Justice Warren Burger informed the White House of his intent to retire. Reagan first decided to nominate Associate Justice William Rehnquist to become Chief Justice. This choice meant that Reagan would also have to choose a nominee to fill Rehnquist's seat as associate justice.Attorney General Edwin Meese, who advised Reagan on the choice, seriously considered only Bork and Scalia. Feeling that this might well be Reagan's last opportunity to pick a Supreme Court justice, the President and his advisers chose Scalia over Bork. Many factors influenced this 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, and confirmed him 98–0 on September 17, 1986, creating the first Italian-American Justice. This vote followed Rehnquist's confirmation as Chief Justice by a vote of 65–33 on the same day. He 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".
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 theIndependent 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 Guidelinespromulgated by the Commission were invalid. Eight justices joined in the majority opinion written by Blackmun, upholding the Guidelines as constitutional. Scalia dissented, stating that the issuance of the Guidelines was a lawmaking function that Congress could not delegate, and dubbed the Commission "a sort of junior-varsity Congress".
In 1996, Congress passed the Line Item Veto Act which allowed the President to cancel items from an appropriations bill (a bill authorizing spending) once passed into law. The statute was challenged the following year. The matter rapidly reached the Supreme Court, which struck down the law as violating the Presentment Clause of the Constitution, which governs what the President may do with a bill once it has passed both Houses of Congress. Scalia dissented, seeing no Presentment Clause difficulties and feeling that the act did not violate separation of powers. Scalia indicated that he felt that authorizing the President to cancel an appropriation was no different from allowing him to spend an appropriation at his discretion, which had long been accepted as constitutional.
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 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 wrote that the AUMF could not be read to suspend habeas corpus and that the Court, faced with legislation by Congress which did not grant the President power to detain Hamdi, was trying to "Make Everything Come Out Right".
In March 2006, Scalia gave a talk at the University of Fribourg, in Switzerland, where he was asked about detainee rights. He responded, "Give me a break ... I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." Though Scalia was not referring to any particular individual, the Supreme Court was about to consider the case of Salim Ahmed Hamdan, supposed driver to Osama bin Laden, who was challenging the military commissions at Guantanamo Bay. A group of retired military officers that supported Hamdan's position asked Scalia to recuse himself, or step aside from hearing the case, which he declined to do. The Court held, 5–3, in Hamdan v. Rumsfeld, that the federal courts had jurisdiction to consider Hamdan's claims; Scalia, in dissent, contended that any ability by the Court to consider Hamdan's petition had been eliminated by the jurisdiction stripping Detainee Treatment Act of 2005.
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 the provision which imposed those duties unconstitutional as violating the Tenth Amendment, which reserves to the states and to the people those powers not granted to the federal government. In 2005, Scalia concurred in Gonzales v. Raich, which read the Commerce Clause to hold that Congress could ban the use of marijuana even where states approve its use for medicinal purposes. Scalia opined that the Commerce Clause, together with the Necessary and Proper Clause, permitted the regulation. In addition, Scalia felt that Congress may regulate intrastate activities if doing so is a necessary part of a more general regulation of interstate commerce. He based this decision on Wickard v. Filburn, which he now writes "expanded the Commerce Clause beyond all reason."
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 is actually contradictory to the language of the Amendment.