Justice Antonin Scalia was born on March 11, 1936 in Trenton, New Jersey. His father was an Italian immigrant; his mother the daughter of Italian immigrants. He grew up in Queens and attended high school in Manhattan. In 1957, he graduated as valedictorian of his class at Georgetown University. He went immediately to Harvard Law School, where he was Notes Editor for the Harvard Law Review. He graduated magna cum laude in 1960. Later that year, Scalia married Maureen McCarthy. Together, they had nine children. As a devout Catholic, Scalia called his large brood the result of “Vatican Roulette.”[1]
After graduating from Harvard, Scalia traveled Europe for a year as a Sheldon Fellow. In 1961, he settled in Ohio and worked for the law firm, Jones Day. After six years in private practice, he began teaching at University of Virginia School of Law. His career as a public servant began in the early 1970s. He was appointed to General Counsel for the Office of Telecommunications Policy in 1971. He then served as chairman of the Administrative Conference of the United States.[2] Under Nixon, he was confirmed as Assistant Attorney General for the Office of Legal Counsel. In 1976, Scalia argued Alfred Dunhill of London, Inc. v. Republic of Cuba before the Supreme Court. He worked briefly at the conservative think tank, American Enterprise Institute, before returning to teaching in 1977—this time at University of Chicago Law School. While at University of Chicago, he became the first faculty advisor to their Federalist Society chapter.
After being passed over for Solicitor General and turning down an appointment for the U.S. Court of Appeals for the Seventh Circuit, Scalia was appointed to the U.S. Court of Appeals for the D.C. Circuit in 1982. Four years later, he was nominated to the Supreme Court by Ronald Reagan and confirmed without dissent.[3] Of the current justices, Scalia had served longest.
On February 13th, just a month shy of his 80th birthday, Justice Antonin Scalia died of natural causes while on a private hunting trip in Texas. His wife, nine children, and 36 grandchildren survive him.
Justice Scalia championed originalism and textualism for statutory interpretation. He believed the words of the Constitution should be interpreted as they had been understood when adopted in the 18th century. As he said in 2013, “Words have meaning. And their meaning doesn’t change.”
The most famous of Scalia’s majority opinions, District of Columbia v. Heller, expanded Second Amendment rights. Scalia’s opinion in Crawford v. Washington expanded rights for criminal defendants.[4] However, Scalia was known for his stinging, at times derisive dissents, as much as for his majority opinions. He dissented vehemently against expansions of gay rights, affirmative action, and abortion rights, among other things. See e.g. Lawrence v. Texas; Romer v. Evans; Obergefell v. Hodges; Grutter v. Bollinger; Planned Parenthood v. Casey. Justice Scalia was unbothered by the idea that his judicial opinions appeared politically motivated. His response when asked about his controversial decision in Bush v. Gore, which halted a manual recount of Florida votes in 2000: “Get over it.”
By all accounts, Justice Scalia was fascinating and enjoyable in his personal life. He loved opera, poker, and hunting, good food and wine. He had a close friendship with his ideological opposite, Justice Ginsburg.
His death sparked a political firestorm, as liberals see this as a last opportunity to shape the Supreme Court’s trajectory before President Obama leaves office, and conservatives fear the same. Senate Republicans controlling the Judiciary Committee have refused to consider any nominees from Obama’s administration.
The Interjection:
As a law student, I admire Justice Antonin Scalia because I must. He was a well-liked man. He was man with a family, and in that capacity, I have no doubt he will be missed. He was also a brilliant man. He maneuvered his way through elite institutions and found a place in the highest court of the land. He was undoubtedly an influential Justice, whose biting dissents, at the very least, ignited a sense of popular righteousness for his views. His writing was clear and persuasive, leading the reader easily, perhaps stealthily, toward Scalia’s own conclusions.
But, as a liberal, as a minority, and as a woman, I disdain Justice Scalia. In my eyes, he actively thwarted marginalized and disempowered groups’ attempts to gain access to rights already enjoyed by the demographic to which he belonged. His pithy and clear style made it all the more obvious to me his deep-seated antipathy toward those minority groups.
Let us never forget: 1) His inclination to ignore racism in the criminal justice system for the sake of ease. To this, I refer to a memorandum from Justice Scalia regarding his vote on McCleskey v. Kemp. He wrote: “I plan to join Lewis [Powell]’s opinion in this case, with two reservations. I disagree with the argument that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue. And I do not share the view, implicit in the opinion, that an effect of racial factors upon sentencing, if it could only be shown by sufficiently strong statistical evidence, would require reversal. Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury deliberations and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot honestly say that all I need is more proof. Sincerely, Nino.”[5]; and
2) His recent remarks on affirmative action in the Fisher oral argument: “There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less – a slower track school where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them. The fact that the University of Texas may have fewer – Maybe it ought to have fewer. And maybe some you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”[6]
Perhaps too easily, my bitterness can be cast aside as the pitiful cries from a member of the losing team. My losing team, however, amounts to millions of Americans who experience his originalism as empty-heartedness—and much more acutely than even I will. His opportunistic adherence to originalism[7] baked a backward-looking and dangerous notion of the world into his legal opinions, into constitutional law, and into the social and legal trajectory of the United States.
In the end, I see J. Scalia as another formidable figure who used his position to perpetuate injustice.
Research: here, here, here, and here.
[1] Justice Scalia’s religious beliefs colored much of how he saw the world, even describing “traditional Christian virtues” as “essential” to society. The effect of his religious convictions on his Supreme Court rulings is examined here.
[2] ACUS is an independent federal agency mandated to improve administrative and regulatory processes in government.
[3] Reportedly, his Italian-American status helped his confirmation. The Senate vote was 98 to 0.
[4] The opinion bolstered the Confrontation Clause in the Sixth Amendment. Alternatively, Scalia disagreed with the 1963 case, Gideon v. Wainwright, which mandated legal counsel for indigent criminal defendants.
[5] Memorandum to the Conference from Justice Antonin Scalia in No. 84-6811—McCleskey v. Kemp File, Thurgood Marshall Papers, The Library of Congress, Washington, D.C. (emphasis added).
[6] Dialogue edited for clarity.
[7] By necessity, originalism only interprets the intentions of the 18th century voting population— exclusively consisting of propertied, white men—and applies those intentions to a variety of modern issues. Scalia’s originalism, of course, ignores a Founding Father who wanted exactly a Living Constitution.
More in the Scalia Legacy Series:
A Legacy of Controversy
