Justice Scalia is a vigorous proponent of textualism in statutory interpretation and originalism in 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' rights conservative colleague, Clarence Thomas.
Scalia started his education at Public School 13 in Queens. A practicing 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 College at 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 Law 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 (born September 2, 1961), Eugene (labor attorney, former Solicitor of the Department of Labor), John Francis, Catherine Elisabeth, Mary Clare, Paul David (now a priest in the Catholic Diocese of Arlington at St. John's Church in McLean), Matthew (a West Point graduate and U.S. Army Major currently serving as an ROTC instructor 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).
Following Ford's defeat by Jimmy Carter, Scalia returned to academia, taking up residence first at the University of Chicago Law School from 1977 to 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 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 Rehnquist as an Associate Justice of the Supreme Court of the United States after 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 Goldwater and Jake Garn absent) and he took his seat on September 26, 1986, becoming the first Italian-American Justice 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.
His 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 Law and founder of the Federalist Society.
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. 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, but when interpreting statutory language, he considers legislative history to 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." 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.
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 (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?
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 score of 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. In a 2003 statistical analysis of Supreme Court voting patterns, Scalia and Justice Thomas emerged as the most conservative. 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.
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.
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. 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." 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. 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. 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. Scalia has responded that stare decisis is a "pragmatic exception" to, not a part of, originalism. 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.
With respect to procedural rights, he has resisted his colleagues' attempts to restrict the employment of the death penalty following the Eighth Amendment's prohibition of "cruel and unusual Punishment. 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. 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 combatant without 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 Clause in Maryland v. Craig discussed above).
(Refer to Morano, "Justice Scalia: His Instauration of the Sixth Amendment in Sentencing" for pre-Booker discussion of this line of cases).
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. 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 Opera and on a trip to India.
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'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. 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. 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. Scalia has even earned respect from political liberals; Senate Democratic leader Harry Reid has 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. 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.
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.
This is not the Old Testament, I emphasize, but St. Paul.... [T]he core of his message is that government—however you want to limit that concept—derives its moral authority from God.... Indeed, it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral.... I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next?... For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!... The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that—in the words of a Supreme Court opinion from the 1940s—"we are a religious people, whose institutions presuppose a Supreme Being."... All this, as I say, is most un-European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as "the minister of God," to "execute wrath" upon the evildoer."
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