Antonin Scalia: An originalist with a colorful personality

August 21, 2013

Scalia(Editor’s note: Over the next nine weeks, we’ll be profiling each of the sitting Supreme Court justices currently on the bench.)

Last week, we profiled Justice Anthony Kennedy, who, by virtue of his being the Supreme Court’s current swing vote, is one of the most influential and publicly known members of the Court.

This week, we’re profiling a justice who is rarely the swing vote in a case, but is nevertheless one of the most influential and publicly known members of the Supreme Court today: Antonin Scalia.

Antonin Gregory Scalia was born on March 11, 1936, in Trenton, New Jersey, as the only child of Eugene and Catherine Scalia.

With Scalia’s father having emigrated from Sicily and his mother being a second generation Italian immigrant, Scalia’s upbringing was strongly imbued with Italian heritage.  Scalia’s father also imparted to his son the values of conservatism, hard work, and discipline.

When Scalia was five, his father took a job at Brooklyn College, and the family moved to the New York borough of Queens.

Although Scalia first attended public school, he later attended St. Francis Xavier, a Jesuit-run military prep school in Manhattan.  He graduated as valedictorian from high school and attended Georgetown University in 1953.

He also graduated valedictorian (and summa cum laude) from Georgetown in 1957, earning his B.A. in history.

Scalia continued on to Harvard Law School, where he served as editor of the Harvard Law ReviewH.  In 1960, He graduated magna cum laude.

After graduation, Scalia worked as a commercial lawyer at Jones, Day, Cockley and Reavis in Cleveland, Ohio.  In 1967, Scalia took a teaching position at the University of Virginia Law School.

In 1972, President Richard Nixon appointed Scalia general counsel for the Office of Telecommunications Policy.  In addition, from 1972 to 1974, Scalia chaired the Administrative Conference of the United States, an independent government agency that promotes improvements in the efficiency, adequacy, and fairness of the procedures of federal agencies.

Just before the Watergate scandal forced Nixon to resign, he nominated Scalia to head the Justice Department’s Office of Legal Counsel.  After Nixon’s resignation, President Ford tasked Scalia with determining legal ownership of the Nixon tapes and documents – a determination that Scalia made in Nixon’s favor (though the Supreme Court ruled unanimously otherwise soon thereafter).

After President Jimmy Carter began his term in the White House in 1977, Scalia left government service to work as a resident scholar at the conservative American Enterprise Institute think tank, based in Washington D.C.

Scalia also spent more time in academia after leaving the government.  He taught law at the Georgetown University Law Center for a short time before teaching at the University of Chicago Law School, where he remained between 1977 and 1982 (although he spent one year as a visiting professor at Stanford Law School).

After President Ronald Reagan assumed control of the White House in 1981, Scalia hoped to once against secure a position in Washington.  Although Scalia unsuccessfully interviewed for the position of U.S. Solicitor General, Reagan offered Scalia a seat on the Seventh Circuit Court of Appeals in early 1982.

Despite the position being based in Chicago, Scalia instead declined the offer, holding out for an appointment to the more influential D.C. Circuit Court of Appeals.  Fortunately for Scalia, Reagan offered him such an appointment a few months later, which Scalia accepted.  He was confirmed by the Senate on August 5, 1982, and was sworn in on August 17, 1982.

Scalia’s opinions while on the D.C. Circuit were much like his later opinions and dissents on the Supreme Court: forceful, witty, and combative.  Above all, however, they were always conservative – a trait that caught the attention of Reagan administration officials and helped to put Scalia on the short list of candidates for nomination to Supreme Court, should an opening present itself.

And such an opening did arise with the announced retirement of Chief Justice Warren Burger in 1986.

While Reagan clearly did not nominate Scalia to assume the position of Chief Justice of the U.S. Supreme Court, Reagan’s nomination of then Associate Justice William Rehnquist to fill the position of chief did leave an opening for a new nominee.

As mentioned earlier, Scalia was on Reagan’s short list – as was Robert Bork.  Reagan ended up choosing Scalia over Bork because Scalia was ten years younger than Bork, and Scalia had less of a “paper trail.”

As discussed last week in Justice Kennedy’s post, Robert Bork’s nomination failed spectacularly in the Senate.  However, Scalia’s breezed through with little opposition.

Why?

U.S. Supreme Court Justice Antonin Scalia speaks at a Reuters Newsmaker event in New YorkWhen the Senate was considering Scalia’s nomination, it had just finished with a bruising fight over Rehnquist’s elevation to chief justice, and, despite Scalia’s strong conservative background, Senate Democrats just weren’t up for another drawn out battle over a Supreme Court nominee.  Furthermore, Scalia’s being the first Italian-American Supreme Court nominee made Democrats even more hesitant to oppose his nomination.

As such, Scalia was confirmed by a unanimous vote of 98-0 on September 17, 1986.  He took his seat September 26, 1986.

As a Supreme Court justice, Scalia has had little difficulty making his views known.  True, he is conservative, but he is better defined by his textualist and originalist judicial philosophies, which he helped to popularize.

“Textualism” maintains that a statute should be interpreted based on its “ordinary meaning,” while “originalism” holds that the Constitution should be interpreted based on what it meant at the time of its ratification.

Although Scalia shares these philosophies in common with Justice Thomas, Thomas’ own brands of textualism and originalism often lead him to a different result than Scalia’s.

One of the most glaring examples of this divergence in recent history is found in 2005’s Gonzales v. Raich, in which Thomas voted to strike down federal government regulations on marijuana, while Scalia voted to uphold them.

Raich found Scalia siding with the liberal bloc, and it certainly isn’t the only instance of such an alignment.

As discussed in these two posts, Scalia has sided with his liberal colleagues on several occasions in the past term alone.  Scalia isn’t necessarily “liberal” on the questions at issue in these rulings.  Rather, it is his originalism that leads him to these “liberal” conclusions.

Most often, these cases involve constitutional law protections in criminal law situations (e.g. 2001’s Kyllo v. U.S., 2009’s Melendez-Diaz v. Massachusetts, and 2013’s Missouri v. McNeely and Maryland v. King), but Scalia can surprise observers in matters unrelated to criminal law.

Nevertheless, Scalia remains conservative on most questions of law, and is poignantly so on social issues such as religion, abortion, and same-sex marriage.

Scalia’s position on these subjects is unquestionably influenced by his Catholic faith, of which he is a particularly conservative adherent (Scalia is reportedly uncomfortable with many of the changes enacted by the Second Vatican Council in the 1960s).

As such, although he may find himself opposed to his fellow conservatives on other issues, he will almost invariably stake out the most conservative position on any social issue that comes before the Court.

Aside from the substance of his writings, Scalia is very well known for the delivery of his opinions – forceful, witty, and, for the most part, accessible to a wider audience.

The harshness of Scalia’s opinions and dissents often offends his fellow justices, against whom they are often directed (there are several reports of Scalia personally offending Sandra Day O’Connor).

However, his barbs haven’t alienated at least one justice, Ruth Bader Ginsburg, with whom Scalia is very close friends – despite the fact that, on all but certain topics, the two are ideological opposites.

It may seem difficult to fathom that one such as Scalia who so ruthlessly attacks his ideological opponents could be such close friends with one of his most persistent adversaries.  Nonetheless, through his numerous public appearances, Scalia doesn’t appear to take himself too seriously, and may be able to effectively segregate his work as a justice from his personal life.

Scalia at WHCA DinnerOne of the more noteworthy examples in support of this is found in Scalia’s reaction to Stephen Colbert’s performance at the 2006 White House Correspondents’ Association Dinner.

Where Colbert’s jokes were largely met with murmurs and whispers from the audience (because his sharp satire was directed at the Bush administration and other political figures present), Scalia was seen cheerfully laughing throughout – even when Colbert’s satire had specifically targeted Scalia.

Whereas Colbert’s performance was lambasted by nearly every other conservative figure in Washington, Scalia told Colbert after his performance that he was “brilliant.”

In addition to his unique views, it’s his colorful personality that makes Scalia unique on the Court and in Washington at large.

And Scalia’s personality will undoubtedly add color to his writings from the bench for as long as he remains on the Supreme Court.