Barnes writes: "Supreme Court Justice Antonin Scalia, the intellectual cornerstone of the court’s modern conservative wing, whose elegant and acidic opinions inspired a movement of legal thinkers and ignited liberal critics, died Feb. 13 on a ranch near Marfa, Tex. He was 79."
Supreme Court Justice Antonin Scalia speaks at the Economics Club of New York on Feb. 8. (Photo: Peter Foley/European Pressphoto Agency)
Justice Antonin Scalia Has Died
13 February 16
upreme Court Justice Antonin Scalia, the intellectual cornerstone of the court’s modern conservative wing, whose elegant and acidic opinions inspired a movement of legal thinkers and ignited liberal critics, died Feb. 13 on a ranch near Marfa, Tex. He was 79.
The cause of death was not immediately known.
In a statement Saturday, Chief Justice John G. Roberts said: “On behalf of the Court and retired Justices, I am saddened to report that our colleague Justice Antonin Scalia has passed away. He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family.”
In the first official notice of Justice Scalia’s death, Texas Gov. Greg Abbott said: “Justice Antonin Scalia was a man of God, a patriot, and an unwavering defender of the written Constitution and the Rule of Law. His fierce loyalty to the Constitution set an unmatched example, not just for judges and lawyers, but for all Americans. We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the Rule of Law.”
Justice Scalia, the first Italian American to serve on the court, was nominated by President Ronald Reagan in 1986 and quickly became the kind of champion to the conservative legal world that his benefactor was in the political realm.
An outspoken opponent of abortion, affirmative action and what he termed the “so-called homosexual agenda,” Justice Scalia’s intellectual rigor, flamboyant style and eagerness to debate his detractors energized conservative law students, professors and intellectuals who felt outnumbered by liberals in their chosen professions.
“He has by the force and clarity of his opinions become a defining figure in American constitutional law,” Northwestern University law professor Steven Calabresi said at a Federalist Society dinner honoring Justice Scalia at the 20-year mark of his service on the Supreme Court. He took his seat Sept. 26, 1986.
Justice Scalia was the most prominent advocate of a manner of constitutional interpretation called “originalism,” the idea that judges should look to the meaning of the words of the Constitution at the time they were written.
He mocked the notion of a “living” Constitution, one that evolved with changing times, as simply an excuse for judges to impose their own ideological views.
Critics countered that the same could be said for originalism — and that the legal conclusions Justice Scalia said were dictated by that approach meshed neatly with the justice’s views on the death penalty, gay rights and abortion.
It is hard to overstate Justice Scalia’s impact on the modern court. Upon his arrival, staid oral arguments before the justices became jousting matches, with Justice Scalia aggressively questioning counsel with whom he disagreed, challenging his colleagues and often dominating the sessions.
He asked so many questions in his first sitting as a justice that Justice Lewis F. Powell whispered to Justice Thurgood Marshall: “Do you think he knows the rest of us are here?”
Justice Scalia was just as ready for combat outside the court. He relished debating his critics at law schools and in public appearances, although he sometimes displayed a thin skin.
He tired of questions about his prominent role in the court’s 2000 decision in Bush v. Gore, which halted a recount of the presidential vote in Florida and effectively decided the presidency for Republican George W. Bush. His response to those who raised questions years later: “Get over it.”
Despite his impact on the legal world, Justice Scalia’s views were too far to the right for him to play the pivotal roles on the court that his fellow Reagan nominees — Sandra Day O’Connor and Anthony M. Kennedy — eventually assumed.
Justice Scalia was far better known for fiery dissents than landmark majority opinions. One exception was the court’s groundbreaking 2008 decision in District of Columbia v. Heller.
An avid hunter and a member of his high school rifle team, Justice Scalia wrote the court’s 5-to-4 ruling that held for the first time that the Second Amendment afforded a right to gun ownership unrelated to military service.
“His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country,” Elena Kagan said about Justice Scalia when she was dean of Harvard Law School, alma mater to both. “He is the justice who has had the most important impact over the years on how we think and talk about law.”
After Kagan was nominated to the court by President Barack Obama, she and Justice Scalia became friends and hunting buddies — despite their distinct ideological differences and the fact that Kagan had never shot a gun. They went to Wyoming together in 2012 in hopes of Kagan bagging a big-game trophy like the elk, nicknamed Leroy, whose mounted head dominated Justice Scalia’s Supreme Court chambers.
But she shot only a white-tailed deer, which Justice Scalia later laughingly said “she could have done in my driveway” at his suburban Virginia home.
‘You’re not everybody else’
Antonin Gregory Scalia — “Nino” to family, friends and colleagues — was born in Trenton, N.J., on March 11, 1936, and grew up in the New York City borough of Queens. His father, Salvatore, came through Ellis Island at 17; he learned English and became a professor of romance languages at Brooklyn College.
Justice Scalia’s mother, the former Catherine Panaro, was a second-generation Italian American and an elementary school teacher. Not only was Nino their only child, he was the only child of his generation on either side of the family.
The whole extended clan doted on him, biographer Joan Biskupic reported in her biography “American Original,” and expected achievement. “You’re not everybody else,” Catherine would say, according to Biskupic. “Your family has standards, and it doesn’t matter what the standards of [others] are.”
In 1953, he graduated first in his class at St. Francis Xavier, a military prep school in Manhattan, and won a naval ROTC scholarship but was turned down by his first choice of college, Princeton.
A devout Catholic, he attended his second choice, Georgetown University, where he was the valedictorian of the class of 1957. In his graduation speech, he exhorted his fellow students: “If we will not be leaders of a real, a true, a Catholic intellectual life, no one will!”
Justice Scalia then entered Harvard Law School, where he was editor of the law review and graduated magna cum laude in 1960. That same year, he married Maureen McCarthy, a Radcliffe student he’d met on a blind date.
She, too, came from a small family, but they made up for it, with five sons and four daughters and literally dozens of grandchildren.
“We didn’t set out to have nine children,” Justice Scalia told Lesley Stahl on the CBS show “60 Minutes.” “We’re just old-fashioned Catholics, playing what used to be known as ‘Vatican Roulette.’?”
He added that the other four sons were relieved when their brother Paul decided to “take one for the team” and become a priest.
The Scalias moved around. After traveling across Europe for a year while he was a Harvard Sheldon Fellow, the newlyweds moved to Cleveland, where Justice Scalia joined the Jones Day firm in 1961.
On the cusp of becoming partner, he left private practice in 1967 to become a law professor at the University of Virginia in Charlottesville.
In 1971, he became general counsel to the new Office of Telecommunications Policy in the Nixon administration; the agency spurred development of the nascent cable industry. From 1972 to 1974, he was chairman of the Administrative Conference of the United States, followed by three years as assistant attorney general for the Office of Legal Counsel.
After Jimmy Carter, a Democrat, won election to the White House, Justice Scalia returned to academia as a professor at the University of Chicago law school.
Then Reagan came into office in 1981 and the next year nominated Justice Scalia to the influential U.S. Court of Appeals for the District of Columbia Circuit. His name quickly appeared on short lists of potential Supreme Court nominees.
Reagan in 1981 made good on a campaign promise to appoint the court’s first woman with his choice of O’Connor, then an Arizona state judge and former legislator. His next chance to leave an imprint came five years later, when Chief Justice Warren Burger announced that he was stepping down.
The president decided to elevate Justice William H. Rehnquist to the chief’s job, and Justice Scalia and fellow D.C. Circuit Judge Robert H. Bork became the finalists for the opening. Bork was the more experienced jurist and a conservative icon, but the 50-year-old Scalia was almost a decade younger and brought the added political benefit of being Italian American.
Justice Scalia got the nomination. After a testy Senate battle over Rehnquist’s elevation, Justice Scalia sailed through his confirmation hearings and was approved 98 to 0.
Future vice president Joseph R. Biden, then a Democratic senator from Delaware and a stalwart of the Judiciary Committee, later said that his vote for Justice Scalia was the one he most regretted — “because he was so effective.”
Textualism and originalism
Justice Scalia set out immediately to make his views known — and became exactly the justice conservatives had hoped for.
He had been an influential early supporter of the Federalist Society, a group that political scientist Steven Teles called “the most vigorous, durable and well-ordered organization to emerge from [the] rethinking of modern conservatism’s political strategy.”
Reliance on legislative history as a key element of interpreting statutes was once commonplace. But Justice Scalia railed against the practice, saying that only the words of the statutes matter — a view known as textualism. He likened judges’ use of secondary sources such as committee reports or statements made by members of Congress during floor debates to “looking over the faces of the crowd at a large cocktail party and picking out your friends.”
Even though most justices continued to think legislative history was valuable in interpreting statutes, lawyers arguing before the court learned that they would be upbraided by Justice Scalia for mentioning it. He refused to join opinions that cited legislative history, even in a footnote.
Similarly, Justice Scalia redefined and popularized originalism. His approach to understanding the Constitution focused not on the framers’ intent but on the meaning of the words to ordinary citizens in 1787. He rejected the notion that the framers wanted the Constitution to be a “living” document designed to accommodate changing circumstances and social values.
“The starting point, in any case, is the text of the document and what it meant to the society that adopted it,” Scalia said at his confirmation hearing. He added that this approach guarded “against the passions of the moment that may cause individual liberties to be disregarded.”
Liberals, he said, should like such an approach, because it constrained conservatives such as him from turning their personal opinions into public policy. To illustrate, he often said that the Constitution doesn’t provide a right for a woman to have an abortion, but it also does not forbid states from making the procedure legal and accessible.
He cited his vote on flag-burning — he agreed with the court’s majority that the guarantee of free speech allows the practice — as one instance when his allegiance to the Constitution outweighed his personal views. “If it was up to me, if I were king,” he said, “I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.”
But he did not note many other examples of originalism dictating views that contradicted his personal beliefs.
Even when he wasn’t writing for the majority, his opinions provided an influential template for conservative lawyers and politicians. His writing style was certain and clever:
“Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing,” Justice Scalia wrote in his lone dissent in Morrison v. Olson. “.?.?. But this wolf comes as a wolf.”
But he could also be acerbic and dismissive of his opponents.
“No justice in Supreme Court history has consistently written with the sarcasm of Justice Scalia,” Erwin Chemerinsky, now dean of the University of California at Irvine law school, wrote in a widely noted law review article.
“No doubt, this makes his opinions among the most entertaining to read. .?.?. But I think that this sends exactly the wrong message to law students and attorneys about what type of discourse is appropriate in a formal legal setting and how it is acceptable to speak to one another.”
New Yorker writer Margaret Talbot thought that Justice Scalia’s writing made him a rock star, especially among young conservatives. Of all the justices, she wrote, “Scalia is most likely to offer the jurisprudential equivalent of smashing a guitar onstage.”
Justice Scalia’s blunt critiques may have cost him in finding common ground with some of his colleagues. Students of the court believe that his sharp-tongued put-downs of O’Connor — he once said her reasoning in a case could “not be taken seriously” — affected their relationship.
He could also be a provocateur outside the courtroom. A reporter once asked him as he was leaving church if he caught flak for his Roman Catholic beliefs, and Justice Scalia responded by flicking his fingers under his chin, a Sicilian insult.
Unlike his colleagues, Justice Scalia eagerly discussed constitutional issues and his personal opinions in public. On several occasions, his out-of-court activities prompted critics to question his impartiality.
He once went duck hunting with Vice President Richard B. Cheney, who at the time was the subject of a lawsuit by the Sierra Club seeking the names of people who participated in the vice president’s energy task force. Scalia refused to recuse himself from the case, which the Supreme Court had agreed to hear.
In 2006, he spoke against giving alleged terrorists jury trials — right before the court was set to hear a case on detainee rights, prompting a group of retired generals and admirals to file a friend-of-the-court brief asking him to recuse himself from hearing the appeal filed by Osama bin Laden’s alleged driver, Salim Ahmed Hamdan.
He participated in that case but had to sit out one that challenged the use of the words “under God” in the Pledge of Allegiance. In remarks to a Knights of Columbus rally before the case arrived at the Supreme Court, he suggested that an appeals court had erred in agreeing with the challenger.
That said, Justice Scalia often played the role of charming rogue. In less-partisan times, he was a fixture at Georgetown parties; he loved opera and led carol-singing at the court’s annual Christmas parties. Every year when Boston University law professor Jay Wexler compiled the number of times the notation “laughter” appeared in transcripts of the court’s oral arguments, Justice Scalia was the leading instigator.
Nothing illustrated the dynamic so well as his close friendship with Justice Ruth Bader Ginsburg, with whom he was in frequent disagreement. The two served together on the D.C. Circuit and respected each other’s intellect. Scalia and his wife, and Ginsburg and her husband, Martin, celebrated most New Year’s Eves together.
Ginsburg said no one made her laugh as much as Justice Scalia did. “I love him. But sometimes I’d like to strangle him,” she once said.
Outspoken about faith
Justice Scalia once wrote in a law review article that legal views are “inevitably affected by moral and theological perceptions.”
After donning his black robe, he would insist that his religious faith and personal views did not determine the outcome of cases because his textualist, originalist approach insulated him from bias. He believed that judges should defer to elected officials on matters of social policy.
But Justice Scalia’s faith was integral to his identity. He objected to Vatican II and drove out of his way to find churches that celebrated Mass in Latin.
He was the court’s most outspoken member on the subject of religion. He urged fellow intellectuals to proudly be “fools for Christ” and used an interview in 2013 to underscore his belief in the existence of the Devil, whose latest maneuver, he said, was “getting people not to believe in him or in God.”
Justice Scalia wanted to lower the wall of separation between church and state, endorsing school prayer, nativity displays on public property and public money for religious schools.
But he insisted that there was no such thing as a “Catholic justice,” and said his views were shaped by an understanding of the Constitution and a belief that a judge’s role is limited.
“Don’t paint me as anti-gay or antiabortion or anything else,” Justice Scalia said at an appearance in 2015. “All I’m doing on the Supreme Court is opining about who should decide: Is it a matter left to the people, or is it a matter of my responsibility as a justice of the Supreme Court?”
Justice Scalia narrowly read individual rights and disdained policies designed to remedy discrimination against women and minorities. He was the lone dissent in a case challenging the state-run Virginia Military Institute’s right to exclude female applicants.
Justice Scalia believed that discrimination should be judged on an individual basis rather than by treating minorities as an aggrieved group; in his view, policies meant to address discrimination against a group in effect discriminated against individuals. “I owe no man anything, nor he me, because of the blood that flows through our veins,” he wrote in a 1979 essay.
He was part of majorities that made it harder for workers to bring discrimination claims.
He and O’Connor clashed when the court said the University of Michigan Law School could consider race as part of a comprehensive review of an applicant because of the benefits a racially diverse class would bring.
In dissent, he wrote: “This is not, of course, an ‘educational benefit’ on which students will be graded on their Law School transcripts (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding.)”
Notable wins, losing battles
For much of the public, the perception of Justice Scalia was formed in the polarized court’s ruling in Bush v. Gore. Justice Scalia wrote for himself when the court issued an emergency stay to stop the vote-counting in Florida in the 2000 presidential election. “The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election,” the justice wrote.
To Gore supporters, that sounded like an attempt not to find out which candidate got the most votes but to protect the integrity of Bush’s win. Moreover, the five-member majority based its ultimate ruling on an expansive reading of the equal protection clause, which in previous cases involving gays, blacks and women Justice Scalia had preferred to read narrowly. The case was also a departure from his reluctance to endorse federal intrusion in state and local affairs.
On gay rights, Justice Scalia fought a losing battle. He warned in his 2003 dissent in Lawrence v. Texas, which struck down a state sodomy law, that the court was paving the way for same-sex marriage. He was not any happier to see his prediction come true.
When the court ruled 5 to 4 in 2015 that the Constitution forbade state laws that prohibited same-sex marriage, Justice Scalia said the court had taken its most drastic step in overruling decisions made by the public.
“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” he wrote in dissent.
His great triumph on the court came in writing the majority decision in District of Columbia v. Heller, the Second Amendment case.
Most lower courts had long interpreted a 1939 Supreme Court case, United States v. Miller, to mean that the Second Amendment guaranteed the right to bear arms only to members of state militias like the National Guard.
Justice Scalia’s opinion made it unmistakable that the Constitution requires more than that. The Second Amendment, he said, “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
More than just a victory for gun rights, the case was significant for being fought on the originalist grounds that Justice Scalia had long championed. He wrote 64 pages on why the authors of the Second Amendment meant to imply an individual right; Justice John Paul Stevens countered with 46 pages of history arguing only for the militia right.
Another victory for Justice Scalia on the court might seem surprising for a conservative who was such a full-throated defender of the death penalty.
Crawford v. Washington marked a revolutionary change in criminal law. Writing for the majority in 2004, Justice Scalia spelled out a bright-line rule that said “testimonial” statements by unavailable witnesses couldn’t be used as evidence in court unless the defendant had a prior opportunity for cross examination. Previously such statements were admissible if deemed sufficiently reliable by a judge.
The decision was a great win for criminal defense lawyers and one in which the Supreme Court majority blurred its usual conservative-liberal dividing lines.
Near the end of his tenure on the court, as Justice Scalia was on the losing side in landmark decisions on issues such as gay rights, he condemned what he called “the practice of constitutional revision by an unelected committee of nine.”
In his dissent to the court’s 2015 decision in Obergefell v. Hodges recognizing a constitutional right for same-sex couples to marry, Justice Scalia summed up his objections.
“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall,” he wrote. “.?.?. With each decision of ours that takes from the People a question properly left to them — with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court — we move one step closer to being reminded of our impotence.”
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