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Scalia, Antonin

SCALIA, ANTONIN

In 1986, Antonin Scalia was appointed to the U.S. Supreme Court by President ronald reagan, becoming the first American of Italian descent to serve as an associate justice. Known for his conservative judicial philosophy and narrow reading of the Constitution, Scalia has repeatedly urged his colleagues on the Court to overturn roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the decision recognizing a woman's right to terminate her pregnancy under certain circumstances.

Scalia was born March 11, 1936, in Trenton, New Jersey. Before he began grade school, Scalia and his family moved to Elmhurst, New York, where he spent much of his boyhood. Scalia is the only child of Eugene Scalia, an Italian immigrant who taught romance languages at Brooklyn College for 30 years, and Catherine Scalia, a first-generation Italian-American who taught elementary school.

In 1953, Antonin Scalia graduated first in his class at St. Francis Xavier High School, a Jesuit military academy in Manhattan. Four years later, Scalia was valedictorian at Georgetown University, receiving a bachelor's degree in history. In the spring of 1960, Scalia graduated magna cum laude from Harvard Law School where he served as an editor for the Harvard Law Review. Known to his friends as Nino, Scalia was known to many of his classmates as an eager and able debater.

Upon graduation from law school, Scalia accepted a position as an associate attorney with a large law firm in Cleveland, Ohio, where he practiced law until 1967. He resigned to teach at the University of Virginia School of Law. In 1970, Scalia joined the Nixon Administration to serve as general counsel for the Office of Telecommunications Policy. Under President gerald r. ford, Scalia served as assistant attorney general for the justice department, where he drafted a key presidential order establishing new restrictions on the information-gathering activities of the central intelligence agency and federal bureau of investigation.

In 1977, Scalia left public office to become a visiting scholar at the American Enterprise Institute, a conservative think tank in Washington, D.C. During this same year, Scalia also returned to academia, accepting a position as law professor at the University of Chicago, where he developed a reputation as an expert in administrative law. In 1982, President Reagan appointed Scalia to the U.S. Court of Appeals for the District of Columbia, which many lawyers consider to be the second most powerful court in the country.

"Judges in a real sense 'make' law.… [T]hey make it as judges make it, which is to say as though they were 'finding' it—discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be."
—Antonin Scalia

When Chief Justice warren burger retired in 1986, President Reagan elevated sitting justice

william rehnquist to the chair of chief justice and nominated Scalia to fill the vacancy of associate justice. Confirmed by a vote of 98–0 in the Senate, Scalia became the first Roman Catholic to be appointed to the U.S. Supreme Court since william j. brennan jr. in 1957.

Scalia's tenure on the high court has been marked by a jurisprudence of original intent. Proponents of original intent, also called originalists, believe that the Constitution must be interpreted in light of the way it was understood at the time it was framed and ratified. According to Scalia, originalism has two virtues: preserving the separation of powers in a democratic society, and curbing judicial discretion.

The Constitution delegates specific enumerated powers to the three branches of the federal government. The Legislative Branch is given the power to make law under Article I; the executive branch is given the power to enforce the law under Article II; and the Judicial Branch is given the power to interpret and apply the law under Article III. Originalists believe that democracy is enhanced when the lawmaking power is exercised by the federal legislature because, unlike federal judges who are appointed by the president and given life tenure on the bench, members of Congress are held accountable to the electorate at the ballot box.

This separation of powers is blurred, Scalia argues, when unelected federal judges decide cases in accordance with their own personal preferences, which may be contrary to those expressed by the framers and ratifiers. In such instances, Scalia asserts, federal judges usurp the legislative function by making new law that effectively replaces the popular understanding of the Constitution at its time of adoption. The only way to curb this type of judicial discretion and to preserve the separation of powers, Scalia concludes, is by requiring federal judges to interpret and apply the Constitution in light of its original meaning. This meaning can be illuminated, Scalia says, by paying careful attention to the express language of the Constitution and the debates surrounding the framing and ratification of particular provisions.

Scalia's interpretation and application of the eighth amendment best exemplifies his judicial philosophy. The Eighth Amendment prohibits cruel and unusual punishment. Courts that evaluate a claim under the Cruel and Unusual Punishments Clause, Scalia argues, must determine whether a particular punishment was allowed in 1791 when the Eighth Amendment was framed and ratified. Moreover, he argues that courts must not take into account notions of the evolving standards of human decency. For example, Scalia contends that capital punishment was clearly contemplated by the framers and ratifiers of the federal Constitution. The fifth amendment explicitly references capital crimes, Scalia observes, and capital punishment was prevalent in the United States when the Constitution was adopted. Whether states presently support or oppose capital punishment plays only a negligible role in Scalia's analysis.

Scalia's interpretation of the due process clause of the Fifth and Fourteenth Amendments provides another example of his judicial philosophy. According to Scalia, the Due Process Clause was originally understood to offer only procedural protection, such as the right to a fair hearing before an impartial judge and an unbiased jury. Nowhere in the text of the Constitution, Scalia notes, is there any hint that the Due Process Clause offers substantive protection. It is not surprising then that Scalia has dissented from U.S. Supreme Court decisions that have relied on the Due Process Clause in protecting the substantive right of women to terminate their pregnancies under certain circumstances (Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 [1992]). Likewise, Scalia disagreed with the Court's decision that a state law granting visitation rights to grandparents was unconstitutional because it infringed upon the fundamental rights of parents to raise their children (Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). No such right, Scalia has commented, can be found in the express language of any constitutional provision.

Scalia has surprised some observers by his literal reading of the sixth amendment, which guarantees the right of criminal defendants to be "confronted with witnesses against them." In Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), Scalia wrote that the Sixth Amendment requires a face-to-face confrontation and that such an opportunity had been denied when a large screen had been placed between a defendant charged with child molestation and the child who was accusing him. The Sixth Amendment, Scalia concluded, intended for courts to preserve the adversarial nature of the criminal justice system by protecting the rights guaranteed by the Confrontation Clause over governmental objections that face-to-face cross-examination may be emotionally traumatic for some victims.

Scalia drew the ire of advocates for gay and lesbian rights with his dissent in romer v. evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996). The Court invalidated a constitutional amendment by the state of Colorado that prohibited anti-discrimination laws intended to protect gays, lesbians, and bisexuals. According to the majority in the decision, the state constitutional amendment violated the fourteenth amendment of the U.S. Constitution. Scalia disagreed, writing a scathing dissent. According to Scalia, the majority opinion "places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias."

Whether Scalia is writing about the Sixth Amendment, the Eighth Amendment, or any other Constitutional provision, some regard his judicial opinions as among the most well written in the history of the U.S. Supreme Court. The clarity, precision, and incisiveness with which he writes is frequently praised. However, some of Scalia's opinions take on an acerbic quality. Often relegated to the role of dissenting justice, Scalia is not above hurling invectives at his colleagues on the Court, sometimes criticizing their opinions as silly and preposterous.

Scalia married the former Maureen McCarthy in 1960. They have nine children. Scalia has written numerous articles on a variety of issues and is the author of A Matter of Interpretation: Federal Courts and the Law (1997).

further readings

Frantz, Douglas. 1986. "Scalia Embodies President's Hope for Court's Future." Chicago Tribune (August 3).

Hasson, Judy. 1986. "Scalia Got Early Chance to Show His Legal Talents." Seattle Times (August 5).

Scalia, Antonin, and Paul I. Weizer. 2004. The Opinions of Justice Antonin Scalia: The Caustic Conservative. New York: P. Lang.

Scalia, Antonin. 1997. A Matter of Interpretation: Federal Courts and the Law. Princeton, N.J.: Princeton Univ. Press.

——. 1989. "Originalism: The Lesser Evil." University of Cincinnati Law Review 57.

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Antonin Scalia

Antonin Scalia

Antonin Scalia (born 1936), a conservative jurist who advocated judicial restraint, was appointed to the Supreme Court by Ronald Reagan in 1986.

American political conservatives expected to find a friend on the Supreme Court after Antonin Scalia's appointment in 1986. Instead, they found a man dedicated to enforcement of the law and to a fair and equal justice system.

Antonin Scalia was born on March 11, 1936, in Trenton, New Jersey. His father was an Italian immigrant who taught Romance Languages at New York's Brooklyn College and his mother was a schoolteacher. After receiving his undergraduate degree summa cum laude from Georgetown University in 1957 Scalia went on to attend Harvard Law School. There he served as an editor on the prestigious Harvard Law Review. Upon graduation from law school, Scalia stayed on at Harvard as a post-graduate fellow from 1960-1961. In 1960 he married Maureen McCarthy. They would have nine children.

His education completed, Scalia joined the private law firm of Jones, Day, Cockley and Reavis of Cleveland, Ohio and remained there for six years. During this time, Scalia decided he was best suited to teaching the art of law more than practicing it. In 1967 he joined the faculty of the University of Virginia Law School.

In 1971 Scalia left the scholar's life to serve in a variety of government posts: general counsel, Office of Telecommunications Policy, Executive Office of the President (1971 to 1972); chairman, Administrative Conference of the United States (1972 to 1974); and assistant attorney general, Office of Legal Counsel, U.S. Department of Justice (1974 to 1977). Scalia returned to teaching in 1977 as professor of law at the University of Chicago, leaving for a year to serve as a visiting professor at Stanford University (1980-1981).

During the brief period between government service and his return to the university Scalia served as scholar-in-residence at the American Enterprise Institute, a leading center of conservative thought located in Washington, D.C. His association with the institute would prove to be fruitful for Scalia, in terms of the intellectual stimulation it provided him at the time and the prominent conservative contacts it afforded. His service as an editor of Regulation, the institute's journal, gave him a forum to develop ideas that would later find voice in law journals and judicial opinions.

Scalia was not among the nation's leading legal scholars, but he regularly published law review articles and established a reputation in his fields of specialty; administrative law and regulated industries. In his essays, he outlined a conservative philosophy that would mark his career on the appellate bench. Scalia was an advocate of judicial restraint. Judges, he believed, should refrain from promoting their political and social convictions through their opinions. He felt judges should not make laws in the same manner as the legislature. Rather, he felt that the proper role of a judge was to interpret the law and leave matters of legislation to the elected representatives of the people.

In 1982 Scalia was appointed to the U.S. Circuit Court of Appeals in Washington, D.C. by then President Ronald Reagan. Scalia quickly established himself as a leading conservative judge on what was generally acknowledged as the nation's most liberal appellate court. Frequently exercising his right to dissent, Scalia remained faithful to his earlier published views of the judicial role. In cases concerning libel law, sexual discrimination under the Civil Rights Act of 1964, and the Gramm-Rudman budget control measure, Scalia wrote opinions that expressed his judicial philosophy: strict interpretation of the Constitution and legislative statutes and maintenance of the power of traditional institutions and of the majority's right to make law.

These views, often noted in dissenting opinions from the court, revealed a respect for governmental authority as well as an impatience for the enforcement of minority rights.

When Chief Justice Warren Burger announced his retirement in 1986, President Reagan quickly acted to strengthen the conservative voice on the high bench by naming sitting Justice William Rehnquist as Burger's successor and by appointing Scalia to succeed Rehnquist. Confirmed unanimously by the Senate, Scalia became the first Italian-American to sit on the Supreme Court.

Predicting judicial performance on the Supreme Court has always been a tricky and imprecise business. An article in the November 5, 1990 issue of Newsweek noted that "Scalia sticks with his ideological cards. That tenacity, combined with a sharp pen and mind, and the personal ebullience of Willard Scott, also have made him the most provocative justice." Conservatives considered him their "savior," while liberals labeled him "The Terminator."

In 1992, in the case R.A.V. versus City of St. Paul, Scalia voted to strike down a St. Paul, Minnesota hate speech law as a violation of freedom of speech. Writing for the majority Scalia noted that "special hostility towards the particular biases thus singled out… . is precisely what the First Amendment forbids." The decision affirmed that people could not be punished for their opinions, even if they took the form of a hate crime. That same year, he dissented in the case Lee versus Weisman. A 5-4 majority held that it was unconstitutional to recite a non-denominational prayer at a public high school graduation. In attacking the majority, he called the decision "nothing short of ludicrous."(New Republic January 18, 1993).

In 1996 Scalia, labeled as angry "refused to join the rest of the court in holding that the tax-supported, men-only Virginia Military Institute violated women's right to equal protection of the laws." (Time July 8, 1996). The article went on to call Associate Justice Clarence Thomas "his only dependable ally."

Never one to avoid controversy or cave in to the majority, Scalia dissented in the controversial Romer versus Evans case. The court ruled that "a state constitutional amendment denying legal redress for discrimination based on homosexuality violated the equal-protection clause." (Time July 8, 1996). Scalia wrote a "withering" dissent and openly "scoffed at the majority opinion." (Time July 8, 1996).

In 1997 prominent Republicans mentioned Scalia as a possible presidential candidate for the year 2000, noting, "Scalia is second to none, in terms of his potential for restoring the Reagan coalition." (Insight on the News (February 24, 1997). He also wrote a book A Matter of Interpretation: Federal Courts and the Law where he discussed theories of judging and the judicial system.

Further Reading

For information on the Supreme Court and the justices, see Leon Friedman The Justices of the United States Supreme Court: Their Lives and Major Opinions (New York:Chelsea House Publishers, 1997); and Steven G. O'Brien American Political Leaders (Santa Barbara: ABC-CLIO, 1991)

See also Chicago Tribune August 3, 1986; Economist March 14, 1987; Los Angeles Times June 18, 1986; June 29, 1986; and July 6, 1986; Maclean's June 30, 1986; New Republic January 18, 1993; Newsday June 18, 1986 and August 6, 1986; Newsweek June 30, 1986; August 18, 1986; October 6, 1986; and November 5, 1990; New York Times June 18, 1986; January 24, 1987; March 4, 1987; and March 17, 1995; Reader's Digest July, 1991; Time June 30, 1986; August 18, 1986; October 13, 1986; July 6, 1987; and July 8, 1996; U.S. News & World Report June 30, 1986; and July 6, 1992; Wall Street Journal June 19, 1986.

Additional sources of information regarding Scalia's career can be found in such standard sources as Facts on File. Scalia's articles in Regulation, the magazine of the American Enterprise Institute, offered a good introduction to his judicial philosophy (see especially "Regulatory Reform—The Game Has Changed" [January/February 1981] and "Back to Basics: Making Law Without Making Rules" [July/August 1981]). □

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Scalia, Antonin

Antonin Scalia, 1936–, associate justice of the U.S. Supreme Court (1986–), b. Trenton, N.J. He graduated from Harvard Law School (1960) and subsequently taught law at the Univ. of Virginia (1967–71) and the Univ. of Chicago (1977–82). In 1982 President Reagan named him to the federal Court of Appeals for the District of Columbia, and four years later he was nominated to the U.S. Supreme Court, taking the seat vacated when William Rehnquist ascended to the position of chief justice. An outspoken conservative, Scalia is a prominent proponent of "textualism," the idea that one should focus on the text of the U.S. constitution or a law and its original meaning when seeking to interpret it, and that decisions of judges should be based on that original meaning, a position enunciated in A Matter of Interpretation (1997). Though he has been willing to overturn (often liberal) precedents and has been one of the most conservative members of the Court's right wing, Scalia has sometimes taken more libertarian positions, for example, protecting flag burning as a form of free speech.

See biographies by J. Biskupic (2009) and B. A. Murphy (2014).

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