Scalia, Antonin (b. Trenton, N.J., 11 Mar. 1936), associate justice, 1986–. The second of the three associate justices nominated by President
Reagan that the Senate confirmed, Antonin Scalia replaced Justice William
Rehnquist, whom Reagan elevated to the chief justiceship upon the retirement of Warren
Burger.
The son of an Italian immigrant who taught Romance languages at Brooklyn College, Scalia became the first Roman Catholic to join the Court since William J.
Brennan in 1957. But with Reagan's appointment of Anthony
Kennedy two years later, Catholic justices accounted for three of the Court's members—for the only time in history—until Justice Brennan's retirement in 1990. After graduating from Georgetown University, he spent a year in Europe as a student at the University of Fribourg in Switzerland. He obtained his law degree at Harvard, from which he graduated magna cum laude in 1960.
Scalia joined a leading Cleveland law firm, resigning to teach at the University of Virginia Law School. From 1971 to 1977 he served the Nixon and Ford administrations in various legal capacities. He then went to the University of Chicago Law School where he remained until President Ronald Reagan nominated him in 1982 for the U.S. Court of Appeals for the District of Columbia. The father of nine children, he became the first academic to sit on the Supreme Court since Felix
Frankfurter (1939–1962).
On taking his seat, Scalia quickly established a solidly conservative voting record, one exceeded only by Justice Clarence
Thomas. William
Rehnquist, the new chief justice, who had anchored the conservative wing of the Court, while remaining a staunch conservative, found himself displaced by Scalia and, after 1991, by Thomas as well. Thus, through the end of the 2001–2002 term, in the broad area of civil liberties Scalia supported such claims in only 28.4 percent of the Court's orally argued cases, ranging from a low of 25 percent in privacy and criminal procedure to a high of 33 and 31 percent in
First Amendment and civil rights, respectively. In these cases, he agreed with his liberal colleagues—Brennan and Thurgood
Marshall—less than half the time, but with Thomas more than 90 percent of the time, and with Rehnquist slightly less.
Although Scalia alleges himself to be a “strict constructionist,” his voting behavior belies the label. If the phrase has any content, it should pertain to support for legislation against challenges to constitutionality and adherence to precedent. Yet Scalia has supported almost two‐thirds of the decisions declaring state and local legislation unconstitutional, and declarations of the unconstitutionality of federal legislation in more than three‐fourths of such declarations. As for formal alteration of precedent, Scalia ranks ninth among the thirty‐two justices who sat since the beginning of the Vinson Court in 1946, only three of whom were liberals: Warren,
Fortas, and
Goldberg. Substantially more hyperactive than he in this regard are his reputedly conservative associates, Sandra Day
O'Connor and Anthony Kennedy, who have joined with precedent‐altering majorities in thirty‐six of their thirty‐seven opportunities (97.3 percent) through the end of the 2001–2002 term. Scalia, by comparison, has done so 10 percent less frequently: in thirty‐five of forty cases (87.5 percent). But if one disregards whether a majority altered precedent and focuses instead on the frequency with which justices support precedent alteration whether they are in the majority or not, Scalia shows himself more of a judicial activist than O'Connor or Kennedy, second only to Thomas among justices who have served on the Rehnquist Court. Scalia has expressed candor where precedent is concerned, observing in
South Carolina v. Gathers (1989) that “Overrulings of precedent rarely occur without a change in the Court's personnel,” and that it would violate his oath were he to adhere to a precedent so that the Court “might save face” (p. 824).
If we use this same criterion—frequency of exercise with or without majority support—with regard to unconstitutionality, Scalia ranks fourth in such votes toward federal legislation, behind the leader—again Thomas—and slightly behind Stephen J.
Breyer and Ruth Bader
Ginsburg. But a different picture emerges where the constitutionality of state and local legislation is at issue. Here Rehnquist was willing to void the law least often with only 2.8 percent of his total votes as chief. Scalia comes in second at 4.4 percent.
As for his opinions—notably his dissents and concurrences—they display not only a frequency, but also a vigor (to put the matter mildly), that arguably deviate markedly from that displayed by any other justice in history. Only Justice Lewis
Powell's 5.1 percent exceeded Scalia's proportion of regular concurrences (4.8), while Scalia's proportion of special concurrences was almost one‐third higher than second‐ranked John Marshall
Harlan: 9.1 to 6.7 percent. Because of the generally conservative character of the Rehnquist Court, Scalia, as a staunch conservative himself, has had relatively little occasion to dissent, and hence to write dissenting opinions. Accordingly, Justice John Paul
Stevens, certainly no conservative, beats him out in the frequency with which he writes opinions because of the incidence with which he (Stevens) writes dissents: 38.5 percent to 31.7. Given the infrequency with which the justices concurred before 1941, one may fairly safely conclude that Scalia will rank as the Court's all‐time leader in this regard. Scalia's special opinions—dissents as well as concurrences—unlike his majority opinions where his language needs the approval of a majority of the participating justices—display a vigor and incisiveness far removed from the turgidity of most judicial prose. Others characterize these separate opinions markedly less favorably; for example, “smug and sarcastic,” “stunningly patronizing and insulting.” “Radicalism” is said to typify his off‐the‐bench writings, and his career is that of a “militant political activist.” Though he does not descend to the depths of ad hominem attacks, he verges to its edge. Thus, he has labeled a Rehnquist opinion “nonsensical,” and one of O'Connor's “irrational.”
Reputed to be both a literalist and an originalist, Scalia regularly voices strong disapproval of divining constitutional or legislative meaning by reference to the intention of framers or legislators. As he asserted in
Pennsylvania v. Union Gas Co. (1989), “It is our task … not to enter the minds of the Members of Congress—who need have nothing in mind in order for their votes to be both lawful and effective” (p. 30). Especially noteworthy is his extensive catalog of possible motivations of individual legislators in
Edwards v. Aguillard (1987). But on the other hand, he just as readily supports intent when doing so supports his policy preferences, for example, his silent agreement with the majority in a pair of cases voiding legislative reapportionment:
Shaw v. Hunt and
Bush v. Vera (1996).
While Scalia is viewed as an originalist and/or a literalist; that is, a textualist, his opinions frequently belie both labels. He has shown himself capable of utterances on all fours with the classic language of mechanical jurisprudence: “To hold a governmental act to be unconstitutional is not to announce that we forbid it, but that the
Constitution forbids it” (
American Trucking Assns. v. Smith, p. 201). Or perhaps more likely he believes semantic inconsistency leavens legal language. Consider United States v.
Printz (1997) in which Scalia and four conservative colleagues voided the Brady Violence Prevention Act. He cites no constitutional language for voiding the law, but rather instructs the reader to fixate on the “structure of the Constitution” in order to divine “a principle” governing the case.
Scalia's literalism periodically surfaces. Thus, his opinion in
United States v. Granderson (1994) that even “wretchedly drafted statutes” should be applied “as written.” But just as frequently, he totally disregards plain meaning. The
Eleventh Amendment provides an apt example:
[W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the states entered the federal system with their sovereignty intact; that the judicial authority of Article III is limited by this sovereignty. (Blatchford v. Native Village of Noatak, 1991, p. 779) Nor does it require separate opinions for Scalia to disclose his inconsistent philosophizing. In
Chritensen v. Harris County (2000), he rendered a paean to judicial restraint while simultaneously voting judicially activist to void a regulation of the Department of Labor—supported by the solicitor general—because it did not meet that indisputably pellucid criterion: “reasonable.”
As for Scalia's important opinions, his first‐term dissents in Edwards v. Aguillard, where he scathingly demolished the credibility of assertions of legislative intent, and
Morrison v. Olson, where he alone presciently detailed the political costs and the constitutional damage of upholding the independent counsel provisions of the 1978 Ethics in Government Act, warrant mention. So also his pivotal majority opinions in two landmark regulatory takings cases in which he strengthened the protection afforded landowners:
Nollan v. California Coastal Commission (1987) and
Lucas v. South Carolina Coastal Council (1992). Scalia also wrote the Court's opinion in
Oregon Department v. Smith (1990) that replaced
strict scrutiny with a rationality standard in religious freedom cases. In
R.A.V. v. St. Paul (1992), he wrote the liberal opinion facially voiding the hate crimes ordinance at issue. He displayed even more liberalism in his
Maryland v. Craig (1990) dissent, in which he—joined by Marshall, Brennan, and Stevens—literally applied the Confrontation Clause. But he vigorously asserted his conservative credentials in cases involving cultural issues, such as his dissent in
Lawrence v. Texas (2003), concerning state sodomy laws, and in his solo dissent in United States v. *
Virginia (1996), upholding state authority to maintain a single‐sex college. But his conservativism by no means precludes him from expanding constitutional horizons as his majority opinion in
Republican Party v. White (2002), which extended the fullness of the
First Amendment to campaigns for judicial office, attests.
In all likelihood Scalia is the brightest of his colleagues and also the most abrasive, notwithstanding his extralegal reputation as a jolly bon vivant. His wicked sense of humor overlooks few targets. To the extent that he views himself as alone possessed of a pipeline to the Constitution's eternal verities, he may be viewed as something of a Don Quixote. But he nevertheless unfailingly fights his battles effectively armed with verbal acuity, irreverence, and iconoclasm that entertainingly roil the sea of legal turgidity.
Bibliography
The National Science Foundation supported U.S. Supreme Court Judicial Databases, Harold J. Spaeth , principal investigator, available at http://www.polisci.msu.edu/pljp.
Lee Epstein , etal., The Supreme Court Compendium, 3d ed. (2003).
Jeffrey A. Segal and and Harold J. Spaeth , The Supreme Court and the Attitudinal Model Revisited (2002).
Harold J. Spaeth
