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

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.

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]). □