JUSTICE ANTONIN SCALIA (Wikipedia Info)

Antonin Scalia - Wikipedia, the free encyclopedia http://en.wikipedia.org/wiki/Antonin_Scalia

From Wikipedia, the free encyclopedia

Antonin Gregory Scalia (pronounced /skəˈlijə/ ( listen); born
March 11, 1936) is an American jurist who serves as an Antonin Scalia
Associate Justice of the Supreme Court of the United States.
As the longest-serving justice on the Court, Scalia is the Senior
Associate Justice. Appointed to the Court by President Ronald
Reagan in 1986, Scalia has been described as the intellectual
anchor of the Court's conservative wing.

Scalia was born in Trenton, New Jersey, and attended public
grade school and Catholic high school in New York City,
where his family had moved. He attended Georgetown
University as an undergraduate and obtained his Bachelor of
Laws degree from Harvard Law School. After spending six
years in a Cleveland law firm, he became a law school
professor. In the early 1970s, he served in the Nixon and Ford
administrations, first at minor administrative agencies, and
then as an assistant attorney general. He spent most of the
Associate Justice of the United States Supreme
Carter years teaching at the University of Chicago, where he
became one of the first faculty advisers of the fledgling Court
Federalist Society. In 1982, he was appointed as a judge of the Incumbent
United States Court of Appeals for the District of Columbia Assumed office
Circuit by President Ronald Reagan.
September 26, 1986
In 1986, Scalia was appointed by Reagan to the Supreme Nominated by Ronald Reagan
Court to fill the associate justice seat vacated when Justice Preceded by William Rehnquist
William Rehnquist was elevated to Chief Justice. Whereas
Judge of the United States Court of Appeals for
Rehnquist's confirmation was contentious, Scalia was asked
few difficult questions by the Senate Judiciary Committee, and the District of Columbia Circuit
faced no opposition. Scalia was unanimously confirmed by the In office
Senate, and took his seat on September 26, 1986. August 17, 1982 – September 26, 1986
Nominated by Ronald Reagan
In his quarter-century on the Court, Scalia has staked out a
conservative ideology in his opinions, advocating textualism in Preceded by Roger Robb
statutory interpretation and originalism in constitutional Succeeded by David Sentelle
interpretation. He is a strong defender of the powers of the
United States Assistant Attorney General for the
executive branch, believing presidential power should be
Office of Legal Counsel
paramount in many areas. He opposes affirmative action and
other policies that treat minorities as groups. He files separate In office
opinions in large numbers of cases, and, in his minority 1974–1977
opinions, often castigates the Court's majority in scathing President Richard Nixon
language. Gerald Ford
Preceded by John Harmon
Personal details

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Born March 11, 1936
1 Early life
Trenton, New Jersey, U.S.
2 Legal career
3 Judge and nominee Political party Republican Party[1]
4 Legal philosophy and approach Spouse(s) Maureen Scalia (née McCarthy)
4.1 Judicial performance
4.2 Statutory and constitutional Children Ann Forest Banaszewski
interpretation Eugene Scalia
5 Jurisprudence in practice John Francis Scalia
5.1 Governmental structure and powers Catherine Elisabeth Courtney
5.1.1 Separation of powers Mary Clare Scalia
5.1.2 Detainee cases Paul David Scalia
5.1.3 Federalism
Matthew Scalia
5.2 Individual rights
Christopher James Scalia
5.2.1 Abortion
5.2.2 Race, gender, and Margaret Jane Scalia
sexual orientation Alma mater Georgetown University
5.2.3 Criminal law University of Fribourg
5.3 Other cases Harvard Law School
6 Public attention
6.1 Requests for recusals Religion Roman Catholic
6.2 Religion Signature
7 Assessment
8 Works
9 Notes
10 References
11 External links

An only child, Antonin Scalia was born in Trenton, New Jersey, on March 11, 1936.[2] His father, Salvatore
Eugene Scalia, was an immigrant from Sicily who was a graduate student and clerk at the time of his son's birth,
but who later became a professor of Romance languages at Brooklyn College.[3] His mother, Catherine Scalia
(née Panaro), was born in the United States to Italian immigrant parents, and worked as an elementary school
teacher.[3]

When Antonin was six years old, the Scalia family moved to Elmhurst, Queens, in New York City. Antonin's
parents drove the boy to excel in his schoolwork. After completing eighth grade in public school,[4] he obtained a
scholarship to Jesuit-run Xavier High School in Manhattan,[5] where he graduated first in his class.[6] Scalia later
stated that he spent much of his time on schoolwork, and admitted, "I was never cool."[7]

Classmate and future New York State official William Stern remembered Scalia in his high school days:

This kid was a conservative when he was 17 years old. An archconservative Catholic. He could have
been a member of the Curia. He was the top student in the class. He was brilliant, way above
everybody else.[2]

Rejected from his first-choice school, Princeton University, Scalia enrolled at Georgetown University in 1953. He

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graduated valedictorian and summa cum laude with a Bachelor of Arts in history from Georgetown in 1957.
While at Georgetown, he also studied at the University of Fribourg, Switzerland[2] and went on to study law at
Harvard Law School, where he was a Notes Editor for the Harvard Law Review.[8] He graduated magna cum
laude from Harvard Law in 1960, becoming a Sheldon Fellow of Harvard University. The fellowship allowed him
to travel throughout Europe during 1960–1961.[9]

On September 10, 1960, Scalia married Maureen McCarthy, whom he met on a blind date while he was at
Harvard Law School. Maureen Scalia had been an undergraduate at Radcliffe College when the two met, and
subsequently obtained a degree in English from the school.[10] The couple raised nine children, five boys and
four girls.[11]

Scalia began his legal career at Jones, Day, Cockley and Reavis in Cleveland, Ohio, where he worked from 1961
to 1967.[8] He was highly regarded at Jones Day and would most likely have made partner, but later stated he
had long intended to teach.[12] He became a Professor of Law at the University of Virginia in 1967, moving his
family to Charlottesville, Virginia.[12]

After four years in Charlottesville, in 1971, Scalia entered public service. President Richard Nixon appointed him
as the general counsel for the Office of Telecommunications Policy, where one of his principal assignments was
to formulate federal policy for the growth of cable television.[9] From 1972 to 1974, he was the chairman of the
Administrative Conference of the United States, a small independent agency that sought to improve the
functioning of the federal bureaucracy.[9] In mid-1974, Nixon nominated him as Assistant Attorney General for
the Office of Legal Counsel.[9] After Nixon's resignation, the nomination was continued by President Gerald
Ford, and Scalia was confirmed by the Senate on August 22, 1974.[13]

In the aftermath of Watergate, the Ford administration was engaged in a number of conflicts with Congress.
Scalia repeatedly testified before congressional committees, defending Ford administration assertions of
executive privilege in refusing to turn over documents.[14] Within the administration, Scalia advocated a
presidential veto for a bill to amend the Freedom of Information Act, greatly increasing its scope. Scalia's position
prevailed and Ford vetoed the bill, but Congress overrode it.[15] In early 1976, Scalia argued his only case before
the Supreme Court, Alfred Dunhill of London, Inc. v. Republic of Cuba. Scalia, on behalf of the U.S.
government, argued in support of Dunhill, and that position prevailed.[16]

Following Ford's defeat by President Jimmy Carter, Scalia worked for several months at the American Enterprise
Institute.[17] He then returned to academia, taking up residence at the University of Chicago Law School from
1977 to 1982,[18] though he spent one year as a visiting professor at Stanford Law School.[19] In 1981, he
became the first faculty adviser for the University of Chicago's chapter of the newly founded Federalist
Society.[18]

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When Ronald Reagan was elected President in November 1980, Scalia
hoped for a major position in the new administration. He was interviewed
for the position of Solicitor General of the United States, but the position
went to Rex E. Lee, to Scalia's great disappointment.[20] Scalia was
offered a seat on the Chicago-based United States Court of Appeals for
the Seventh Circuit in early 1982, but declined it, hoping to be appointed
to the highly influential United States Court of Appeals for the District of
Columbia Circuit (D.C. Circuit). Later that year, Reagan offered Scalia a
seat on the D.C. Circuit, which Scalia accepted.[21] He was confirmed by President Reagan and then-nominee
the United States Senate on August 5, 1982, and was sworn in on August Scalia, July 7, 1986
17, 1982.[22]

On the D.C. Circuit, Scalia built a conservative record, while winning applause in legal circles for powerful, witty
legal writing, which was often critical of the Supreme Court precedents he was bound as a lower-court judge to
follow. Scalia's opinions drew the attention of Reagan administration officials, who, according to The New York
Times, "liked virtually everything they saw and ... listed him as a leading Supreme Court prospect."[23] In 1985,
though there was then no vacancy on the Court, Reagan administration officials put Scalia on a short list with
fellow D.C. Circuit Judge Robert Bork, to be considered if a justice left the Court. In 1986, Chief Justice Warren
Burger informed the White House of his intent to retire. Reagan first decided to nominate Associate Justice
William Rehnquist to become Chief Justice. This choice meant that Reagan would also have to choose a nominee
to fill Rehnquist's seat as associate justice.[24] Attorney General Edwin Meese, who advised Reagan on the
choice, only seriously considered Bork and Scalia.[25] Feeling that this might well be Reagan's last opportunity to
pick a Supreme Court justice, the President and his advisers chose Scalia over Bork as Scalia was ten years
younger, and would likely serve longer on the Court.[24] Scalia also had the advantage of not having Bork's
"paper trail";[26] the elder judge had written controversial articles about individual rights.[27] Scalia was called to
the White House, and accepted Reagan's nomination.[24]

When Senate Judiciary Committee hearings on Scalia's nomination opened in August 1986, he faced a committee
that had just wrangled over the Rehnquist nomination. Witnesses and Democratic senators contended that,
before becoming a judge, Rehnquist had engaged in activities designed to discourage minorities from voting.
Committee members had little taste for a second battle over Scalia and were in any event reluctant to oppose the
first Italian-American Supreme Court nominee.[28] The judge was not pressed heavily on controversial issues
such as abortion or civil rights.[29] Scalia, who attended the hearing with his wife and nine children seated behind
him, found time for a humorous exchange with Democratic Ohio Senator Howard Metzenbaum, whom Scalia had
defeated in a tennis match in, as the nominee put it, "a case of my integrity overcoming my judgment".[30]

Scalia met no opposition from the committee. The full Senate debated Scalia's nomination only briefly, and he
was confirmed 98–0 on September 17, 1986. This vote followed Rehnquist's confirmation as Chief Justice by a
vote of 65–33 on the same day. One committee member, Democratic Delaware Senator (and future Vice
President) Joe Biden, later stated that he regretted not having opposed Scalia "because he was so effective".[31]

Judicial performance

During oral argument before the Court, Scalia asks more questions and makes more comments than any other
justice[32]—and a 2005 study found that he provokes laughter more often than any of his colleagues.[33] His goal

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during oral arguments is to get across his position to the other justices.[34] Kansas University social psychologist
Lawrence Wrightsman wrote of Scalia's style, "he communicates a sense of urgency on the bench, and his style is
forever forceful".[32] Since Chief Justice John Roberts joined the Court in 2005, he has taken to questioning
counsel in a manner similar to Scalia's and sometimes the two question counsel in seeming coordination.[34]
Dahlia Lithwick of Slate described Scalia's technique:

Scalia doesn't come into oral argument all secretive and sphinxlike, feigning indecision on the
nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows
what the law is. He knows what the opinion should say. And he uses the hour allocated for argument
to bludgeon his brethren into agreement.[35]

Scalia has, from the start of his career on the Supreme Court, written large numbers of opinions. During his
tenure, he has written more concurring opinions than any other justice, and only two justices have written more
dissents.[36] According to Kevin Ring, who compiled a book of Scalia's dissenting and concurring opinions, "His
opinions are ... highly readable. His entertaining writing style can make even the most mundane areas of the law
interesting."[37] Conor Clarke of Slate comments on Scalia's written opinions, especially his dissents:

His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste
for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain
terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of
all, Scalia's opinions read like they're about to catch fire for pure outrage. He does not, in short, write
like a happy man.[38]

At the Supreme Court, justices meet after the case is briefed and argued, and vote on the result. The task of
writing the opinion is assigned by the Chief Justice, or if he is in the minority or not participating, by the senior
justice in the majority. After the assignment, the justices generally communicate about a case by sending notes
and draft opinions to each others' chambers.[39] In the give and take of opinion writing, Scalia does not
compromise his views in order to attract five votes for a majority (unlike the late Justice William J. Brennan, Jr.
who would accept less than he wanted in order to gain a partial victory).[40] Scalia attempts to influence his
colleagues by sending them "Ninograms"—short memoranda aimed at trying to get them to include his views in
their opinions.[36]

Scalia enjoys a warm relationship with fellow Justice Ruth Bader Ginsburg, a liberal, with the two attending the
opera together, and even appearing together onstage as extras in Washington National Opera's 1994 production
of Ariadne auf Naxos.[32] Ginsburg was a colleague of Scalia's on the D.C. Circuit, and the Scalias and Ginsburgs
have dinner together every New Year's Eve.[41]

Statutory and constitutional interpretation

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Scalia describes himself as an originalist, meaning that he interprets the
Constitution of the United States as it would have been understood when
it was adopted. According to Scalia, "It's what did the words mean to the
people who ratified the Bill of Rights or who ratified the Constitution."[7]

Constitutional amendments, such as the 1868 Fourteenth Amendment,
according to Scalia, are to be interpreted based on their meaning at the
time of ratification.[42] Scalia is often asked how this approach justifies
the result in the 1954 case of Brown v. Board of Education, which held Judge and Mrs. Scalia (left) and
that segregated schools were unconstitutional, and which relied on the President Reagan (right) watch as
Fourteenth Amendment for the result.[43] In a 2009 public "conversation" Chief Justice Warren Burger swears in
with Justice Stephen Breyer, Breyer questioned Scalia regarding this William Rehnquist as his successor,
approach, indicating that those who ratified the Fourteenth Amendment September 26, 1986.
did not intend to end school segregation. Scalia has called this argument
"waving the bloody shirt of Brown", and indicated that he would have
joined the first Justice Harlan's solitary dissent in Plessy v. Ferguson, the 1896 case that Brown overruled.[44]

Scalia vociferously opposes the idea of a living constitution, or the power of the judiciary to modify the meaning
of constitutional provisions to adapt them to changing times.[7] Scalia has warned that if one accepts that
constitutional standards should evolve with a maturing society, "the risk of assessing evolving standards is that it
is all too easy to believe that evolution has culminated in one's own views."[45] He compares the Constitution
with statutes, which he contends are not understood to change their meaning through time.[8]

Scalia is a textualist in statutory interpretation, believing that the ordinary meaning of the statute should
govern.[46] In interpreting statutes, he does not look to legislative history. In the 2006 case of Zedner v. United
States, Scalia joined the majority opinion written by Justice Samuel Alito—all except one paragraph of the
opinion, in which Justice Alito cited legislative history. In a concurring opinion in that case, Scalia noted, "The
use of legislative history is illegitimate and ill advised in the interpretation of any statute."[47]

Scalia's originalist approach has come under attack from critics, who say that he only sees in the Constitution that
which supports his personal beliefs. Those critics have stated that Scalia's true agenda is to reverse the decisions
of the Warren and Burger Courts, which shaped the law in the 1960s and 1970s.[7] Ralph Nader has stated that
Scalia's claim to an originalist philosophy is inconsistent with the justice's acceptance of the extension of certain
constitutional rights to corporations when at the time of the Fourteenth Amendment's ratification, corporations
were not commonly understood to possess constitutional rights.[48] Nader's view, however, preceded the Court's
2010 decision in Citizens United v. Federal Election Commission. Scalia, in his concurrence in that case, traced
his understanding of the rights of corporations at the time of the adoption of the Bill of Rights. His argument is
based on the lack of an exception for corporations in the free speech guarantee in the Bill of Rights, and on
several examples of corporate political speech from the time of the adoption of the Bill of Rights.[49] Professor
Thomas Colby of The George Washington University National Law Center stated that Scalia's votes in
Establishment Clause cases (the provision of the First Amendment that governs the relationship between church
and state) do not stem from originalist views, but from conservative political convictions.[50]

Governmental structure and powers

Separation of powers

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It is Scalia's view that clear lines of separation among the Executive,
Legislative, and Judicial Branches follow directly from the Constitution,
with no branch allowed to exercise powers granted to another branch.[51]
In his early days on the Court, he authored a powerful—and solitary
—dissent in 1988's Morrison v. Olson, in which the Court's majority
upheld the Independent Counsel law. Scalia's thirty-page draft dissent
surprised Justice Harry Blackmun for its emotional content; Blackmun
felt it could be cut down to ten pages if Scalia omitted "the
screaming".[52] Scalia indicated that the law was an unwarranted The 2009–2010 Court, with President
encroachment on the Executive Branch by the Legislative. He warned, Obama, Vice President Biden and
"Frequently an issue of this sort will come before the Court clad, so to retiring justice David Souter with
speak, in sheep's clothing ... But this wolf comes as a wolf."[52] Scalia fourth from right

The 1989 case of Mistretta v. United States challenged the United States
Sentencing Commission, an independent body within the Judicial Branch whose members (some of whom were
federal judges) were removable only for good cause. The petitioner argued that the arrangement violated
separation of powers, and that the United States Sentencing Guidelines promulgated by the Commission were
invalid. Eight justices joined in the majority opinion written by Blackmun, upholding the Guidelines as
constitutional.[53] Scalia dissented, stating that the issuance of the Guidelines was a lawmaking function that
Congress could not delegate,[54] and dubbed the Commission "a sort of junior-varsity Congress".[52]

In 1996, Congress passed the Line Item Veto Act which allowed the President to cancel items from an
appropriations bill (a bill authorizing spending) once passed into law. The statute was challenged the following
year. The matter rapidly reached the Supreme Court, which struck down the law as violating the Presentment
Clause of the Constitution, which governs what the President may do with a bill once it has passed both Houses
of Congress.[55] Scalia dissented, seeing no Presentment Clause difficulties and feeling that the act did not violate
separation of powers. Scalia indicated that he felt that authorizing the President to cancel an appropriation was
no different from allowing him to spend an appropriation at his discretion, which had long been accepted as
constitutional.[56]

Detainee cases

In 2004, in Rasul v. Bush, the Court held that federal courts had jurisdiction to hear habeas corpus petitions
brought by detainees at the Guantanamo Bay detainment camp. Scalia accused the majority of "spring[ing] a trap
on the Executive" by ruling that it could hear cases involving persons at Guantanamo when no federal court had
ever ruled that it had the authority to hear cases involving people there.[57]

Scalia (joined by Justice John Paul Stevens) also dissented in the 2004 case of Hamdi v. Rumsfeld, involving
Yaser Hamdi, an American citizen detained in the United States on the allegation he was an enemy combatant.
The Court held that the post-9/11 congressional Authorization for the Use of Military Force (AUMF) amounted
to authorization for the suspension of the writ of habeas corpus and the Government could continue to detain
Hamdi. Scalia wrote that the AUMF could not be read to suspend habeas corpus and that the Court, faced with
legislation by Congress which did not grant the President power to detain Hamdi, was trying to "Make
Everything Come Out Right".[58]

In March 2006, Scalia gave a talk at the University of Fribourg, in Switzerland, where he was asked about
detainee rights. He responded, "Give me a break ... I had a son on that battlefield and they were shooting at my
son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy."[59] Though
Scalia was not referring to any particular individual, the Supreme Court was about to consider the case of Salim

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Ahmed Hamdan, supposed driver to Osama bin Laden, who was challenging the military commissions at
Guantanamo Bay.[59] A group of retired military officers asked Scalia to recuse himself, or step aside from
hearing the case, which he declined to do.[60] The Court held, 5–3, in Hamdan v. Rumsfeld, that the federal
courts had jurisdiction to consider Hamdan's claims; Scalia, in dissent, contended that any ability by the Court to
consider Hamdan's petition had been eliminated by the jurisdiction stripping Detainee Treatment Act of 2005.[61]

Federalism

In federalism cases, pitting the powers of the federal government against those of the states, Scalia has often
taken the states' positions. In 1997, the Supreme Court considered the case of Printz v. United States, a challenge
to certain provisions of the Brady Handgun Violence Prevention Act which required chief law enforcement
officers of localities in states to perform certain duties. In Printz, Scalia wrote the Court's majority decision. The
Supreme Court ruled the provision which imposed those duties unconstitutional as violating the Tenth
Amendment, which reserves to the states and to the people those powers not granted to the Federal
Government.[62] In 2005, Scalia concurred in Gonzales v. Raich, which read the Commerce Clause to hold that
Congress could ban the use of marijuana even where states approve its use for medicinal purposes. Scalia opined
that the Commerce Clause, together with the Necessary and Proper Clause, permitted the regulation. In addition,
Scalia felt that Congress may regulate intrastate activities if doing so is a necessary part of a more general
regulation of interstate commerce.[63]

Scalia has taken a broad view of the Eleventh Amendment, which bars certain lawsuits against states in the
federal courts. In his 1989 dissent in Pennsylvania v. Union Gas Co., Scalia stated that there was no intent on the
part of the Framers to have the states surrender any sovereign immunity, and that the case that provoked the
Eleventh Amendment, Chisholm v. Georgia, came as a surprise to them. Professor Ralph Rossum, who wrote a
survey of Scalia's constitutional views, suggests that the justice's view of the Eleventh Amendment is actually
contradictory to the language of the Amendment.[64]

Individual rights

Abortion

Scalia has argued that there is no constitutional right to abortion, and that if the people desire legalized abortion,
a law should be passed to accomplish it.[7] Scalia wrote in his dissenting opinion in the 1992 case of Planned
Parenthood v. Casey,

The States may, if they wish, permit abortion on demand, but the Constitution does not require them
to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most
important questions in our democracy: by citizens trying to persuade one another and then
voting.[65]

Scalia has repeatedly called upon his colleagues to strike down Roe v. Wade. Scalia hoped to find five votes to
strike down Roe in the 1989 case of Webster v. Reproductive Health Services, but was not successful in doing
so. Justice Sandra Day O'Connor authored the decision of the Court, allowing the abortion regulations at issue in
the case to stand, but not overriding Roe. Scalia concurred only in part.[66] Scalia wrote that, "Justice O'Connor's
assertion, that a 'fundamental rule of judicial restraint' requires us to avoid reconsidering Roe, cannot be taken
seriously."[67] He noted, "We can now look forward to at least another Term of carts full of mail from the public,
and the streets full of demonstrators."[68]

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The Court returned to the issue of abortion in the 2000 case of Stenberg v. Carhart, in which it invalidated a
Nebraska statute outlawing partial-birth abortion. Justice Stephen Breyer wrote for the Court that the law was
unconstitutional as it did not allow an exception for the health of the mother. Scalia dissented, comparing the
Stenberg case with two of the most reviled cases in Supreme Court history: "I am optimistic enough to believe
that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence
beside Korematsu and Dred Scott. The method of killing a human child ... proscribed by this statute is so horrible
that the most clinical description of it evokes a shudder of revulsion."[69]

In 2007, the Court upheld a federal statute banning partial-birth abortion in Gonzales v. Carhart.[70] University
of Chicago law professor Geoffrey R. Stone, a former colleague of Scalia's, criticized Gonzales, stating that
religion had influenced the outcome as all five justices in the majority were Catholic, whereas the dissenters were
Protestant or Jewish.[71] This angered Scalia to such an extent that he stated he would not speak at the University
of Chicago as long as Stone is there.[72]

Race, gender, and sexual orientation

Scalia has generally voted to strike down laws which make distinctions by race, gender, or sexual orientation. In
1989, he concurred with the Court's judgment in City of Richmond v. J.A. Croson Co., in which the Court
applied strict scrutiny to a city program requiring a certain percentage of contracts to go to minorities, and struck
down the program. Scalia did not join the majority opinion, however. He disagreed with O'Connor's opinion, for
the Court, that states and localities could institute race-based programs, if they identified past discrimination, and
if the program was designed to remedy the past racism.[73] Five years later, in Adarand Constructors, Inc. v.
Peña he concurred in the Court's judgment and in part with the opinion which extended strict scrutiny to Federal
programs. Scalia noted in that matter his view that government can never have a compelling interest in making up
for past discrimination by racial preferences,

To pursue the concept of racial entitlement – even for the most admirable and benign of purposes –
is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race
privilege and race hatred. In the eyes of government, we are just one race here. It is American.[74]

In the 2003 case of Grutter v. Bollinger, involving racial preferences in the University of Michigan's law school,
Scalia mocked the Court majority's finding that the school was entitled to continue using race as a factor in
admissions so as to promote diversity, and to increase "cross-racial understanding". Scalia noted,

This is not, of course, an "educational benefit" on which students will be graded on their Law School
transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in
500 words or less your cross-racial understanding). For it is a lesson of life rather than
law—essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the
usual sense) people three feet shorter and twenty years younger than the full-grown adults at the
University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school
kindergartens.[75]

Scalia has argued that laws that make distinctions between genders should be subjected to intermediate scrutiny,
requiring that the gender classification be substantially related to important government objectives.[76] When, in
1996, the Court upheld a suit brought by a woman who wished to enter the Virginia Military Institute in the case
of United States v. Virginia, Scalia filed a lone, lengthy dissent. Scalia felt that the Court, in requiring Virginia to
show an "extremely persuasive justification" for the single-sex admissions policy, had redefined intermediate
scrutiny in such a way "that makes it indistinguishable from strict scrutiny".[77]

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In one of the final decisions of the Burger Court, the Court ruled in 1986 in Bowers v. Hardwick that homosexual
sodomy was not protected by the right of privacy and could be criminally prosecuted by the States.[78] In 1995,
however, that ruling was effectively gutted by Romer v. Evans, which struck down a Colorado state
constitutional amendment, passed by popular vote, which forbade anti-discrimination laws being extended to
sexual orientation.[79] Scalia dissented from the opinion by Justice Kennedy, believing that Bowers had protected
the right of the states to pass such measures, and that the Colorado amendment was not discriminatory, but
merely prevented homosexuals from gaining favored status under Colorado law.[80] Scalia later said of Romer,
"And the Supreme Court said, 'Yes, it is unconstitutional.' On the basis of—I don't know, the Sexual Preference
Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth."[81]

In 2003, Bowers was formally reversed by Lawrence v. Texas, from which Scalia dissented. According to Mark
V. Tushnet in his survey of the Rehnquist Court, during the oral argument in the case, Scalia seemed so intent on
making the state's argument for it that the Chief Justice intervened: "Maybe we should go through counsel."[82]
According to his biographer, Joan Biskupic, Scalia "ridiculed" the majority in his dissent for being so ready to
cast aside Bowers when many of the same justices had refused to overturn Roe in Planned Parenthood v.
Casey.[83]

Criminal law

Scalia believes the death penalty is constitutional and opposes
attempts to declare it unconstitutional.[84] He dissents in decisions
that hold the death penalty unconstitutional as applied to certain
groups, such as those who were under the age of 18 at the time of
offense. In Thompson v. Oklahoma (1988), he dissented from the
Court's ruling that the death penalty could not be applied to those
aged 15 at the time of the offense, and the following year authored
the Court's opinion in Stanford v. Kentucky sustaining the death
penalty for those who killed at age 16. However, in 2005, the Court
overturned Stanford in Roper v. Simmons and Scalia again dissented,
mocking the majority's claims that a national consensus had emerged
Scalia (right) at the Harvard Law School on
against the execution of those who killed while under age, and noted
November 30, 2006
that less than half of the states that permitted the death penalty
prohibited it for underage killers. He castigated the majority for
including in their count states that had abolished the death penalty entirely, stating that doing so was "rather like
including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but
that sheds no light whatever on the point at issue."[85] In 2002, in Atkins v. Virginia, the Court ruled the death
penalty unconstitutional as applied to the mentally retarded. Scalia dissented, stating that it would not have been
considered cruel or unusual to execute the mildly mentally retarded at the time of the 1791 adoption of the Bill of
Rights, and that the Court had failed to show that a national consensus had formed against the practice.[86]

Scalia strongly disfavors the Court's ruling in Miranda v. Arizona, which held that a confession by an arrested
suspect who had not been advised of his rights was inadmissible in court, and voted to overrule Miranda in the
2000 case of Dickerson v. United States, but was in a minority of two with Justice Clarence Thomas. Calling the
Miranda decision a "milestone of judicial overreaching", Scalia stated that the Court should not fear to correct its
mistakes.[87]

Although, in many areas, Scalia's approach is unfavorable to criminal defendants, he has taken the side of
defendants in matters involving the Confrontation Clause of the Sixth Amendment, which guarantees defendants
the right to confront their accusers. In multiple cases, Scalia has written against laws that allowed alleged victims

10 of 19 12/23/2011 8:08 PM


of child abuse to testify behind screens or by closed-circuit television.[88] In a 2009 case, Scalia wrote the
majority opinion in Melendez-Diaz v. Massachusetts, holding that defendants must have the opportunity to
confront lab technicians in drug cases; a certificate of analysis is not enough to prove a substance was drugs.[89]

Scalia maintains that every element of an offense that helps determine the sentence must be either admitted by
the defendant or found by a jury under the Sixth Amendment's jury guarantee. In the 2000 case of Apprendi v.
New Jersey, Scalia wrote the Court's majority opinion that struck down a state statute that allowed the trial judge
to increase the sentence if he found the offense was a hate crime. Scalia found the procedure impermissible
because whether it was a hate crime had not been decided by the jury.[90] In 2004, he wrote for the Court in
Blakely v. Washington, striking down Washington state's sentencing guidelines on similar grounds. The dissenters
in Blakely foresaw that Scalia would use the case to attack the federal sentencing guidelines (which he had failed
to strike down in Mistretta), and they proved correct, as Scalia led a five-member majority in United States v.
Booker, which made those guidelines no longer mandatory for federal judges to follow (they remained
advisory).[90]

In the 2001 case of Kyllo v. United States, Scalia wrote the Court's opinion in a 5–4 decision that cut across
ideological lines.[91] That decision found thermal imaging of a home to be an unreasonable search under the
Fourth Amendment. The Court struck down a conviction for marijuana manufacture based on a search warrant
issued after such scans were conducted, which showed that the garage was considerably hotter than the rest of
the house because of indoor growing lights.[92] Applying that Fourth Amendment prohibition on unreasonable
search and seizure to arrest, Scalia dissented from the Court's 1991 decision in County of Riverside v.
McLaughlin, allowing a 48-hour delay before a person arrested without a warrant is taken before a magistrate, on
the ground that at the time of the adoption of the Fourth Amendment, an arrested person was to be taken before
a magistrate as quickly as practicable.[93] In a 1990 First Amendment case, R.A.V. v. St. Paul, Scalia wrote the
Court's opinion striking down a St. Paul, Minnesota hate speech ordinance in a prosecution for burning a
cross.[94] Scalia noted, "Let there be no mistake about our belief that burning a cross in someone's front yard is
reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First
Amendment to the fire."[95]

Other cases

Scalia joined the majority per curiam opinion in the 2000 case of Bush v. Gore, which effectively ended recounts
of ballots in Florida following the 2000 US Presidential election, and also both concurred separately and joined
Rehnquist's concurrence.[96] In 2007, he said of the case, "I and my court owe no apology whatever for Bush v.
Gore. We did the right thing. So there! ... get over it. It's so old by now."[97]

During an interview on the Charlie Rose show, he defended the Court's action:

The decision was not close, it was 7–2 on the principal issue of whether there had been a
constitutional violation....But what if it was unconstitutional to have that recount? You're going to let
it continue and come to a conclusion? And then overturn it? The reason to stop it sooner was not,
"Ooh, we're worried that it's going to come out the wrong way." ... you forget what was going on at
the time. We were the laughingstock of the world. The world's greatest democracy that couldn't
conduct an election. We didn't know who our next president was going to be. The lengthy transition
that has become standard when you change from one president to another could not begin because
you didn't know who the new president was going to be. It was becoming a very serious problem.
The issue before the United States Supreme Court is: having decided the case, having decided this is
unconstitutional, should we nonetheless let the election go on? Or is it time cut it off and let's move

11 of 19 12/23/2011 8:08 PM


on?[98]

Scalia concurred in the 1990 case of Cruzan v. Director, Missouri Department of Health in which the family of
a woman in a vegetative state sought to have her feeding tube removed so she would die, believing that to have
been her wish. The Court found for the State of Missouri, requiring clear and convincing evidence of such a
desire. Scalia stated that the Court should have remained away from the dispute, and that the issues "are [not]
better known to the nine Justices of this Court any better than they are known to nine people picked at random
from the Kansas City telephone directory".[99]

In 2008, the Court considered a challenge to the gun laws in the District
of Columbia. Scalia wrote the majority opinion in District of Columbia v.
Heller, which found an individual right to own a firearm under the
Second Amendment. Scalia traced the word "militia", found in the Second
Amendment, as it would have been understood at the time of its
ratification, and stated that it then meant "the body of all citizens".[99]
The Court upheld Heller's claim to own a firearm in the District.[99]

Scalia in 2010. Scalia's opinion for the Heller Court was widely criticized by liberals, and
applauded by conservatives.[99] However, Seventh Circuit judge Richard
Posner, a conservative, disagreed with Scalia's opinion, stating that the
Second Amendment "creates no right to the private possession of guns". Posner called Scalia's opinion "faux
originalism" and a "historicizing glaze on personal values and policy preferences".[100] Scalia, on the other hand,
has stated that the court's originalists only needed to show that at the time the Second Amendment was ratified,
the right to bear arms did not have an exclusively military context, and that they were successful in so
showing.[101]

Requests for recusals

Scalia recused himself in Elk Grove Unified School District v. Newdow, a
claim brought by atheist Michael Newdow alleging the recitation of the
Pledge of Allegiance (including the words "under God") in school
classrooms, violated the rights of his daughter, who he said was also an
atheist. Shortly after the United States Court of Appeals for the Ninth
Circuit ruled in Newdow's favor, Scalia, speaking at a Knights of
Columbus event in Fredericksburg, Virginia, stated that the Ninth Circuit
decision was an example of how the courts were trying to excise God
from public life. The school district requested that the Supreme Court
review the case, and Newdow asked that Scalia recuse himself, which he Scalia (right) works with Bryan A.
did without comment.[102] Garner on a book.

Scalia refused to recuse himself in Cheney v. United States District Court
for the District of Columbia (2005), a case concerning whether Vice President Dick Cheney could keep secret
the membership of an advisory task force on energy policy. Scalia was asked to recuse himself because he had
gone on a hunting trip with various persons including Cheney, during which he traveled one way on Air Force
Two. Scalia refused to recuse himself, stating that though Cheney was a longtime friend, he was merely being
sued in his official capacity, and that were justices to step aside in the cases of officials who are parties because
of official capacity, the Supreme Court would cease to function. Scalia indicated that it was far from unusual for

12 of 19 12/23/2011 8:08 PM


justices to socialize with other government officials, recalling that the late Chief Justice Fred M. Vinson played
poker with President Harry Truman and that Justice Byron White went skiing with Attorney General Robert F.
Kennedy. Scalia stated that he was never alone with Cheney during the trip, the two had not discussed the case,
and the justice had saved no money since he had bought round-trip tickets, the cheapest available.[103] Scalia
was part of the 7–2 majority once the case was heard which generally upheld Cheney's position.[104]

Religion

Scalia resides in McLean, Virginia,[105] and is a devout Catholic. His son, Paul, is a Catholic priest.[106]
Uncomfortable with the changes brought about following Vatican II, Scalia regularly attends the Tridentine Latin
Mass in both Chicago and Washington, and has driven long distances to parishes that he felt were more in accord
with his beliefs.[107]

In 2006, Scalia, approached by a reporter upon leaving church, was asked if being a traditional Catholic had
caused problems for him. He responded by asking, "You know what I say to those people?", and with a gesture,
cupping his hand under his chin and flicking his fingers out. The gesture, which was captured by a photographer,
was initially reported by the Boston Herald as obscene. Scalia responded to the reports with a letter to the editor
accusing the news staff of watching too many episodes of The Sopranos and stating that the gesture was a strong
brush-off. Roger Axtell, an expert on body language, described the gesture as possibly meaning "I've had enough,
go away" and noted, "It's a fairly strong gesture."[108]

After nearly a quarter century on the Court, and now past the age of
seventy, Scalia characterizes his victories as "[d]amn few".[109] His
biographer, Joan Biskupic, speculates that Scalia, given good health, may
remain on the Court for another decade.[109]

Writing in The Forward, J.J. Goldberg described Scalia as "the
intellectual anchor of the court's conservative majority".[110] Scalia
travels to the nation's law schools, giving talks on law and democracy.[36] The 2009 Supreme Court, Scalia
[111]
His appearances on college campuses are often standing room only. seated second from right
Ginsburg indicates that Scalia "is very much in tune with the current
generation of law students ... Students now put 'Federalist Society' on
their resumes."[112] John Paul Stevens, who served throughout Scalia's tenure until his 2010 retirement; says of
Scalia's influence, "He's made a huge difference. Some of it constructive, some of it unfortunate."[112] Of the
nine sitting justices, Scalia is most often the subject of law review articles.[111]

Whereas Scalia is widely admired among conservatives, many liberals dislike his views. In March 2009, openly
gay Congressman Barney Frank described Scalia as a "homophobe".[113] Maureen Dowd described Scalia in a
2003 column as "Archie Bunker in a high-backed chair".[114]

Rossum, writing in 2006, before George W. Bush appointees Roberts and Alito had time to make an impact, said
that Scalia had failed to win converts among his conservative colleagues for his use of originalism.[115] Roberts
and Alito, however, are younger men who take an originalist approach and who greatly admire Scalia and how he
battles for what he believes in.[116]

13 of 19 12/23/2011 8:08 PM


Scalia's dislike of legislative history may be a reason why other justices have become more cautious in its
use.[117] Gregory Maggs wrote in the Public Interest Law Review in 1995 that by the early 1990s, legislative
history was being cited in only about forty percent of Supreme Court cases involving the interpretation of
statutes, and no case of that era used legislative history as an essential reason for the outcome. Maggs suggested,

With Justice Scalia breathing down the necks of anyone who peeks into the Congressional Record or
Senate reports, the other members of the Court may have concluded that the benefit of citing
legislative history does not outweigh its costs. It is likely for this reason that the percentage of cases
citing it has decreased dramatically. No one likes an unnecessary fight, especially not one with as
formidable an opponent as Justice Scalia.[117]

Scalia, Antonin, and Gutmann, Amy, ed., (1997) A Matter of Interpretation: Federal Courts and the
Law (Princeton N.J.: Princeton University Press) ISBN 0-691-00400-5.
Scalia, Antonin; Garner, Bryan A. (2008) Making Your Case: The Art of Persuading Judges (St. Paul:
Thomson West) ISBN 978-0-314-18471-9.

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4. ^ Biskupic 2009, pp. 17–19.
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100. ^ Posner, Richard (August 27, 2008) (PDF), In defense of looseness (http://epstein.law.northwestern.edu/research
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101. ^ McArdle, Elaine (October 3, 2008), In inaugural Vaughan Lecture, Scalia defends the "methodology of
originalism" (http://www.law.harvard.edu/news/spotlight/constitutional-law/scalia-vaughan-lecture.html) , Harvard
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102. ^ Greenhouse, Linda (October 14, 2003), "Justices take case on Pledge of Allegiance's reference to God"
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st=cse) , The New York Times, http://www.nytimes.com/2003/10/14/national/14CND-SCOTUS.html?scp=3&
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Biskupic, Joan (2009), American Original: The Life and Constitution of Supreme Court Justice
Antonin Scalia, Sarah Crichton Books, ISBN 978-0-374-20289-7.
Ring, Kevin (2004), Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken
Justice, Regnery Publishing, Inc., ISBN 0-89526-053-0.
Rossum, Ralph (2006), Antonin Scalia's Jurisprudence: Text and Tradition, University Press of
Kansas, ISBN 0-7006-1447-8.
Staab, James (2006), The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme
Court, Rowman & Littlefield, ISBN 0-7425-4311-0.
Toobin, Jeffrey (2008), The Nine: Inside the Secret World of the Supreme Court (revised ed.), Anchor
Books, ISBN 978-1-4000-9679-4.
Tushnet, Mark (2006), A Court Divided: The Rehnquist Court and the Future of Constitutional Law
(revised ed.), W.W. Norton & Co., ISBN 0-393-05868-9.

Supreme Court (http://www.supremecourt.gov/) official site with biographies
(http://www.supremecourt.gov/about/biographies.aspx)
Profile (http://www.fjc.gov/servlet/nGetInfo?jid=2108) at the Biographical Directory of Federal
Judges, a public domain publication of the Federal Judicial Center
Legal resources (http://www.loc.gov/law/find/court-confirmed.php#scalia) at the Law Library of
Congress
Biography and writings (http://www.law.cornell.edu/supct/justices/scalia.bio.html) at the Legal
Information Institute

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Profile (http://www.oyez.org/justices/antonin_scalia) at the Oyez Project
Appearances (http://www.c-spanvideo.org/antoninscalia) on C-SPAN
Appearances (http://www.charlierose.com/guest/view/6381) on Charlie Rose
Profile (http://www.imdb.com/name/nm1197470) at the Internet Movie Database
Financial information (http://www.opensecrets.org/pfds/candlook.php?CID=N99999921) at
OpenSecrets.org
Collected news and commentary (http://topics.nytimes.com/top/reference/timestopics/people
/s/antonin_scalia) at The New York Times
Works by or about Antonin Scalia (http://www.worldcat.org/identities/lccn-n85-351211) in libraries
(WorldCat catalog)
Profile (http://www.nndb.com/people/895/000023826) at Notable Names Database

Legal offices
Judge of the Court of Appeals for the
Preceded by Succeeded by
District of Columbia Circuit
Roger Robb David Sentelle
1982–1986
Associate Justice of the Supreme Court of
Preceded by
the United States Incumbent
William Rehnquist
1986–present
United States order of precedence
Preceded by
Ministers of foreign powers Succeeded by
Order of Precedence of the United States Anthony Kennedy
Preceded by as Associate Justice of the Supreme Court as Associate Justice of the Supreme
Otherwise Nancy Reagan Court
as Widowed Former First Lady

Retrieved from "http://en.wikipedia.org/w/index.php?title=Antonin_Scalia&oldid=466598493"
Categories: 1936 births American legal scholars American people of Sicilian descent
American Traditionalist Catholics United States Assistant Attorneys General
Conservatism in the United States Federalist Society members Georgetown University alumni
Georgetown University Law Center faculty Harvard Law School alumni
Judges of the United States Court of Appeals for the D.C. Circuit Living people Ohio lawyers
People from McLean, Virginia People from Trenton, New Jersey Tulane University Law School faculty
United States court of appeals judges appointed by Ronald Reagan
United States federal judges appointed by Ronald Reagan United States Supreme Court justices
University of Chicago faculty University of Fribourg alumni

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