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 (born March 11, 1936) is an Associate Justice of the Supreme Court of the United Statesmarker. He was appointed in 1986 by President Ronald Reagan having previously served on the D.C. Circuit and in the Nixon and Ford administrations, and teaching law at the Universities of Virginiamarker and Chicago. He is considered to be a core member of the conservative wing of the court, vigorously advancing textualism in statutory interpretation and originalism in constitutional interpretation.


Early life

An only child, Antonin Scalia was born in Trenton, New Jerseymarker; his mother, Catherine Panaro, was born in the United Statesmarker, while his father, S. Eugene, a professor of Romance languages, had emigrated from Sicily. Five years later, the family moved to the Elmhurstmarker section of Queensmarker, New Yorkmarker, during which time his father worked at Brooklyn Collegemarker in Flatbush, Brooklyn.

Scalia started his education at Public School 13 in Queens. As a practicing member of the Roman Catholic Church, he attended Xavier High Schoolmarker, a Jesuit school in Manhattanmarker. He graduated first in his class and summa cum laude with an B.A. in History from Georgetown College in 1957. While at Georgetown, he also studied at the University of Fribourgmarker, Switzerlandmarker and went on to study law at Harvard Law Schoolmarker, where he was a Notes Editor for the Harvard Law Review. He graduated magna cum laude from Harvard Law in 1960, becoming a Sheldon Fellow of Harvard Universitymarker the following year. The fellowship allowed him to travel throughout Europe during 1960–1961.

On September 10, 1960, Scalia married Maureen McCarthy, an English major at Radcliffe College. Together they have nine children—

Legal career

Scalia began his legal career at Jones, Day, Cockley and Reavis in Cleveland, Ohiomarker, where he worked from 1961 to 1967, before becoming a Professor of Law at the University of Virginiamarker in 1967. In 1971, he entered public service, working as the general counsel for the Office of Telecommunications Policy, under President Richard Nixon, where one of his principal assignments was to formulate federal policy for the growth of cable television. He also suggested policy which would give the White House more influence over the Corporation for Public Broadcasting, ranging from well-chosen appointees to the Board of Directors to giving more power to local stations instead of the national organization. From 1972 to 1974, he was the chairman of the Administrative Conference of the United States, before serving from 1974 to 1977 in the Ford administration as the Assistant Attorney General for the Office of Legal Counsel.

Following Ford's defeat by Jimmy Carter, Scalia returned to academia, taking up residence first at the University of Chicagomarker Law School from 1977 to 1982, and then as Visiting Professor of Law at Georgetown University Law Centermarker and Stanford Universitymarker. He also taught as a Visiting Professor in the Tulane University Law Schoolmarker summer abroad program. He was chairman of the American Bar Association's Section of Administrative Law, 1981–1982, and its Conference of Section Chairmen, 1982–1983.

On July 15, 1982, President Ronald Reagan nominated Scalia to be a Judge of the United States Court of Appeals for the District of Columbia Circuit, to a seat vacated by Roger Robb. He was confirmed by the United States Senate on August 5, 1982, and received commission on August 17, 1982. Four years later, on June 24, 1986, Reagan nominated him to replace William Rehnquist as an Associate Justice of the Supreme Court of the United Statesmarker after Rehnquist had been nominated by Reagan to serve as Chief Justice of the United States. Scalia, whose nomination was backed by liberals such as Mario Cuomo, was approved by the Senate in a vote of 98-0 (with Barry Goldwater and Jake Garn absent), and he took his seat on September 26, 1986, becoming the first Italian-American Justice on the Supreme Court of the United States. It should be noted that there was very little controversy to his rise to Supreme Court Justice, partly attributed to the elevation of Rehnquist to Chief Justice, who received a lot more coverage.

His law clerks have included prominent figures such as Paul Clement, the Solicitor General under George W. Bush; Lawrence Lessig, a legal activist and professor of law at Stanford University Law School; Joel Kaplan, former Marine Officer and former Deputy Chief of Staff for Policy under President George W. Bush; Joseph D. Kearney, Dean and Professor at Marquette University Law School; and Stephen G. Calabresi, professor of law at Northwestern University School of Lawmarker and founder of the Federalist Society.

Legal philosophy and approach

Statutory and constitutional interpretation

A formalist, Scalia is considered the Court's leading proponent of textualism and originalism (he is careful to distinguish his philosophy of original meaning from original intent). These schools of jurisprudence emphasize careful adherence to the text of both the Constitution of the United States and federal statutes as that text would have been understood to mean when adopted. Scalia will typically use dictionaries contemporaneous with the text's adoption to discern its meaning.

By implication from his originalism, Scalia vigorously opposes the idea of a living constitution, which says that the judiciary has the power to modify the meaning of constitutional provisions to adapt, as expressed in Trop v. Dulles, to "the evolving standards of decency that mark the progress of a maturing society." For Scalia, this idea misunderstands and negates what he calls the "anti-evolutionary purpose" of a constitution. A society that adopts a constitution, he says, "is skeptical...that societies always 'mature,' as opposed to rot." Scalia notes further that many important social advances, such as women's suffrage, were achieved not by judicial fiat but constitutional amendments—whose adoption, Scalia adds, is slow and cumbersome by design. The idea is that amending of the Constitution allows for democratic change as opposed to top-down rule by judges. He also compares his interpretation of the Constitution to general interpretation of other laws or statutes, which are not thought to change over time. When questioned by Harvard Law School Dean Elena Kagan about his support of a "dead Constitution," Scalia replied: "I can package it better than that. I call it the enduring Constitution." Justice Scalia keynoted a debate at the Yale Political Union on this topic, speaking in the affirmative on the resolution "Resolved: The U.S. Constitution is Not a Living Document that Reflects the Evolving Standards of American Society." The motion passed by a vote of 50-36-6.

Scalia often relies upon tradition and history to discern the original meaning of unclear constitutional provisions, but when interpreting statutory language, he considers legislative history to be an irrelevant and unreliable interpretive tool: the New York Times wrote Scalia "believes that legislative history is basically fraudulent and that judges should never consider it." This aversion for legislative history is a central tenet of textualism and is infused with both an appreciation for public choice theory and of the realities of legislative compromise (i.e., the statutory text being the only reliable evidence of the deal that was struck). This position often puts him at odds with Justice Breyer, who is perhaps the Court's most steadfast proponent of attempting to discern the overarching legislative objectives of statutes and who values legislative history in that pursuit.

Consistent with his formalist sensibilities, Scalia seeks to maximize the role of the legislature in shaping law and to minimize judicial discretion in its interpretation. For this reason he favors bright-line rules over abstract balancing tests (one of his most frequently cited works off the bench is an essay titled "The Rule of Law as a Law of Rules," which also neatly encapsulates Scalia's formalist view of law), and frowns upon judicially crafted compromises between the requirements of the Constitution and perceived expediency (see, e.g., his dissent in Maryland v. Craig); he has frequently pointed out that, regardless of whether or not moderate views are a good idea in politics, they are at root incompatible with the job of a judge: "[w]hat is a 'moderate interpretation' [of the Constitution])? Halfway between what it says and what you want it to say?"

Scalia's originalism frequently puts him on the conservative side of the Court in constitutional cases, and he is generally perceived as a conservative member of the court. He has received the lowest Segal-Cover score of the current justices, and the lowest of all Supreme Court nominees measured; whereby the lower the score the more conservative a justice is presumed to be, and the higher the score the more liberal a justice is presumed to be. In a 2003 statistical analysis of Supreme Court voting patterns, Scalia and Justice Thomas emerged as the most conservative. However, his originalism occasionally brings results that defy conservative administrations. Judged by results alone, like his colleague Justice Clarence Thomas, Scalia has handed down or concurred in decisions that might be called liberal (for example, the Apprendi line of cases, Kyllo v. United States, Smith v. United States or Texas v. Johnson).

Hamiltonian political principles

In contrast to anti-Federalist libertarian conservatives, Scalia has a rather positive view of governmental power. At a 1982 conference on federalism, Scalia challenged conservatives to reexamine what he regarded as their hostile view toward national power. At a time when the presidency and Senate were in the hands of Republicans, Scalia maintained that a "do nothing" approach toward national policymaking was "self-defeating" for purposes of achieving conservative policy goals. Scalia urged the members of the audience— "as Hamilton would have urged you—to keep in mind that the federal government is not bad but good. The trick is to use it wisely." As a judge, Scalia has coupled his positive view of governmental power with a defense of Hamiltonian political principles.

In Court opinions and extrajudicial writings, he has defended a formalistic view of separation of powers, which protects the least powerful institutions from overreaching by Congress, and which gives the executive branch substantial freedom to act with energy. Scalia has defended an energetic executive, whose powers are not limited to the explicit grants of authority under Article II and which is regarded as the sole organ in foreign affairs. He has defended a "political" conception of public administration that rejects the Progressive idea of administration as a neutral science, and he has embraced the three central components of Hamilton's administrative theory—unity, discretion, and policymaking. Scalia has defended a strong and independent federal judiciary, which is unafraid of striking down state and federal laws that conflict with the Constitution, but which is ultimately regarded as the least dangerous branch of government. And Scalia has defended a conception of the U.S. federal system where the federal government’s authority is dominant and the states are primarily protected against federal encroachment by the political process and the structural provisions of the Constitution.

Stare decisis

While Scalia's approach to textual interpretation is famously categorical, his approach to stare decisis is not easily described, not least because originalists have not arrived at a singular answer on stare decisis. In An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good, 36 N.M. L. Rev. 419 (2006), Prof. Lee Strang argued, echoing Justice Frankfurter's formulation in Coleman v. Miller, that stare decisis was sufficiently embedded in the common law understanding of courts to be implicit in Article III's grant of the judicial power, which means that originalists must find some account for stare decisis; Scalia's approach is best described as "moderate".

Unlike Justice Thomas, who is prone to reject stare decisis when he feels that a previous case has misinterpreted the Constitution, Scalia has steered a more moderate course. On the one hand, he has called for overruling many entrenched precedents that he considers unprincipled, most notably on abortion, criminal procedure, the Eighth Amendment, and campaign finance regulations. Moreover, having a formalist preference for clear rules rather than malleable balancing tests, as described above, he has rejected certain Court-instituted doctrines. For example in Tennessee v. Lane (2004) he rejected the Congruence and Proportionality test (adopted by the Court seven years earlier for reviewing Congressional enforcements of the Fourteenth Amendment) as a "standing invitation to judicial arbitrariness and policy-driven decisionmaking." However, in his solo dissent in that case, his explanation—"principally for reasons of stare decisis"—of his ultimate choice of a standard to replace Congruence and Proportionality hints at a willingness to allow stare decisis to trump his own judicial philosophy. More notably, he has declined to revisit several New Deal-era precedents—on federalism—which according to many originalists unconstitutionally expanded Congress's power and restricted states' powers using overbroad interpretations of the Commerce Clause. This might be explained, however, by Scalia's Hamiltonian political principles and, in particular, his favorable view of national power.

That Scalia would uphold some and overrule other precedents that contradict his judicial philosophy is an apparent inconsistency that has led Scalia's critics to note that the written constitution is not silent on precedent, and they conclude that originalism cannot be reconciled with stare decisis. Scalia has responded that stare decisis is a "pragmatic exception" to, not a part of, originalism. For example, overruling New Deal precedents would be impractical because entrenched Congressional enactments and federal regulations, such as the Social Security Act, would be invalidated (this is, however, the modus operandi encouraged by purists). In any event, it seems Scalia will vote to uphold entrenched statutes even if they may violate originalism (like New Deal legislation), but he will also vote to uphold statutes that violate entrenched precedent as long as they satisfy originalism (like certain regulations on abortion).

Because Scalia's approach to precedent has the intent, if not the effect, of deferring to popularly enacted statutes in many cases, he has drawn praise as a judicial restraintist but criticism as a majoritarian.

Jurisprudence in practice

Rights

Scalia has said on several occasions that he does not believe the Constitution guarantees a right to privacy. He has vociferously asserted that the Fourteenth Amendment's Due Process Clause does not protect abortion (which he thinks is neither prohibited nor protected by the Constitution), sodomy, assisted suicide, parental control over child visitation, the right to have a restraining order enforced, nor manufacturers from large punitive damages. With respect to the First Amendment, Scalia has voted to strike down laws restricting "any communicative activity," including flag-burning, cross-burning, campaign contributions, and abortion protests.

With respect to procedural rights, he has resisted his colleagues' attempts to restrict the employment of the death penalty following the Eighth Amendment's prohibition of "cruel and unusual Punishment." In a mid-2009 dissent on a ruling relating to Troy Davis, Scalia wrote "This court has never held that the constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is `actually’ innocent." He holds that the Constitution does not bar capital punishment of people who were juveniles at the time of the crime, as he was the author of Stanford v. Kentucky, and he dissented in both Thompson v. Oklahoma and Roper v. Simmons. On the Fifth Amendment, Scalia has criticized the Miranda warning. Conversely, he has ardently defended procedural rights explicit in the Constitution, for example arguing in Hamdi v. Rumsfeld (joined in dissent by his usual ideological opponent, Justice Stevens) that the government's detention of a U.S. citizen as an enemy combatant without charge was unconstitutional because Congress had not suspended the writ of habeas corpus. Scalia is similarly wary of government violations of the procedural guarantees of the Fourth, Fifth, and Sixth Amendments (e.g. the Confrontation Clause in Maryland v. Craig discussed above).

Separation of powers

Regarding the Constitution's allocation of power among the Executive, Legislative and Judicial branches, Scalia favors clear lines of separation over pragmatic considerations. In a 1989 dissent he argued that the U.S. Sentencing Commission, which authorized federal judges to make policy in an executive capacity, violated the separation of power of the Judicial branch from the Executive. In a 1987 dissent he criticized the Independent Counsel law as an unwarranted encroachment on the Executive branch by the Legislative. Justice Scalia has defended a formalistic interpretation of separation of powers primarily on the ground that it will make government officials more accountable and thereby better protect liberty. But there appears to be another reason for Scalia's formalism: to protect the powers of the executive branch. A central purpose of the framers' system of separation of powers was to guard against legislative tyranny, which has not been lost on Justice Scalia. He has said that the doctrine of separation of powers "not only protects, but pre-eminently protects, the Executive obligation to "take care that the Laws be faithfully executed," and he has warned that if government officials (particularly, the members of Congress) do not begin giving "more than lip service" to the doctrine "we will soon find ourselves living not under the Constitution but under a parliamentary democracy...." Some claim there exists a double standard in Justice Scalia's separation of powers jurisprudence, alleging that he has been much less concerned about enforcing a formalistic interpretation of separation of powers when the executive branch's authority is called into question, and that he has shown more concern about congressional conferrals of core legislative power on the executive branch than he has shown about congressional usurpation of core executive functions. The latter, critics claim, was most apparent in his dissenting opinion in Clinton v. City of New York, where he supported (against Presentment Clause objections) the conferral of line-item veto authority on the president.

Administrative law

Scalia was a professor of administrative law at the University of Chicago. He is very dubious of agency authority to, in his view, create law. As his dissent in the Brand X cable TV ISP case indicates, he was suspicious of the FCC rules that make one service a telecommunications service rather than an information service in an arbitrary way by analogizing from the example of home delivered pizza. Scalia reasoned that the majority's view would have courts divide the delivery service apart from the pizza baking service.

Important cases

This section lists cases which form an essential introduction to Scalia's jurisprudence, views and writing style.






Sixth Amendment case study

There is a particularly striking line of cases, beginning in 1989 and reaching its logical conclusion in 2005 with Booker, which illustrates Scalia's writing style and views on a particular subject, viz., the requirement that a jury must determine all facts which relate to a sentence, a Constitutional guarantee which endangered (in Blakely) and then led to the toppling (in Booker) of the Federal Sentencing Guidelines as the sole means of determining a sentence for a federal crime. That line of cases is as follows:



(Refer to Morano, "Justice Scalia: His Instauration of the Sixth Amendment in Sentencing" for pre-Booker discussion of this line of cases).

Judicial temperament and personality



Scalia's approach to textual interpretation is not the only substantial change he has brought to the bench. In a position that has often been characterized by substantial circumspection in writing and public behavior, Scalia has been especially willing to display his personality and wit and to attract, if not embrace, public controversy. Scalia is sometimes referred to by the nickname "Nino", and his colleagues refer to the frequent short case-related memos he sends as Ninograms.

Despite ideological differences, he is socially friendly with Ruth Bader Ginsburg, who considers Scalia her closest confidant and colleague, and keeps in her office pictures of herself and Scalia together at the Washington Opera and on a trip to Indiamarker.

Scalia is known for his relaxed style of engagement within the courtroom, including his prominence among the 9 justices in using humor during his arguments and questioning.

At oral argument and in written opinions

Scalia is well known for his lively questioning during arguments before the court; one litigator who argued before the Court compared Scalia's questioning style to "a big cat batting around a ball of yarn." It has been observed that his aggressive questioning style at oral argument was virtually unknown upon his arrival at the Court, but has become virtually the norm in the succeeding twenty years as new Justices arrived.

In his concurring and dissenting opinions, he frequently refers to fellow Justices personally, quoting them from past opinions to point out what he considers inconsistencies in their reasoning or broad judicial philosophy, or accusing them of inventing legal standards out of thin air. His strongest commentary has often been directed at his more moderate fellow conservatives, Justices Sandra Day O'Connor and Anthony Kennedy, for reasons including what he saw as the former's equivocation on abortion and the latter's willingness to take persuasive guidance from foreign law in his opinions. His written opinions are also known, in the context of judicial custom, for their unusually commonplace phrasing. Already affecting legal discourse and practice is Scalia's persistent criticism of the use of legislative history in statutory interpretation, according to Judge Alex Kozinski, who has said that "legislative history just ain't worth what it was a few years ago." Scalia has even earned respect from political liberals; Senate Democratic leader Harry Reid has said, "[T]his is one smart guy. And I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute." Others have commented that Justice Scalia's aggressive criticisms of Justices Kennedy and O'Connor may have diminished the willingness of those Justices to form a stable conservative coalition on the Court.

Relations with the electronic media

Strongly protective of his privacy, Scalia formerly severely restricted the electronic media from recording his speaking engagements, citing his "First Amendment right not to speak on the radio or television when I do not wish to do so."

In April 2004, at a Scalia speech in Hattiesburg, Mississippimarker, U.S. Marshal Melanie Rube, acting as security detail, confiscated the audio tape of a reporter covering the event. After some controversy over the incident, Scalia apologized and stated he did not order the Marshal to do so. He has since amended his policy so that print reporters are now allowed to record his speeches to "promote accurate reporting."

More recently, he appears to be relaxing the electronic media stricture as well—at least two of his recent speeches have been covered by C-SPAN. This is possibly related to the graduation from college of the last of his children, whose privacy has potentially been a factor in Scalia's desire for privacy (see discussion in Mark Tushnet, A Court Divided), and Scalia has recently been quoted as saying that "My kids have been working on me to get out and do more public appearances...They think it makes it harder to demonize you—and I agree."

Views on televising Supreme Court sessions

Like Justice Souter—who has averred that "the day you see a camera come into our courtroom, it's going to roll over my dead body"—Scalia has opposed the introduction of live television broadcasts of Supreme Court oral arguments. In an early 2005 roundtable discussion with Justices O'Connor and Breyer at the National Archives, also carried by C-SPAN, he noted that he would approve of both audio and television broadcasts if he could be confident that it would go out and be watched gavel-to-gavel. He characterized his objections as relating to the possibility for sensationalism, excerptation, and the fostering of an inaccurate picture of the Supreme Court's operation.

Recusals and non-recusals

Scalia's choices regarding whether to recuse himself from upcoming cases following controversial statements and acts have garnered public attention.

  • Scalia did recuse himself in one case, Elk Grove Unified School District v. Newdow, following public comments in Virginia while the case was pending that were characterized (by the Mayor who introduced Scalia at the appearance) as making it "clear that he [Scalia] thought anyone who did not want school children to say the Pledge of Allegiance with the words 'under God' in it deserved a spanking." It is not universally accepted that Scalia was under any obligation to do so, and in light of subsequent events, some have suggested that he should not have done so.


  • Scalia refused, however, to recuse himself in the case of Cheney v. United States District Court for the District of Columbia, a case dealing with the right of the Vice-President to keep secret the membership of an advisory task force on energy policy. Scalia was asked to recuse because he had previously gone on a hunting trip with various persons including Cheney; Scalia refused, and took the relatively uncommon step of defending his refusal to recuse himself from the case with a public memorandum, focusing on the distinction between official capacity and personal capacity suits, and concluding that because Vice President Cheney was sued in his official capacity, any personal relationship that existed between the two men was irrelevant to Scalia's ability to render an impartial judgment. "I do not believe my impartiality can reasonably be questioned," concluded Scalia. Scalia, concurring with the 7-2 majority, supported Cheney's position in the case.


  • Scalia was again asked to recuse from Hamdan v. Rumsfeld. While the case was pending before the court, Scalia answered a question during a Q&A session at the University of Fribourg in Switzerland, where he rejected in principle that detainees at Guantanamo Baymarker have the right to be tried in civil courts. Having noted that the Constitution applies to Americans the world over and to all persons in the United States, Scalia explicitly rejected the notion that the Constitution protects non-Americans outside of the United States, and added:
:War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break. If he was captured by my [America's] army on a battlefield, that is where he belongs.
Also of concern to those petitioning for recusal in Hamdan was an additional comment that "I had a son [Matthew Scalia] on that battlefield; 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." Scalia declined to recuse himself from Hamdan, this time without comment.
This incident led law professor and conservative commentator Ron Cass to complain that it was becoming fashionable in certain circles for those who oppose Scalia to demand that Scalia recuse himself as a strategy to nullify his vote.

Views on the death penalty

Scalia gave a speech at the University of Chicago Divinity School in 2002, later printed as an essay in the Catholic journal First Things, expressing his views on the subject of the death penalty. He declared himself neutral on the death penalty, but defended its usage as not being immoral.

Further reading

  • Ring, Kevin A., Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice (Regnery Publishing, Inc., November 25, 2004); ISBN 0-89526-053-0.
  • Rossum, Ralph, Antonin Scalia's Jurisprudence: Text and Tradition (University Press of Kansas) Feb. 6, 2006. ISBN 0-7006-1447-8.
  • Staab, James B. The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court (Rowman & Littlefield, 2006) (ISBN 0-7425-4311-0).
  • Tushnet, Mark, A Court Divided (W. W. Norton & Company, January 30, 2005); ISBN 0-393-05868-9.


Notes

References



External links

Biographical



Websites



Works by Scalia



Periodical articles and miscellaneous content




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