Justice Antonin Scalia, whose
transformative legal theories, vivid writing and outsize personality made him a
leader of a conservative intellectual renaissance in his three decades on the
Supreme Court, was found dead on Saturday at a resort in West Texas. He was
79.
gHe was an extraordinary individual
and jurist, admired and treasured by his colleagues,h Chief Justice John G.
Roberts Jr. said in a statement confirming Justice Scaliafs death. gHis passing
is a great loss to the Court and the country he so loyally served.h
The cause of death was not
immediately released. A spokeswoman for the U.S. Marshals Service, which sent
personnel to the scene, said there was nothing to indicate the death was the
result of anything other than natural causes.
Justice Scalia began his service
on the court as an outsider known for caustic dissents that alienated even
potential allies. But his theories, initially viewed as idiosyncratic, gradually
took hold, and not only on the right and not only in the courts.
Justice Scalia also disdained the
use of legislative history — statements from members of Congress about the
meaning and purposes of laws — in the judicial interpretation of statutes. He
railed against vague laws that did not give potential defendants fair warning of
what conduct was criminal. He preferred bright-line rules to legal balancing
tests, and he was sharply critical of Supreme Court opinions that did not
provide lower courts and litigants with clear guidance.
All of these views took shape in
dissents. Over time, they came to influence and in many cases dominate the
debate at the Supreme Court, in lower courts, among lawyers and in the legal
academy.
By the time he wrote his most
important majority opinion, finding that the Second Amendment protects an
individual right to bear arms, even the dissenters were engaged in trying to
determine the original meaning of the Constitution, the approach he had
championed.
That 2008 decision, District of
Columbia v. Heller, also illustrated a second point: Justice Scalia in his later
years was willing to bend a little to attract votes from his colleagues. In
Heller, the price of commanding a majority appeared to be including a passage
limiting the practical impact of the decision.
With the retirement of Justice
John Paul Stevens in 2010, Justice Scalia became the longest serving member of
the current court. By then, Justice Scalia was routinely writing for the
majority in the major cases, including ones on the First Amendment, class
actions and arbitration.
He was an exceptional stylist who
labored over his opinions and took pleasure in finding precisely the right word
or phrase. In dissent, he took no prisoners. The author of a majority opinion
could be confident that a Scalia dissent would not overlook any
shortcomings.
Justice Scalia wrote for a broader
audience than most of his colleagues. His opinions were read by lawyers and
civilians for pleasure and instruction.
At oral argument, Justice Scalia
took professorial delight in sparring with the advocates before him. He seemed
to play to the crowd in the courtroom, which rewarded his jokes with generous
laughter.
Justice Scaliafs sometimes
withering questioning helped transform what had been a sleepy bench when he
arrived into one that Chief Justice Roberts has said has become too active, with
the justices interrupting the lawyers and each other.
Some of Justice Scaliafs recent
comments from the bench were raw and provocative. In an affirmative action case
in December, he said that some minority students may be better off at ga less
advanced school, a slower-track school where they do well.h
gI donft think it stands to reason
that itfs a good thing for the University of Texas to admit as many blacks as
possible,h he said, describing — some said distorting — an argument in a
supporting brief about the harm that can be caused to students with inferior
academic credentials by admitting them to colleges where they do not thrive.
Justice Scalia was a man of varied
tastes, with a fondness for poker, opera and hunting. His friends called him
Nino, and they said he enjoyed nothing more than a good joke at his own
expense.
He seldom agreed with Justice Ruth
Bader Ginsburg on the important questions that reached the court, but the two
for years celebrated New Yearfs Eve together. Not long after Justice Elena
Kagan, another liberal, joined the court, Justice Scalia took her skeet
shooting.
Family Influence
Antonin Gregory Scalia was born on
March 11, 1936, in Trenton, to Salvatore Scalia and the former Catherine Panaro.
He was their only child and was showered with attention from his parents and
their siblings, none of whom had children of their own.
Justice Scalia and his wife, the
former Maureen McCarthy, had nine children, the upshot of what he called Vatican
roulette. gWe were both devout Catholics,h Justice Scalia told Joan Biskupic for
her 2009 biography, gAmerican Original.h gAnd being a devout Catholic means you
have children when God gives them to you, and you raise them.h
He said his large family influenced
his legal philosophy.
gParents know that children will
accept quite readily all sorts of arbitrary substantive dispositions — no
television in the afternoon, or no television in the evening, or even no
television at all,h he said at a Harvard lecture in 1989. gBut try to let one
brother or sister watch television when the others do not, and you will feel the
fury of the fundamental sense of justice unleashed.h
Young Antonin was an exceptional
student, graduating as valedictorian from Xavier High School in Lower Manhattan,
first in his class at Georgetown and magna cum laude at Harvard Law
School.
He practiced law for six years in
Cleveland before accepting a position teaching law at the University of Virginia
in 1967. Four years later, he entered government service, first as general
counsel of the Office of Telecommunications Policy and then as chairman of the
Administrative Conference of the United States, an executive branch agency that
advises federal regulators. Both positions drew on and expanded his expertise in
administrative law, a topic that would interest him throughout his career.
In 1974, President Richard M.
Nixon nominated him to be assistant attorney general in charge of the Office of
Legal Counsel, an elite unit of the Justice Department that advises the
executive branch on the law. He was confirmed by the Senate on August 22, 1974,
not long after Mr. Nixon resigned.
In 1977, Mr. Scalia returned to
the legal academy, now joining the law faculty at the University of Chicago. He
also served as editor of Regulation magazine, published by the American
Enterprise Institute.
After Ronald Reagan was elected
president in 1980, Mr. Scalia was interviewed for a job he coveted, solicitor
general of the United States, the lawyer who represents the federal government
in the Supreme Court. He lost out to Rex E. Lee, and it stung. gI was bitterly
disappointed,h Justice Scalia told Ms. Biskupic. gI never forgot it.h
He was offered a seat on the
federal appeals court in Chicago. But he turned it down in the hope of being
nominated instead to the United States Court of Appeals for the District of
Columbia Circuit, whose docket, location and prestige appealed to him. The court
was also widely viewed as a steppingstone to the Supreme Court.
The first opening on the D.C.
Circuit in the Reagan years went to another prominent conservative law
professor, Robert H. Bork. But the second one, in 1982, went to Mr. Scalia.
He served for four years, issuing
opinions favoring executive power, skeptical of claims of employment
discrimination and hostile to the press. The opinions, which were forceful and
sometimes funny, attracted the attention of the White House.
He appeared to enjoy intellectual
give-and-take from the bench, with his colleagues and in his chambers. On the
appeals court and in his early years on the Supreme Court, he would hire one
liberal law clerk each year to keep discussions lively.
gHe made it a point of telling me
that I was his token liberal,h said E. Joshua Rosenkranz, who served as a law
clerk for Judge Scalia in 1986, his last year on the appeals court. gTo his
credit, Ifm sure it was largely because he wanted to be sure he always heard the
arguments against the positions he was taking.h
Unanimous Confirmation
In 1986, after Chief Justice
Warren Burger announced his intention to retire, Mr. Reagan nominated Judge
Scalia to the Supreme Court. Though his conservative views were well known, he
was confirmed by the Senate by a vote of 98 to 0. He may have benefited from the
fact that the liberal opposition was focused on the nomination of Justice
William H. Rehnquist, who was already on the court, to succeed Chief Justice
Burger.
Judge Scalia seemed to enjoy
parrying with the senators at his confirmation hearing. When Senator Howard M.
Metzenbaum, Democrat of Ohio, recalled losing to Judge Scalia in a tennis match,
he responded that git was a case of my integrity overcoming my judgment.h
The lopsided vote for Justice
Scalia also reflected a different era, one in which presidents were thought to
have wide latitude in naming judges. That era seemed to come to an end in 1987,
with the defeat of the nomination of Justice Scaliafs former colleague on the
D.C. Circuit, Judge Bork.
In 1993, at the confirmation
hearing for Justice Ginsburg, Senator Joseph R. Biden Jr., who was then chairman
of the Senate Judiciary Committee, said gthe vote that I most regret of all
15,000 votes I have cast as a senatorh was gto confirm Judge Scaliah — gbecause
he was so effective.h
Three days before the court
handed the presidency to Mr. Bush in December 2000, in Bush v. Gore, the court
shut down the recount of votes in Florida in an unsigned opinion over the
dissents of the four more liberal justices. Justice Scalia felt compelled to
respond in a concurrence.
gThe counting of votes that are
of questionable legality does in my view threaten irreparable harm toh Mr. Bush
gand to the country, by casting a cloud upon what he claims to be the legitimacy
of his election,h Justice Scalia wrote. He would later say privately that his
brief concurrence doomed his chances of being named chief justice.
He was often asked about the Bush
v. Gore decision at public appearances. His stock response: gGet over
it.h
eFaint-Hearted Originalistf
The centerpiece of Justice
Scaliafs judicial philosophy was his commitment to the doctrine of originalism,
which sought to interpret the Constitution as it was understood at the time of
its adoption. That made him uncomfortable with some of the Supreme Courtfs most
important precedents.
gWe have now determined,h he said
in remarks in Philadelphia in 2004, gthat liberties exist under the federal
Constitution — the right to abortion, the right to homosexual sodomy — which
were so little rooted in the traditions of the American people that they were
criminal for 200 years.h
He added that his colleagues may
soon discover a right to assisted suicide between the lines of the text of the
Constitution.
gWefre not ready to announce that
right,h he said, more than a little sarcastically. gCheck back with us.h
Justice Scalia said that some of
the courtfs leading decisions could not be justified under the original
understanding of the Constitution. The court was wrong in Gideon v. Wainwright
in 1963, Justice Scalia said, to require the government to provide lawyers to
poor people accused of serious crimes. It was wrong in New York Times v.
Sullivan in 1964, he said, to say the First Amendment requires libel plaintiffs
to meet heightened standards.
Justice Scalia also appeared to
have reservations about Brown v. Board of Education, which struck down
segregation in public schools as a violation of the 14th Amendmentfs guarantee
of equal protection. Brown, decided in 1954, is widely considered the towering
achievement of the court led by Chief Justice Earl Warren.
But for originalists, the Brown
decision is problematic. The weight of the historical evidence is that the
people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868
did not believe themselves to be doing away with segregated schools.
In remarks at the University of
Arizona in 2009, Justice Scalia suggested that Brown reached the right result as
a matter of policy but was not required by the Constitution. He added that the
decision did not refute his theory.
gDonft make up your mind on this
significant question between originalism and playing it by ear on the basis of
whether, now and then, the latter approach might give you a result you like,h
Justice Scalia said.
gHitler developed a wonderful
automobile,h he went on. gWhat does that prove? Ifll stipulate that you can
reach some results you like with the other system. But thatfs not the test. The
test is over the long run does it require the society to adhere to those
principles contained in the Constitution or does it lead to a society that is
essentially governed by nine justicesf version of what equal protection ought to
mean?h
In other settings, Justice Scalia
took pains to say that he would not follow his theory wherever it would take
him. He was, he said, ga faint-hearted originalist.h
gI am a textualist,h he said. gI
am an originalist. I am not a nut.h
Critics seized on the concession,
saying it undid the very qualities that made originalism appealing as a
historically grounded theory that constrained judges otherwise apt to follow
their policy preferences.
gIf following a theory
consistently would make you a nut, isnft that a problem with the theory?h David
A. Strauss asked in his 2010 book, gThe Living Constitution.h
There was certainly a more
committed originalist on the court, Justice Clarence Thomas. Unlike Justice
Thomas, Justice Scalia, especially in his later years, was willing to compromise
at the expense of theoretical purity.
A 2010 decision, McDonald v.
Chicago, illustrates the point. The question in the case was whether the Second
Amendment applied not only to federal gun control laws, a point the court
established in 2008, but also to state and local laws. The answer was not much
in doubt, as the five-justice majority in the 2008 case, District of Columbia v.
Heller, was still on the court.
What was in doubt was how the
court would use the 14th Amendment to apply — or gincorporate,h in the legal
jargon — the Second Amendment to the states. Other provisions in the Bill of
Rights had been applied by means of the 14th Amendmentfs due process clause.
But many judges and scholars,
including Justice Scalia, had never found that methodology intellectually
satisfactory. gDue processh after all, would seem to protect only procedures and
not substance. The very name given to the methodology — substantive due process
— sounds like an oxymoron.
Originalists hoped the court
would use the McDonald case to repudiate substantive due process and instead
rely on another provision of the 14th Amendment, one that says gno state shall
make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States.h There is evidence that the authors of the clause
specifically wanted it to apply to allowing freed slaves to have guns to defend
themselves.
Justice Scalia would have none of
it. gWhat you argue,ff he told a lawyer challenging a Chicago gun law, gis the
darling of the professoriate, for sure, but itfs also contrary to 140 years of
our jurisprudence.h
He told the lawyer to focus on
winning his case rather than pressing a new constitutional theory. gWhy do you
want to undertake that burden,h Justice Scalia asked, ginstead of just arguing
substantive due process, which as much as I think itfs wrong, even I have
acquiesced in it?h
The decision was 5 to 4. The
justices in the majority agreed about the result but not how to get there.
Justice Scalia accepted the substantive due process rationale, with misgivings.
Justice Thomas, in a separate opinion, relied on the privileges-or-immunities
rationale that had been pressed by originalists.
Still, Justice Scaliafs fidelity
to originalism frequently caused him to take legal positions almost certainly at
odds with his policy preferences. He voted in 1989 to strike down a law making
it a crime to burn an American flag.
He said his fidelity to the
Constitution overrode his sympathies. gI donft like scruffy, bearded,
sandal-wearing people who go around burning the United States flag,h he said in
2000.
Transforming Criminal Law
Justice Scalia also helped
transform aspects of the criminal law, often in ways that helped people accused
of crimes. Here, too, his understanding of the Sixth Amendment, which sets out
defendantsf rights in criminal prosecutions, may have been in tension with his
policy preferences.
gThe Sixth Amendment is a
meaningful presence in American courtrooms today in large part because of
Justice Scalia,h said Jeffrey L. Fisher, a law professor at Stanford. gHe
followed his understanding of the original intent of the Sixth Amendment, even
when it made prosecutions harder and less efficient. He said it was necessary to
keep the people free.h
The right to trial by an
impartial jury, Justice Scalia said, means that juries must find beyond
reasonable doubt all facts that give rise to punishment. He made the point in a
1998 dissent, and it ripened into the majority view in Apprendi v. New Jersey in
2000, which struck down a New Jersey hate crime law. In 2004, Justice Scalia
relied on the Apprendi decision in writing the majority opinion in Blakely v.
Washington, which struck down the sentencing system of Washington State for
giving judges too large a role. He later voted with the majority to strike down
the federal sentencing system on the same grounds.
gItfs not because Ifm in love
with the jury necessarily,h Justice Scalia told Ms. Biskupic. gItfs because Ifm
in love with the Constitution.h
Justice Scalia also reinvigorated
the clause of the Sixth Amendment that guarantees a criminal defendant the right
gto be confronted with the witnesses against him.h
Here, too, he first expressed his
views in dissent. Later, in a 2004 decision, Crawford v. Washington, he wrote
for the majority that defendants have the right to live testimony at trial from
the witnesses against them, even if the accusations could be presented in other
forms.
gDispensing with confrontation
because testimony is obviously reliable is akin to dispensing with a jury trial
because the defendant is obviously guilty,h Justice Scalia wrote. gThat is not
what the Sixth Amendment prescribes.h
Writing for the majority in a
2009 decision that barred the introduction at trial of crime lab reports without
testimony from the analysts involved in their preparation, Justice Scalia said
the issue was one of constitutional principle.
gThe confrontation clause may
make the prosecution of criminals more burdensome, but that is equally true of
the right to trial by jury and the privilege against self-incrimination,h he
wrote. gThe confrontation clause — like those other constitutional provisions —
is binding, and we may not disregard it at our convenience.
Justice Scaliafs opinions were
also helpful to criminal defendants charged under vague laws. In 2009, he
objected to the courtfs decision not to hear an appeal concerning a federal law
that made it a crime gto deprive another of the intangible right of honest
services.h The law was so vague, he wrote, that git would seemingly cover a
salaried employeefs phoning in sick to go to a ballgame.h
The Supreme Court soon agreed to
hear three separate cases on the law and substantially cut back its scope.
When Justice Scalia joined the
court, congressional committee reports and similar glegislative historyh were
routinely used as aids in determining the meanings of federal statutes.
In a campaign that he maintained
throughout his tenure on the court, Justice Scalia insisted that such use of
legislative history was illegitimate. Reports and floor statements were not the
law, he said; the words of the law itself were the law.
The campaign was largely
successful. Advocates and other justices rely on legislative history sparingly
these days.
Justice Scalia was also
dismissive of unhelpful Supreme Court opinions. Concurring in a 2010 privacy
decision that gave lower courts only vague guidance, he wrote: gThe courtfs
implication that where electronic privacy is concerned we should decide less
than we otherwise would (that is, less than the principle of law necessary to
resolve the case and guide private action) — or that we should hedge our bets by
concocting case-specific standards or issuing opaque opinions — is in my view
indefensible. The-times-they-are-a-changinf is a feeble excuse for disregard of
duty.h
His colleagues always welcomed
his writing style, which could verge on the insulting. Dissenting in a 2002
decision prohibiting the execution of the mentally retarded, he wrote, gseldom
has an opinion of this court rested so obviously upon nothing but the personal
views of its members.h An argument made by Justice Sandra Day OfConnor, he wrote
in a 1989 abortion case, gcannot be taken seriously.h
In a 2011 dissent, Justice Scalia
called Justice Sonia Sotomayorfs account of the facts of a case in her majority
opinion gso transparently false that professing to believe it demeans this
institution.h
Dissenting in June from the
courtfs decision establishing a right to same-sex marriage, Justice Scalia
mocked the soaring language of Justice Anthony M. Kennedyfs majority opinion,
saying it was gcouched in a style that is as pretentious as its content is
egotistic.h
He was not shy about making dire
predictions. About a 2008 decision giving people held at Guantánamo Bay the
right to challenge their detentions: gIt will almost certainly cause more
Americans to be killed.h About a 2011 decision ordering California to ease
prison overcrowding: It affirmed gthe most radical injunction issued by a court
in our nationfs historyh and was itself ga judicial travesty.h
A Public Life
Citing long judicial tradition,
Justice Scalia occasionally spoke about his desire to stay out of the public
eye. It is not clear that he meant it, and he was certainly not always
successful.
In 2004, for instance, he went on
a duck-hunting trip with Dick Cheney, who was then vice president and a litigant
in a case before the court over whether Mr. Cheney would have to reveal who had
appeared before his energy task force. When the trip came to light, Justice
Scalia issued a 21-page defense of the trip and refused to disqualify himself
from the case.
gWhile the political branches can
perhaps survive the constant baseless allegations of impropriety that have
become the staple of Washington reportage, this court cannot,h he wrote. gThe
people must have confidence in the integrity of the justices, and that cannot
exist in a system that assumes them to be corruptible by the slightest
friendship or favor, and in an atmosphere where the press will be eager to find
foot-faults.h
Justice Scalia later joined the
seven-justice majority in declining to force Mr. Cheney to disclose secret
documents from an energy task force.
He did step aside from a case
concerning the Pledge of Allegiance in 2003 after saying in public that the
federal appeals court in San Francisco had decided the case incorrectly.
A gregarious man, Justice Scalia
accepted many speaking and teaching engagements from both conservative and
liberal groups. He was occasionally criticized for his choices.
In 2007, for instance, Justice
Scalia spoke on international law at a dinner in Palm Springs, Calif., organized
by Charles G. Koch, a conservative activist. Justice Scaliafs expenses, a court
spokeswoman said, were paid for by the Federalist Society, a conservative legal
group.
In 2011, he spoke at a forum
organized by the Congressional Tea Party Caucus at the invitation of
Representative Michele Bachmann, Republican of Minnesota. The session was
attended by members of both parties; Justice Scaliafs subject was the separation
of powers.
Justice Scalia did not make it
easy for journalists to cover his public appearances and generally did not allow
them to be broadcast. For years, he did not allow his remarks to be taped even
by print reporters seeking to ensure the accuracy of their notes.
He changed that policy in 2004
after a federal marshal ordered two reporters to erase recordings of his remarks
at a high school in Hattiesburg, Miss. Justice Scalia apologized to the
reporters, saying the marshal had not been following his instructions.
gI abhor as much as any American
the prospect of a law enforcement officerfs seizing a reporterfs notes or
recording,h he wrote to one of the reporters, Antoinette Konz of The Hattiesburg
American.
In 2006, Justice Scalia responded
to a reporterfs question after attending a Red Mass at the Cathedral of the Holy
Cross in Boston with a chin flick that some interpreted to be an obscene
gesture. The reporter had wanted to know whether Justice Scalia had taken ga lot
of flak for publicly celebratingh his religious beliefs.
In a letter to The Boston Herald,
Justice Scalia explained that the gesture was Sicilian in origin and meant only,
gI couldnft care less. Itfs no business of yours. Count me out.h
He often made clear that he had
little use for faculty-lounge orthodoxies.
In 2003, for instance, dissenting
from a decision striking down a Texas law that made gay sex a crime, Justice
Scalia bemoaned the influence of elite culture on the law.
gTodayfs opinion,h he wrote, gis
the product of a court, which is the product of a law-profession culture, that
has largely signed on to the so-called homosexual agenda, by which I mean the
agenda promoted by some homosexual activists directed at eliminating the moral
opprobrium that has traditionally attached to homosexual conduct.h
He predicted, too, that the
decision, Lawrence v. Texas, had laid the foundation for the recognition of a
constitutional right to same-sex marriage.
Justice Scalia insisted that his
religious beliefs played no role in his jurisprudence, and he was deeply
offended by contrary suggestions.
In 2007, Geoffrey R. Stone, a law
professor at the University of Chicago, where he was a colleague of Justice
Scalia, made what he called ga painfully awkward observationh in The Chicago
Tribune after the Supreme Court upheld the federal Partial-Birth Abortion Ban
Act in Gonzales v. Carhart.
gAll five justices in the
majority in Gonzales are Roman Catholic,h Professor Stone wrote. gThe four
justices who are not all followed clear and settled precedent.h
Justice Scalia was furious,
telling Ms. Biskupic that git got me so mad that I will not appear at the
University of Chicago until he is no longer on the faculty.h
Withdrawing from a debate was not
typical of Justice Scalia, who usually welcomed discussion with enthusiasm and
confidence. Standing up for onefs opinions, he said in a 2010 opinion, is a mark
of laudable gcivil courage.h
Indeed, Justice Scaliafs appetite
for the sort of discussion and debate he enjoyed as a law professor was not
sated by the brisk conferences the justices held after oral arguments. Under
Chief Justice Rehnquist and to a lesser extent under Chief Justice Roberts, they
can consist of little more than a tally of votes.
gI donft like that,ff Justice
Scalia said after a speech at George Washington University in 1988. gMaybe itfs
just because Ifm new. Maybe itfs because Ifm an ex-academic. Maybe itfs because
Ifm right.h
In a C-Span interview in 2009,
Justice Scalia reflected on his role and legacy, sketching out a modest
conception of the role of a Supreme Court justice.
gWe donft sit here to make the
law, to decide who ought to win,h Justice Scalia said. gWe decide who wins under
the law that the people have adopted. And very often, if youfre a good judge,
you donft really like the result youfre reaching.h