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Antonin Gregory Scalia
A heavyset, middle-aged balding man wears the black robes of a judge. He looks towards the camera, almost smiling.

Incumbent
Assumed office 
September 26, 1986
Nominated by Ronald Reagan
Preceded by William H. Rehnquist

In office
August 17, 1982 – September 26, 1986
Nominated by Ronald Reagan
Preceded by Roger Robb
Succeeded by David B. Sentelle

Born March 11, 1936 (1936-03-11) (age 74)
Trenton, New Jersey
Nationality American
Spouse(s) Maureen McCarthy Scalia
Children Ann Forest Scalia Banaszewski, Eugene Scalia, John Francis Scalia, Catherine Elisabeth Scalia Courtney, Mary Clare Scalia, (Father) Paul David Scalia, (U.S. Army Major) Matthew Scalia, Christopher James Scalia, Margaret Jane Scalia
Alma mater Georgetown University (B.A.)
Harvard Law School (J.D.)
Religion Roman Catholic
Signature A cursive, not particularly legible "Antonin Scalia"
Nickname(s) "Nino"

Antonin Gregory Scalia (pronounced /skəˈliːə/  ( listen); born March 11, 1936) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. Appointed to the Court by President Ronald Reagan in 1986, he 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 law 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 Carter years teaching at the University of Chicago, where he became one of the first faculty advisers of the fledgling Federalist Society. In 1982, he was appointed as a judge of the United States Court of Appeals for the District of Columbia Circuit by President Ronald Reagan.

In 1986, Judge Scalia was appointed by Reagan to the Supreme Court to fill the seat as associate justice vacated when Justice William Rehnquist was elevated to Chief Justice. While Rehnquist's confirmation was contentious, Scalia was asked few difficult questions by the Senate Judiciary Committee, and faced no opposition. Scalia was unanimously confirmed by the Senate, and took the bench on September 26, 1986.

In his near quarter-century on the Court, Justice Scalia has staked out a conservative ideology in his opinions, advocating textualism in statutory interpretation and originalism in constitutional interpretation. He is a strong defender of the powers of the Executive Branch, believing presidential power should be paramount in many areas. He opposes affirmative action and other policies that treat minorities as groups. He files separate opinions in large numbers of cases, and, in his minority opinions, often castigates the Court's majority in scathing language.

Contents

Early life

An only child, Antonin Scalia was born in Trenton, New Jersey on March 11, 1936.[1] 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.[2] His mother, Catherine Scalia (née Panaro), was born in the United States to Italian immigrants, and worked as an elementary school teacher.[2]

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; the couple did not speak Italian in the home and the future justice never learned the language. After completing eighth grade in public school,[3] he obtained a scholarship to Jesuit-run Xavier High School in Manhattan.[4] He graduated first in his class, and was valedictorian.[5] Scalia later stated that he spent much of his time on schoolwork, and admitted, "I was never cool."[6]

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.[1]

Though rejected from his first-choice school, Princeton University, Scalia enrolled at Georgetown University in 1953. He graduated valedictorian and summa cum laude with an B.A. in History from Georgetown in 1957. While at Georgetown, he also studied at the University of Fribourg, Switzerland[1] and went on to study law at Harvard Law School, where he was a Notes Editor for the Harvard Law Review.[7] 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.[8]

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.[9] The couple raised nine children, five boys and four girls.[10]

Legal career

Scalia began his legal career at Jones, Day, Cockley and Reavis in Cleveland, Ohio, where he worked from 1961 to 1967.[7] He was highly regarded at Jones, Day and would most likely have been made a partner, but later stated that he had long intended to teach.[11] He became a Professor of Law at the University of Virginia in 1967, moving his family to Charlottesville, Virginia.[11]

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.[8] From 1972 to 1974, he was the chairman of the Administrative Conference of the United States, a small independent agency which sought to improve the functioning of the federal bureaucracy.[8] In mid-1974, Nixon nominated him as Assistant Attorney General for the Office of Legal Counsel.[8] After Nixon's resignation, the nomination was continued by the new President, Gerald Ford, and Scalia was confirmed by the Senate on August 22, 1974.[12]

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.[13] 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 his veto.[14] 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 US government, argued in support of Dunhill, and that position prevailed.[15]

Following Ford's defeat by Jimmy Carter, Scalia worked for several months at the American Enterprise Institute.[16] He then returned to academia, taking up residence at the University of Chicago Law School from 1977 to 1982,[17] though he spent one year as a visiting professor at Stanford University law school.[18] In 1981, he became the first faculty advisor for the University of Chicago's chapter of the newly founded Federalist Society.[17]

Judge and nominee

An elderly man in a beige suit is turned profile to the camera and is talking to Scalia, who has his hands folded in front of him as both men stand before an ornate desk.
President Reagan (left) speaks to his Supreme Court nominee (Scalia), July 7, 1986.

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 Lee, to Scalia's great disappointment.[19] 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.[20] He was confirmed by the United States Senate on August 5, 1982, and was sworn in on August 17, 1982.[21]

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."[22] 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[23]. Attorney General Edwin Meese, who advised Reagan on the choice, only seriously considered Bork and Scalia.[24] 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.[23] Scalia also had the advantage of not having Bork's "paper trail";[25] the elder judge had written controversial articles about individual rights.[26] Scalia was called to the White House, and accepted Reagan's nomination.[23]

When Senate Judiciary Committee hearings on Scalia's nomination opened in August 1986, he faced a committee which had just engaged in contentious wrangling over the Rehnquist nomination. Witnesses and Democratic senators contended that Rehnquist, before becoming a judge, 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.[27] The judge was not pressed heavily on controversial issues such as abortion or civil rights.[28] 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".[29]

Scalia met no opposition in the committee. The full Senate debated Scalia's nomination only briefly, and he was confirmed, 98–0, following Rehnquist's confirmation as Chief Justice by a vote of 65–33. One committee member, Democratic Delaware Senator (and future Vice President) Joe Biden later stated that he regretted not opposing Scalia "because he was so effective".[30]

Legal philosophy and approach

Judicial performance

During oral argument before the Court, Scalia asks more questions and makes more comments than any other justice[31]—and a 2005 study found that he provokes laughter more often than any of his colleagues.[32] His goal during oral arguments is to get across his position to the other justices.[33] 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".[31] 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.[33] 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.[34]

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.[35] 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.[36] 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.[37]

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.[38] 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).[39] 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.[35]

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.[31] 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.[40]

Statutory and constitutional interpretation

An elderly white haired man in judicial robes swears in a middle-aged man in a suit as several people look on.
Judge and Mrs. Scalia (left) and President Reagan (right) watch as Chief Justice Warren Burger swears in William Rehnquist as his successor, September 26, 1986.

Scalia is an originalist, meaning that he interprets the Constitution of the United States as it would have been understood to mean 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."[6]

Constitutional amendments, such as the 1868 Fourteenth Amendment, according to Scalia, are to be interpreted based on their meaning at the time of ratification.[41] Scalia is often asked how this approach justifies the result in the 1954 case of Brown v. Board of Education, which held that segregated schools were unconstitutional, and which relied on the Fourteenth Amendment for the result.[42] In a 2009 public "conversation" with Justice Stephen Breyer, Breyer questioned Scalia regarding this approach, indicating that those who ratified the Fourteenth Amendment 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 which Brown overruled.[43]

Scalia vigorously opposes the idea of a living constitution, a concept which holds that the judiciary has the power to modify the meaning of constitutional provisions to adapt them to changing times.[6] Justice 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."[44] He compares the Constitution with statutes, which he contends are not understood to change their meaning through time.[7]

Scalia is a textualist in statutory interpretation, believing that the ordinary meaning of the statute should govern.[45] 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."[46]

Scalia's originalist approach has come under attack from critics, who contend 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.[6] 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.[47] 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.[48] Professor Thomas Colby of The George Washington University National Law Center studied Scalia's votes in Establishment Clause cases (the provision of the First Amendment which governs the relationship between church and state) and stated that Scalia's views in such cases do not stem from originalist views, but rather from conservative political convictions.[49]

Jurisprudence in practice

Governmental structure and powers

Separation of powers

Nine judges in black robes pose for a photograph with three other men in suits.
The justices pose with President Obama, Vice President Biden, and retiring justice David Souter, with Scalia fourth from right

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.[50] 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".[51] Scalia indicated that the law was an unwarranted encroachment on the Executive Branch by the Legislative. He warned, "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing ... But this wolf comes as a wolf."[51]

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.[52] Scalia dissented, stating that the issuance of the Guidelines was a lawmaking function that Congress could not delegate,[53] and dubbed the Commission "a sort of junior-varsity Congress".[51]

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.[54] 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.[55]

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.[56]

Scalia 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".[57]

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."[58] Though Scalia was not referring to any particular individual, the Supreme Court was about to consider the case of Salim Ahmed Hamdan, supposed driver to Osama bin Laden, who was challenging the military commissions at Guantanamo Bay.[58] A group of retired military officers asked Scalia to recuse himself, or step aside from hearing the case, which he declined to do.[59] 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.[60]

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.[61]

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.[62]

Individual rights

Abortion

Scalia has argued that there is no constitutional right to abortion, and that if the people desire legalized abortion, that a law should be passed to accomplish it.[6] 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.[63]

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 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.[64] 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."[65] 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."[66]

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."[67] In 2007, the Court upheld a federal statute banning partial-birth abortion in Gonzales v. Carhart.[68]

University of Chicago law professor Geoffrey Stone, a former faculty colleague of Scalia's criticized the Gonzales decision, suggesting in an article that religion had influenced the outcome, as all five justices in the majority were Catholic, while the dissenters were Protestant or Jewish. This has angered Scalia to such an extent that he has stated he will not speak at the University of Chicago so long as Stone is there.[69]

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.[70] 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.[71]

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.[72]

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.[73] 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".[74]

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.[75] 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 preference.[76] 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.[77] 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."[78]

In 2003, Bowers was formally reversed by Lawrence v. Texas, from which Scalia dissented. During the oral argument in the case, Scalia, according to Mark V. Tushnet in his survey of the Rehnquist Court, seemed so intent on making the state's argument for it that the Chief Justice intervened, "Maybe we should go through counsel."[79] In his dissent, Scalia ridiculed the majority for being so ready to cast aside Bowers when many of the same justices had refused to overturn Roe in Planned Parenthood v. Casey.[80]

Criminal law

Scalia, wearing a beige jacket over shirt and tie, shakes hands with Jurij Toplak of European Election Law Association, while looking forward towards the camera.
Justice Scalia (right) at the Harvard Law School on November 30, 2006.

As the Constitution contains mention of the death penalty, Scalia deems it constitutional and opposes attempts to declare it unconstitutional.[81] He also opposes efforts to declare 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 2004, the Court overturned Stanford in Roper v. Simmons and Scalia again dissented, mocking the majority's claims that a national consensus had emerged against the execution of those who killed while underage, and noting that less than half of the states which permitted the death penalty prohibited it for underage killers. He castigated the majority for including in their count states which 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."[82] 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.[83]

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.[84]

While 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 which allowed alleged victims of child abuse to testify behind screens or by closed-circuit television.[85] 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.[86]

Scalia maintains that every element of an offense which 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 which struck down a state statute which allowed the trial judge, upon conviction, to enhance the sentence if he found that the offense was a hate crime. Scalia, for the Court, found the procedure impermissible as the question of whether it was a hate crime had not been decided by a jury.[87] 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 next 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 in an advisory capacity).[87]

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.[88] That decision found thermal imaging of a home to be a search for purposes of the Fourth Amendment prohibition on unreasonable searches and seizures. 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, as it proved, indoor growing lights.[89] 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 was practicable.[90] 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.[91] 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."[92]

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.[93] 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."[94]

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

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.[95]

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".[96]

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".[96] The Court upheld Heller's claim to own a firearm in the District.[96]

Scalia's opinion for the Heller Court was widely criticized by liberals, and applauded by conservatives.[96] 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".[97] 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.[98]

Public attention

Requests for recusals

Two men in shirtsleeves work at a table, there are quantities of paper in front of them..
Scalia (right) works with Bryan A. Garner on a book.

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, whom he said was also an atheist. Shortly after the United States Court of Appeals for the Ninth Circuit ruled that there was a rights violation, 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 did, without comment.[99]

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 because he had gone on a hunting trip with various persons including Cheney, during which he travelled, 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 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.[100] Scalia was part of the 7-2 majority once the case was heard which generally upheld Cheney's position.[101]

Faith

Scalia resides in McLean, Virginia[102] and is a devout, traditionalist Catholic. Uncomfortable with the changes in the Church caused by Vatican II, Scalia prefers the Latin Mass and in both Chicago and Washington, has driven long distances to parishes which he felt were more in accord with his beliefs.[103]

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."[104]

Assessment

Nine judges in black robes pose for a photograph, four are seated, five stand behind them.
The justices of the Supreme Court in 2009, Scalia seated second from right

After nearly a quarter century on the Court, and now past the age of seventy, Scalia characterizes his victories as "Damn few".[105] His biographer, Joan Biskupic, speculates that Scalia, given good health, may remain on the court for another decade.[105]

Writing in The Forward, J.J. Goldberg described Scalia as "the intellectual anchor of the court’s conservative majority".[106] Scalia travels to the nation's law schools, giving talks on law and democracy.[35] His appearances on college campuses are often standing room only.[107] Justice Ginsburg indicates that Scalia "is very much in tune with the current generation of law students ... Students now put 'Federalist Society' on their resumes."[108] John Paul Stevens, the only justice who has served with Scalia throughout his tenure says of his influence, "He's made a huge difference. Some of it constructive, some of it unfortunate."[108] Of the nine sitting justices, Scalia is most often the subject of law review articles.[107]

While Scalia is widely admired among conservatives, many liberals dislike his views. In March 2009, Congressman Barney Frank, who is gay, described Scalia as a "homophobe".[109] Maureen Dowd described Scalia in a 2003 column,

He's so Old School, he's Old Testament, misty over the era when military institutes did not have to accept women, when elite schools did not have to make special efforts with blacks, when a gay couple in their own bedroom could be clapped in irons, when women were packed off to Our Lady of Perpetual Abstinence Home for Unwed Mothers ... Antonin Scalia is Archie Bunker in a high-backed chair.[110]

Rossum, writing in 2006, before the George W. Bush appointees to the Supreme Court had time to make an impact, that Scalia had failed to win converts among his conservative colleagues for his use of originalism.[111] Bush appointees Roberts and Alito, however, are younger men who take an originalist approach, and who greatly admire Scalia and the manner in which he battles for that in which he believes.[112]

Scalia's dislike of legislative history has caused Members of Congress to be more cautious in its use.[113] 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.[113]

See also

Notes

  1. ^ a b c Molotski, Irwin (1986-06-18), "The Supreme Court: Man in the News; Judge with tenacity and charm: Antonin Scalia", The New York Times, http://www.nytimes.com/1986/06/18/us/the-supreme-court-man-in-the-news-judge-with-tenacity-and-charm-antonin-scalia.html?scp=2&sq=Antonin+Scalia&st=nyt, retrieved 2010-01-12 
  2. ^ a b Biskupic 2009, pp. 11–15.
  3. ^ Biskupic 2009, pp. 17–19.
  4. ^ Biskupic 2009, p. 21.
  5. ^ Marcus, Ruth (1986-06-22), "Scalia tenacious after staking out a position", The Washington Post, http://www.washingtonpost.com/wp-dyn/content/article/2007/08/22/AR2007082200970.html, retrieved 2010-01-12 
  6. ^ a b c d e Justice Scalia on the record, cbs.com, 2008-08-24, http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290.shtml, retrieved 2010-01-13 
  7. ^ a b c Scalia Speaks in Ames, Scolds Aggressive Student, Harvard Law Record, 2006-12-07, http://media.www.hlrecord.org/media/storage/paper609/news/2006/12/07/News/Scalia.Speaks.In.Ames.Scolds.Aggressive.Student-2528117.shtml?sourcedomain=www.hlrecord.org&MIIHost=media.collegepublisher.com, retrieved 2010-01-12 
  8. ^ a b c d Fox, John, Biographies of the Robes: Antonin Gregory Scalia, pbs.org, http://www.pbs.org/wnet/supremecourt/future/robes_scalia.html, retrieved 2010-01-12 
  9. ^ Biskupic 2009, pp. 30–31.
  10. ^ Biskupic 2009, p. 361.
  11. ^ a b Biskupic 2009, pp. 37–38.
  12. ^ Biskupic 2009, p. 40.
  13. ^ Biskupic 2009, pp. 49–53.
  14. ^ Biskupic 2009, pp. 45–47.
  15. ^ Biskupic 2009, pp. 63, 374.
  16. ^ Staab 2006, pp. 13–14.
  17. ^ a b Shipp, E.R. (1986-07-26), "Scalia's Midwestern colleagues cite his love of debate, poker, and piano", The New York Times, http://www.nytimes.com/1986/07/26/us/scalia-s-midwest-colleagues-cite-his-love-of-debate-poker-and-piano.html, retrieved 2010-01-13 
  18. ^ Staab 2006, p. 19.
  19. ^ Biskupic 2009, pp. 73–74.
  20. ^ Biskupic 2009, p. 80.
  21. ^ Antonin Scalia at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
  22. ^ Taylor, Stuart (1986-06-19), "Scalia's views, stylishly expressed, line up with Reagan's", The New York Times, http://www.nytimes.com/1986/06/19/us/scalia-s-views-stylishly-expressed-line-up-with-reagan-s.html, retrieved 2010-01-13  (fee for article)
  23. ^ a b c Biskupic 2009, pp. 104–109. Bork was nominated for the Supreme Court the following year, but his nomination was rejected by the Senate.
  24. ^ Toobin 2008, p. 21.
  25. ^ Staab 2006, p. 24.
  26. ^ Biskupic, Joan (2008-12-22), "Timing and luck crucial for seat on high court", USA Today, http://www.usatoday.com/news/washington/judicial/2008-12-22-court_N.htm, retrieved 2010-02-09 
  27. ^ Biskupic 2009, p. 100.
  28. ^ "Scalia hearings muted", The Milwaukee Journal, 1986-08-05, http://news.google.com/newspapers?id=dF0aAAAAIBAJ&sjid=wyoEAAAAIBAJ&dq=scalia%20committee%20hearing&pg=6820%2C3642359, retrieved 2010-01-13 
  29. ^ Biskupic 2009, p. 109.
  30. ^ Biskupic 2009, p. 121.
  31. ^ a b c Biskupic 2009, p. 304–305.
  32. ^ Liptak, Adam (2005-12-31), "So, guy walks up to a bar and Scalia says ...", The New York Times, http://www.nytimes.com/2005/12/31/politics/31mirth.html?scp=1&sq=scalia%20funniest%20justice&st=cse, retrieved 2010-01-30 
  33. ^ a b Biskupic 2009, pp. 307–308.
  34. ^ Lithwick, Dahlia (2003-01-15), "Scalia hogs the ball", Slate, http://www.slate.com/id/2077031/, retrieved 2010-01-30 
  35. ^ a b c Staab 2006, p. 27.
  36. ^ Ring 2004, p. xi.
  37. ^ Clarke, Conor (2006-07-05), "How Scalia lost his mojo", Slate, http://www.slate.com/id/2145069/, retrieved 2010-01-30 
  38. ^ Tushnet 2006, pp. 64–65.
  39. ^ Biskupic 2009, p. 132.
  40. ^ Biskupic 2009, p. 88.
  41. ^ Greenhouse, Linda (1990-05-31), "Washington talk: High Court still groping to define due process", The New York Times, http://www.nytimes.com/1990/05/31/us/washington-talk-high-court-still-groping-to-define-due-process.html?scp=29&sq=scalia%2014th%20amendment&st=cse, retrieved 2010-02-12  (fee for article)
  42. ^ Talbot, Margaret (2005-03-28), "Supreme confidence: The jurisprudence of Antonin Scalia", The New Yorker (The New Yorker (reprinted by New America Foundation)), http://www.newamerica.net/publications/articles/2005/supreme_confidence, retrieved 2010-02-12  (fee for article)
  43. ^ Liptak, Adam (2009-11-09), "Sidebar: From 19th Century view, desegregation is a test", The New York Times, http://www.nytimes.com/2009/11/10/us/10bar.html?scp=1&sq=scalia%20brown%20plessy&st=cse, retrieved 2010-02-12  (fee for article)
  44. ^ Thompson v. Oklahoma, 487 U.S. 815, 865 (Scalia, J., dissenting), findlaw.com reproducing United States Supreme Court decision, 1988-06-29, http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=487&page=815, retrieved 2010-01-13 
  45. ^ Rossum, Ralph, The textualist jurisprudence of Justice Scalia, Claremont McKenna College, http://www.claremontmckenna.edu/salvatori/publications/RARScalia.asp, retrieved 2010-01-14 
  46. ^ Greenhouse, Linda (2006-06-06), "Court to weigh race as factor in school rolls", The New York Times, http://www.nytimes.com/2006/06/06/washington/06scotus.html?pagewanted=1&ei=5094&en=d6eb5b9f9b7fe81f&hp&ex=1149652800&partner=homepage, retrieved 2010-01-13  (fee for article)
  47. ^ Nader, Ralph; Weissman, Robert (2008-11-13), Letter to the Editor: Ralph Nader on Scalia's "originalism", Harvard Law Record, http://www.hlrecord.org/2.4462/letter-to-the-editor-ralph-nader-on-scalia-s-originalism-1.577456, retrieved 2010-01-14 
  48. ^ Citizens United v. Federal Election Commission (Scalia, J., concurring), findlaw.com reproducing United States Supreme Court decision, 2010-01-21, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=000&invol=08-205#concurrence2, retrieved 2010-01-27 
  49. ^ Biskupic 2009, p. 208.
  50. ^ Ring 2004, pp. 44–45.
  51. ^ a b c Biskupic 2009, pp. 136–38.
  52. ^ Staab 2006, pp. 74–75.
  53. ^ Staab 2006, p. 76.
  54. ^ Staab 2006, pp. 78–79.
  55. ^ Staab 2006, pp. 80–82.
  56. ^ Biskopic 2009, pp. 328–329.
  57. ^ Rossum 2006, pp. 84–85.
  58. ^ a b "Judge 'rejects Guantanamo rights'", BBC News, 2006-03-27, http://news.bbc.co.uk/2/hi/americas/4848834.stm, retrieved 2010-01-29 
  59. ^ "U.S. justices cast doubt on tribunal", The New York Times, 2006-03-28, http://www.nytimes.com/2006/03/28/world/americas/28iht-scotus.html?scp=2&sq=scalia%20hamdan%20recuse&st=cse, retrieved 2010-01-27  (fee for article)
  60. ^ Greenhouse, Linda (2006-06-30), "The ruling on tribunals; the overview; Justices, 5-3, broadly reject Bush plan to try detainees", The New York Times, http://query.nytimes.com/gst/fullpage.html?res=9402E0D61430F933A05755C0A9609C8B63&sec=&spon=&&scp=3&sq=scalia%20hamdan%20recuse&st=cse, retrieved 2010-01-27  (fee for article)
  61. ^ Rossum 2006, pp. 61–63.
  62. ^ Rossum 2006, pp. 110–112.
  63. ^ Planned Parenthood v. Casey, 505 U.S. 833, 979 (Scalia, J., dissenting), findlaw.com reproducing United States Supreme Court decision, 1992-06-29, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=505&invol=833, retrieved 2010-01-13 
  64. ^ Biskupic 2009, pp. 193–195.
  65. ^ Ring 2004, p. 108.
  66. ^ Ring 2004, p. 109.
  67. ^ Ring 2004, pp. 137–138.
  68. ^ Biskupic 2009, pp. 202–203.
  69. ^ Biskupic 2009, pp. 203–204.
  70. ^ Ring 2004, pp. 87–88.
  71. ^ Ring 2004, pp. 56–57.
  72. ^ Rossum 2006, pp. 159–60.
  73. ^ Ring 2004, p. 194.
  74. ^ Ring 2004, p. 195.
  75. ^ Ring 2004, pp. 279–80.
  76. ^ Tushnet 2006, pp. 167–169.
  77. ^ Ring 2004, pp. 280–81.
  78. ^ Biskupic 2009, p. 283. There is no such clause in the Bill of Rights.
  79. ^ Tushnet 2006, pp. 170–72.
  80. ^ Biskupic 2009, pp. 225–27.
  81. ^ Ring 2004, p. 144.
  82. ^ Rossum 2006, pp. 192–93.
  83. ^ Ring 2004, p. 148.
  84. ^ Toobin 2008, p. 146.
  85. ^ Rossum 2006, pp. 182–84.
  86. ^ Biskupic 2009, p. 354.
  87. ^ a b Rossum 2006, pp. 184–86.
  88. ^ Scalia was joined by Justices Thomas, Souter, Breyer, and Ginsburg.
  89. ^ Kyllo v. United States, 533 U.S. 27, findlaw.com reproducing United States Supreme Court decision, 2001-06-11, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=533&invol=27, retrieved 2010-01-24 
  90. ^ Rossum 2006, p. 175.
  91. ^ Tushnet 2006, pp. 140–42.
  92. ^ Rossum 2006, p. 2.
  93. ^ Biskupic 2009, p. 243.
  94. ^ Justice Scalia on the record, cbsnews.com, 2007-09-14, http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290_page3.shtml?tag=contentMain;contentBody, retrieved 2010-01-31 
  95. ^ A Conversation with Justice Antonin Scalia, Charlie Rose, 2008-06-20, http://www.charlierose.com/view/interview/9141, retrieved 2010-01-31  (video)
  96. ^ a b c d Biskupic 2009, pp. 135–136.
  97. ^ Posner, Richard (2008-08-27) (PDF), In defense of looseness, The National Review; reproduced at page maintained by Northwestern University Law School, http://epstein.law.northwestern.edu/research/PosnerHeller.pdf, retrieved 2010-01-27 
  98. ^ McArdle, Elaine (2008-10-03), In inaugural Vaughan Lecture, Scalia defends the “methodology of originalism”, Harvard Law School, http://www.law.harvard.edu/news/spotlight/constitutional-law/scalia-vaughan-lecture.html, retrieved 2010-01-14 
  99. ^ Greenhouse, Linda (2003-10-14), "Justices take case on Pledge of Allegiance's reference to God", The New York Times, http://www.nytimes.com/2003/10/14/national/14CND-SCOTUS.html?scp=3&sq=scalia%20newdow%20recuse&st=cse, retrieved 2010-01-29  (fee for article)
  100. ^ Janofsky, Michael (2004-03-19), "Scalia refuses to take himself off Cheney case", The New York Times, http://www.nytimes.com/2004/03/19/us/scalia-refusing-to-take-himself-off-cheney-case.html?scp=9&sq=scalia%20cheney&st=cse, retrieved 2010-01-29  (fee for article)
  101. ^ Greenhouse, Linda (2004-06-25), "Justices' ruling postpones resolution of Cheney case", The New York Times, http://www.nytimes.com/2004/06/25/us/justices-ruling-postpones-resolution-of-cheney-case.html?scp=2&sq=judicial+watch+cheney&st=nyt, retrieved 2010-01-29  (fee for article)
  102. ^ Biskupic 2009, p. 211.
  103. ^ Biskupic 2009, pp. 40–41, 73.
  104. ^ Justice Scalia's under-the-chin gesture, npr.org, 2006-03-30, http://www.npr.org/templates/story/story.php?storyId=5312065, retrieved 2010-01-31 
  105. ^ a b Biskupic 2009, p. 363.
  106. ^ Goldberg, J.J. (2009-10-23), "Antonin Scalia's uncivil religion", forward.com, http://www.forward.com/articles/116767/, retrieved 2010-02-12 
  107. ^ a b Biskupic 2009, p. 276.
  108. ^ a b Biskupic 2009, p. 362.
  109. ^ Rep. Frank calls Scalia a "homophobe" in interview, abcnews.com, 2009-03-23, http://abcnews.go.com/Politics/wireStory?id=7154174, retrieved 2010-02-18 
  110. ^ Dowd, Maureen (2003-06-29), "Scalia's opera bouffe", The New York Times, http://www.nytimes.com/2003/06/29/opinion/29DOWD.html?scp=1&sq=maureen%20dowd%20scalia%20old%20school%20misty&st=cse, retrieved 2010-02-18  (fee for article)
  111. ^ Rossum 2006, p. 198.
  112. ^ Biskupic 2009, p. 275.
  113. ^ a b Rossum 2006, p. 44.

References

  • 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. 

External links

Biographical
Works by Scalia
  • 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 9780314184719.
Legal offices
Preceded by
Roger Robb
Judge of the U.S. Court of Appeals for the D.C. Circuit
1982–1986
Succeeded by
David B. Sentelle
Preceded by
William Hubbs Rehnquist
Associate Justice of the Supreme Court of the United States
1986–present
Incumbent
United States order of precedence
Preceded by
John Paul Stevens
Associate Justice of the Supreme Court of the United States
United States order of precedence
Associate Justice of the Supreme Court of the United States
Succeeded by
Anthony Kennedy
Associate Justice of the Supreme Court of the United States

Quotes

Up to date as of January 14, 2010

From Wikiquote

Antonin Scalia has been an associate justice on the United States Supreme Court since 1986.

Contents

On the role of Judges and Courts

  • On Judicial activism: "The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize"
Wabaunsee County v. Umbehr, 518 U.S. 668 (1996) (dissenting). N.b., this quote has been used many times in print, but usually it seems to be received wisdom: most writers who use it either do not know, or decline to state, its origins.
  • On the role of the Judge: "I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that's what it says, that's what it says."
  • "If you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong."
  • "We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today's opinion approves that process in principle, though urging the lower courts to be more restrained. This Court seems incapable of admitting that some matters - any matters - are none of its business."
Sosa v. Alvarez-Machain et al., 542 U. S. 692 (2004) (concurring)
  • "Justice White's conclusion is perhaps correct, if one assumes that the task of a court of law is to plumb the intent of the particular Congress that enacted a particular provision. That methodology is not mine nor, I think, the one that courts have traditionally followed. It is our task, as I see it, not to enter the minds of the Members of Congress - who need have nothing in mind in order for their votes to be both lawful and effective - but rather to give fair and reasonable meaning to the text of the United States Code, adopted by various Congresses at various times."
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) (concurring)
  • "Every time the Supreme Court defines another right in the Constitution it reduces the scope of democratic debate."
  • "Robert F. Kennedy used to say, 'Some men see things as they are and ask why. Others dream things that never were and ask why not?'; that outlook has become a far too common and destructive approach to interpreting the law"
  • On "legislating from the bench": "Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis."
Morrison v. Olson, 487 U.S. 654 (1988) (dissenting)
  • "I think [that] '[t]he judicial Power of the United States' conferred upon this Court 'and such inferior courts as Congress may establish', must be deemed to be the judicial power as understood by our common-law tradition. That is the power 'to say what the law is', Marbury v. Madison, 1 Cranch 137, 177 (1803), not the power to change it."
James M. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) (concurring).
  • On stare decisis (adhering to judicial precedent): "The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the 'central holding.' It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version."
  • "The Court's statement that it is 'tempting' to acknowledge the authoritativeness of tradition in order to 'curb the discretion of federal judges" is, of course, rhetoric rather than reality; no government official is 'tempted' to place restraints upon his own freedom of action, which is why Lord Acton did not say 'Power tends to purify.' The Court's temptation is in the quite opposite and more natural direction -- towards systematically eliminating checks upon its own power; and it succumbs." (
Ibid.
  • "Today's extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement."
Minnick v. Mississippi, 498 US 146 (1990) (dissenting)
  • On the "living Constitution": "I am left to defend the 'dead' Constitution."
Speech at Marquette University in Milwaukee on March 13, 2001.
  • "I don't think it's a living document, I think it's dead. More precisely, I think it's enduring. It doesn't change. I think that needs to be orthodoxy."
Speech at Thomas Jefferson High School in Alexandria, Virginia in April 2008. http://www.swamppolitics.com/news/politics/blog/2008/04/no_to_cameras_yes_to_60_minute.html
  • "Textualism should not be confused with so-called strict constructionism, which is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be--though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.""
Antonin Scalia, A Matter of Interpretation 23 (Princeton, NJ: Princeton University Press, 1998). [1] (PDF)
  • "Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible."
Speech at Princeton University, 1995, quoted in a Scalia profile published by The Christian Science Monitor.
  • On judicial arrogance: "It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members' personal view of what would make a 'more perfect Union' (a criterion only slightly more restrictive than a 'more perfect world') can impose its own favored social and economic dispositions nationwide."
  • "What today's decision will stand for, whether the Justices can bring themselves to say it or not, is the power of the Supreme Court to write a prophylactic, extraconstitutional Constitution, binding on Congress and the States."
  • "If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," U. S. Const., Art. I, § 8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf."
  • "Now the Senate is looking for 'moderate' judges, 'mainstream' judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?"
Address to Chapman University students in 2005 [2]).

On Federalism

  • "Legislative flexibility on the part of Congress will be the touchstone of federalism when the capacity to support combustion becomes the acid test of a fire extinguisher. Congressional flexibility is desirable, of course - but only within the bounds of federal power established by the Constitution. Beyond those bounds (the theory of our Constitution goes), it is a menace."

On Freedom of speech

  • I define speech as any communicative activity. [Can it be nonverbal?] Yes. [Can it be nonverbal and also not written?] Yes. [Can it encompass physical actions?] Yes. Watt [Community for Creative Non-Violence v. Watt, 703 F.2d 586 (1983)] was a case in which what was at issue was sleeping as communicative activity. What I said was that for purposes of the heightened protections that are accorded, sleeping could not be speech. That is to say, I did not say that one could prohibit sleeping merely for the purpose of eliminating the communicative aspect of sleeping, if there is any . . . [and] I did not say that the Government could seek to prohibit that communication without running afoul of the heightened standards of the first amendment. If they passed a law that allows all other sleeping but only prohibits sleeping where it is intended to communicate, then it would be invalidated. But what I did say was, where you have a general law that just applies to an activity which in itself is normally not communicative, such as sleeping, spitting, whatever you like; clenching your fist, for example; such a law would not be subject to the heightened standards of the first amendment. That is to say, if there is ordinary justification for it, it is fine. It does not have to meet the high need, the no other available alternative requirements of the first amendment. Whereas, when you are dealing with communicative activity, naturally communicative activity—writing, speech, and so forth— any law, even if it is general, across the board, has to meet those higher standards.
Supreme Court Confirmation Hearings, 8/5/86, transcript at pp.51-2).
  • "'Abusive' (or 'hostile,' which in this context I take to mean the same thing) does not seem to me a very clear standard - and I do not think clarity is at all increased by adding the adverb "objectively" or by appealing to a "reasonable person's" notion of what the vague word means."
Harris v. Forklift Systems, Inc., 510 U.S. 17 (concurring)
  • On decency laws: "Perhaps the dissenters believe that 'offense to others' ought to be the only reason for restricting nudity in public places generally. . . . The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd."
  • On tax-funded art: "Avant-garde artistes such as respondents remain entirely free to épater les bourgeois [shock the middle classes]; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures 'aimed at the suppression of dangerous ideas.'"

On Race and Affirmative Action

  • On affirmative action: "Those who believe that racial preferences can help to 'even the score' display, and reinforce, a manner of thinking about race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still."
  • "Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual. ...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."
Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (1995) (concurring).

On abortion

  • "My difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe – and no one believed for 200 years – that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter."
Call for Reckoning - Pew Forum conference, January 25, 2002). N.b. this speech was later modified into an article - God's Justice and Ours which repeats much the same points.
  • "The Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution - not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins. Leaving this matter to the political process is not only legally correct, it is pragmatically so. That alone - and not lawyerly dissection of federal judicial precedents - can produce compromises satisfying a sufficient mass of the electorate that this deeply felt issue will cease distorting the remainder of our democratic process. The Court should end its disruptive intrusion into this field as soon as possible.
Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990) (dissenting).
  • "The notion that the Constitution of the United States, designed, among other things, 'to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,' prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."
Stenberg v. Carhart (dissenting).
  • "One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society's tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer's - and hence not in the judge's - workbox. I continue to dissent from [the Court's] enterprise of devising an Abortion Code, and from the illusion that we have authority to do so."
Hodgson v. Minnesota, 497 U.S. 417 (1990) (dissenting).

On the Death Penalty

  • "[I]t seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post–Christian Europe, and has least support in the church–going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: 'Friend, be not afraid of your office. You send me to God' . . . For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence."
God’s Justice and Ours, 123 First Things 17.
  • "Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."
Atkins v. Virginia (dissenting).
  • "[I] believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it."
Ring v. Arizona) (concurring).
  • On executing minors: "What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion - that the meaning of our Constitution has changed over the past 15 years—not, mind you, not that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists."
Roper v. Simmons (dissenting).
  • "The Court thus proclaims itself sole arbiter of our Nation's moral standards—and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent. Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time.
Ibid.
  • On the point of the Court's Roper decision: "I watched one television commentary on the case in which the host had one person defending the opinion on the ground that people should not be subjected to capital punishment for crimes they commit when they are younger than eighteen, and the other person attacked the opinion on the ground that a jury should be able to decide that a person, despite the fact he was under eighteen, given the crime, given the person involved, should be subjected to capital punishment. And it struck me how irrelevant it was, how much the point had been missed. The question wasn’t whether the call was right or wrong. The important question was who [i.e., the Courts or Congress] should make the call."
  • "Justice Blackmun begins his statement [declaring Blackmun's opposition to capital punishment] by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina. How enviable a quiet death by lethal injection compared with that!"
Callins v. Collins 510 U.S. 1141 (1994) (Scalia, J., concurring in denial of cert).

On the Establishment Clause

  • "I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to require scrutiny more commonly associated with interior decorators than with the judiciary."
Lee v. Weisman (dissenting).
  • "As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him."
Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993) (concurring) (citations omitted).
  • "The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an "establishment" of the Empire State. And the Founding Fathers would be astonished to find that the Establishment Clause — which they designed to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters — has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion."
Board of Ed. of Kiryas Joel v. Grumet (dissenting) (citations and some internal quotation marks omitted).

Misc.

  • "I respectfully, and indeed diffidently, dissent."
Saratoga Fishing Co. v. J. M. Martinac & Co., 520 U.S. 875 (1997) (dissenting)
  • "This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that 'No man should see how laws or sausages are made.'"
Community Nutrition Institute v. Block, 749 F.2d 50, 51 (D.C. Cir. 1984)
  • "'The operation was a success, but the patient died.' What such a procedure is to medicine, the Court's opinion in this case is to law."
National Endowment for the Arts v. Finley, 524 U.S. 569 (Scalia, concurring)
  • "If to state this case is not to decide it, the law has departed further from the meaning of language than is appropriate for a government that is supposed to rule (and to be restrained) through the written word."
United States v. Rodriguez-Moreno, 526 U.S. 275 (Scalia, dissenting)
  • "The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done. I sometimes think that is an appropriate analogy to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not)."
  • "I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional, I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction."
Maryland v. Craig, 497 U.S. 836 (1990) (dissenting)
  • "'for want of a nail, a kingdom was lost' is a commentary on fate, not the statement of a major cause of action against a blacksmith."
Holmes v.SIPC, 503 U.S. 258 (1991) (concurring)
  • Admitting fallibility: "Since [Walton v. Arizona, 497 U.S.], I have acquired new wisdom ...or, to put it more critically, have discarded old ignorance"
concurring in Ring v. Arizona 536 U.S. 584 (2002)
  • "[I]n law school, I never understood [antitrust law]. I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then."
Supreme Court Confirmation Hearings, 8/5/86, transcript at p.36).
  • "[H]ave the courage to have your wisdom regarded as stupidity"
  • "The main business of a lawyer is to take the romance, the mystery, the irony, the ambiguity out of everything he touches."
  • Asked about philosophical ally Robert Bork's urging that Congress override some Supreme Court rulings: "Bork has essentially given up. I'm not ready to throw in the towel"
  • On modern teaching of law: "You could fire a grapefruit out of a cannon over the best law schools in the country - and that includes Chicago - and not hit an originalist"
Speech at University of Chicago Law School, May 9, 2003 [6])
  • "If you care passionately about something has become the only test to determine if something is constitutional. How passionately do you care?"
  • "People look at rights as if they were muscles — the more you exercise them, the better they get."
  • "I have been willing, in the case of civil statutes, to acknowledge a doctrine of "scrivener's error" that permits a court to give an unusual (though not unheard of ) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result."
U.S. v. X-Citement Video Inc., 513 U.S. 64(1994)
  • On the Pledge of Allegiance: "In Barnette, we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence. . . . Logically, that ought to be the next target for the Court's bulldozer."
Lee v. Weisman (dissenting)
  • On the court's lack of authority regarding the right to die: "[T]he point at which life becomes 'worthless,' and the point at which the means necessary to preserve it become 'extraordinary' or 'inappropriate,' are neither set forth in the Constitution nor 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...[therefore] even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored."
Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990) (concurring)
  • On legal paternalism: "It is hard to consider women a 'discrete and insular minority', unable to employ the 'political processes ordinarily to be relied upon' when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns."
  • On gender equality: "The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law."
Ibid.
  • On the independent counsel law: "How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile."
Morrison v. Olson (dissenting)
  • On parental rights: "In my view, a right of parents to direct the upbringing of their children is among the 'unalienable Rights' with which the Declaration of Independence proclaims 'all Men . . . are endowed by their Creator.'"
Troxer v. Granville (dissenting)
  • On the right to sodomy:

"[Laws] prohibiting sodomy do not seem to have been enforced against consenting adults acting in private... I do not know what 'acting in private' means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage."

Lawrence v. Texas (dissenting)
  • On the right to sodomy:

"[The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to 'liberty' under the Due Process Clause, though today's opinion repeatedly makes that claim. . . . The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided. . . ."

Ibid. (dissenting)
  • On civil rights and the war on terror: "Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis--that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."
Hamdi v. Rumsfeld (2004) (dissenting)
  • On campaign promises: "[C]ampaign promises are—by long democratic tradition—the least binding form of human commitment...."
Republican Party v. White, 536 U.S. 765 (2002) (majority opinion)
  • The definition of "high crimes and misdemeanours": "Among the questions considered nonjusticiable is the definition of an impeachable offense. Whatever Congress says is an impeachable offense is an impeachable offense."
2006 speech, Berne, Switzerland. [7]
  • On Global Warming, in response to Massachusetts Assistant Attorney General James Milkey's correction of Scalia's reference to the "stratosphere": "Troposphere, whatever. I told you before I'm not a scientist. That's why I don't want to have to deal with global warming, to tell you the truth."
    Massachusetts vs. EPA, 05-1120. [8], November 30, 2006. Retrieved December 2, 2006.
  • On college graduates considering law as a career: "I think too many promising young minds are wasted on it."
Address to the Claremont McKenna College Res Publica Society Luncheon, January 31, 2007.[9].







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