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Antonin Scalia - Further Readings

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In 1986, Antonin Scalia was appointed to the U.S. Supreme Court by President RONALD REAGAN, becoming the first American of Italian descent to serve as an associate justice. Known for his conservative judicial philosophy and narrow reading of the Constitution, Scalia has repeatedly urged his colleagues on the Court to overturn ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the decision recognizing a woman's right to terminate her pregnancy under certain circumstances.

Scalia was born March 11, 1936, in Trenton, New Jersey. Before he began grade school, Scalia and his family moved to Elmhurst, New York, where he spent much of his boyhood. Scalia is the only child of Eugene Scalia, an Italian immigrant who taught romance languages at Brooklyn College for 30 years, and Catherine Scalia, a first-generation Italian-American who taught elementary school.

In 1953, Antonin Scalia graduated first in his class at St. Francis Xavier High School, a Jesuit military academy in Manhattan. Four years later, Scalia was valedictorian at Georgetown University, receiving a bachelor's degree in history. In the spring of 1960, Scalia graduated magna cum laude from Harvard Law School where he served as an editor for the Harvard Law Review. Known to his friends as Nino, Scalia was known to many of his classmates as an eager and able debater.

Upon graduation from law school, Scalia accepted a position as an associate attorney with a large law firm in Cleveland, Ohio, where he practiced law until 1967. He resigned to teach at the University of Virginia School of Law. In 1970, Scalia joined the Nixon Administration to serve as general counsel for the Office of Telecommunications Policy. Under President GERALD R. FORD, Scalia served as assistant attorney general for the JUSTICE DEPARTMENT, where he drafted a key presidential order establishing new restrictions on the information-gathering activities of the CENTRAL INTELLIGENCE AGENCY and FEDERAL BUREAU OF INVESTIGATION.

In 1977, Scalia left public office to become a visiting scholar at the American Enterprise Institute, a conservative think tank in Washington, D.C. During this same year, Scalia also returned to academia, accepting a position as law professor at the University of Chicago, where he developed a reputation as an expert in ADMINISTRATIVE LAW. In 1982, President Reagan appointed Scalia to the U.S. Court of Appeals for the District of Columbia, which many lawyers consider to be the second most powerful court in the country.

"JUDGES IN A REAL SENSE 'MAKE' LAW.… [T]HEY MAKE IT AS JUDGES MAKE IT, WHICH IS TO SAY AS THOUGH THEY WERE 'FINDING' ITDISCERNING WHAT THE LAW IS, RATHER THAN DECREEING WHAT IT IS TODAY CHANGED TO, OR WHAT IT WILL TOMORROW BE."
—ANTONIN SCALIA

When Chief Justice WARREN BURGER retired in 1986, President Reagan elevated sitting justice

Antonin Scalia.
PHOTOGRAPH BY JOSEPH LAVENBURG, NATIONAL GEOGRAPHIC. COLLECTION OF U.S. SUPREME COURT

WILLIAM REHNQUIST to the chair of chief justice and nominated Scalia to fill the vacancy of associate justice. Confirmed by a vote of 98–0 in the Senate, Scalia became the first Roman Catholic to be appointed to the U.S. Supreme Court since WILLIAM J. BRENNAN JR. in 1957.

Scalia's tenure on the high court has been marked by a JURISPRUDENCE of ORIGINAL INTENT. Proponents of original intent, also called originalists, believe that the Constitution must be interpreted in light of the way it was understood at the time it was framed and ratified. According to Scalia, originalism has two virtues: preserving the SEPARATION OF POWERS in a democratic society, and curbing judicial discretion.

The Constitution delegates specific enumerated powers to the three branches of the federal government. The Legislative Branch is given the power to make law under Article I; the EXECUTIVE BRANCH is given the power to enforce the law under Article II; and the Judicial Branch is given the power to interpret and apply the law under Article III. Originalists believe that democracy is enhanced when the lawmaking power is exercised by the federal legislature because, unlike federal judges who are appointed by the president and given life tenure on the bench, members of Congress are held accountable to the electorate at the ballot box.

This separation of powers is blurred, Scalia argues, when unelected federal judges decide cases in accordance with their own personal preferences, which may be contrary to those expressed by the framers and ratifiers. In such instances, Scalia asserts, federal judges usurp the legislative function by making new law that effectively replaces the popular understanding of the Constitution at its time of adoption. The only way to curb this type of judicial discretion and to preserve the separation of powers, Scalia concludes, is by requiring federal judges to interpret and apply the Constitution in light of its original meaning. This meaning can be illuminated, Scalia says, by paying careful attention to the express language of the Constitution and the debates surrounding the framing and ratification of particular provisions.

Scalia's interpretation and application of the EIGHTH AMENDMENT best exemplifies his judicial philosophy. The Eighth Amendment prohibits CRUEL AND UNUSUAL PUNISHMENT. Courts that evaluate a claim under the Cruel and Unusual Punishments Clause, Scalia argues, must determine whether a particular punishment was allowed in 1791 when the Eighth Amendment was framed and ratified. Moreover, he argues that courts must not take into account notions of the evolving standards of human decency. For example, Scalia contends that CAPITAL PUNISHMENT was clearly contemplated by the framers and ratifiers of the federal Constitution. The FIFTH AMENDMENT explicitly references capital crimes, Scalia observes, and capital punishment was prevalent in the United States when the Constitution was adopted. Whether states presently support or oppose capital punishment plays only a negligible role in Scalia's analysis.

Scalia's interpretation of the DUE PROCESS CLAUSE of the Fifth and Fourteenth Amendments provides another example of his judicial philosophy. According to Scalia, the Due Process Clause was originally understood to offer only procedural protection, such as the right to a fair hearing before an impartial judge and an unbiased jury. Nowhere in the text of the Constitution, Scalia notes, is there any hint that the Due Process Clause offers substantive protection. It is not surprising then that Scalia has dissented from U.S. Supreme Court decisions that have relied on the Due Process Clause in protecting the substantive right of women to terminate their pregnancies under certain circumstances (Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 [1992]). Likewise, Scalia disagreed with the Court's decision that a state law granting VISITATION RIGHTS to grandparents was unconstitutional because it infringed upon the fundamental rights of parents to raise their children (Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). No such right, Scalia has commented, can be found in the express language of any constitutional provision.

Scalia has surprised some observers by his literal reading of the SIXTH AMENDMENT, which guarantees the right of criminal defendants to be "confronted with witnesses against them." In Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), Scalia wrote that the Sixth Amendment requires a face-to-face confrontation and that such an opportunity had been denied when a large screen had been placed between a defendant charged with CHILD MOLESTATION and the child who was accusing him. The Sixth Amendment, Scalia concluded, intended for courts to preserve the adversarial nature of the criminal justice system by protecting the rights guaranteed by the Confrontation Clause over governmental objections that face-to-face cross-examination may be emotionally traumatic for some victims.

Scalia drew the ire of advocates for GAY AND LESBIAN RIGHTS with his dissent in ROMER V. EVANS, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996). The Court invalidated a constitutional amendment by the state of Colorado that prohibited anti-discrimination laws intended to protect gays, lesbians, and bisexuals. According to the majority in the decision, the state constitutional amendment violated the FOURTEENTH AMENDMENT of the U.S. Constitution. Scalia disagreed, writing a scathing dissent. According to Scalia, the majority opinion "places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias."

Whether Scalia is writing about the Sixth Amendment, the Eighth Amendment, or any other Constitutional provision, some regard his judicial opinions as among the most well written in the history of the U.S. Supreme Court. The clarity, precision, and incisiveness with which he writes is frequently praised. However, some of Scalia's opinions take on an acerbic quality. Often relegated to the role of dissenting justice, Scalia is not above hurling invectives at his colleagues on the Court, sometimes criticizing their opinions as silly and preposterous.

Scalia married the former Maureen McCarthy in 1960. They have nine children. Scalia has written numerous articles on a variety of issues and is the author of A Matter of Interpretation: Federal Courts and the Law (1997).

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