Remembering Scalia

With the passing of Antonin Scalia, the legal world lost a titan. Justice Scalia was the sixteenth justice in U.S. history to begin his thirtieth year of service, and his impact on the Court was vast. In jurisprudential philosophy (his legal textualism and originalism), in real constitutional impact (his fierce fidelity to the written constitution’s libertarian principles), and in legal craftsmanship (his remarkable writing), Scalia left a singular mark on American constitutional history.

Scalia was a quintessential American—and a quintessential New Yorker. He was the first Italian-American to serve on the Supreme Court: his father was an immigrant from Italy and his mother the child of Italian immigrants. Born in New Jersey, Scalia grew up in Queens; his father taught romance languages at Brooklyn College.

After starring at Xavier, an all-boys Jesuit high school in Manhattan, Scalia enrolled at the nation’s oldest Jesuit university, Georgetown, where he finished as class valedictorian. From there it was off to Harvard Law School, where he graduated magna cum laude. While at Harvard, he met Maureen McCarthy, whom he married. The Scalias had nine children, two of whom, Eugene and John, followed their father into the law. (Eugene, an acquaintance, is perhaps the highest-regarded administrative lawyer in the nation’s capital.)

Following law school, Scalia worked in private practice before going on to teach law at the University of Virginia and the University of Chicago, with an interregnum as assistant attorney general in the Office of Legal Counsel for the Nixon and Ford administrations. In 1982, Scalia turned down President Reagan’s offer of appointment to Chicago’s Seventh Circuit Court of Appeals, angling instead for the influential D.C. Circuit, to which the president appointed him later that year. In 1986, after Associate Justice William Rehnquist was elevated to chief justice, Reagan nominated Scalia to fill Rehnquist’s seat on the Supreme Court. The Senate confirmed Scalia’s appointment 98-0, which is remarkable in hindsight: little more than a year later, the Senate rejected the president’s appointment of Robert Bork in a fierce battle that set off the modern confirmation process.

If Bork brought “originalism” into the public discussion through his confirmation hearings, Justice Scalia brought it to life on the Supreme Court. In 1997, Scalia gave the Manhattan Institute’s annual Walter B. Wriston lecture. (Other speakers have included sociologist James Q. Wilson, economists Milton Friedman and Thomas Sowell, author Tom Wolfe, playwright David Mamet, businessman Rupert Murdoch, Secretary of State Condoleezza Rice, and—following Scalia—two of his fellow justices on the Supreme Court.) In his 1997 talk, Scalia remarked, “I am now something of a dodo bird among jurists and legal scholars. You can fire a cannon in the faculty lounge of any major law school in the country and not strike an originalist.” That may still be true on law campuses, but in 2010, Scalia’s future colleague Elena Kagan told the Senate in her confirmation hearing, “we are all originalists.”

Scalia’s philosophy of law was that words matter. In interpreting statutes, that meant that judges should look to the words legislators enacted rather than trying to discern their intent. If ambiguities arise, as they inevitably will, judges should turn to neutral principles—time-honored judicial canons—to figure them out. Scalia’s last book, Reading Law: The Interpretation of Legal Texts, published in 2012 and coauthored with Black’s Law Dictionary editor Bryan Garner, made just this point. In interpreting the Constitution, Scalia’s originalism meant that judges should look to the document’s text and try to apply its often open-ended language according to their original public meaning—what the words meant at the time the provisions were adopted. At its root, this theory holds that unelected judges should not overturn the will of elected representatives absent a clear constitutional mandate.

Thus, though he was an observant Catholic with libertarian leanings, Scalia endeavored never to impose his will over that of the people. If the Constitution was silent on an issue, then the Court should leave it to the people and their elected representatives to decide. Scalia’s pointed dissents in cases involving abortion or homosexuality may have won plaudits in the Vatican, but he was no less fervent in arguing that the constitution’s Eighth Amendment prohibition on “cruel and unusual punishments” could not possibly apply to the death penalty, given the document’s contemporaneous invocation of “capital crimes.”

Where the Constitution spoke, however, Justice Scalia vigorously enforced its limitations on the states and the other branches of the government. In one of his earliest Supreme Court opinions, he wrote for a narrow five-justice majority in Nollan v. California Coastal Commission, in which the Court turned back, under the Fifth Amendment’s Takings Clause, the state’s attempt to condition a building permit on a property easement. The decision would presage Justice Scalia’s landmark opinion five years later in Lucas v. South Carolina Coastal Council, which forms the basis for the Court’s modern position on regulatory takings. The Takings Clause, which protects private property owners from having their land unduly seized by the government, remains a staple conservative issue—as seen in the GOP primary debates, where rival candidates have attacked Donald Trump’s commandeering of state and local eminent-domain powers to acquire property for his development projects.

In 2000, in Apprendi v. New Jersey, a case overturning a judicial sentence imposed on a criminal defendant based on facts that the jury never considered, Scalia wrote a concurrence invoking the Sixth Amendment right to a jury trial, in which he pointedly observed that said right “has never been efficient; but it has always been free.” This opinion laid the groundwork for his monumental opinion for the Court four years later in Blakely v. Washington, in which another five-justice majority—including Scalia’s fellow conservative Justice Clarence Thomas but also liberals Ruth Bader Ginsburg, John Paul Stevens, and David Souter—overturned the application of the state’s mandatory sentencing guidelines on the same rationale. Writing in dissent, Justice Sandra Day O’Connor rightly regarded the decision as “a Number 10 earthquake.” In short order, after a follow-on case, the federal sentencing guidelines were merely “advisory.”

Justice Scalia was an equally vigorous defender of the First and Second Amendments. He was of course in the five-justice majority affirming rights to political speech in Citizens United v. FEC (2010), but his defense of First Amendment free-speech rights was consistent and broad: he joined Justice William Brennan’s 1989 opinion in Texas v. Johnson, which overturned as unconstitutional flag-desecration statutes, and he wrote for the Court in Brown v. Entertainment Merchants Association (2005), which struck down a California law banning the sale of violent video games. And Scalia revivified the Second Amendment with his 2008 opinion for the Court in District of Columbia v. Heller, which struck down a handgun ban in the nation’s capital.

Scalia’s impact on our constitutional jurisprudence is thus hard to overstate. Much as the three-decade period of liberal constitutional expansion from the mid-fifties through the mid-eighties—with the Warren and Burger Courts—were dominated by the brilliant civil libertarian Brennan, so Scalia was the driving force behind the last three decades’ Rehnquist and Roberts Courts.

Beyond doctrine and decisions, Scalia will best be remembered for his writing, which is among the best in the Court’s history. In his introduction of Justice Scalia for the Wriston Lecture, my colleague Peter Huber observed that “he writes with the strength and passion of the great dissenters of the Court’s history, in the noble tradition of John Marshall Harlan and Oliver Wendell Holmes.” In a 1993 article in the Harvard Journal of Law & Public Policy, former U.S. solicitor general and Harvard law professor Charles Fried described Scalia’s “natural talent” for writing as of “the kind which distinguishes a Mozart from a Salieri.” Huber’s and Fried’s observations have now been justified empirically. In a 2014 computer analysis of judicial opinions’ vocabulary, University of Chicago law professors Adam Chilton and Eric Posner discovered that Scalia’s word usage surpassed not only all other then-current justices but also the opinions of great former justices on the Court—save the noted belletrist Holmes. Scalia’s vocabulary even came out “ahead” of Shakespeare’s.

When writing for Court majorities, Scalia had an atypical literary flair. In his opinion in Entertainment Merchants Association, rejecting the state’s notion that its video-game regulation should be upheld because it was intended to protect children, Scalia observed:

But Scalia’s true mastery lay in the dissent. Objecting to the Court’s 1992 reaffirmation of abortion rights in Planned Parenthood v. Casey, Scalia noted, “The Imperial Judiciary lives.” In rejecting the Court’s decision to read “state” as “federal” in last summer’s Obamacare challenge, King v. Burwell, Scalia accused the majority of “interpretive jiggery-pokery” that was “pure applesauce.” Reacting to Justice Kennedy’s majority opinion recognizing a right to same-sex marriage in the Constitution, Scalia caustically proclaimed, “The Supreme Court of the United States has descended from the disciplined reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Belying such acerbic tone in written opinions, however, Scalia—Nino to his friends—was personally close with those colleagues with whom he most regularly sparred. With his New York roots, Scalia was unsurprisingly a longtime theater and opera aficionado, and he regularly attended with Ginsburg, who had been his friend dating back to their time on the D.C. Circuit. Since Elena Kagan joined the Court, he regularly took her hunting—a sport he enjoyed on Friday, his last day. A monumental jurist and a great New Yorker and American, Antonin Scalia will be deeply missed.

Photo by Cknight70