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May/June 2016

Discover more articles from this issue.

The King of Plains

he biblical book of Daniel tells a tale from the times of the Babylonian Empire under Nebuchadnezzar the Great. Babylon today is a pile of ruins about...

Slouching Toward Democratic Totalitarianism

Even a democracy can choose to give away basic freedoms.

The River Jordan is Deep and Wide

Freedom themes in Mark Twain’s coming of age stories.

The “Holy Commonwealth”

Continuing the story on a champion of religious freedom.

A Man and His Legacy

Looking on the positive side of a controversial justice.

Much Ado About a Little Covering

The Muslim head covering debate continues in Canada.

A Kept People

Story of the World War II internment of Japanese Americans.

Magazine Archive »

Published in the May/June 2016 Magazine
by David A. Pendleton

On February 13, 2016, U.S. Supreme Court Justice Antonin Scalia was found dead while on a hunting trip in Texas. He had apparently died from natural causes during his sleep. He was a month shy of his eightieth birthday.

The Scalia family declined an autopsy, and his remains were immediately returned to Washington, D.C., for a memorial mass and burial. His tombstone will no doubt read March 11, 1936 – February 13, 2016. The seemingly unpretentious hyphen between the dates represents a life

lived to the fullest—personally, professionally, intellectually, and spiritually.

Scalia was possessed of an enthusiasm and zest for life—vigorously deciding legal cases, passionately attending the opera, and delighting in his family. He conducted his work and pursued cultural activities with equal ardor: he was known to listen to Bach while meticulously writing his legal opinions. He was never one to do anything halfheartedly, whether enjoying a plate of pasta, playing the piano, or engaging in a friendly game of poker.

Immigrant Roots

Scalia was born in Trenton, New Jersey, on March 11, 1936, to Salvatore Eugene Scalia, an Italian immigrant, and Catherine Louise (Panaro) Scalia, a daughter of Italian immigrant parents. Both tempered assimilation with adherence to Italian culture and a Roman Catholic faith. His father, while starting from humble roots, became a college professor.

Scalia enrolled in parochial school, Xavier High School in Manhattan, graduated from Jesuit-run Georgetown University and then later from Harvard Law School. Appointed by President Ronald Reagan, he was an associate justice on the United States Supreme Court from 1986 until his death in 2016, nearly 30 years.

“A brilliant legal mind with an energetic style, an incisive wit and colorful opinions, he influenced a generation of judges, lawyers, and students, and profoundly shaped the legal landscape,” President Obama said. “He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court.”

Family Man

In 1960 Scalia married Maureen McCarthy in a traditional Catholic wedding, having courted her while he was a Harvard Law School student and she an undergraduate student at Radcliffe College. Over the years their family grew to include nine grown children: five boys and four girls. Scalia’s son Paul, a Catholic priest,  presided at Scalia’s requiem Mass and described a doting father who would not allow work to deprive him of a healthy family life. While managing professional pressures, Scalia regularly made it home for family dinner, where the conversation was lively, and was seen every Sunday morning accompanying his wife and growing brood of children to Mass.

Believer

His Italian ancestry partly explained his Catholic identity. But he was more than a nominal Catholic. It was not just an inherited faith or a cultural routine. It is widely reported that he took his faith seriously, sometimes attending Mass daily before reporting to the Supreme Court. He read the Scriptures and was known to study the documents of Vatican II and the encyclicals of the popes, though he relished his independence and noted his disagreement with a Sunday morning homily and even some of the positions various popes had set forth in encyclicals. He was a faithful Catholic, but not one who would ever surrender careful, independent judgment.

Yet he was vexed and annoyed at the suggestion that somehow his Catholic faith determined his decisions on the bench. As a judge he felt it inappropriate and unacceptable to decide a case on anything other than the law—and by the law he meant a close and faithful reading of the actual text of the applicable and pertinent constitutional provision, treaty, statute, rule, or case.

“There is no such thing as a ‘Catholic judge,’” Justice Scalia insisted. “The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge. . . . Just as there is no ‘Catholic’ way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.”

Scalia insisted on the sovereignty of the legal text, over and above the private intentions of the lawmaker or the preferences of the judge interpreting the law. While his preferences and moral inclinations were informed by his Catholic faith, he had taken an oath to uphold the U.S. Constitution, not to interpret it to coincide with religious predilections.

In an interview Scalia indicated that perhaps the only commandment that influenced his opinion writing was the prohibition against lying. When interpreting a law, he would, like an umpire in baseball, call it like he saw it. Whether he was interpreting a constitutional provision, treaty, statute, rule, or case law, he was bound to give effect not to what the law ought to be, or what one might ideally envision, but to what the text of the law dictated.

Precedent and Principled Interpretation

Then nominee Antonin Scalia meets with President Reagan in the Oval Office, July 7, 1986.

If he felt that a decision should be overruled, then he would openly state so. If he felt stare decisis precluded overturning a case, however much he might have disagreed with the earlier case, he would bow to established precedent.

Law professor Eugene Kontorovich wrote that while “Scalia was driven profoundly by interpretive principles, he always understood that stare decisis—adherence to precedent—is itself an important part of the Anglo-American legal system, and a constraint on judges. In practice this means unfaithful interpretations of the Constitution that have become enmeshed in the national system for a long enough time cannot be completely or immediately reversed, only controlled at the margins and prevented from metastasizing.”1

When it came to abortion rights, Scalia believed Roe v. Wade should be overruled as without basis in the Constitution—but legal realities obligated him to work at the margins on that issue.

Public Servant and Lawyer’s Lawyer

Scalia saved and invested his earnings from private practice and was able comfortably to raise nine children, with all of the attendant college tuition that involved, even after leaving private practice for academia and government service.

During the Nixon and Ford administrations he served in a number of government posts, ultimately landing in the Office of Legal Counsel in the U.S. Department of Justice, a common career stop before being appointed to the federal bench. He was considered a lawyer’s lawyer, which was in keeping with his role as legal adviser to the president of the United States.

In 1982 President Ronald Reagan appointed him as judge of the United States Court of Appeals for the District of Columbia Circuit. And in 1986 Reagan elevated Scalia to the U.S. Supreme Court, after having been confirmed by the U.S. Senate by a vote of 98-0 on September 17, 1986.

Outside of the hallowed halls of the Supreme Court, Scalia was often found at the opera. Often seen with his personal friend, liberal justice Ruth Bader Ginsburg, the two of them on one occasion sang onstage as part of the opera’s chorus. They had known each other since their days together on the United States Court of Appeals for the District of Columbia Circuit, where their odd-couple friendship had begun: Scalia was stout, outspoken, conservative, Italian, and Catholic; Ginsburg was diminutive, soft-spoken, liberal, and Jewish. Yet their friendship bridged the judicial divide. Their families always spent New Year’s together. Justice Ginsburg described their friendship as that of “best buddies.” Their exceptional bipartisan friendship was even celebrated in Derrick Wang’s comic opera, succinctly entitled “Scalia/Ginsburg.”

Ginsburg recalled Scalia as “an absolutely charming man” who could “make even the most sober judge laugh.” Of course, his friendship was not limited to Justice Ginsburg. He reportedly taught Justice Kagan how to safely handle and discharge a firearm.

Outspoken Critic

Scalia was never accused of being soft-spoken. He wrote zealously and argued vociferously. His admirers described him as brilliant, scintillating, and visionary; his detractors thought him too bombastic, blustering, and dogmatic. His carefully crafted prose could be both dazzling and snarky. Friend and foe alike agreed that his prose style was witty, entertaining, and eminently quotable, if often controversial.

For example, on affirmative action, he wrote that “in the eyes of government, we are just one race here. It is American.”

On Obamacare, Scalia chided the Court for its alleged convoluted reasoning to uphold the controversial statute. If being in the market for health care meant the federal government could command you to purchase health care, then by the same reasoning would not being in the market for food vest the federal government with the power to require you to buy broccoli?

On the “living” Constitution, Scalia argued that the Constitution that “I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted.”

On religious liberty, he penned that a “priest has as much liberty to proselytize as a patriot.”

And Scalia held back no punches when taking on what he thought was governmental overreach: “No government official is ‘tempted’ to place restraints on his own freedom of action, which is why Lord Acton did not say ‘Power tends to purify.’”

As legal writer Kevin A. Ring observed, Scalia was a “verbal craftsman” whose prose was “pointed,” “witty and humorous,” and “vivid,” “putting complex arguments about fundamental principles in easy-to-understand terms.”

Textualist

Justice Scalia was a textualist.  For him, the actual text of the law set the parameters of its meaning and dictated the legal outcome. Our evolving standards or personal preferences played no role in legal interpretation for him. Quoting the landmark case of Marbury v. Madison (1803), Scalia declared that a judge’s role was simply to “say what the law is.” He contrasted what the law is to what one might prefer it to be.

In May 2002 Justice Scalia wrote an article for the magazine First Things, entitled “God’s Justice and Ours,” in which he made clear that he did not subscribe to the notion that the “Constitution is a ‘living document’—that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.” “Words have meaning,” Scalia declared in 2013, “and that meaning doesn’t change.”

The First Things article was about the death penalty. And Scalia used that issue to illustrate how he decided cases and interpreted legal words that were not dictated by the Catholic faith. He explained that for him, “the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse-thieving, as anyone can verify by watching a Western movie). And so it is clearly permitted today.”

His response to anti-capital punishment critics was that they had to pass a constitutional amendment. The U.S. Constitution itself provided for the proper way it could evolve, not by investing different meaning into timeworn words but rather to pass an amendment to the Constitution.

Some would argue that the process itself is so burdensome that few amendments could pass. They are right to cite only 27 amendments since the Constitution’s inception. But for Scalia, reinterpreting timeworn words of the Constitution is not made legitimate simply because the amendment process is inconvenient. To his thinking, redefining what “cruel and unusual” means in order to abolish capital punishment would be unfaithful to the Constitution.

In a similar vein, when it came to abortion, while he was personally morally opposed to abortion, because he did not believe that the Constitution contains a “right to abortion,” but should be left up to the states to pass laws regarding abortion. In other words, the “Constitution gives the federal government (and hence me) no power over the matter.”

If faced with clear laws that are immoral, Scalia said the appropriate thing to do would be to resign. If one cannot in good conscience interpret the law impartially, then one should doff one’s judicial robes and step down from the bench. But to “rewrite the laws he cannot do.”

Legacy—What He Said and How He Said It

Scalia’s writing will be remembered in part because of its influential, if controversial, content.

Right or wrong, textualism will be one of Scalia’s enduring contributions to the law. As former federal appeals court judge Michael McConnell has said, now thanks to Scalia, judges “at least begin with text and history” and “give it genuine weight.” Or as law professor William Eskridge put it: “With slight exaggeration, [Scalia’s] motto might have been this: The text, the whole text and nothing but the text, so help me God!” Writer Noah Feldman summarized textualism as “the idea of interpreting legal text as written, not as it should’ve been written.”

Scalia’s legacy will also surely include his emphasis on the structure of the Constitution: the organization and design of the nation’s founding charter was intentional and meaningful. He respected separation of powers and federalism. He sought to cabin the actions of the legislative, executive, and judicial branches of government. He worked to preserve states’ rights against federal government overreach.

Scalia believed that the federal government’s power consisted only of those delegated to it by the terms of the Constitution, and that not every problem, however big, was to be dealt with by federal legislation. He sought to curb federal power, even that of federal courts. In an opinion regarding the right to bear arms, he wrote that it was “not the role of this Court to pronounce the Second Amendment extinct.”

As to religious liberty, some considered Scalia too accepting of government entanglement in or endorsement of religion; some accused him of virtually tearing down the wall of separation—thus being too soft on the establishment clause. On the other hand, others say he insufficiently supported exemptions from laws that conflict with sincerely held religious beliefs. Scalia arguably distinguished to death a premier religious liberty case, Sherbert v. Verner, and some cite this as a symptom of his lukewarm support of the free exercise clause.2

Scalia’s opinion in Employment Division, Department of Human Resources of Oregon v. Smith,3 determined that the state could deny unemployment benefits to a drug counselor fired for illegally using peyote, despite peyote being a sincere religious ritual. It continues to be cited as a huge setback for free exercise of religion. But in short that decision did say that states may accommodate otherwise illegal acts performed for religious reasons, but held that states are not required to do so by the Constitution. Of course that has proven to be a very problematic situation.

Scalia will also be remembered for how he said what he said.  With some admitted hyperbole, law professor Richard Pildes dubbed Scalia one of the finest legal stylists “since Oliver Wendell Holmes. Through his opinions, he exerted gravitational pull on the law, even when he lost.” Justice Ginsburg would concur: “I disagreed with most of what he said, but I loved the way he said it.”

The delightfully pugnacious Scalia not only loved to write, he also loved to speak—and even debate. Known for his tenacity, he challenged colleagues in writing or asking pointed questions of counsel appearing before the Supreme Court. His colorful questions often cut to the heart of the legal issue presented. He often asked counsel the most number of questions—and he got the most laughs at oral argument.

At the time of this writing, President Obama had nominated judge Merrick Garland to fill Scalia’s seat. The nomination will have a very hard time passing by a Republican legislature determined to have a Scalia clone conservative. Considering the number of headline-grabbing Supreme Court cases decided on a 5-4 basis, any appointee will likely change the direction of the Court.

1 www.politico.com/magazine/story/2016/02/antonin-scalia-how-he-changed-america-213631#ixzz40alPKWrz.

2 Those interested in Justice Scalia’s religious liberty rulings are directed to the excellent summary by attorney Michael Peabody, http://atoday.org/news-feature-antonin-scalias-record-on-religious-liberty.html.

3 494 U.S. 872 (1990).

Author: David A. Pendleton

David A. Pendleton has served as a schoolteacher, college instructor, trial lawyer elected state legislator, and policy advisor to a state governor, and now adjudicates workers' compensation appeals in Honolulu, Hawaii.

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