SCALIA, ANTONIN (1936–)

Associate Justice Antonin "Nino" Scalia became the 103rd Justice of the United States Supreme Court on September 27, 1986. Justice Scalia came to the Court after a distinguished career in law, teaching, government, and as a federal appellate judge. He is the first Italian American to be appointed to the Court and was second of three conservative Supreme Court Justices appointed by President ronald reagan. Scalia has established himself as an out-spoken proponent of a jurisprudence that is profoundly at odds with the jurisprudence of later twentieth century liberalism (i.e., the liberalism of the warren court) and differs in significant detail from current judicial conservatism of the role it assigns the judiciary. Before analyzing this jurisprudence, it is important to place it in the context of Scalia's life and professional career, both of which had revealed him as an articulate exponent of political conservative opinions.

Scalia was born in Trenton, New Jersey, on March 11, 1936, the only child of Italian immigrant parents. The family moved later to Queens, New York, where Scalia's father, S. Eugene Scalia, was a college professor, and his mother, Catherine Louise Panaro Scalia, was an elementary school teacher. S. Eugene Scalia was a scholar of romance language and literature who wrote several monographs on Italian literary history and criticism and translated Italian works into English. Antonin Scalia was a brilliant student. He graduated first in his class at a Manhattan Jesuit military academy, Xavier High School, and then repeated that accomplishment at Georgetown University, from which he graduated in 1957. He attended Harvard Law School, where he again excelled scholastically and was elected Note Editor of the Harvard Law Review. After graduation he entered practice with Jones, Day, Cockley & Reavis in Cleveland. He practiced corporate law with the firm until 1967, when he declined a partnership offer. Instead, he accepted a position on the faculty of the University of Virginia Law School.

SCALIA, ANTONIN (1936–)

At Virginia, Scalia began, both through his teaching and research, to develop a specialty in administrative law. He published several articles critical of procedural aspects of federal agencies before leaving Virginia to work in Washington, D.C. Scalia's conservative political orientation, which friends and colleagues identify as having been held by him consistently since college, led him to leave teaching to accept several positions in the administration of President richard m. nixon. He first served as general counsel in the executive office of telecommunications policy and then was appointed chairman of the Administrative Conference of the United States. The conference is responsible for studying common legal and management issues affecting federal executive branch agencies and for recommending improvements in administrative procedures. Scalia next became embroiled in the political battles of watergate when he moved to the Department of Justice in the summer of 1974 as assistant attorney general in charge of the Office of Legal Counsel, the office that provides legal advice to the President. Among Scalia's first duties was drafting a defense of the President's claim that the tapes and records that Congress sought were his property, not the government's, and that they were protected from congressional subpoena by executive privilege. After Nixon's resignation, following the Supreme Court's rejection of his argument, Scalia remained at the Justice Department until January 1977 when President gerald r. ford left office. He subsequently spent six months at the American Enterprise Institute, a conservative research organization, and then accepted a position as a professor at the University of Chicago School of Law.

Scalia taught at Chicago until his appointment to the federal appellate court bench in 1982. (He served one year as a visiting professor at Stanford Law School.) During his time at Chicago, Scalia established himself as a leading voice among conservative academics. He continued to write and teach in the area of administrative law, and he edited the American Enterprise Institute's journal Regulation, which was largely devoted to attacking regulatory excesses and advocating deregulation. Scalia also attacked judicial inattention to the provisions of the Administrative Procedure Act—most notably, the U.S. Court of Appeals for the District of Columbia's review of the work of the Nuclear Regulatory Commission in the Vermont Yankee Nuclear Power Corp. case (1978). From 1981 to 1982 Scalia served as chair of the administrative law section of the American Bar Association, and he used his office to call for lawyers to become involved in reforming administrative procedure to make it fit the new environment of deregulation.

Scalia's writings addressed other items on the conservative political agenda as well. He attacked affirmative action in a 1979 article in the Washington University Law Quarterly both on principle and because he believed that it could not effectively overcome discrimination. He ridiculed white Anglo-Saxon judges such as Justice lewis f. powell and Judge john minor wisdom for justifying affirmative action as "restorative justice" when the members of white ethnic groups—such as Scalia's own Italian family—most often bore the cost of compensating blacks for the WASPs' prior treatment of blacks. Scalia further denounced the freedom of information act for imposing prohibitive costs on the government and promoting openness at the cost of law enforcement, privacy, and national security, and at an American Enterprise Institute conference in 1978, he blasted the Supreme Court's 1973 ruling in roe v. wade for being an illegitimate exercise in judicial lawmaking.

Hence, by the early 1980s, when President Reagan was showing propensity to fill federal court positions with conservative legal academics, Nino Scalia was a prime candidate. He was first offered a position on the United States Court of Appeals for the Seventh Circuit in Chicago, but he turned it down, preferring instead the Court of Appeals for the District of Columbia. A vacancy on that court occurred in 1982, and he resigned his professorship at the University of Chicago to move his wife Maureen and their nine children to Washington, D.C.

Judge Scalia's tenure on the federal appellate bench was marked by the political conservatism of his opinions and by his ability to maintain strong personal working relationships on a court that had been politically and socially divided for many years. Among Scalia's notable opinions on the D.C. Circuit were those that supported the executive branch over both the legislative branch and independent federal agencies. For example, Scalia wrote an opinion striking down the gramm-rudman-hollings act, on separation of powers grounds. According to Scalia, the act impermissibly delegated executive branch functions to an official who was subject to removal by Congress. Scalia further gained attention by narrowing press protection from libel suits in two opinions: one against the Washington Post and one in which his dissent would have allowed a suit against two political columnists. He also narrowly read Title VII contending in a dissent that sexual harassment on the job did not violate the provisions of the act.

Judge Scalia's conservative politics and his performance as a judge made him the choice of the Reagan administration in 1986 for the Supreme Court seat of Associate Justice william h. rehnquist when the President elevated Rehnquist to the position of Chief Justice. The American Bar Association endorsed Scalia without qualification, and only a few feminist and civil rights groups opposed him at his confirmation hearings. He was subjected to far less criticism and hostile questioning than Rehnquist, and he avoided the political battle his fellow circuit judge, Robert Bork, experienced two years later when he was nominated to the court. The Senate approved Justice Scalia's nomination unanimously on September 16, 1986.

As a Supreme Court Justice, Scalia has received attention for the intellectual tenacity of his positions and for his jurisprudential methodology. Not unexpectedly, he voted most often with the Court's conservatives: Chief Justice Rehnquist, Justice anthony m. kennedy, Justice sandra day o'connor, and Justice byron r. white. Over the years he has been on the Court, Scalia and the Chief Justice have agreed in about eighty-five percent of the Court's cases, which is similar to his rate of agreement with Justice Kennedy and only slightly higher than the rate with Justice O'Connor. He has agreed with Justice White at a slightly lower rate (seventy-five percent), whereas his agreement rates with Justices william j. brennan, thurgood marshall, harry a. blackmun, and john paul stevens have been closer to fifty percent. That he has voted in support of conservative policies is not surprising. For example, Justice Scalia's dissent in webster v. reproductive health services (1989) argued that roe v. wade should be overturned. He joined the majority in striking down affirmative action plans in richmond (city of) v. j. a. croson co. (1989), and he has rejected challenges to the constitutionality of capital punishment.

What has been noted by commentators, however, is the jurisprudential vision that Justice Scalia has forcefully constructed through his opinions. The cornerstone of his jurisprudence is the limited role of the judge and the judiciary in the American constitutional system. In Scalia's understanding of American democracy, the Constitution granted the legislature and (by delegation) the executive the power to define rights and to determine the wisdom of specific policies designed or executed within their respective constitutional spheres. This may sound similar to the familiar criticism judicial conservatives have made to "judicial legislation" engaged in by liberal justices since the Warren Court. However, Scalia has taken the position further by advancing the argument for judicial restraint across all areas of judging, building on the critiques of judicial activism offered by liberals such as Justices louis d. brandeis and felix frankfurter and later elaborated by professors such as Harvard's henry hart and Herbert Wechsler. This position must be contrasted to the post-New Deal liberals as well as to many twentieth-century conservatives. Both have had at the core of their jurisprudence an active role for the judiciary as the balancers of society's interests. The liberals have envisioned the judge as the protector of individuals against majoritarian legislatures and thus have used concepts such as due process and equal protection to create rights and strike down both federal and state legislation. Conservatives, typified by Chief Justice william howard taft, have believed that judges should ensure that the majority's legislative actions (which generally have taken the form of increased regulation of social and economic activities) are gradual and that property interests are protected.

Justice Scalia's differences with such conservatives can be illustrated through both his writings and his opinions. Perhaps the most striking comparison that can be made is between his article "The Rule of Law as a Law of Rules" and the writings of Chief Justice Taft. Taft celebrated the creation of "the rule of reasonableness" in determining violations of the provisions of the sherman antitrust act precisely because it left the federal judiciary as the arbiter of which monopolies were unlawful. Also, for Taft the glory of the common law process was that judges made law incrementally and directed change through their opinions by the elaboration of rules and the application of facts to those rules. Scalia's article directly challenges both these points. He argues that judges should attempt to formulate general rules rather than gradually developing standards through common law case-by-case determinations. He maintains that cases decided by such standards are determined by the weight individual judges place on particular facts, thus allowing the individual to decide outcomes by his or her individual preferences. An example of what Justice Scalia means, as well as how his approach differs from both liberals and conservatives on the Supreme Court, can be found in a recent punitive damages case decided by the Court, Pacific Mutual Life Insurance Co. v. Haslip (1991). In this opinion, the majority (Justices Blackmun, Rehnquist, White, Marshall, and Stevens) considered the constitutionality of an award of punitive damages by an Alabama jury. The Court held in an opinion by Blackmun that punitive damages were not per se unconstitutional but that due process considerations required that both the process for instructing the jury as well as the amount awarded must be "reasonable" in order to be constitutional. The majority then discussed the factors that should be considered in testing the reasonableness of the award. Justice O'Connor in dissent argued that the Alabama punitive-damages scheme did not meet due process standards as it was impermissibly vague. Justice Scalia concurred in the result reached by the majority, but rejected both its reasoning and that of Justice O'Connor. He rejected the inquiry into the reasonableness or fairness of the procedures because "this jury-like verdict provides no guidance as to whether any other procedures are sufficiently "reasonable,' and thus perpetuates the uncertainty that … this case was intended to resolve." Justice Scalia instead derived a per se rule that these damages were constitutional by broadly canvassing this history of their use and concluding that, since they had been "a part of our living tradition that dates back prior to 1868, I would end the suspense and categorically affirm their validity." He stated that "it is not for the Members of this Court to decide from time to time whether a process approved by the legal traditions of our people is "due' process, nor do I believe such a rootless analysis to be dictated by our precedents."

As this example reveals, Justice Scalia's attempt to implement judicial restraint requires an interpretive methodology that can derive categorical rules that are founded on something other than the judges' individual sense of what is right. He does not totally embrace originalism as do other conservatives such as Robert Bork, although he acknowledges that the intent of the Framers is where analysis must begin. Instead, Justice Scalia has adopted a literalistic approach in which the plain and ordinary meaning of the language of texts—whether they be the U.S. Constitution, statutes, or regulations—must govern the judge's decision. For example, in Morrison v. Olson (1989), Justice Scalia issued the only dissent in the case that upheld the federal law governing the appointment of special prosecutors. His strongly worded attack on the majority's opinion centered on the wording of Article I. All executive power was vested in the President by the wording of Article I, and this law removed some of this power and thus was unconstitutional. He rejected any idea that the Court could balance the interests of the two branches to decide the reasonableness of this statutory scheme. Similarly, in Cruzan v. Missouri Department of Health (1990), Scalia concurred in the majority's decision to refuse to create a constitutional right to die. He differed from the majority in that he would have forthrightly declared that no such right existed because to do so would be "to create out of nothing (for it exists neither in text nor tradition)."

This methodology requires several subsidiary rules. Because the ordinary meaning of the words are to govern, the intent of the drafters of legislation have no place in judicial analysis. Thus, Justice Scalia refused to resort to an inquiry into the legislative history of statutes. If the plain meaning of a law creates a hardship that was unintended or if enforcement of a law as written is unworkable, it is for the legislative branch to redraft the act rather than for judges to amend it through their interpretations. Scalia outlined this position in his first term on the Court in a concurrence in Immigration & Naturalization Service v. Cardoza Fonseca (1987). He stated that the Court's result was correct, but that it could reach the result through the plain meaning of the statute. Not only was the majority's inquiry into the legislative history unnecessary, it was also irrelevant. He thus rejected a technique not only used consistently by the Warren Court but also accepted by conservative Justices. Second, when the ordinary meaning of a text is not determinative, the judge should look to "objective" standards, such as the history and tradition of a particular practice. These would require consultation of historical sources and monographs, as well as judicial precedents. An example of this approach was Pacific Mutual, where Justice Scalia relied on American common law history of punitive damages to determine what due process meant in this context. Similarly, in stanford v. kentucky (1989) Justice Scalia determined that executing a juvenile was not "cruel and unusual" under the Eighth Amendment because, in part, a canvass of state laws showed that a majority allowed execution of sixteen-year-olds. Thus, he reasoned, the practice could not be considered unusual.

Two points should be made in concluding a review of Justice Scalia's strikingly innovative jurisprudential methodology. As most of the examples reveal, his approach is most often made in concurrences or individual dissents. At the Supreme Court he has not played the role of a consensus builder, and in fact, his sharp attacks on other Justices in dissent (most notably against Justice O'Connor in Webster) have received critical comment. Although there is some evidence that the Court has moved toward him on some issues, such as ignoring legislative history, he has yet to emerge as the intellectual leader of the Court, as opposed to a single highly intelligent voice. Second, his jurisprudence has been developed at a time when political conservatives have enjoyed considerable success in both legislative and executive branches on the state and federal levels. Although there is certainly some evidence that he has followed his methodology even when it has surprisingly resulted in liberal outcomes (he voted to strike down the flag desecration statute in Johnson v. Texas and has reached prodefendant positions in several criminal procedure cases, it remains to be seen what might happen if the future were to bring a strongly liberal executive and legislature intent on expanding federal social and economic reform.

Rayman L. Solomon
(1992)