Antonin Scalia's Jurisprudence

Text and Tradition

Ralph A. Rossum

• Publisher: University Press of Kansas
• Year: 2016
• Print ISBN: 9780700623501
• eBook ISBN: 9780700623334
• Topic: Law
• Subtopic: Courts
• Index: Law

Lionized by the right and demonized by the left, Supreme Court Justice Antonin Scalia is the high court's quintessential conservative. Witty, outspoken, often abrasive, he is widely regarded as the most controversial member of the Court.

This book is the first comprehensive, reasoned, and sympathetic analysis of how Scalia has decided cases during his entire twenty-year Supreme Court tenure. Ralph Rossum focuses on Scalia’s more than 600 Supreme Court opinions and dissents—carefully wrought, passionately argued, and filled with well-turned phrases—which portray him as an eloquent defender of an “original meaning” jurisprudence. He also includes analyses of Scalia’s Court of Appeals opinions for the D.C. circuit, his major law review articles as a law professor and judge, and his provocative book, A Matter of Interpretation.

Rossum reveals Scalia’s understanding of key issues confronting today’s Court, such as the separation of powers, federalism, the free speech and press and religion clauses of the First Amendment, and the due process and equal protection clauses of the Fourteenth Amendment. He suggests that Scalia displays such a keen interest in defending federalism that he sometimes departs from text and tradition, and reveals that he has disagreed with other justices most often in decisions involving the meaning of the First Amendment’s establishment clause. He also analyzes Scalia’s positions on the commerce clause and habeas corpus clause of Article I, the take care clause of Article II, the criminal procedural provisions of Amendments Four through Eight, protection of state sovereign immunity in the Eleventh Amendment, and Congress’s enforcement power under Section 5 of the Fourteenth Amendment.

The first book to fully articulate the contours of Scalia’s constitutional philosophy and jurisprudence, Rossum’s insightful study ultimately depicts Scalia as a principled, consistent, and intelligent textualist who is fearless and resolute, notwithstanding the controversy he often inspires.

Chapter One

Introduction

On June 17, 1986, Antonin Scalia—at the time a judge on the U.S. Court of Appeals for the District of Columbia Circuit—was nominated by President Ronald Reagan to serve as an associate justice of the U.S. Supreme Court. On September 17 (Constitution Day), he was confirmed by the Senate by a vote of ninety-eight to zero, and he took his seat nine days later. During his subsequent years on the high bench, the gregarious, poker-playing, opera-loving former University of Chicago law professor has emerged as the Court’s most outspoken, intellectually interesting, high-profile, and colorful member.

“On a bench lined with solemn gray figures” who often sit “as silently as pigeons on a railing,” Scalia has been described as standing out “like a talking parrot.”¹ He relishes the cut and thrust of debate and has institutionalized the practice of hiring, and then carefully listening to, a “counter-clerk” with liberal views at odds with his own and those of his other three clerks as a means of sharpening his thinking.² With a distinctly aggressive style of questioning that is by turns testy, confrontational, provocative, and witty, he frequently asks questions during oral argument that are at once intellectually demanding and laced with impish humor. On one occasion, he told a flustered attorney who was frantically searching his brief for information that Scalia had requested, “Just shout ‘Bingo’ when you find it.” On another occasion, he told an attorney who was all too eager to reserve the remainder of his time for reply, “You’ve got to be kidding.”

He is an equally colorful and incisive writer of opinions that are carefully wrought, powerfully argued, highly principled, and filled with well-turned phrases. He has penned many memorable lines; what follows are only four examples, each of which provides insight into his textualist approach and understanding of the role of the Supreme Court:

The Court transforms the meaning of § 2, not because the ordinary meaning is irrational, or inconsistent with other parts of the statute, but because it does not fit the Court’s conception of what Congress must have had in mind. When we adopt a method that psychoanalyzes Congress rather than reads its laws, when we employ a tinkerer’s toolbox, we do great harm. Not only do we reach the wrong result with respect to the statute at hand, but we poison the well of future legislation, depriving legislators of the assurance that ordinary terms, used in an ordinary context, will be given a predictable meaning.³

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.⁴

[N]o 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.⁵

Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is 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.⁶

Scalia is an eloquent defender of textualism—an “original-meaning” interpretive approach that accords primacy to the text and tradition of the document being interpreted and that declares that the duty of the judge is to apply the textual language of the Constitution or statute when it is clear and to apply the specific legal tradition flowing from that text (i.e., what it meant to the society that adopted it) when it is not.⁷ He is an equally fierce critic of judicial activism and what he terms the “Living Constitution”—an interpretative approach asserting that the meaning of a law “grows and changes from age to age, in order to meet the needs of a changing society” and that it is appropriate for the judge to “determine those needs and ‘find’ that changing law.”⁸ Scalia’s majority, concurring, and dissenting opinions—now numbering over 600⁹—are uniformly reflective of his textualist jurisprudence concerning how the Constitution, statutory law, and administrative regulations are to be interpreted. They have also had a profound impact on the overall work product of the Supreme Court. Ronald Dworkin, professor of law at New York University and professor of jurisprudence at Oxford University and a critic of Scalia, admits that, as a result of Scalia’s persuasive and persistent arguments, “we are all originalists now.” Mark Tushnet of the Georgetown University Law Center concurs: “Before Scalia, until the late ’80s, the justices would issue a ruling and say, ‘Here is why our opinion makes sense,’ and then support it with some law and history. But now everyone is much more conscious about looking at what the text says—and quite often less conscious about how that might fit into a social or practical context.”¹⁰

Scalia’s Pre-Judicial Life

Antonin (“Nino” to his family and friends) Scalia was born on March 11, 1936, in Trenton, New Jersey, the only child of S. Eugene Scalia and Catherine Panaro Scalia. His father, who was born in Sicily and emigrated to the United States as a young man, was a professor of Romance languages. His mother, born to Italian immigrant parents, was a schoolteacher. The appointment of Antonin Scalia, the first justice of Italian heritage, was proclaimed by many as an example of the fulfillment of the American dream.

When Scalia was five years old, his father joined the faculty of Brooklyn College, and his family moved to Elmhurst, a section of Queens, New York. He initially attended public schools in Queens and later St. Francis Xavier, a military prep school in Manhattan, from which he graduated as valedictorian. It is a reflection of how much things have changed in American society over the past half century that he was able, without complaint or alarm, to carry his military rifle with him daily on a crowded subway as he traveled back and forth between his home in Queens and his school in Manhattan.¹¹

Scalia’s academic success continued at Georgetown University, from which he received his AB summa cum laude in history and graduated as valedictorian in 1957. Scalia went on to Harvard Law School, where he served as notes editor of the Harvard Law Review and from which he received his LLB magna cum laude in 1960. After graduation, he traveled in Europe for a year as a Sheldon Fellow of Harvard.

While at Harvard, Scalia had met and become engaged to Maureen McCarthy, an English major at Radcliffe College and the daughter of a Massachusetts physician. They were married on September 10, 1960, and have nine children: Ann Forrest, Eugene, John Francis, Catherine Elisabeth, Mary Clare, Paul David, Matthew, Christopher James, and Margaret Jane. Their marriage has been strengthened by their deep faith in Roman Catholicism.¹²

Scalia began his legal career in 1961 as an associate of the law firm of Jones, Day, Cockley & Reavis in Cleveland, Ohio. A highly unusual scene during his interview for the position provides a window into his personality. James T. Lynn, a former partner at the firm, told the New York Times at the time of Scalia’s nomination to the Supreme Court that, at a party held for potential recruits at Lynn’s home, Scalia immediately made an impression upon eight or so senior partners by engaging them in an all-night debate on Sunday blue laws, which Scalia passionately defended and they all opposed. Lynn said: “He enjoyed taking a position with respect to an issue that was complicated to defend. It didn’t bother him at all that here he was with these top partners in the firm.”¹³

He was admitted to the Ohio Bar in 1962 and worked at Jones, Day in a number of different areas of law, including real estate, corporate finance, labor, and antitrust. Five years later, he left to become a professor of law at the University of Virginia. In 1971, he began a distinguished career in government service when he took leave from his academic post to serve as general counsel for the Office of Telecommunications Policy in the administration of President Richard Nixon. There, he successfully negotiated a major agreement among industry groups that provided the framework for the growth of cable television in the United States. From 1972 to 1974, he served as chairman of the Administrative Conference of the United States, an independent agency charged with the task of improving the effectiveness and efficiency of administrative processes in the federal government. In 1974, he was nominated by President Nixon to be assistant attorney general for the Office of Legal Counsel. Although the Watergate scandal forced Nixon to resign, Scalia was nonetheless confirmed by the Senate and remained in this position, as legal adviser to the president and the attorney general, under President Gerald Ford, who assigned him the task of determining the legal ownership of Nixon’s tapes and documents. Scalia decided in favor of Nixon, concluding that Nixon had a property right in his presidential papers; however, the Supreme Court soon ruled against this conclusion. It was in this position that Scalia began to think more deeply about and articulate his understanding of the constitutional dimensions of the presidency in a scheme of separated powers—an understanding later reflected in his opinions in Morrison v. Olson,¹⁴ Lujan v. Defenders of Wildlife,¹⁵ and Printz v. United States.¹⁶

With Jimmy Carter’s election as president, Scalia left government service to work as a resident scholar at the American Enterprise Institute. He also taught briefly at the Georgetown University Law Center before joining the faculty of the University of Chicago Law School. He stayed at Chicago from 1977 to 1982, leaving only to spend a year as a visiting professor of law at Stanford University. While teaching at Chicago, he also served as chairman of the American Bar Association (ABA) Section of Administrative Law from 1981 to 1982; he was also named chairman of the ABA Conference of Section Chairmen, a recognition by his peers of his leadership abilities. While at Chicago, he cofounded, with Murray Weidenbaum, Regulation magazine and served as its founding coeditor from 1977 to 1982. What is particularly noteworthy about Scalia’s background prior to his service on the bench is his extensive experience in the practice of law, the teaching of law, “inside the Beltway” Washington politics, and ABA politics. When he became a judge, he knew how law is practiced, taught, and used for corporate, political, and constitutional objectives.

In 1982, Scalia received another chance to return to public service. In July, President Reagan appointed him to the U.S. Court of Appeals for the District of Columbia Circuit, widely considered second in importance only to the Supreme Court. He was confirmed uneventfully in early August. At the time, he was described by the New York Times as a “politically conservative academic with impeccable scholarly credentials” and “a reputation for exceptional intellectual ability”¹⁷ and by the Washington Post as having “been a co-editor of Regulation, a publication that keeps a critical eye on government rulemaking for the American Enterprise Institute, a conservative think tank. Scalia’s area of expertise is administrative law, which deals with interpretation of federal regulations, and constitutional law.”¹⁸

Scalia’s Appellate Jurisprudence

Once on the bench, Scalia developed the reputation of being a well-prepared, amiable colleague who worked hard and thoroughly enjoyed using oral argument as a vehicle for debating questions of law. During his four years on the D.C. Circuit, he wrote 121 signed opinions: 91 majority opinions, 5 concurring opinions, 18 dissents, and 7 opinions concurring in part and dissenting in part. Since the bulk of that court’s caseload involves review of complex federal regulations made by government agencies whose meanings are vigorously contested by affected parties, it is not surprising that in 103 of these opinions, he addressed various aspects of administrative law; 7, however, touched on freedom of speech and the press, 6 on criminal procedure, and 5 on questions of racial discrimination and equal protection.

His appellate opinions plainly revealed his view of the role of the federal judiciary and displayed his consistent adherence to the principles of judicial restraint. They sketched the outlines of the textualist jurisprudence that he would fully elaborate once he was on the Supreme Court.

Scalia on Standing

The “cases and controversies” language of Article III of the U.S. Constitution prevents federal courts from becoming “forums for the ventilation of public grievances” by requiring that legal question...

Table of contents

• Front Cover
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• 1. Introduction
• 2. “Text and Tradition”: Scalia’s Understanding of the Interpretive Enterprise
• 3. Constitutional Structure and Separation of Powers
• 4. Constitutional Structure and Federalism
• 5. Scalia’s Textualism Applied to Substantive Rights
• 6. Scalia’s Textualism Applied to Procedural Rights
• 7. The Impact of Scalia’s Textualism on His Colleagues
• Afterword
• Appendix: Cases in Which Justice Scalia Has Cited Dictionaries
• Notes
• Index
• Back Cover