Associate Justice Antonin Scalia

The following is a guest post by James Martin, senior legal information analyst at the Law Library of Congress.  James has previously written on The District of Columbia 1862 Emancipation Law and The Articles of Confederation: The First Constitution of the United States.

Associate Justice of the U.S. Supreme Court Antonin Scalia died in Texas on Saturday, February 13, 2016 at the age of 79.   At the time of his death Justice Scalia had served on the Supreme Court for almost 29 and ½ years, and was the longest serving current member of the Court. On Friday, February 19 his body will lie in repose in the Supreme Court Building.

Born in Trenton, New Jersey, the birthplace of his colleague Justice Alito, Justice Scalia grew up in New York City–the home of fellow Justices Kagan, Sotomayor and Ginsburg.  He was the only child of a professor of romance languages, who arrived at Ellis Island in December 1920, and a school teacher. He was educated in the schools of the archdiocese of New York and matriculated at Georgetown University in 1953. From an early date he was noted for his intellect, and ability to communicate in a clear and commanding manner.

After graduating from Georgetown, he attended Harvard Law School where he was on law review and graduated magna cum laude in 1960. He was a member of the bars of the state of Ohio and the District of Columbia; beginning his legal career as an associate at the Cleveland Ohio firm of Jones, Day, Cockley & Reavis.

In 1967, he joined the faculty of the University of Virginia School of Law, where with interruptions for service during the Nixon administration, he remained until 1974. During the Ford Administration he was an Assistant Attorney General in the Office of Legal Counsel, Department of Justice.

In 1977, he accepted an appointment at the University of Chicago School of Law where he taught until he joined the United States Court of Appeals, District of Columbia Circuit, in 1982. During his academic career Justice Scalia wrote several articles on the process of reviewing the actions of administrative agencies. In 1986, he was nominated by President Reagan to the Supreme Court to fill the vacancy created by the confirmation of Associate Justice Rehnquist as Chief Justice. His confirmation was approved by the Senate on a vote of 98-0 on September 17, 1986. Even after joining the bench Justice Scalia often taught at law schools, either as a visiting professor (Stanford 1980-1981), or by participating as a member of a summer study abroad program (Thomas Jefferson School of Law).

On the Supreme Court, Justice Scalia soon became noted for his aggressive questioning of advocates during oral arguments. A passionate writer, especially in dissents, Justice Scalia however recognized the need to communicate to others that he understood the current world. He could even make a joke of this as he told a group of lawyers in 1989, “We don’t come from Mars. We are drawn from the same society and are as subject to the same misperceptions as anyone else.” (Tony Mauro. Courtside: High Court ’89 Highlights and Highjinks, Legal Times, DEC. 18 & 25, p. 8, 1989).

In addition to his earlier writings, in his later years Justice Scalia authored three longer works for lawyers and the general public: A Matter of Interpretation: Federal Courts and the Law: An Essay, with commentary by Amy Gutman (1997); Making Your Case: The Art of Persuading Judges, with Bryan A. Garner (2008); and, Reading Law: The Interpretation of Legal Texts, with Bryan A. Garner (2012).

Justice Scalia was generally considered to be a “conservative,” vote on the Supreme Court, especially on issues such as the application of the power of the federal government to regulate under the U.S. Constitution’s Commerce Clause, and of the power of the executive to wage war. He was also an ardent conservative on social issues and argued that many such matters such as reproductive rights and sexual privacy could not be found in the Constitution. In interpreting statutes he chose to examine only the text of the actual law in question, as opposed to examining secondary sources which might aid in discerning the intent of the drafters.

Some of Justice Scalia’s noteworthy opinions, however, concern what may be thought of as “government overreach,”—particularly as it might impact the lives of individuals. In writing the lone dissent in Morrison v. Olson, 487 U.S. 654 (1988), he argued that the Independent Counsel statute created an unresolvable separation of powers conflict. His dissent opens with a discussion of the phrase “a government of laws not men,” which entered American constitutional thought through the language of Article XXX of the Massachusetts Constitution of 1780. In his opinion for the court in Kyllo v. United States, 533 U.S. 27 (2001), Justice Scalia applied the rule first formulated in Katz v. United States, 389 U.S. 347 (1967), to hold that a technologically enhanced visual search of an area normally considered to be private would require a search warrant. In Kyllo a thermal imaging scanner was used by a federal agent, conducting a narcotics-related investigation, to detect the existence of grow lamps in a private residence. His opinion traced the development of how the courts had treated technologically enhanced searches. In District of Columbia v. Heller, 554 U.S. 570, (2008), Justice Scalia reviewed the arguments concerning the historical background of the Second Amendment and the unusual language of its prefatory clause. In reaching the court’s holding supporting an individual right to own and use firearms, he cited a number of sources that were contemporary from the time the Bill of Rights was adopted, including the 1771 edition of Timothy Cunningham’s A New and Complete Law-Dictionary, or General Abridgement of the Law, and the 1769 edition of Sir William Blackstone’s Commentaries on the Laws of England.

Justice Scalia had several outside interests. He shared with Justice Ginsburg a love of opera. He had a large and close family. It appears that he shared with me a favorite pizza topping, anchovies.

Bibliography:

A number of works have been written about Justice Scalia’s life, his role on the Supreme Court, and his approach to deciding cases. The following is a selective list of monographs.

Richard A. Brisbin, Jr.  Justice Antonin Scalia and the Conservative Revival (1997),

Bruce Allen Murphy. Scalia: A Court of One (2014),

Ralph A. Rossum. Antonin Scalia’s Jurisprudence: Text and Tradition (2006),

David A. Schultz and Christopher M. Smith. The Jurisprudential Vision of Justice Antonin Scalia (1996),

James B. Staab. The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court (2005).