Antonin Scalia

Based on Wikipedia: Antonin Scalia

When Antonin Scalia died unexpectedly in February 2016, he had spent three decades transforming how Americans think about their Constitution. Not everyone agreed with his conclusions, but almost no one disputed his influence. He was, by most accounts, the most consequential conservative legal mind of the twentieth century.

That's a remarkable achievement for a man who spent much of his career in dissent.

The Art of Losing Brilliantly

Supreme Court justices are supposed to build coalitions. They're supposed to find common ground, craft compromises, and produce majority opinions that settle legal questions. Scalia often did the opposite. He wrote blistering dissents that mocked his colleagues' reasoning. He issued concurrences that agreed with the outcome but attacked the logic. He composed what his law clerks called "Ninograms"—memos named after his childhood nickname, Nino—trying to persuade other justices to see things his way.

They usually didn't.

And yet, his influence grew anyway. How? Because Scalia wasn't just trying to win cases. He was trying to win an argument about how to read legal texts—an argument that would reshape American law long after any individual case was forgotten.

Two Big Ideas

Scalia championed two related but distinct approaches to interpretation that sound technical but carry enormous practical consequences.

The first is called textualism. When a court interprets a statute—a law passed by Congress—textualists say you should focus on what the words actually say, not what the legislators might have intended or what purpose they hoped to achieve. If Congress writes a law that covers "vehicles," does that include bicycles? A textualist would look at how ordinary people used the word "vehicle" when the law was passed, not at whether some congressperson mentioned bicycles in a floor speech.

The second idea is originalism. When interpreting the Constitution, originalists argue that judges should determine what the text meant to the people who ratified it. The Constitution's prohibition of "cruel and unusual punishments" means whatever the founding generation understood those words to mean in 1791, not whatever a modern judge considers cruel.

These approaches seem almost common-sense when stated plainly. But they represented a radical departure from how many judges had operated for decades. The alternative view—sometimes called "living constitutionalism"—held that the Constitution's meaning could evolve with society. Under this view, the document's broad principles should be applied to modern circumstances in ways the framers never imagined.

Scalia thought this was judges making things up. The Constitution, he liked to say, is not a living document—it's dead. That's a feature, not a bug. The whole point of writing things down is to fix their meaning. If you want the law to change, amend the Constitution or pass new statutes. Don't pretend the text means something different than it did when it was adopted.

The Son of an Immigrant Professor

Scalia's path to the Supreme Court wound through some of America's most elite institutions, but it began in modest circumstances. He was born in 1936 in Trenton, New Jersey, the only child of Salvatore Scalia, a Sicilian immigrant who had come to America and worked his way through graduate school. The elder Scalia eventually became a professor of Romance languages at Brooklyn College, teaching courses on Italian and Spanish literature.

His mother, Catherine, was born in Trenton to Italian immigrants and worked as an elementary school teacher. Both parents were devout Catholics, and that faith would remain central to Scalia's identity throughout his life.

When Antonin was three, the family moved to Elmhurst, Queens—a working-class neighborhood in New York City that would later become famous as the setting for the television show All in the Family. The young Scalia attended public school until eighth grade, then won an academic scholarship to Xavier High School, a Jesuit military school in Manhattan.

At Xavier, something became clear: this kid was different.

He graduated first in his class with a 97.5 average. He won honors in Latin, Greek, and debate. A classmate who would later become a New York State official remembered him vividly: "This kid was a conservative when he was seventeen years old. An archconservative Catholic. He could have been a member of the Curia. He was brilliant, way above everybody else."

Scalia himself admitted that he spent most of his time on schoolwork. "I was never cool," he later reflected.

The Making of a Legal Mind

From Xavier, Scalia went to Georgetown University, where he majored in history and became a star debater and actor—skills that would serve him well in the courtroom and on the bench. He spent his junior year abroad at the University of Fribourg in Switzerland, then graduated as class valedictorian, summa cum laude.

Then came Harvard Law School.

Harvard was and remains one of the premier legal training grounds in America, producing Supreme Court justices, presidents, and countless influential lawyers. Scalia thrived there, serving as a notes editor for the Harvard Law Review—one of the most prestigious positions a law student can hold—and graduating magna cum laude near the top of his class.

After Harvard, he did something slightly unusual for someone of his academic pedigree. Instead of clerking for a federal judge or joining a New York law firm, Scalia went to Cleveland. He spent six years at Jones Day, one of the largest law firms in the country but not exactly the most glamorous destination for a Harvard Law Review editor. He was good at the work and likely would have made partner, but he had other ambitions.

"I had long intended to teach," he later explained.

In 1967, he left Jones Day to become a professor at the University of Virginia School of Law, moving his growing family to Charlottesville. He and his wife Maureen would eventually have nine children.

Into the Arena

Academic life didn't hold Scalia forever. In 1971, he entered government service under President Richard Nixon, serving as general counsel for the Office of Telecommunications Policy. One of his main jobs was figuring out how the federal government should regulate cable television—a new technology that was just beginning to transform American media.

He moved up quickly. By 1972, he was chairman of the Administrative Conference of the United States, a small agency focused on improving how the federal bureaucracy operates. In 1974, Nixon nominated him as Assistant Attorney General for the Office of Legal Counsel—essentially the government's chief lawyer for constitutional questions.

Then Watergate happened.

Nixon resigned in August 1974, but President Gerald Ford continued Scalia's nomination, and the Senate confirmed him. Scalia spent the Ford years defending executive power against a Congress determined to rein in the presidency after Nixon's abuses. He testified repeatedly before congressional committees, arguing that the executive branch could refuse to turn over documents under a doctrine called "executive privilege."

He also advocated that Ford veto a bill expanding the Freedom of Information Act. Ford did veto it. Congress overrode the veto anyway. It was an early lesson in the limits of executive power—and perhaps in the value of principled dissent even when you lose.

The Chicago Years and a Fateful Society

When Jimmy Carter won the presidency in 1976, Scalia's government career paused. He spent a few months at the American Enterprise Institute, a conservative think tank in Washington, then returned to academia at the University of Chicago Law School.

Chicago was a perfect fit. The law school had long been associated with conservative and libertarian legal thought, home to pioneers of the "law and economics" movement who applied economic principles to legal questions. Scalia taught administrative law and other subjects while continuing to develop his ideas about constitutional interpretation.

In 1981, something happened at Chicago that would have enormous consequences for American law: a group of conservative and libertarian law students founded the Federalist Society.

Scalia became the first faculty adviser for the Chicago chapter.

The Federalist Society would grow into the most influential legal organization in conservative politics, providing a pipeline for judicial nominations, shaping legal education, and building a network of lawyers who shared a commitment to originalism and textualism. Almost every conservative federal judge appointed in the past four decades has had some connection to the organization. The Society that Scalia helped nurture as a fledgling group at Chicago would become the institution that transformed the federal courts.

Reagan's Justice

When Ronald Reagan won the presidency in 1980, Scalia hoped for a major appointment. He interviewed for solicitor general—the government's advocate before the Supreme Court—but that job went to someone else. Reagan offered him a seat on a federal appeals court in Chicago, but Scalia declined. He was holding out for something better.

His patience paid off. In 1982, Reagan appointed him to the United States Court of Appeals for the District of Columbia Circuit—widely considered the second most important court in the country after the Supreme Court itself. Cases involving federal agencies, separation of powers, and constitutional questions frequently land there.

On the D.C. Circuit, Scalia built a reputation for brilliant, witty, often caustic legal writing. He criticized Supreme Court precedents he disagreed with—precedents he was technically bound to follow as a lower-court judge—in ways that caught the attention of Reagan administration officials. They liked what they saw.

In 1986, Chief Justice Warren Burger announced his retirement. Reagan decided to elevate Associate Justice William Rehnquist to Chief Justice, which created an opening for a new associate justice. Attorney General Edwin Meese narrowed the candidates to two: Scalia and Robert Bork, a colleague on the D.C. Circuit.

Both men were committed originalists. Both had impressive credentials. But Reagan chose Scalia for several reasons.

First, he would be the first Italian-American justice on the Supreme Court—a historic distinction that carried political value. Second, Scalia was nine years younger than Bork and would likely serve longer. Third, Bork had written controversial academic articles about individual rights that would make his confirmation more difficult. Scalia had less of a "paper trail."

The Senate confirmed Scalia 98 to 0. Not a single senator voted against him.

It was September 1986. Scalia was fifty years old. He would serve on the Court for nearly thirty years.

The Wolf Comes as a Wolf

Early in his tenure, Scalia staked out the positions that would define his career. One of the most famous came in a 1988 case called Morrison v. Olson.

The case involved the Independent Counsel law, which Congress had passed after Watergate to allow investigation of high-ranking executive branch officials without interference from the president. Under this law, a special court could appoint an independent prosecutor who couldn't be fired by the president except for good cause.

Seven justices voted to uphold the law. Scalia was the only dissenter.

His thirty-page dissent was so passionate that Justice Harry Blackmun thought it "could be cut down to ten pages if Scalia omitted the screaming." But Scalia's argument was substantive as well as emotional. The Constitution, he wrote, vests all executive power in the president. Prosecuting crimes is an executive function. Therefore, the president must have control over prosecutors. An "independent" counsel answerable to no one violates the separation of powers.

His most famous line came near the beginning: "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing ... But this wolf comes as a wolf."

At the time, the dissent was dismissed. Scalia had lost, and lost badly. But over the following decades, the Independent Counsel law became increasingly controversial. Both parties came to distrust it. Congress let it expire in 1999. Legal scholars began citing Scalia's dissent as prescient. What looked like a lonely, intemperate screed in 1988 looked like vindicated wisdom by the 2000s.

This pattern would repeat throughout Scalia's career: initial defeat, followed by eventual influence.

Guarding Executive Power

Scalia consistently defended presidential authority against what he saw as congressional encroachment. When Congress created the United States Sentencing Commission—an independent body that established guidelines for criminal sentences—Scalia dissented from the Court's decision upholding it. He called the commission "a sort of junior-varsity Congress" that was unconstitutionally exercising lawmaking power.

When Congress passed the Line Item Veto Act in 1996, allowing presidents to cancel specific spending items from appropriations bills, the Supreme Court struck it down. But Scalia dissented, arguing that the act was constitutional. Authorizing the president to cancel an appropriation, he wrote, was no different from giving him discretion over how to spend it.

After the September 11 attacks, Scalia took a more complicated position on executive power. In Rasul v. Bush (2004), when the Court ruled that federal courts could hear cases brought by detainees at Guantanamo Bay, Scalia accused the majority of "spring[ing] a trap on the Executive."

But in another 2004 case, Hamdi v. Rumsfeld, he wrote a dissent that surprised some observers. The case involved Yaser Hamdi, an American citizen detained in the United States as an "enemy combatant." The majority held that Hamdi had due process rights to challenge his detention. Scalia, joined by the liberal Justice John Paul Stevens, went further: he argued that Congress had never suspended habeas corpus, and without that suspension, the government simply couldn't hold an American citizen this way. Either try Hamdi in a civilian court or let him go.

It was a reminder that Scalia's positions flowed from legal principles, not partisan outcomes. Sometimes those principles led to conservative results. Sometimes they didn't.

The Second Amendment, Defined

For most of American history, the Second Amendment was treated as something of a legal orphan. It reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

What did that mean? Did it protect an individual right to own guns? Or did it only protect the right of states to maintain militias? The Supreme Court had barely addressed the question.

In 2008, Scalia wrote the opinion in District of Columbia v. Heller that settled the issue—at least for now. The Court held, 5 to 4, that the Second Amendment protects an individual right to possess firearms independent of any militia service. The District of Columbia's ban on handguns was unconstitutional.

Scalia's opinion was a tour de force of originalist methodology. He analyzed eighteenth-century dictionaries, state constitutions, contemporary legal commentaries, and founding-era debates to determine what "the right of the people to keep and bear Arms" meant when the Bill of Rights was ratified. He concluded that it meant what it appeared to say: individual Americans had a right to own guns.

The dissent, written by Justice Stevens, used many of the same historical sources to reach the opposite conclusion. Both sides claimed to be faithful originalists. The disagreement illustrated a critique of originalism: even when everyone agrees to interpret the Constitution based on its original meaning, they can still disagree fiercely about what that meaning was.

Regardless of that methodological debate, Heller transformed Second Amendment law. For the first time, the Court had clearly held that gun ownership was a constitutional right. The decision has shaped legal battles over firearms regulations ever since.

Confronting Witnesses

One of Scalia's most important opinions addressed a provision of the Sixth Amendment that had become something of an afterthought in criminal law. The Confrontation Clause says that in criminal prosecutions, the accused has the right "to be confronted with the witnesses against him."

Over time, courts had interpreted this clause loosely. If a statement was deemed "reliable" under various tests, it could be admitted even if the defendant never had a chance to cross-examine the person who made it.

In Crawford v. Washington (2004), Scalia wrote an opinion that overturned decades of precedent. The Confrontation Clause, he wrote, wasn't about reliability. It was about a specific procedure: cross-examination. The founders had experienced a legal system where the government could use written statements against defendants without producing the witnesses in court. They wrote the Confrontation Clause to prevent that. "Where testimonial evidence is at issue," Scalia concluded, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination."

The opinion was classic Scalia: rooted in history, focused on text, and willing to overturn previous decisions that he believed had strayed from the Constitution's original meaning. It significantly expanded the rights of criminal defendants to challenge the evidence against them.

The Scathing Dissenter

Scalia was famous—or infamous, depending on your perspective—for the sharpness of his prose. He didn't just disagree with his colleagues. He mocked them.

When the Court found a constitutional right to same-sex marriage in Obergefell v. Hodges (2015), Scalia's dissent called the majority opinion "pretentious" and "egotistic." He said he would rather hide his head in a bag than sign on to reasoning so divorced from the Constitution's text.

When the Court upheld the Affordable Care Act by interpreting its language creatively, Scalia suggested the law should be called "SCOTUScare" after the justices who had saved it.

These attacks delighted his admirers and infuriated his critics. Defenders said Scalia was honestly expressing his views and injecting much-needed vigor into legal prose that had become gray and bureaucratic. Critics said he was undermining the Court's legitimacy with personal attacks that had no place in judicial opinions.

Scalia himself seemed unbothered by the criticism. He was close friends with Justice Ruth Bader Ginsburg, one of the Court's most liberal members. They attended opera together. Their families celebrated New Year's Eve together. Scalia once said, "If you can't disagree ardently with your colleagues about some issues of law and yet personally still be friends, get another job."

The Legacy

When Scalia died unexpectedly at a Texas ranch in February 2016, he left behind a transformed legal landscape. Originalism, once a fringe theory, had become the dominant conservative approach to constitutional interpretation. Textualism had reshaped statutory interpretation across the federal courts. The Federalist Society had grown into an institution that could make or break judicial nominations.

Not everyone thinks this legacy is positive. Critics argue that originalism is often a cover for reaching conservative results, that Scalia selectively applied his principles, and that his scorched-earth rhetoric degraded judicial discourse. Some of his positions—on affirmative action, gay rights, abortion, and the death penalty—remain deeply controversial.

But even his critics generally acknowledge his brilliance and his impact. He moved the law in directions it had not been going. He made arguments that forced everyone else to respond. He demonstrated that losing individual cases didn't mean losing the larger debate.

In 2018, President Donald Trump posthumously awarded Scalia the Presidential Medal of Freedom. George Mason University's law school was renamed the Antonin Scalia Law School. Whatever one thinks of his jurisprudence, Scalia's place in American legal history is secure.

He was never cool. But he was, by any measure, consequential.