The author would like to thank Abigail Buckels, Staff Attorney for the 18th Judicial Circuit Court, for her invaluable contributions to the footnoting and fine-tuning of this article.
Justice Antonin Scalia, Justice Robert Thomas,
Judge Stephen Culliton and Judge Kenneth Popejoy;
Justice Scalia once said in an interview: “They ought to pass out to all federal judges a stamp, and the stamp says – WHACK [Pounds his fist] – ‘STUPID BUT CONSTITUTIONAL.’”1 In construing the United States Constitution Justice Scalia preached originalism, interpreting the Constitution as the framers intended it rather than as an evolving document. In matters of statutory construction he advocated textualism, focusing on the words of the law and the objective meaning of those words at the time of enactment. He railed against a “living Constitution” in colorful diatribes such as: “A Bill of Rights that means what the majority wants it to mean is worthless,”2 and calling a portion of the majority opinion in Obergefell v. Hodges3 the “mystical aphorisms of the fortune cookie.”4 In his dissent in the Obergefell case, Justice Scalia wrote that if he ever joined an opinion that began like the majority opinion (which he quoted derisively), “I would hide my head in a bag.”5
His saving grace from being considered merely an insufferable bully was multi-faceted. He often was uproariously funny, and could take it as well as give it out. When Stephen Colbert performed at the White House Correspondents Dinner in 2006, he mercilessly skewered President George W. Bush, teased Justice Scalia and generally mocked conservatism. Since the President was sitting only a few seats away, with other members of his administration at the dais, Colbert later described how when he was done the audience greeted him mostly with silence, and no one would even look at him. The exception was Justice Scalia who approached Colbert with a big smile, reciprocated one of Colbert’s antagonistic Italian gestures to Scalia, and praised Colbert effusively, repeating “great stuff!” Colbert watched him walk away, and couldn’t help thinking, “Don’t you make me love you old man.”6
He befriended some of the most unlikely people, teaching Justice Elena Kagan, one of President Obama’s nominees, how to hunt, then frequently taking her to hunt various game, and spending every New Year’s Eve for decades having a couple’s dinner with his wife and the liberal Justice Ruth Bader Ginsberg and her husband. After his death, Justice Ginsburg described their relationship as “best buddies.” Justice Scalia once said, “Everybody I’ve served with on the Court I’ve regarded as a friend. Some were closer than others, but I didn’t consider myself an enemy of any of them.”7 Paradoxes also abound from his younger years. An only child raised in a Catholic family, a paradox in and of itself, young Antonin, known as Nino, rode the subway to and from his home in Queens to Xavier High School in Manhattan carrying a .22 carbine as a member of the rifle team. Then at school he would trade the rifle for a French horn as a member of the marching band. He excelled as a debate champion, played the lead in Macbeth and other productions, and was a panel member of the popular Sunday television show, “Mind Your Manners.” At home he and his friends would play stickball, as well as street hockey on roller skates with a regular hockey puck.
He likely faced discrimination. He wanted to go to Princeton, and in 1953 when he applied, 55 percent of those who applied to Princeton from private schools were accepted (today the overall acceptance rate is 6.99 percent). Scalia, an Italian-American from Queens, was valedictorian of his class and excelled in a host of extracurricular activities, yet was rejected for admission. Of course discrimination against Nino Scalia cannot be definitely proven, but circumstances suggest it occurred in the clubby atmosphere of 1953 Princeton. Justice Scalia never raised its specter and never embraced a victim’s mentality. Scalia went on to study history at Georgetown and again was valedictorian of his class. He graduated from Harvard Law School and was Notes Editor of the Law Review. After stints in private practice, government practice, and at the University of Chicago teaching law, in 1982 President Reagan appointed Scalia to the federal bench and in 1986 to the United States Supreme Court. The Senate confirmed Justice Scalia 98-0, improbable as that might seem today. He became the first Italian-American to serve on the United States Supreme Court and remained there for just short of thirty years. One criticism of judges generally is that they decide which side they want to win based on visceral instincts and then figure out a legal justification to reach the desired result. Justice Scalia served as the leading opponent of this type of jurisprudence. His book, written with Bryan Garner, Reading Law: The Interpretation of Legal Texts, runs 567 pages. He debunks attempting to divine the subjective intent of the legislature apart from the text of the legislation, reasoning that legislators bring many individual intentions to the law-making process, requiring compromise, so that attempting to assign a collective intent is an absurdity.8
While critics have accused Justice Scalia of creating a theory of legal interpretation that would reinforce his generally conservative beliefs and policy positions, the evidence mostly doesn’t back up the criticism.9 In Hamdi v. Rumsfeld, Yaser Hamdi, a twenty-year-old American citizen, was arrested by the United States military in Afghanistan.10 He argued that the government had violated his Fifth Amendment right to due process by holding him indefinitely and not giving him access to an attorney or a trial. Hamdi claimed he was doing relief work and was trapped in Afghanistan when the U.S. invasion began.
The government transferred him to Guantanamo Bay for three months, until discovering he held U.S. citizenship and then transferred him to naval brigs in Virginia and later South Carolina. His father filed a habeas corpus petition in federal court. The plurality opinion by Justice O’Connor, joined by Justices Rehnquist, Breyer and Kennedy, and the partial concurrence by Justices Souter and Ginsburg, are too elaborate to summarize here, but suffice to say that Justice Scalia’s dissent, joined by Justice Stevens, went the furthest in restricting the Executive Branch’s power of detention. Justice Scalia, who worked in the Nixon and Ford administrations and was undoubtedly not mouthing Republican talking points, wrote:
It is not the habeas court’s function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him.11
He called the plurality’s approach a “Mr. Fix-it Mentality” and added:
The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts’ modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do, it encourages their lassitude and saps the vitality of government by the people.12
Justice Scalia’s often unpopular decisions in favor of individual liberties at the expense of what the majority of people desire at any given moment underscore that his judicial philosophy was to interpret what the Constitution (or statute) says, not what he wants it to say. Otherwise he would never have joined in a decision effectively overturning laws in 48 states relating to flag-burning, joining the unlikely majority of Justices William Brennan, Thurgood Marshall, Harry Blackmun, and Anthony Kennedy. Congress then passed the 1989 Flag Protection Act, making it a federal crime to desecrate the flag, and the same five justices struck down that federal statute as well.
Justice Scalia’s approach did not deviate in religious liberty cases, in turn angering the Church at times and at other times angering those making various religious freedom claims. He ridiculed the notion that the First Amendment mandates government neutrality between religion and non-religion, angering the latter, but his approach at times cut against his own faith, and drew criticism from religious leaders.
Also contrary to popular opinion, particularly Republican popular opinion, he more than occasionally came down on the side of individuals asserting constitutional violations by law enforcement personnel, at the expense of more easily convicting criminal defendants. Many of these cases involved Fourth Amendment or Sixth Amendment violations. Even critics of Justice Scalia’s decisions mostly appreciated his love of intellectual combat. Writing in Slate magazine, Dahlia Lithwick wrote:
Scalia doesn’t come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allotted for argument to bludgeon his brethren into agreement.13
Sister Helen Prejean, the anti-death penalty advocate of Dead Man Walking fame, writes in her book, “The Death of Innocents,” that she once approached Scalia at an airport to say that she was planning to attack his views in print. While an ordinary judge or person would likely say something mild or conciliatory to a nun in such circumstances, she related that Justice Scalia said, “I’ll be coming right back at you,” jabbing his fist in the air.14 Justice Scalia, unlike many of his peers, would often hire socially liberal clerks to challenge his own thinking and to provide counter-arguments. He said:
“That kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in an opinion.”15 Despite the combativeness, his clerks considered him a prince to work for, both caring and loyal.
A final paradox of Justice Scalia’s tenure on the court lay in the contrast between his judicial manner and his belief in the constitutional role of the judiciary. His writing style has been described as “equal parts anger, confidence and pageantry”16 - in other words, anything but humble. Yet he believed firmly that unelected, life-appointed judges should not make law, that the legislature was elected for that very purpose, and that the Constitution prescribed by its very terms a humble, limited role for the judiciary. He often spoke at legal forums and to the press, but invariably to argue against judicial arrogance.17
Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.18
Justice Scalia, the grandson of a Sicilian factory worker, married to his wife Maureen for 55 years and father of nine, often touted the necessity of individuals in government doing the right things for the right reasons and doing them competently. “[I]n order for capitalism to work – in order for it to produce a good and a stable society – the traditional Christian virtues are essential.”19 And in an admonition to all of us, as well as himself, Justice Scalia once said:
Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character.20
Justice Scalia stood for getting the right result based on the law as it exists, not making up his own law to please himself, his colleagues, or the public. He knew that he was not the custodian of his legacy. When asked about his most heroic opinion, Justice Scalia responded: “I have no idea. For all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who’s regarded as: ‘He was on the losing side of everything, an old fogey, the old view.’ And I don’t care.”21
Justice Scalia leaves us with an outsized legacy as a Supreme Court Justice, as a legal thinker and as an American original. He stood only 5’7” but he towered over his contemporaries in his impact on American jurisprudence. He will be sorely missed.
1. Jennifer Senior, In Conversation: Antonin Scalia, NY MAG (Oct. 6, 2013), http://nymag.com/news/features/antonin-scalia-2013-10/.
2. J.R. Labbe, Seeing Constitution as Enduring, Not Living, UHUH.COM, http://www.uhuh.com/constitution/endurco.htm (last updated May 11, 2000).
3. Obergefell v. Hodges, -- U.S. --, 135 S. Ct. 2584 (2015).
4. Obergefell v. Hodges, 135 S.Ct at 2630, n.22.
5. Obergefell, 135 S.Ct. 15 2630, n.22.
6. Marina Fang, Here’s Why Stephen Colbert Will Miss Antonin Scalia, HUFFINGTON POST (Feb. 16, 2016), http://www.huffingtonpost.com/entry/stephen-colbert-antonin-scalia_us_56c3777de4b0c-3c55052d52f.
7. Senior, In Conversation: Antonin Scalia, supra note 1.
8. Yet critics point out that originalism purports to do just that – assign a collective intent to the Founding Fathers - and at a point even further back in time. Justice Scalia likely had misgivings early on with his approach, once describing it as “faint-hearted originalism,” although in later years he disclaimed the qualifier.
9. Critics have particularly denounced Justice Scalia’s majority opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), striking down a ban on handgun possession for traditionally lawful purposes, such as self-defense within the home, and his siding with the majority in Bush v. Gore, 531 U.S. 98 (2000), which effectively decided the 2000 election in favor of George W. Bush. An exposition of these cases and whether Justice Scalia always adhered to his originalist and textualist approach is well beyond the scope of this article. From this author’s viewpoint, Justice Scalia’s approach remained remarkably consistent throughout his tenure.
10. Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004).
11. Hamdi, 542 U.S. at 576.
12. Hamdi, 542 U.S. at 576-77.
13. Dahlia Lithwick, Scalia Hogs the Ball, SLATE (Jan. 15, 2003), http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2003/01/scalia_hogs_the_ball.html.
14. Sister Helen Prejean is a Roman Catholic nun and Justice Scalia is a devout Catholic with one son who is a priest.
15. Senior, In Conversation: Antonin Scalia, supra note 1.
16. Conor Clarke, How Scalia Lost His Mojo, SLATE (July 5, 2006), http://www.slate.com/articles/news_and_politics/jurisprudence/2006/07/how_scalia_lost_his_mojo.html.
17. Despite Justice Scalia’s general affirmation of separation of powers and a modest role for the judiciary, it should be noted that in two of the most mportant cases in recent times – Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (striking down a portion of the McCain-Feingold Act) and Shelby v. Holder, -- U.S. --, 133 S. Ct. 2612 (2013) (striking down Section 4(b) of the Voting Rights Act of 1965) – critics argue he deviated from his principles and voted along party lines. In both decisions he joined a 5-4 majority declaring unconstitutional portions of Congressional acts which cut to the heart of the American political process.
18. Calvin Massey, The Originalist, CAL. LAW. (Jan. 2011), https://ww2.callawyer.com/story.cfm?eid=913358&evid=1.
19. Nick Wing, Antonin Scalia: Capitalism Requires “Traditional Christian Virtues” to Succeed, HUFFINGTON POST (Sept. 9, 2013), http://www.huffingtonpost.com/2013/09/09/antonin-scaliacapitalism_n_3894153.html.
20. In Season of Commencements, Words of Wisdom Heard Anew, NY TIMES (May 27, 1996), http://www.nytimes.com/1996/05/27/us/in-season-of-commencements-words-of-wisdom-heard-anew.html.Recent headlines have attacked Justice Scalia for accepting trips from private sponsors. Although no one has pointed to any case being decided by Justice Scalia as a quid pro quo, and this author highly doubts that any such scenario will ever surface, Supreme Court Justices are the only federal judges not subject to any ethics code. Rectifying this unwise policy would appear to be a non-partisan imperative.
21. Senior, In Conversation: Antonin Scalia, supra note 1.
Robert G. Gibson received a B.A. in Government from the University of Notre Dame and his J.D. from the University of Illinois College of Law. He was appointed to the bench in 2010 and is currently an Associate Judge in the Chancery Division. Judge Gibson is a member of the Illinois Supreme Court Rules Committee, the Alternative Dispute Resolution Committee and the Executive Committee of the Illinois Judicial Conference.