Tuesday, September 22, 2009

Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Antonin Gregory Scalia: He was born on March 11, 1936 in Trenton, New Jersey. He is an only child. His father was an Italian immigrant and a professor of Romance languages who comes from Sicily. His mother was an American born lady of Italian heritage. When he was five, the family moved to the Elmhurst section of Queens, New York where his father taught at Brooklyn College.

He began his education at PS 13 in Queens, and his parents wanted him to have a parochial education, so he attended high school at Jesuit Xavier High School in Manhattan. Scalia then went on to Georgetown, where he graduated summa cum laude with a bachelor's degree in history in 1957. He also spent a year studying in an exchange program with the University of Fridbourg, Switzerland. From there, it was on to Harvard Law, where he was an editor of the Law Review. He graduated magna cum laude from Harvard Law in 1960, and was honored as a Sheldon Fellow of Harvard University, allowing him to travel in Europe for studies.

Scalia married Maureen McCarthy, who was a Radcliffe graduate. Each was an only child and didn't want their family to be as small. They have had nine children, four girls and five boys. All went on to college and professional careers, except for son Paul David who became a Catholic priest and Matthew who joined the U.S. Army officer corps after graduating from West Point. He is now a major in the 82nd Airborne Division.

Upon return to the United States in 1961, Scalia began his legal career with the civil litigation firm of Jones, Day, Cockley and Reavis in Cleveland, Ohio. In 1967, he took a position as a professor of law at the University of Virginia, where he remained until 1971. He then took a position as general counsel for the Office of Telecommunications Policy under President Nixon. Much of his work set the course of cable television that remains essentially unaltered today. He also helped set policy giving more oversight of the Corporation for Public Broadcasting to branches other than the FCC to stop the rapid growth of a government-funded organization which was completely unregulated by any elected body. He also assisted in giving more power to local CPB boards and reducing the influence of the national organization.

In 1972, he was appointed by President Gerald Ford to the position of Assistant Attorney General for the Office of Legal Counsel. In 1977, in the wake of the election of Jimmy Carter, Scalia re-started his academic career, taking a position as a professor of law at the University of Chicago, and then as visiting professor of law at Georgetown and Stanford law schools. During the summer recesses, he was a law professor at the Tulane Law School summer abroad program. From 1981 to 1983, he served on the American Bar Association's Section of Administrative Law, first as assistant chairman, and then as chairman. At each stage of his judicial career, the ABA ranked him "highly qualified."

President Ronald Reagan took notice of him early in his administration, and in July of 1982 nominated Scalis as a Judge of the U. S. Court of Appeals for the District of Columbia Circuit. His decisions were so well-reasoned that when Reagan nominated Scalia in 1986 to replace Supreme Court Justice William Rehnquist (whom Reagan was naming as Chief Justice) he received support even from famous liberals such as Governor Mario Cuomo of New York. He was confirmed by the Senate on a 98 to 0 vote (two Senators absent). Yes, you did read that right. We'll never see that kind of vote again.

Scalia is a "formalist" on the Supreme Court. That is a variation of the broader term of strict constructionist, and is also occasionally called "textualist." Scalia describes a "bright line" of rules over abstract balancing tests, which leads him to conclude that the Constitution is a bedrock document, not an ever-evolving "living" document. He looks first and foremost to the actual wording of the Constitution, and only secondarily at the tradition and history of law when the wording of the Constitution is unclear or doesn't specifically address the issue at bar. When one opponent at a debate at Yale said that if the Constitution wasn't a living document, then it was a dead document, Scalia shot back with "no, it's an enduring Constitution."

He diverges slightly from the other conservative Justices on the issue of interpreting statutory language utilizing the "legislative history" approach. He considers legislative history to be far too malleable and essentially a fraud. He goes so far as to say that judges should never even consider legislative history, as distinguished from legislative intent. If the intent is not spelled out in the statute, then it must be viewed strictly by the words of the statute as they relate to the Constitution. This puts him frequently in direct conflict with Justice Breyer, who loves to go into extensive detail about the legislative history of a statute being questioned before the Court.

His "bright line" approach means that he gives considerable deference to the acts of the legislature over judicial hijacking by the use of abstract balancing tests. On this subject, he wrote a treatise, famous to lawyers and law students, entitled The Rule of Law as a Law of Rules. Thus, he believes that moderation may be a great thing for legislatures and executives, but it has no place in the judicial arena. He asked: "What is a 'moderate' interpretation of the Constitution--halfway between what it says and what you want it to say?" He is widely considered a conservative justice, but his deep belief in strict interpretation has put him occasionally at odds with political conservatives, along with his colleague Justice Thomas.

It has also been argued that Scalia's jurisprudence is Hamiltonian in nature. That is to say, he does not see the federal government as inherently evil, and is not averse to that government exercising its constitutional functions. When he slaps down the government in an opinion, he does so on the basis that the federal power has not been used wisely. And for that reason, he occasionally finds himself at odds with his fellow conservatives on the issue of stare decisis. He is completely willing to overturn a precedent which has no constitutional authority, but he has voted to uphold certain exercises of power that date back to the Roosevelt New Deal on the basis of stare decisis. This is because he is not inherently opposed to new legislative exercises of government power like some of his fellow conservatives. His preference for rules over abstract interpretation leads him to use stare decisis as a rule to support decisions he doesn't like, but in which he can't find constitutional flaws in the earlier decision's reasoning. When charged with inconsistency on stare decisis versus originalism, he responds that stare decisis is a pragmatic exception to, not a part of, originalism. In his view, better a bad rule than no rule at all.

On separation of powers, Scalia is a near-absolutist. The best example of this was his dissent in a case in 1989 which upheld the federal sentencing guidelines. His problem with the guidelines is that the guidelines were handed to the Court for approval by the U. S. Sentencing Commission, a non-judicial authority set up by the executive branch. He saw that as an unconstitutional mixing of power between two separate branches of government. But this also means that when the legislature sticks to legislating and the executive sticks to administrating, he will support their separate authority. He therefore strongly opposes Congressional interference with the President's charge "to take care that the Laws be faithfully executed."

His strict constructionist views make him quite predictable on the issue of rights granted by the Constitution. He will never be convinced that the Constitution ever intended there to be a right of privacy which has wrought so much misery and so much conflict. He abhors abortion, but he sees no constitutional authority for the federal government to act on the issue, either affirmatively or prohibitively. He is not a proponent of the incorporation doctrine imposing the federal rules contained in the 14th Amendment to the states. Thus, he sees no authority for the federal courts to get involved in legal issues such as assisted suicide, sodomy, or punitive damages in state courts, let alone address them as issues for Supreme Court review as matters addressed by the federal Constitution. He also opposes federal intervention in death penalty matters where the state rules differ from the federal rules. For instance, he sees no problem with states imposing their own rules on executing minors or defendants with mental deficiency.

He is a strong proponent of procedural due process, which he sees as the only due process meant by the Founders. This fits with his idea of rules as being the foundation of good and consistent law. It also caused him to surprise conservatives (though it shouldn't have) when he voted in Hamdan v. Rumsfeld that detention of a U.S. citizen as an enemy combatant without being charged is a violation of due process. He doesn't oppose the idea of the detention, but believes instead that habeas corpus should be available to every American citizen until Congress legislates an exception, which it has never done.

On the bench, Scalia varies rather rarely from his basic views, but has both a collegial temperament, and is known for injecting humor into his questioning at oral argument before the Court. His nickname is "Nino," and the justices are said to look forward to brief memos from him that have been tagged "Ninograms." Strange as it may seem, he is closer to the very liberal Justice Ruth Bader Ginsburg personally than with any of the other justices. Yet he almost never votes with her, and his closest ideological ally on the Court is Justice Thomas. Where he diverges from Thomas, which is not often, it is over the very small difference in "strict construction" that forms their basic respective views.

When the exact words of the Constitution are not clear, or don't directly address the issue before the Court, Thomas looks to natural law and the works of the Founding Fathers including the Declaration of Independence and the Federalist Papers. Roberts and Alito look to "original intent" as interpreted by the times contemporary with the Founding Documents, a broader standard. The liberal members of the Court look to "evolving standards" (in other words, the "living Constitution"). Scalia specifically looks to the "original words." If they are not clear, he will search contemporary dictionaries and legal treatises from the time to see what the words actually meant at the time the Constitution was written. This formed his firm philosophy that due process means only procedural due process, and that substantive due process was a judicial fiat conducted by the Warren Court liberals to change the entire basis of due process from what the Founders wrote.

Scalia joined with Justice Souter in his strong opinion of televising Supreme Court sessions. He praised Souter for saying "the day you see a camera come into our courtroom, it's going to roll over my dead body." The only way he would consider yielding would be anathema to "news" services. He would agree to television and audio in the Supreme Court during oral argument only if a rule were imposed that required that the whole session, start to finish, be broadcast unedited and uncommented on until the complete session had been broadcast, gavel to gavel. He has said that his objection to anything less than gavel to gavel coverage relates to the likelihood of sensationalism, excerptation, out-of-context quotes, and the fostering of an inaccurate picture of the operations of the Supreme Court.

Unlike Ginbsurg, whom he considers his intellectual equal and his judicial opponent, it is unlikely that Scalia will form a friendship with new Justice Sotomayor. He has been highly critical of her appellate court decisions, attacking not just the conclusions, but the highly-flawed reasoning and poor workmanship that went into them. He was particularly critical of her recent Ricci v New Haven discrimination decision, which he considered to have absolutely no constitutional or legal authority whatsoever, and which he considered to have violated every rule of due process possible.


StanH said...

Justice Scalia, is in my mind, the conservative anchor in the Supreme Court. A man who is unflappable in his beliefs. His reliance on stare decisis can sometimes be aggravating, but consistent. I like the way Thomas looks to “The Federalist Papers” for original intent, as a novice would be the place to look for understanding of what the founders meant. It’s just plain weird how he and Ginsberg are such good friends, as you stated, it must be his academic equal on the opposing side. I always enjoy listening and reading what he has to say, a seemingly brilliant jurist. Another great essay on The Men/Women in Black.

Writer X said...

One of the things I love about Scalia is that through his actions he displays that he is not bigger than his job as Supreme Court Justice. In other words, it doesn't appear that he lets ego get in the way of his decisions or his relationships with the others on the Court. He shares that personality trait, I believe, with Thomas as well. Perhaps I'm reading into him more than I should but that has always been my perception of him as well.

AndrewPrice said...

Let me echo the thoughts of my esteemed colleagues. I do like Thomas better on a practicle level as a conservative, but Scalia is a guy who really does do the job the way it was intended. He's one of the few constitutional scholars on the court.

Thanks for the article Lawhawk.

Game Master Rob Adams said...

I love that quote. "What is a moderate interpertation of the Constitution? Halfway from what it says and what you want it to say?"

His is one of my favorites.

Unknown said...

StanH: Scalia is indeed a brilliant jurist, and part of that brilliance is that he exercises it, but he doesn't flaunt it. I have to say that I can understand his friendship with Ginsburg a bit better, only because one of my closest friends is a female who is so far to the left that she is almost on the verge of going over the cliff. And the fights we have over politics are considerably louder and less "judicial" than those between Scalia and Ginsburg. And I would trust her with my life.

Unknown said...

WriterX: Excellent comment. You've captured in that one phrase "he is not bigger than his job" the exact meaning of the highest form of judicial temperament. He will write or join in an opinion that you know he personally hates because it's the right thing to do, given the law and the Constitution as they exist, not as he wishes they would exist.

Andrew (and WriterX): We're all quite a fan club for Justice Thomas. I, too, prefer Thomas on a practical and visceral level, which may come from my history/political science undergrad years. But Scalia is, indeed, the true constitutional scholar.

Unknown said...

ArmChairGeneral: That really is funny, isn't it? That's the wit he's known for, and frequently shares with his fellow justices in his Ninograms.

HamiltonsGhost said...

Lawhawk--I couldn't help but notice your comment that he has a Hamiltonian approach to the Constitution. Jefferson and his allies were concerned (legitimately) that the federal government would become too strong if the Supreme Court became a political branch like the other two, anxious to expand its own power. The Warren Court proved their concerns were justified. Scalia is that prominent jurist who saw the original purpose--a strong, but limited central government. When the government overreaches, he opposes it. But he doesn't make the mistake of knee-jerk opposition to every new concept the government comes up with, so long as it doesn't violate the Constitution's basic principles.

Tennessee Jed said...

I really do enjoy these essays on the justices, Hawk. After being away for a week, this was a treat. You have the wonderful ability to drill down to a perfect level of detail when defining the justicies' judicial outlook while still summarizing it in a manner easily read by non-lawyers. I can actually understand you differentiation between Scalia and, for example, Roberts and Alito. Bravo!

Scalia has been a great appointment, simply great.

Unknown said...

HamiltonsGhost: You're right. Scalia is a very complicated and very intelligent constitutional scholar who has that unique ability to make his thoughts crystal clear to his fellow jurists as well as the average guy who just wants to know where he stands.

Unknown said...

Tennessee: Thanks for the compliment and we missed seeing you on the site. Liberals like to see conservatives (and particularly conservative justices) in simplistic terms. The four conservatives on the Court may frequently vote together, but their separate reasoning is very sophisticated, and not exactly the same. Since liberals choose the result, then write their opinions to match, their opinions are far less sophisticated and mind-numbingly similar. Liberals love "nuance," yet it is the conservatives on the Court who actually demonstrate it. I'm glad I at least made some of those differences clear.

Unknown said...

It's good to hear that Scalia is averse to extending the requirements of the Fourteenth Amendment to the states beyond the basic rights (the Bill of Rights)instead of every subsequent amendment. How do you guess he will vote on California's gay marriage prohibition (Prop 8) as upheld by the California court?

Unknown said...

CalFederalist: His attitude is that the federal government should stay out of the business of the states unless the Constitution specifically says otherwise. The California Supreme Court found that the Proposition was in line with the provisions of the rights guaranteed in the California state constitution. The only federal right that could be raised is the nebulous equal rights provision. Scalia is most likely to find that the case was decided on adequate independent state grounds, and that marriage is not a right guaranteed by the federal Constitution. I see his vote as upholding California's ruling and the vote of the people.

FB Hink said...

For those interested, there are a series of interviews with Scalia at Uncommon Knowledge, a “TV” station of the National Review. Link: http://tv.nationalreview.com/uncommonknowledge/. Scroll down to March 16th to see the first of five.

Unknown said...

FBHink: I've seen snippets from those pieces. They did a very workmanlike job.

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