Supreme Court Review 2016/2017 TERM
SUNDAY, MARCH 26, 2017

THE JUSTICES OF THE UNITED STATES SUPREME COURT

They are called "Justices" not "Judges" to differentiate themselves from lower court judges

Antonin Scalia was appointed to the court in 1986 by President Ronald Reagan at the age of 50. He filled the seat vacated by William Rehnquist when Warren Burger retired and then-Justice Rehnquist was elevated to Chief Justice. Justice Scalia is known as the intellectual anchor of the Court's more conservative justices. He is the Court's most senior justice and is cited as an influence to many of the newer justices.

Life Before the Court
Known by his friends and fellow justices by his boyhood nickname "Nino," Scalia was born on March 11, 1936, in Trenton, New Jersey to Salvatore Eugene Scalia and Catherine Panaro Scalia. Salvatore was from Sicily and arrived in the US when he was a teenager with very little English under his belt - he went on, however, to get a Ph.D. from Columbia University in romance languages and was a professor for three decades at Brooklyn College. At the time of Scalia's birth, his father was a graduate student and his mother was a schoolteacher. When Scalia was five years old, his father accepted a job at Brooklyn College and his family moved to Elmhurst, Queens - where Scalia grew up.

Scalia was raised in a strict Roman Catholic family. His parents put a premium on academic achievement and pushed him to excel in school - and excel he did. Scalia graduated first in his class from Xavier High School, a strict Jesuit school, in Manhattan. Scalia admitted that in school he was “never cool” and spent a great deal of his time on his schoolwork. Even as a young man Scalia was reliably conservative. A classmate of his in high school, William Stern, remembers of Scalia, “This kid was a conservative when he was 17 years old. An archconservative Catholic. He could have been a member of the Curia. He was the top student in the class. He was brilliant, way above everybody else.”

Despite graduating as the class valedictorian, Scalia was rejected by his first choice college - Princeton, and attended Georgetown University. At Georgetown, Scalia excelled once again, graduating as the class valedictorian with a B.A. in history. During his time at Georgetown, Scalia also studied abroad at the University of Fribourg, Switzerland. After he graduated from college, Scalia went on to study law at Harvard University - where for the first time in his life he was not number one in his class, but he did graduate magna cum laude and received a fellowship upon graduation that allowed him to travel Europe for a year.

In his final year at Harvard, Scalia went on a blind date with a senior at Radcliffe College, Maureen McCarthy, and they married a short time later. Maureen and Antonin have nine children and more than two-dozen grandchildren. Scalia is a devout Roman Catholic and is not a fan of the changes introduced by Vatican II - which allowed for much more expansive interpretations of the core texts of the religion. It is said that Scalia will often travel far to attend a church where Catholicism is practiced to his liking, complete with Mass in Latin.

After law school, Scalia spent five years as a corporate lawyer at the law firm of Jones, Day, Cockley and Reavis in Cleveland, Ohio. He then became a professor of law for four years at the University of Virginia before being appointed by President Nixon to be the general counsel for the Office of Telecommunications Policy, where one of his principal assignments was to formulate federal policy for the growth of the cable television industry. In mid-1974, he was nominated by President Nixon and then by President Ford to serve as Assistant Attorney General for the Office of Legal Counsel. During his time there, Scalia repeatedly testified before congressional committees, defending the Ford administration's assertions of executive privilege in refusing to turn over White House documents. Scalia also advocated for a presidential veto of a bill to increase the scope of the Freedom of Information Act. While Ford followed Scalia's advice and vetoed the bill, Congress overrode his veto. In early 1976, Scalia argued his only case before the Supreme Court - Alfred Dunhill of London, Inc. v. Republic of Cuba, a contract and international law case, which Scalia won with a subsequent 5-4 vote by the Court.

During President Carter's administration, Scalia became a professor of law at the University of Chicago and spent one year as a visiting professor at Stanford University's School of Law. In 1981, he became the first faculty advisor for the University of Chicago's chapter of the newly founded Federalist Society - an organization seeking to reform the legal system to place a greater emphasis on states' rights and achieve greater respect for the separation of powers by seeking a less intrusive judiciary who works based on textualist and originalist principles. When Ronald Reagan was elected President, Scalia hoped to become the next Solicitor General of the United States, but to his great disappointment was passed over for the position. He was instead offered a position on the Seventh Circuit Court of Appeals, which he refused, hoping instead to be nominated to the D.C. Circuit Court of Appeals, which is a much more prestigious appointment and is a feeder court for Supreme Court nominations. A year later, Scalia got what he wanted and was nominated and confirmed to the D.C. Circuit Court of Appeals. There his powerful and witty writing and consistently conservative decision-making drew the attention of the White House and it was not long before Scalia was placed on a short list of potential Supreme Court nominees.

When Chief Justice Warren Burger retired, Scalia was up for consideration. Attorney General Edwin Meese, who advised Reagan on the choice, said he only seriously considered Robert Bork and Scalia. Feeling that this might well be President Reagan's last opportunity to pick a Supreme Court justice, the President and his advisers chose Scalia over Bork, as Scalia was ten years younger and would likely serve longer on the Court. Scalia also had the advantage of not having Bork's "paper trail," as Bork had written controversial articles about individual rights. Scalia was nominated and unanimously confirmed by the Senate. At the time, the Senate Judiciary Committee had just finished a contentious battle over the nomination of William Rehnquist to the position of Chief Justice and did not want another battle or to oppose the first Italian-American Supreme Court nominee.

Scalia's Jurisprudence
Controversial Positions
Scalia's views are often very conservative and he is not afraid to express them in public and in opinions. Scalia dissented in the 2003 case of Lawrence v. Texas, which struck down a Texas law that made it a crime for someone to engage in sodomy with another individual of the same sex. Scalia accused the Court in his dissent of signing on to the "homosexual agenda."

Scalia also dissented in the 2003 Grutter v. Bollinger decision that upheld racial preferences in the University of Michigan's law school admissions process. Scalia mocked the Court's majority opinion, which found that the school was entitled to promote diversity and to increase "cross-racial understanding" so long as it was just a factor and not a quota system. Scalia wrote:

[Cross-racial understanding] is not, of course, an 'educational benefit' on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be 'taught' in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an 'educational benefit' at all, it is surely not one that is either uniquely relevant to law school or uniquely 'teachable' in a formal educational setting.

Scalia was the lone dissenter in United States v. Virginia - a 1996 case that opened the Virginia Military Institute to women. Scalia stated that the function of the Court was "to preserve our society's values regarding (among other things) equal protection, not to revise them." Scalia explained that the founders were sexist so the Constitution could not be used to open the Virginia Military Institute to women on Constitutional grounds unless the Constitution was amended. Furthermore, he stated, "It is hard to consider women a 'discrete and insular minorit[y]' unable to employ the 'political processes ordinarily to be relied upon,' when they constitute a majority of the electorate."

Scalia also dissented in two death penalty cases in which the Court ruled it unconstitutional to apply the death penalty to a 15-year-old boy (Roper v. Simmons) and a man with an IQ of 59 (Atkins v. Virginia). Scalia stated that the society of 1791 would have applied the death penalty to these individuals and, therefore, the Constitution cannot be said to prohibit it.

Scalia also vehemently disagrees with Miranda v. Arizona, the case that gave rise to the Miranda Rights and held that a confession by an arrested suspect who had not been advised of his rights was inadmissible.

Defendant's Rights
On several occasions, however, Scalia has fought to protect Constitutional rights afforded criminal defendants. Scalia wrote the majority opinion in Melendez-Diaz v. Massachusetts, a 2009 case holding that defendants must have the opportunity to confront lab technicians in drug cases when lab reports conclude that the substance is indeed an illegal substance. Scalia parted ways with his more conservative brethren to author the dissent in Maryland v. Craig (1990) a case that permitted alleged victims of child abuse to testify via closed circuit television to protect them from having to be in the same room as their abusers. Scalia argued that the Sixth Amendment's confrontation clause—which gives criminal defendants the right to confront the witnesses against them—does not allow this type of accommodation. Scalia wrote:

A father whose young daughter has been given over to the exclusive custody of his estranged wife, or a mother whose young son has been taken into custody by the State's child welfare department, is sentenced to prison for sexual abuse on the basis of testimony by a child the parent has not seen or spoken to for many months; and the guilty verdict is rendered without giving the parent so much as the opportunity to sit in the presence of the child, and to ask, personally or through counsel, 'it is really not true, is it, that I — your father (or mother) whom you see before you — did these terrible things?' Perhaps that is a procedure today's society desires; perhaps (though I doubt it) it is even a fair procedure; but it is assuredly not a procedure permitted by the Constitution.

Individual Rights
Scalia has also clarified rights in the Constitution that have expanded individual rights. In what may be the decision he will be most remembered for, Scalia wrote the majority opinion in District of Columbia v. Heller, a landmark case wherein the Court held that the Second Amendment protects the right to keep and bear firearms for the purpose of self-defense and struck down a D.C. regulation that banned gun ownership. The law at issue in Heller banned handgun possession within the District of Columbia by generally prohibiting the registration of handguns but authorized the police chief to issue 1-year licenses and requiring residents who received licenses to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. A D.C. special policeman, Dick Heller, applied to register a handgun he wished to keep at home, but the District of Columbia refused. He filed suit, on Second Amendment grounds, seeking to enjoin the city from enforcing the bar on handgun registration, insofar as it prohibited carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibited the use of functional firearms for self-defense in the home.

Justice Scalia writing for a 5-justice majority held that the law was unconstitutional because the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Justice Scalia explained that one of the purposes of the Second Amendment was to “deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved.” Justice Scalia is careful to point out, however, that the individual right to own a gun is not unlimited. Rather, it is limited to weapons of the type commonly used for self-defense at the time of the Second Amendment, including handguns, and to home use. Justice Scalia writes, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Justice Scalia also noted, “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

Detainees' Rights
In the detainees' rights cases, Scalia has stated that his position is that while the U.S. Constitution grants U.S. citizens the right to have habeas corpus review in federal court - that right is not assertable by aliens held abroad. This led Scalia to dissent in Rasul v. Bush, wherein the court ruled that federal courts had the authority to decide whether non-U.S. citizens held at Guantanamo Bay were wrongfully imprisoned. But Scalia argued for the most expansive right of any justice when the court decided Hamdi v. Rumsfeld—a case involving a U.S. citizen, Yaser Esam Hamdi, who was being held at Guantanamo. While the Court held that the president had the authority to detain Hamdi if they gave him the right to challenge his detainment in federal court, Scalia in dissent stated that the president did not have such authority. Scalia explained that Hamdi should either be released or arrested and brought before a judge like any other alleged criminal or Congress had to formally suspend the writ of habeas corpus pursuant to the procedures set forth in the Constitution. Scalia wrote, "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive . . . Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."

A Celebrity Justice
To understand why the name Scalia is a household name and most often the subject of Supreme Court Justice-centered publicity one must visit the Court and see Scalia in action - for he is the justice who is most vocal and, according to a 2005 study, he is also the justice that provokes laughter more often than any of his colleagues.  Before Scalia joined the Court in 1986 the justices were far less active at oral arguments and long periods of silence from the justices were more common. After Scalia joined the Court, however, his aggressive style of questioning led his colleagues to become more vocal in defending their positions.

One must also read his opinions, many of which have become famous for their insults, sarcasm, anger and well written prose. In May 2001, a case made it to the Supreme Court that asked whether the Americans with Disabilities Act applied to the PGA golf tournament when a disabled golfer in the PGA tour was denied the use of a golf cart because the PGA tour said it would “fundamentally alter the nature” of the tournament to allow him to ride when all other contestants must walk between shots. The Supreme Court found that the ADA applied to the tour and that the disabled golfer should get his cart - but Scalia dissented stating:

It has been rendered the solemn duty of the Supreme Court of the United States . . . to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would someday have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a 'fundamental' aspect of golf. . . Complaints about this case are not 'properly directed to Congress,' they are properly directed to this Court's Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are 'places of public accommodation' to the competing athletes, and the athletes themselves 'customers' of the organization that pays them; its Alice in Wonderland determination that there are such things as judicially determinable 'essential' and 'nonessential' rules of a made-up game; and its Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one's lack of ability (or at least no one's lack of ability so pronounced that it amounts to a disability) will be a handicap. The year was 2001, and 'everybody was finally equal.' K. Vonnegut.

Textualist and Originalist
If someone were to ask you what kind of justice Scalia is, your answer should include at a minimum two words - that he is a textualist and an originalist. Textualist means that when looking at a law, Scalia is not so concerned with the spirit of the law or what legislators said they wanted to accomplish before the law was passed - rather he looks to the plain words of the text - and if their meaning is plain he will go no further. After all, if the plain meaning is wrong then the legislators are free to pass a new, better-worded law. Justice Scalia is stubborn in his textualist approach, typically writing more concurring opinions than any other Justice - where he agrees with the decision of the court but disagrees in whole or in part with the reasoning of the Court and, therefore, writes a concurring opinion to clarify his reasoning.

In a 2006 concurring opinion (in Zedner v. United States), Scalia explained that he joined Alito's majority opinion in full, except for one paragraph wherein Justice Alito discussed the legislative history of the statute in order to help discern its meaning.  Justice Scalia believes that legislative history has no place in the interpretation of a statute's words when they have a plain meaning. Furthermore, he explains, since legislation is typically the result of compromise, the pronouncements of a single legislator or group of legislators as to the intent of the statute is often of little value since it rarely speaks for the views of all the legislators who voted for the bill. 

Scalia is an originalist in that he believes that the Constitution means exactly what it meant when it was ratified in 1787 and when the Bill of Rights were added in 1791 and the dates and times when the subsequent amendments were added. That is, its meaning does not change over time. Scalia often turns to old dictionaries and court decisions and literature of the relevant time period to discern what the words would have meant in the common parlance of the times. Scalia argues that if people today believe that the meaning of the words in the Constitution need to be updated or clarified then it is incumbent upon them to amend the Constitution, not approach the courts seeking a change. After all, it is the job of the courts to apply the law, not make the law.

Being a texualist and an originalist can occasionally lead Scalia to make decisions he does not like to make. For instance, he sided with the majority in the 1989 case of Texas v. Johnson, which held that burning the American flag was protected expression under the First Amendment, invalidating 48 state laws prohibiting it. Scalia later said at a law school event, "If it was up to me, I would have thrown this bearded, sandal-wearing flag burner into jail, but it was not up to me." To Scalia, flag burning would have been protected expression at the time the Constitution was ratified and so remains protected expression today.

An originalist and textualist, however, will increasingly run into significant hurdles the more time passes between the creation of the law at issue and its application. For instance, a true originalist would have been duty bound to vote against Brown v. Board of Education—the case in which the court held that the 14th Amendment's equal protection clause made segregation in public schools an unconstitutional practice— since at the time the 14th Amendment was ratified segregation was commonplace and none of the people who ratified it would have understood the 14th Amendment to mean what the court in Brown said it meant. Since societies tolerance and morals change, many judges adopt a judicial philosophy towards the Constitution that views it as a living document wherein the words remain the same, but some of their applications may change over time as society progresses and evolves new standards of decency. Scalia has pointed out, however, that if you adhere to a living constitution philosophy then you enter a slippery slope where the personal beliefs of judges as to what the words of the Constitution should mean encroach upon what they actually meant at the time of the Constitution's passage.

Scalia's critics respond that the Supreme Court, however, has the last word on what the law means, and it employs a democratic majority rule approach to do so. If it is the personal belief of a judge that prevails then it must be the personal belief of a majority of the judges deciding the case. Furthermore, the Constitution was written in many parts using open-ended language – since the founding fathers wanted the document to apply to a multitude of situations of which they could not conceive of all the permutations.

Justice Scalia would respond, however, that allowing judges, instead of the people or legislators, to expand the meaning of the Constitution subverts the democratic process and the very processes set forth in the Constitution for amending it. Scholars respond, however, that amending the Constitution is no simple process. It requires two-thirds of both houses of Congress to vote to propose an amendment or two thirds of all the state legislators to call forth a national convention - and in both cases requires a vote of three-fourths of the state legislatures to approve it. Finding that sort of consensus can be close to impossible and, in the interim, injustices, such as racial segregation, may go unchecked.

On the other hand, some have said that when judges prematurely find rights in the Constitution that did not exist before they can cause significant backfires in the democratic process. Roe v. Wade offers an interesting example. At the time of the Constitution's ratification, the right to an abortion was not protected by the Constitution. Even so, at the time the Constitution was passed, abortions prior to "quickening" (generally between 18-22 weeks when a mother begins to feel the baby move or kick) were legal and openly practiced. Only abortions after "quickening" were generally illegal. It was only in the mid-to-late 1800s that the general consensus of the country changed and a majority of states criminalized abortion before quickening as well. But by 1973, when Roe v. Wade was decided, the trend was flowing in the other direction and states began liberalizing their abortion laws. The decision in Roe v. Wade, however, caused great harm to this liberal trend in the law and unified a religious right, causing a slew of laws limiting abortion to again be passed by both state governments and the federal government and made abortion a deciding issue in presidential elections. This has led some liberals, such as Ruth Bader Ginsburg, to criticize the decision for getting in the way of the democratic process. 

Abortion
While the Court since Roe, even with more conservative justices in the majority, has refused to overturn it, Scalia has made it clear that he would overturn Roe. He stated in his dissent in Planned Parenthood v. Casey, "[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."

The Court returned to the issue of abortion in the 2000 case of Stenberg v. Carhart, in which it invalidated a Nebraska statute outlawing partial-birth abortion. Justice Stephen Breyer wrote for the Court that the law was unconstitutional as it did not allow an exception for the health of the mother. Scalia dissented, comparing the Stenberg case with two of the most reviled cases in Supreme Court history: Korematsu v. United States (the 1944 case which upheld the movement and imprisonment of Japanese Americans in relocation camps) and Dred Scott v. Sanford (the 1857 case which held that slaves and their decedents were not protected by the Constitution and could never be citizens of the United States). Scalia stated of the partial-birth abortion case, "I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child ... proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion."

In 2007, the Court upheld a federal statute banning partial-birth abortion in Gonzales v. Carhart, finding that the procedure at issue would never be needed to protect the health of the mother and, therefore, a health exception was irrelevant. University of Chicago law professor Geoffrey Stone, a former faculty colleague of Scalia's, criticized the Gonzales decision, however, suggesting in an article that religion had influenced the outcome of Gonzales, as all five justices in the majority were Catholic, while the dissenters were Protestant or Jewish. This angered Scalia so much that he has stated he will not speak at the University of Chicago so long as Stone is there.

Stare Decisis
The doctrine of stare decisis requires judges to respect past precedents in order that the law is more uniformly and predictably applied. The Latin words translate to "to stand by decisions." When a precedent is overruled, judges generally articulate why they believe the of stare decisis must yield. Justice Scalia has set forth a personal three part test for determining whether a prior decision should be overruled: (1) it is indefensibly wrong, (2) it has not been generally accepted, and (3) it forces judges into the role of legislators. In applying this test Justice Scalia offers the examples of the incorporation doctrine and the case of Roe v. Wade. Even though Justice Scalia personally disagrees with the entire line of Supreme Court cases incorporating the Bill of Rights, which on their face apply only against the federal government, to apply against the states as well (via the 14th Amendment's due process clause), Justice Scalia acknowledges that the incorporation cases have been generally accepted and therefore accepts their presidential value. In the case of Roe v. Wade, however, Justice Scalia argues that the case in not generally accepted and forces judges to make legislative determinations, such as what constitutes an "undue burden," and, therefore, would vote to overrule it.

Off the Bench
Opinions rife with scathing and confident language, sprinkled with sarcasm and interesting historical anecdotes are what often come to mind when many lawyers think of Scalia. Many people disagree with Scalia's positions but almost all admit that his opinions usually hold your attention more than the average Supreme Court opinion. Scalia has been compared with Oliver Wendell Holmes and other great writers in the Court's history. So far, Scalia is considered more of the odd man out, a great dissenter and rabble-rouser, than the consensus builder or leader of a particular era of jurisprudence. Perhaps because of this, however, Justice Scalia is the most well-known justice on the court.  At oral arguments, he is also known to elicit laughter from audiences more often than his colleagues.

Scalia may smoke (he prefers Marlboro Lights) and he may drink, and according to his biographer he eats a lot, but he is reported to be in good health. After a quarter century on the Court, Scalia characterizes his victories as "damn few." But his personality, his energy and the quality of his opinions have made him one of the most popular and well-known justices, both among those who agree with him and among those who vehemently disagree with him.