In victory or dissent, Scalia was a man of strong opinions
WASHINGTON — Supreme Court Justice Antonin Scalia kept your attention, whether you liked him or not.
He was a big personality who rather enjoyed the spotlight, and he did not often shy from controversy.
Scalia deeply influenced a generation of conservative legal thinkers and was a lightning rod for criticism from the left almost from the moment President Ronald Reagan put him on the court in 1986.
A gifted writer who produced gems and barbs in equal measure, Scalia even occasionally took aim at his usual allies if they disagreed with his view of a case.
Scalia died overnight Friday. The justice, 79, would have been 80 next month.
Like all justices, he liked to be in the majority. But Scalia himself said he also liked writing dissents because that justice did not have to pull punches, as the author of the court’s majority opinion must sometimes do to ensure his opinion keeps its five votes.
In dissent, Scalia said, he was able to write opinions the way they should be written. He wrote dissents that were entertaining, clear-headed, furious, sarcastic and sometimes just plain mean.
His close friend, Justice Ruth Bader Ginsburg, once said that Scalia was “an absolutely charming man, and he can make even the most sober judge laugh.” She said that she urged her friend to tone down his dissenting opinions “because he’ll be more effective if he is not so polemical. I’m not always successful.”
His dissents in cases involving gay rights could be as biting as they were prescient.
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote in dissent in 2013 when the court struck down part of a federal anti-gay marriage law. Less than a year later, federal judges in Kentucky, Ohio, Oklahoma, Utah and Virginia cited Scalia’s dissent in their opinions striking down all or parts of state bans on same-sex marriage.
It was a mocking Scalia who in 1993 criticized a decades-old test used by the court to decide whether laws or government policies violated the constitutionally required separation of church and state.
“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, (the test) stalks our … jurisprudence once again, frightening the little children and school attorneys,” he wrote.
Dissenting from an opinion forbidding states from executing killers who were 16 or 17 when they committed their crimes, Scalia wrote, “The Court thus proclaims itself sole arbiter of our Nation’s moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.”
He could be unsparing even with his allies. In 2007, Scalia sided with Chief Justice John Roberts in a decision that gave corporations and labor unions wide latitude to air political ads close to elections. Yet Scalia was upset that the new chief justice’s opinion did not explicitly overturn an earlier decision. “This faux judicial restraint is judicial obfuscation,” Scalia said.
Quick-witted and loquacious, Scalia was among the most persistent, frequent and quotable interrogators of the lawyers who appeared before the court.
During Scalia’s first argument session as a court member, Justice Lewis F. Powell leaned over and asked a colleague, “Do you think he knows that the rest of us are here?”
He showed a deep commitment to originalism, which he later began calling textualism. In other words, judges had a duty to give the same meaning to the Constitution and laws as they had when they were written. Otherwise, he said disparagingly, judges could decide that “’the Constitution means exactly what I think it ought to mean.”
A challenge to a Washington, D.C., gun ban gave Scalia the opportunity to display his devotion to concept. In a 5-4 decision that split the court’s conservatives and liberals, he wrote that an examination of English and colonial history made it exceedingly clear that the Second Amendment protected Americans’ right to have guns, at the very least in their homes and for self-defense. The dissenters, also claiming fidelity to history, said the amendment was meant to ensure that states could raise militias to confront a too-powerful federal government if necessary.
But Scalia rejected that view. “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct,” Scalia wrote.
He could be a strong supporter of privacy in cases involving police searches and defendants’ rights. Indeed, Scalia often said he should be the “poster child” for the criminal defense bar.
But he also voted consistently to let states outlaw abortions, to allow a closer relationship between government and religion, to permit executions and to limit lawsuits.
Scalia was in the court’s majority in the 2000 Bush v. Gore decision, which effectively decided the presidential election for Republican George W. Bush. “Get over it,” Scalia would famously say at speaking engagements in the ensuing years whenever the topic arose.
Bush later named one of Scalia’s sons, Eugene, to an administration job, but the Senate refused to confirm him. Eugene Scalia served as the Labor Department solicitor temporarily in a recess appointment.
The justice relished a good fight. In 2004, when an environmental group asked him to step aside from a case involving Vice President Dick Cheney after reports that Scalia and Cheney hunted ducks together, the justice responded with a 21-page memorandum explaining his intention to hear the case. He said “the nation is in deeper trouble than I had imagined,” if people thought a duck-hunting trip could sway his vote.
Two years later, The Boston Herald reported that Scalia employed an obscene hand gesture while leaving a church in response to another question about his impartiality. Scalia penned a scathing letter to the newspaper, taking issue with the characterization. He explained that the gesture —the extended fingers of one hand moving slowly back and forth under the raised chin — was dismissive, not obscene.
“From watching too many episodes of ‘The Sopranos,’ your staff seems to have acquired the belief that any Sicilian gesture is obscene,” he said.
Scalia did not think much of the media, which he generally found to be shallow and more than a little biased against him and his fellow conservatives. He told a visitor to his office at the court that he wished supermarket checkout stands carried the University of Chicago Law Review instead of tabloids. Reporters cared too much whether the “little old lady won or lost” before the Supreme Court. Scalia said, “I couldn’t care less, as long as we get the law right.”
A smoker of cigarettes and pipes, Scalia enjoyed baseball, poker, hunting and playing the piano. He was an enthusiastic singer at court Christmas parties and other musical gatherings, and once appeared on stage with Ginsburg as a Washington Opera extra.
The only child of an Italian immigrant father who was a professor of Romance languages and a mother who taught elementary school, Scalia attended public schools in his native New Jersey, graduated first in his class at Georgetown University and won high honors at the Harvard University Law School. He taught law and served in Republican administrations before Reagan made him an appeals court judge in Washington in 1982. Scalia and his wife, Maureen, had nine children.
Scalia’s impact on the court was muted by his seeming disregard for moderating his views to help build consensus, but he was held in deep affection by his ideological opposites Ginsburg and Elena Kagan. He persuaded Kagan to join him on hunting trips. While on his high school drill team, Scalia carried his rifle in a case on the New York City subways. Decades later, he taught the Upper West Sider Kagan how to shoot a gun.
Scalia and Ginsburg shared a love of opera, and their contrasting views inspired the opera Scalia/Ginsburg by composer Derrick Wang, who said he got the idea while a law student at the University of Maryland.
In one aria, the Scalia character rages about justices who see the Constitution evolving with society.
The operatic Scalia fumes: “The justices are blind. How can they spout this? The Constitution says absolutely nothing about this.”
The real-life Scalia certainly agreed.
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