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Justice Scalia was more outspoken off the court than on it, where he was typically silent in the denial of conservative petitions for certiorari,<ref>Justice Scalia wrote dissents from denials of cert only about three times in a decade, a rate of less than 1 in 20,000 cert denials.</ref> and he often joined liberal colleagues in opinions.<ref>Scalia's off-the-court commentary has caused problems for himself, as when ''pro se'' litigant Dr. Michael Newdow successfully filed a motion that led to Justice Scalia recusing himself from Newdow's challenge to the Pledge of Allegiance to avoid the appearance of a conflict of interest. [supreme.lp.findlaw.com/supreme_court/briefs/02-1624/03-7.recuse.pdf]</ref>  Scalia once quipped about himself to the media, "Ah yes, esteemed jurist by day, man about town by night."<ref>http://www.oyez.org/justices/antonin_scalia/</ref>  Scalia's written dissents were sometimes scathing, as in ''[[Obergefell v. Hodges]]'', in ridicule of the Court opinion written by the less [[conservative]] Republican-appointed Justice [[Anthony Kennedy]].

Justice Scalia was more outspoken off the court than on it, where he was typically silent in the denial of conservative petitions for certiorari,<ref>Justice Scalia wrote dissents from denials of cert only about three times in a decade, a rate of less than 1 in 20,000 cert denials.</ref> and he often joined liberal colleagues in opinions.<ref>Scalia's off-the-court commentary has caused problems for himself, as when ''pro se'' litigant Dr. Michael Newdow successfully filed a motion that led to Justice Scalia recusing himself from Newdow's challenge to the Pledge of Allegiance to avoid the appearance of a conflict of interest. [supreme.lp.findlaw.com/supreme_court/briefs/02-1624/03-7.recuse.pdf]</ref>  Scalia once quipped about himself to the media, "Ah yes, esteemed jurist by day, man about town by night."<ref>http://www.oyez.org/justices/antonin_scalia/</ref>  Scalia's written dissents were sometimes scathing, as in ''[[Obergefell v. Hodges]]'', in ridicule of the Court opinion written by the less [[conservative]] Republican-appointed Justice [[Anthony Kennedy]].

Justice Scalia was the author, with the support of three liberal Justices, of the 5–4 decision declaring the sale of extremely violent [[video games]] to children to be a right of free speech under the [[First Amendment]], which no law can limit.  He is more likely than Justices Alito or Thomas to join [[liberal]] Justices in a non-[[conservative]] ruling, and vice-versa. In one of the biggest cases of the 2013-2014 Term, ''Harris v. Quinn'', Justice Scalia's hostile questioning of the conservative side at oral argument implied that he was the least willing among conservatives to support a decision to end mandatory membership dues for public sector unions, which would have reduced liberal political power enormously.  Scalia also agrees with liberals in arguing that the Constitution is somehow too difficult to amend.

Justice Scalia was the author, with the support of three liberal and three conservative Justices, of the 7-2 decision declaring the sale of "extremely violent" [[video games]] to children to be protected by under the [[First Amendment]], which no law can limit.  He is more likely than Justices Alito or Thomas to join [[liberal]] Justices in a non-[[conservative]] ruling, and vice-versa. However, this is based on a formula which characterizes votes in favor of freedom of speech and greater individual rights against government power as "liberal", a position which many conservatives would take issue with. In one of the biggest cases of the 2013-2014 Term, ''Harris v. Quinn'', Justice Scalia's hostile questioning of the conservative side at oral argument implied that he was the least willing among conservatives to support a decision to end mandatory membership dues for public sector unions, which would have reduced liberal political power enormously.  Scalia reportedly believed that the Constitution is too difficult to amend, a position shared by many liberals.  

==Early life==

==Early life==

Justice Scalia advocated a judicial philosophy of "[[textualism]]" or "[[originalism]]" (original meaning) in interpreting the [[United States Constitution|U.S. Constitution]] and federal [[statute]]s. He opposed speculation about the intent of the drafters and the view that the Court must interpret the language figuratively. In speeches and legal writings, Justice Scalia emphasized the "Rule of Law."<ref>Scalia, "The Rule of Law as a Law of Rules," 56 U. Chi. L. Rev. 1175</ref>

Justice Scalia advocated a judicial philosophy of "[[textualism]]" or "[[originalism]]" (original meaning) in interpreting the [[United States Constitution|U.S. Constitution]] and federal [[statute]]s. He opposed speculation about the intent of the drafters and the view that the Court must interpret the language figuratively. In speeches and legal writings, Justice Scalia emphasized the "Rule of Law."<ref>Scalia, "The Rule of Law as a Law of Rules," 56 U. Chi. L. Rev. 1175</ref>

Some mistake Justice Scalia's philosophy as "strict constructionism."  But Justice Scalia was not a [[strict constructionist]] as, for example, [[Thomas Jefferson]] was.  A strict constructionist applies constitutional provisions narrowly, but Justice Scalia has criticized that approach.  Instead, Justice Scalia applies several provisions of the Constitution very broadly, such as the [[First Amendment]] (to protect flag-burning) and the [[Sixth Amendment]] (to protect a right to cross-examine even a lab technician if he performed [[DNA]] analysis).

Some mistake Justice Scalia's philosophy as "strict constructionism."  But Justice Scalia was not a [[strict constructionist]].  A strict constructionist applies constitutional provisions narrowly, but Justice Scalia has criticized that approach.  Instead, Justice Scalia applied the Constitution literally, and thus believed several provisions to apply very broadly, such as the [[First Amendment]] (to protect flag-burning) and the [[Sixth Amendment]] (to protect a right to cross-examine even a lab technician if he performed [[DNA]] analysis).

Many of Scalia's opinions reflected a view that the Court needs to be predictable to lawmakers. His administrative opinions expressed a commitment to a transparent judiciary over excessive formalism, and a strong wish to "clear the brush" out of confusing doctrines. His dissents in jurisprudence such as [[Roe v. Wade]] and its progeny often pointed out logical inconsistencies and doctrinal missteps taken by other members of the Court to reach their desired end.

Many of Scalia's opinions reflected a view that the Court needs to be predictable to lawmakers. His administrative opinions expressed a commitment to a transparent judiciary over excessive formalism, and a strong wish to "clear the brush" out of confusing doctrines. His dissents in jurisprudence such as [[Roe v. Wade]] and its progeny often pointed out logical inconsistencies and doctrinal missteps taken by other members of the Court to reach their desired end.

== Non-Conservative Positions ==

== Non-Conservative Positions ==

Justice Scalia provided the pivotal fifth vote for the [[U.S. Supreme Court]] to hold that there is a [[First Amendment]] right to burn the American Flag.<ref>[[Texas v. Johnson]] (1989)</ref>

Justice Scalia provided the pivotal fifth vote for the [[U.S. Supreme Court]] to hold that there is a [[First Amendment]] right to burn the American Flag.<ref>[[Texas v. Johnson]] (1989)</ref>  

Justice Scalia defers to the democratic majority on issues of compelled speech and religious freedom, subjecting the rights of the political minority to the power of the political majority. Examples include:

Justice Scalia usually deferred to the democratic majority on issues of government speech and religious freedom, subjecting the rights of the political minority to the power of the political majority. Examples include:

*In ''[[Employment Div. v. Smith]]'', Justice Scalia held that religious minorities have no right to religious practices prohibited by the democratic majority, unless another constitutional right is implicated by the ban.

*In ''[[Employment Div. v. Smith]]'', Justice Scalia held that religious minorities have no right to religious practices prohibited by the democratic majority, unless another constitutional right is implicated by the ban.

::I cannot avoid observing, however, two stark discrepancies between today's due process reasoning and the due process reasoning the Court applies to its identification of new so-called fundamental rights, such as the right to structure family living arrangements, see ''Moore v. East Cleveland'', 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (plurality opinion), and the right to an abortion, see ''Roe v. Wade'', 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). First and most obviously, where respondent's claimed right to hold onto his property is at issue, the Court upholds the tax amendment because it rationally furthers a legitimate interest; whereas when other claimed rights that the Court deems fundamental are at issue, the Court strikes down laws that concededly promote legitimate interests, id., at 150, 162. Secondly, when it is pointed out that the Court's retroactive-tax ruling today is inconsistent with earlier decisions, ''see, e.g.'', ''Nichols v. Coolidge'', 274 U.S. 531, 71 L. Ed. 1184, 47 S. Ct. 710 (1927); ''Blodgett v. Holden'', 275 U.S. 142, 72 L. Ed. 206, 48 S. Ct. 105 (1927); ''Untermyer v. Anderson'', 276 U.S. 440, 72 L. Ed. 645, 48 S. Ct. 353 (1928), the Court dismisses those cases as having been "decided during an era characterized by exacting review of economic legislation under an approach that 'has long since been discarded.'" ''Ante'', at 34, quoting ''Ferguson v. Skrupa'', 372 U.S. 726, 730, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963). But economic legislation was not the only legislation subjected to "exacting review" in those bad old days, and one wonders what principled reason justifies "discarding" that bad old approach only as to that category. For the Court continues to rely upon "exacting review" cases of the Nichols-Blodgett-Untermyer vintage for its due process "fundamental rights" jurisprudence. ''See, e.g.'', ''Roe'', 410 U.S. at 152-153, 159 (citing ''Meyer v. Nebraska'', 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), and ''Pierce v. Society of Sisters'', 268 U.S. 510, 535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925)); see also ''Griswold v. Connecticut'', 381 U.S. 479, 483, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965) ("We reaffirm the principle of the ''Pierce'' and the ''Meyer'' cases").

::I cannot avoid observing, however, two stark discrepancies between today's due process reasoning and the due process reasoning the Court applies to its identification of new so-called fundamental rights, such as the right to structure family living arrangements, see ''Moore v. East Cleveland'', 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (plurality opinion), and the right to an abortion, see ''Roe v. Wade'', 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). First and most obviously, where respondent's claimed right to hold onto his property is at issue, the Court upholds the tax amendment because it rationally furthers a legitimate interest; whereas when other claimed rights that the Court deems fundamental are at issue, the Court strikes down laws that concededly promote legitimate interests, id., at 150, 162. Secondly, when it is pointed out that the Court's retroactive-tax ruling today is inconsistent with earlier decisions, ''see, e.g.'', ''Nichols v. Coolidge'', 274 U.S. 531, 71 L. Ed. 1184, 47 S. Ct. 710 (1927); ''Blodgett v. Holden'', 275 U.S. 142, 72 L. Ed. 206, 48 S. Ct. 105 (1927); ''Untermyer v. Anderson'', 276 U.S. 440, 72 L. Ed. 645, 48 S. Ct. 353 (1928), the Court dismisses those cases as having been "decided during an era characterized by exacting review of economic legislation under an approach that 'has long since been discarded.'" ''Ante'', at 34, quoting ''Ferguson v. Skrupa'', 372 U.S. 726, 730, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963). But economic legislation was not the only legislation subjected to "exacting review" in those bad old days, and one wonders what principled reason justifies "discarding" that bad old approach only as to that category. For the Court continues to rely upon "exacting review" cases of the Nichols-Blodgett-Untermyer vintage for its due process "fundamental rights" jurisprudence. ''See, e.g.'', ''Roe'', 410 U.S. at 152-153, 159 (citing ''Meyer v. Nebraska'', 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), and ''Pierce v. Society of Sisters'', 268 U.S. 510, 535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925)); see also ''Griswold v. Connecticut'', 381 U.S. 479, 483, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965) ("We reaffirm the principle of the ''Pierce'' and the ''Meyer'' cases").

Justice Scalia wrote a strident dissent in ''[[Sell v. United States]]'' (2003), in which he supported allowing the government to forcibly medicate a never-convicted defendant with mind-altering drugs, and without a right of direct appeal of such decision. [[Conservative]] groups in the case opposed such far-reachin with Justice Scalia by a 6-3 vote and blocked the forced medication in that case.

Justice Scalia wrote a strident dissent in ''[[Sell v. United States]]'' (2003), in which he supported allowing the government to forcibly medicate a never-convicted defendant with mind-altering drugs, and without a right of direct appeal of such decision. [[Conservative]] groups in the case opposed such far-reaching with Justice Scalia by a 6-3 vote and blocked the forced medication in that case.

Justice Scalia surprisingly joined a more [[liberal]] group in striking down state restrictions on the direct shipment of wine by out-of-state wineries. In ''Granholm v. Heald'' (2005), Justice Scalia rejected numerous [[conservative]] amicus briefs and declined to join the opinion of Justice Thomas, and instead provided the pivotal 5th vote to interpreting the [[Commerce Clause]] as prohibiting state limitations on interstate wine shipments, despite the [[Twenty-First Amendment]] and a federal statute granting authority to states over alcohol.

Justice Scalia surprisingly joined a more [[liberal]] group in striking down state restrictions on the direct shipment of wine by out-of-state wineries. In ''Granholm v. Heald'' (2005), Justice Scalia rejected numerous [[conservative]] amicus briefs and declined to join the opinion of Justice Thomas, and instead provided the pivotal 5th vote to interpreting the [[Commerce Clause]] as prohibiting state limitations on interstate wine shipments, despite the [[Twenty-First Amendment]] and a federal statute granting authority to states over alcohol.

*In a case deciding the right of private property against a taking by government, Justice Scalia declined to join the [[conservative]] Justices and provide a much-needed fifth vote to overturn ''Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City'', 473 U.S. 172 (1985), which requires property owners who assert a [[Fifth Amendment]] takings claim based on the final decision of a state or local government entity to first seek compensation in state courts. ''See'' ''[[San Remo Hotel, L.P. v. City and County of San Francisco]]'', 545 U.S. 323 (2005).

*In a case deciding the right of private property against a taking by government, Justice Scalia declined to join the [[conservative]] Justices and provide a much-needed fifth vote to overturn ''Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City'', 473 U.S. 172 (1985), which requires property owners who assert a [[Fifth Amendment]] takings claim based on the final decision of a state or local government entity to first seek compensation in state courts. ''See'' ''[[San Remo Hotel, L.P. v. City and County of San Francisco]]'', 545 U.S. 323 (2005).