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'''Antonin "Nino" Scalia''' (b. 1936) joined the U.S. [[Supreme Court]] as an Associate Justice in 1986, and quickly became its most outspoken [[conservative]] jurist. He filled a vacancy created by the retirement of Chief Justice [[Warren Burger]] and nomination of Associate Justice [[William Rehnquist]] to become Chief Justice. President [[Ronald Reagan]] nominated Scalia at the same time that he nominated Rehnquist for Chief Justice, and most opposition in the [[United States Senate|Senate]] focused all their opposition on the Rehnquist nomination. Scalia was confirmed by unanimous vote, while Rehnquist was confirmed over substantial opposition.

'''Antonin "Nino" Scalia''' (b. 1936) joined the U.S. [[Supreme Court]] as an Associate Justice in 1986, and quickly became its most outspoken [[conservative]] jurist. He filled a vacancy created by the retirement of Chief Justice [[Warren Burger]] and nomination of Associate Justice [[William Rehnquist]] to become Chief Justice. President [[Ronald Reagan]] nominated Scalia at the same time that he nominated Rehnquist for Chief Justice, and most opposition in the [[United States Senate|Senate]] focused all their opposition on the Rehnquist nomination. Scalia was confirmed by unanimous vote, while Rehnquist was confirmed over substantial opposition.

Justice Scalia is considered the most outspoken member of the Court; he once quipped to the media, "Ah yes, esteemed jurist by day, man about town by night."<ref>http://www.oyez.org/justices/antonin_scalia/</ref>  Sometimes Scalia's public commentary causes 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.<ref>supreme.lp.findlaw.com/supreme_court/briefs/02-1624/03-7.recuse.pdf </ref>

Justice Scalia is considered the most outspoken member of the Court; he once quipped to the media, "Ah yes, esteemed jurist by day, man about town by night."<ref>http://www.oyez.org/justices/antonin_scalia/</ref>  Sometimes Scalia's public commentary causes 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.<ref>supreme.lp.findlaw.com/supreme_court/briefs/02-1624/03-7.recuse.pdf </ref>

== Textualism ==

== Textualism ==

Justice Scalia embraces a judicial philosophy of "[[textualism]]" or "original meaning" in interpreting the [[United States Constitution|U.S. Constitution]] and federal [[statute]]s. He opposes 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 emphasizes the "Rule of Law."<ref>Scalia, "The Rule of Law as a Law of Rules," 56 U. Chi. L. Rev. 1175</ref>

Justice Scalia embraces a judicial philosophy of "[[textualism]]" or "original meaning" in interpreting the [[United States Constitution|U.S. Constitution]] and federal [[statute]]s. He opposes 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 emphasizes the "Rule of Law."<ref>Scalia, "The Rule of Law as a Law of Rules," 56 U. Chi. L. Rev. 1175</ref>

Many of Scalia's opinions reflect a view that the Court needs to be predictable to lawmakers. His administrative opinions express 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 point out logical inconsistencies and doctrinal missteps taken by other members of the Court to reach their desired end.

Many of Scalia's opinions reflect a view that the Court needs to be predictable to lawmakers. His administrative opinions express 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 point out logical inconsistencies and doctrinal missteps taken by other members of the Court to reach their desired end.

== Opinions ==

== Opinions ==

Justice Scalia is best known for his dissents, in which his colorful and forceful style highlights weaknesses in his colleagues' decisions. He staunchly opposes the notion of an "evolving" Constitution, which other justices have used to justify decisions not grounded in the text of the Constitution (see [[Responsive interpretation]] for discussion of different legal theories). For example, when the Court held that the Constitution prohibits imposing the death penalty for any crime committed by someone under 18 years of age, Scalia was scathing in dissent:<ref>''Roper v. Simmons'', 543 U.S. 551, 607-08 (2005) (Scalia, J., dissenting) (citations omitted. emphasis added)</ref>

Justice Scalia is best known for his dissents, in which his colorful and forceful style highlights weaknesses in his colleagues' decisions. He staunchly opposes the notion of an "evolving" Constitution, which other justices have used to justify decisions not grounded in the text of the Constitution (see [[Responsive interpretation]] for discussion of different legal theories). For example, when the Court held that the Constitution prohibits imposing the death penalty for any crime committed by someone under 18 years of age, Scalia was scathing in dissent:<ref>''Roper v. Simmons'', 543 U.S. 551, 607-08 (2005) (Scalia, J., dissenting) (citations omitted. emphasis added)</ref>

:In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary . . . ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." '''Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years--not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.''' The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," of our national society.

:In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary . . . ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." '''Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years--not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.''' The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," of our national society.

:On the other hand, as I wrote in my dissent in Almendarez-Torres v. United States, 523 U.S. 224, 248, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), and as I reaffirmed by joining the opinion for the Court in Apprendi, I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives -- whether the statute calls them elements of the offense, sentencing factors, or Mary Jane -- must be found by the jury beyond a reasonable doubt.

:On the other hand, as I wrote in my dissent in Almendarez-Torres v. United States, 523 U.S. 224, 248, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), and as I reaffirmed by joining the opinion for the Court in Apprendi, I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives -- whether the statute calls them elements of the offense, sentencing factors, or Mary Jane -- must be found by the jury beyond a reasonable doubt.

:The quandary is apparent: Should I continue to apply the last-stated principle when I know that the only reason the fact is essential is that this Court has mistakenly said that the Constitution requires state law to impose such "aggravating  factors"? ... But even if the point had been put with greater clarity in Walton, I think I still would have approved the Arizona scheme -- I would have favored the States' freedom to develop their own capital sentencing procedures (already erroneously abridged by Furman) over the logic of the Apprendi principle.

:The quandary is apparent: Should I continue to apply the last-stated principle when I know that the only reason the fact is essential is that this Court has mistakenly said that the Constitution requires state law to impose such "aggravating  factors"? ... But even if the point had been put with greater clarity in Walton, I think I still would have approved the Arizona scheme -- I would have favored the States' freedom to develop their own capital sentencing procedures (already erroneously abridged by Furman) over the logic of the Apprendi principle.

:Since Walton, I have acquired new wisdom that consists of two realizations -- or, to put it more critically, have discarded old ignorance ...

:Since Walton, I have acquired new wisdom that consists of two realizations -- or, to put it more critically, have discarded old ignorance ...

:I add one further point, lest the holding of today's decision be confused by the separate concurrence. JUSTICE BREYER, who refuses to accept Apprendi, see 530 U.S. at 555 (BREYER, J., dissenting); see also Harris v. United States, ante, 536 U.S. 545, 153 L. Ed. 2d 524, 122 S. Ct. 2406, p.   , 536 U.S. 545, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (BREYER, J., concurring in part and concurring in judgment), nonetheless concurs in today's judgment because he "believes that jury sentencing in capital cases is mandated by the Eighth Amendment." Post, at 1 (opinion concurring in judgment). While I am, as always, pleased to travel in JUSTICE BREYER's company, the unfortunate fact is that today's judgment has nothing to do with jury sentencing. What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so -- by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase. There is really no way in which JUSTICE BREYER can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, JUSTICE BREYER is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.

:I add one further point, lest the holding of today's decision be confused by the separate concurrence. JUSTICE BREYER, who refuses to accept Apprendi, see 530 U.S. at 555 (BREYER, J., dissenting); see also Harris v. United States, ante, 536 U.S. 545, 153 L. Ed. 2d 524, 122 S. Ct. 2406, p. , 536 U.S. 545, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (BREYER, J., concurring in part and concurring in judgment), nonetheless concurs in today's judgment because he "believes that jury sentencing in capital cases is mandated by the Eighth Amendment." Post, at 1 (opinion concurring in judgment). While I am, as always, pleased to travel in JUSTICE BREYER's company, the unfortunate fact is that today's judgment has nothing to do with jury sentencing. What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so -- by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase. There is really no way in which JUSTICE BREYER can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, JUSTICE BREYER is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.

In another case, Justice Scalia wrote a forceful limitation on [[stare decisis]] in a concurrence and dissent in ''[[FEC v. Wisconsin Right to Life, Inc.]], 127 S. Ct. 2652, 2674 (2007), and persuaded Justices [[Anthony Kennedy]] and [[Clarence Thomas]] to join it.<ref>See [[stare decisis]] for the quotation.</ref>  In it Justice Scalia chastised Chief Justice [[John Roberts]] for not overruling precedent.

In another case, Justice Scalia wrote a forceful limitation on [[stare decisis]] in a concurrence and dissent in ''[[FEC v. Wisconsin Right to Life, Inc.]], 127 S. Ct. 2652, 2674 (2007), and persuaded Justices [[Anthony Kennedy]] and [[Clarence Thomas]] to join it.<ref>See [[stare decisis]] for the quotation.</ref>  In it Justice Scalia chastised Chief Justice [[John Roberts]] for not overruling precedent.

Justice Scalia has been less successful in forging majorities of his own on the Court, and has rarely written an important majority opinion for the Court. This may have been be due to the tendency for Chief Justice Rehnquist to assign key decisions to himself to draft.<ref>''See, e.g.'', key 5-4 opinions written by Chief Justice Rehnquist in ''United States v. Morrison'', 529 U.S. 598 (2000) (invaliding federal law over domestic violence based on federalism); ''Boy Scouts of Am. v. Dale'', 530 U.S. 640 (2000) (holding that the Boy Scouts have a constitutional right not to allow openly homosexual scout leaders).</ref>  Chief Justice [[John Roberts]], who replaced Rehnquist, also seems to be keeping the key decisions for himself to write.<ref>''Rumsfeld v. Forum for Academic and Institutional Rights, Inc.'', 547 U.S. 47 (2006)</ref>

Justice Scalia has been less successful in forging majorities of his own on the Court, and has rarely written an important majority opinion for the Court. This may have been be due to the tendency for Chief Justice Rehnquist to assign key decisions to himself to draft.<ref>''See, e.g.'', key 5-4 opinions written by Chief Justice Rehnquist in ''United States v. Morrison'', 529 U.S. 598 (2000) (invaliding federal law over domestic violence based on federalism); ''Boy Scouts of Am. v. Dale'', 530 U.S. 640 (2000) (holding that the Boy Scouts have a constitutional right not to allow openly homosexual scout leaders).</ref>  Chief Justice [[John Roberts]], who replaced Rehnquist, also seems to be keeping the key decisions for himself to write.<ref>''Rumsfeld v. Forum for Academic and Institutional Rights, Inc.'', 547 U.S. 47 (2006)</ref>

However, Justice Scalia did obtain broad support for a remarkable decision in ''[[Lucas v. South Carolina Coastal Council]]'', 505 U.S. 1003 (1992), in which he applied the [[Takings Clause]] and required compensation of a property owner based merely on a regulatory taking rather than an actual physical intrusion by the government. Justice Scalia also wrote an important 5-4 opinion for the Court in ''[[Alexander v. Sandoval]]'', 532 U.S. 275 (2000), that denied a right if private individuals to sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964. Justice Scalia also wrote an impressive 7-2 opinion for the Court in affirming strong associational rights of political parties in preventing blanket primaries or crossover voting in primaries, in ''[[California Democratic Party v. Jones]]'', 530 U.S. 567 (2000).

However, Justice Scalia did obtain broad support for a remarkable decision in ''[[Lucas v. South Carolina Coastal Council]]'', 505 U.S. 1003 (1992), in which he applied the [[Takings Clause]] and required compensation of a property owner based merely on a regulatory taking rather than an actual physical intrusion by the government. Justice Scalia also wrote an important 5-4 opinion for the Court in ''[[Alexander v. Sandoval]]'', 532 U.S. 275 (2000), that denied a right if private individuals to sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964. Justice Scalia also wrote an impressive 7-2 opinion for the Court in affirming strong associational rights of political parties in preventing blanket primaries or crossover voting in primaries, in ''[[California Democratic Party v. Jones]]'', 530 U.S. 567 (2000).

Justice Scalia wrote the oft-cited Court opinion in ''[[R.A.V. v. St. Paul]]'', 505 U.S. 377 (1992), which enjoyed 5-4 support though the verdict was unanimous. Justice Scalia also wrote the 7-2 Court opinion in ''[[Crawford v. Washington]]'', 541 U.S. 36 (2004), in which he applied the [[Confrontation Clause]] to exclude an out-of-court statement by a witness who did not testify in court (because of the spousal privilege) against her defendant husband.

Justice Scalia wrote the oft-cited Court opinion in ''[[R.A.V. v. St. Paul]]'', 505 U.S. 377 (1992), which enjoyed 5-4 support though the verdict was unanimous. Justice Scalia also wrote the 7-2 Court opinion in ''[[Crawford v. Washington]]'', 541 U.S. 36 (2004), in which he applied the [[Confrontation Clause]] to exclude an out-of-court statement by a witness who did not testify in court (because of the spousal privilege) against her defendant husband.

Justice Scalia has been a consistent supporter of [[federalism]], and in ''[[Printz v. United States]]'' (1997) he wrote the 5-4 opinion that invalidated certain interim provisions of the Brady Handgun Violence Prevention Act, Pub. L. 103-159, 107 Stat. 1536, commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks.

Justice Scalia has been a consistent supporter of [[federalism]], and in ''[[Printz v. United States]]'' (1997) he wrote the 5-4 opinion that invalidated certain interim provisions of the Brady Handgun Violence Prevention Act, Pub. L. 103-159, 107 Stat. 1536, commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks.

== Opposition to Balancing Tests ==

== Opposition to Balancing Tests ==

Justice Scalia is against judicial use of balancing tests. "It is more like judging whether a particular line is longer than a particular rock is heavy," he remarked in one of his early dissents.<ref>''Bendix Autolite Corp. v. Midwesco Enterprises, Inc.'', 486 U.S. 888, 897 (1988).</ref>

Justice Scalia is against judicial use of balancing tests. "It is more like judging whether a particular line is longer than a particular rock is heavy," he remarked in one of his early dissents.<ref>''Bendix Autolite Corp. v. Midwesco Enterprises, Inc.'', 486 U.S. 888, 897 (1988).</ref>

In criminal matters, Justice Scalia's opposition to balancing tests and preference for bright-line rules has influenced the Court on these issues:

In criminal matters, Justice Scalia's opposition to balancing tests and preference for bright-line rules has influenced the Court on these issues:

== Influence on Narrowing Standing ==

== Influence on Narrowing Standing ==

Perhaps Justice Scalia's most frequently cited opinion for the Court is ''Lujan v. Defenders of Wildlife'', 504 U.S. 555 (1992), in which he narrowed standing by organizations to challenge regulations (in that case, a regulation related to the [[Endangered Species Act]]). Many organizations still do sue successfully in challenging regulations, but the ''Lujan'' decision provides grounds for dismissing such lawsuits. Justice Scalia was unable to persuade a majority of the Court to join a part of his decision that would have established an additional reason for dismissing such lawsuits: lack of redressability.

Perhaps Justice Scalia's most frequently cited opinion for the Court is ''Lujan v. Defenders of Wildlife'', 504 U.S. 555 (1992), in which he narrowed standing by organizations to challenge regulations (in that case, a regulation related to the [[Endangered Species Act]]). Many organizations still do sue successfully in challenging regulations, but the ''Lujan'' decision provides grounds for dismissing such lawsuits. Justice Scalia was unable to persuade a majority of the Court to join a part of his decision that would have established an additional reason for dismissing such lawsuits: lack of redressability.

== [[Separation of Powers]] ==

== [[Separation of Powers]] ==

Justice Scalia emphasizes a strict [[separation of powers]] among the branches of government, and even teaches a seminar on this topic. In contrast, Justice [[Anthony Kennedy]] advocates more interplay between the branches of government.

Justice Scalia emphasizes a strict [[separation of powers]] among the branches of government, and even teaches a seminar on this topic. In contrast, Justice [[Anthony Kennedy]] advocates more interplay between the branches of government.

== 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 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:

*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.

*In ''[[Johanns v. Livestock Mktg. Ass'n]]'', Justice Scalia declared that "[w]e have generally assumed, though not yet squarely held, that compelled funding of government speech does not alone raise First Amendment concerns"<ref>544 U.S. 550, 559 (2005).</ref> -- in other words, the democratic majority can compel government speech by the political minority.

*In ''[[Johanns v. Livestock Mktg. Ass'n]]'', Justice Scalia declared that "[w]e have generally assumed, though not yet squarely held, that compelled funding of government speech does not alone raise First Amendment concerns"<ref>544 U.S. 550, 559 (2005).</ref> -- in other words, the democratic majority can compel government speech by the political minority.

On parental rights, unlike most [[conservatives]] Justice Scalia opposes the principle that parents have a constitutional right to the upbringing and education of their children. Specifically, Justice Scalia has indicated his disagreement with the leading precedent in favor of parental rights to control the education of their children, ''[[Pierce v. Society of Sisters]]''. Specifically:

On parental rights, unlike most [[conservatives]] Justice Scalia opposes the principle that parents have a constitutional right to the upbringing and education of their children. Specifically, Justice Scalia has indicated his disagreement with the leading precedent in favor of parental rights to control the education of their children, ''[[Pierce v. Society of Sisters]]''. Specifically:

*In ''[[Winkelman v. Parma City Sch. Dist.]]'', 127 S. Ct. 1994 (2007), Justice Scalia (and Justice Thomas) did not join the Court's reliance on ''Pierce'' in allowing [[pro se]] parents to litigate claims for their children under the Individuals with Disabilities Education Act (IDEA).

*In ''[[Winkelman v. Parma City Sch. Dist.]]'', 127 S. Ct. 1994 (2007), Justice Scalia (and Justice Thomas) did not join the Court's reliance on ''Pierce'' in allowing [[pro se]] parents to litigate claims for their children under the Individuals with Disabilities Education Act (IDEA).

::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-reachin 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 cases concerning the [[Bill of Rights]], Justice Scalia has switched to the [[liberal]] side, perhaps attracted by the opportunity to write the opinion for the Court in a high-profile case:

In cases concerning the [[Bill of Rights]], Justice Scalia has switched to the [[liberal]] side, perhaps attracted by the opportunity to write the opinion for the Court in a high-profile case:

*Justice Scalia sided with the [[liberal]] wing of the court in prohibiting the use of heat-seeking sensors to detect marijuana plants growing in a house, in the absence of a warrant. He assigned himself that decision to write for the 5-4 Court. ''[[Kyllo v. United States]]'', 533 U.S. 27 (2001).

*Justice Scalia sided with the [[liberal]] wing of the court in prohibiting the use of heat-seeking sensors to detect marijuana plants growing in a house, in the absence of a warrant. He assigned himself that decision to write for the 5-4 Court. ''[[Kyllo v. United States]]'', 533 U.S. 27 (2001).

*Justice Scalia crossed over the [[liberal]] side in order to overturn a conviction of a defendant based his inability to obtain representation by the counsel of his choice. The four [[conservative]] Justices dissented from Justice Scalia's decision. ''[[United States v. Gonzalez-Lopez]]'', 126 S. Ct. 2557 (2006).

*Justice Scalia crossed over the [[liberal]] side in order to overturn a conviction of a defendant based his inability to obtain representation by the counsel of his choice. The four [[conservative]] Justices dissented from Justice Scalia's decision. ''[[United States v. Gonzalez-Lopez]]'', 126 S. Ct. 2557 (2006).

*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).

== Increasing Influence ==

== Increasing Influence ==

After serving more than two decades on the Court, Justice Scalia's first major decision was in ''D.C. v. Heller'', where he held together a narrow 5-4 decision in favor of an individual right to bear arms. During the tenure of Chief Justice [[William Rehnquist]], he tended to assign key decisions to himself to draft.<ref>''See, e.g.'', key 5-4 opinions written by Chief Justice Rehnquist in ''United States v. Morrison'', 529 U.S. 598 (2000) (invaliding federal law over domestic violence based on federalism); ''Boy Scouts of Am. v. Dale'', 530 U.S. 640 (2000) (holding that the Boy Scouts have a constitutional right not to allow openly homosexual scout leaders).</ref>  Chief Justice [[John Roberts]], who replaced Rehnquist, also seems to be keeping the key decisions for himself to write.<ref>''Rumsfeld v. Forum for Academic and Institutional Rights, Inc.'', 547 U.S. 47 (2006)</ref>

After serving more than two decades on the Court, Justice Scalia's first major decision was in ''D.C. v. Heller'', where he held together a narrow 5-4 decision in favor of an individual right to bear arms. During the tenure of Chief Justice [[William Rehnquist]], he tended to assign key decisions to himself to draft.<ref>''See, e.g.'', key 5-4 opinions written by Chief Justice Rehnquist in ''United States v. Morrison'', 529 U.S. 598 (2000) (invaliding federal law over domestic violence based on federalism); ''Boy Scouts of Am. v. Dale'', 530 U.S. 640 (2000) (holding that the Boy Scouts have a constitutional right not to allow openly homosexual scout leaders).</ref>  Chief Justice [[John Roberts]], who replaced Rehnquist, also seems to be keeping the key decisions for himself to write.<ref>''Rumsfeld v. Forum for Academic and Institutional Rights, Inc.'', 547 U.S. 47 (2006)</ref>

When major cases have been assigned to Justice Scalia, some 5-vote majorities have proven elusive. For example, Justice Scalia was assigned to write the opinion for the Court in ''Rapanos v. United States'', 126 S. Ct. 2208 (2006), one of the most important environmental cases in years. However, Justice Kennedy refused to join Justice Scalia's opinion and thus it lacked a majority and was unable to establish a meaningful precedent. In another leading case, ''Employment Div. v. Smith'', 485 U.S. 660 (1988), Justice Scalia was supported by a majority of the Court but wrote an opinion that was widely criticized by both [[conservatives]] and [[liberals]]. They joined to reverse Scalia's decision with a statute passed by Congress.

When major cases have been assigned to Justice Scalia, some 5-vote majorities have proven elusive. For example, Justice Scalia was assigned to write the opinion for the Court in ''Rapanos v. United States'', 126 S. Ct. 2208 (2006), one of the most important environmental cases in years. However, Justice Kennedy refused to join Justice Scalia's opinion and thus it lacked a majority and was unable to establish a meaningful precedent. In another leading case, ''Employment Div. v. Smith'', 485 U.S. 660 (1988), Justice Scalia was supported by a majority of the Court but wrote an opinion that was widely criticized by both [[conservatives]] and [[liberals]]. They joined to reverse Scalia's decision with a statute passed by Congress.

Sometimes Justice Scalia has occasionally disappointed [[conservatives]] in ruling contrary to expectations, typically in low-profile cases. In an issue presented to the [[U.S. Supreme Court]] about whether a Michigan limitation on direct shipment of wine into the state from other states was a violation of the [[dormant Commerce Clause]], Justice Scalia's emphatic opposition to the [[dormant Commerce Clause]] would presumably lead him to uphold the Michigan law. ''[[Granholm v. Heald]]''. Instead, he broke with Justices  [[Clarence Thomas]] and [[William Rehnquist]] and provided the 5th vote for a majority opinion written by Justice [[Anthony Kennedy]] invalidating the law on a slightly different rationale. Justice Scalia has also been hostile to [[conservative]] attorneys who have appeared before him, as in the cases of ''Owasso Indep. Sch. Dist. v. Falvo'' and ''Office of Independent Counsel v. Favish''.

Sometimes Justice Scalia has occasionally disappointed [[conservatives]] in ruling contrary to expectations, typically in low-profile cases. In an issue presented to the [[U.S. Supreme Court]] about whether a Michigan limitation on direct shipment of wine into the state from other states was a violation of the [[dormant Commerce Clause]], Justice Scalia's emphatic opposition to the [[dormant Commerce Clause]] would presumably lead him to uphold the Michigan law. ''[[Granholm v. Heald]]''. Instead, he broke with Justices  [[Clarence Thomas]] and [[William Rehnquist]] and provided the 5th vote for a majority opinion written by Justice [[Anthony Kennedy]] invalidating the law on a slightly different rationale. Justice Scalia has also been hostile to [[conservative]] attorneys who have appeared before him, as in the cases of ''Owasso Indep. Sch. Dist. v. Falvo'' and ''Office of Independent Counsel v. Favish''.

Sometimes Justice Scalia fails to join an opinion as expected, as when he failed to join Justice Thomas's dissent emphasizing statutory textualism in dissenting from Justice [[Stephen Breyer]]'s majority decision in ''[[Credit Suisse Sec. (USA) LLC v. Billing]]''.

Sometimes Justice Scalia fails to join an opinion as expected, as when he failed to join Justice Thomas's dissent emphasizing statutory textualism in dissenting from Justice [[Stephen Breyer]]'s majority decision in ''[[Credit Suisse Sec. (USA) LLC v. Billing]]''.

Justice Scalia can be harshest on his allies, with questionable effect. In opinions he was highly critical of Justice [[Sandra Day O'Connor]] and [[Anthony Kennedy]], and more recently Justice Scalia has been critical of Chief Justice [[John Roberts]] for not expressly overruling an incorrect precedent.  

Justice Scalia can be harshest on his allies, with questionable effect. In opinions he was highly critical of Justice [[Sandra Day O'Connor]] and [[Anthony Kennedy]], and more recently Justice Scalia has been critical of Chief Justice [[John Roberts]] for not expressly overruling an incorrect precedent.  

Justice Scalia often cites his work in his opinions. For example, in Justice Scalia's dissent in the [[Establishment Clause]] case of ''McCreary County v. ACLU'', 545 U.S. 844 (2005), Justice Scalia cited six of his prior concurrences and dissents, and one of his own law review articles.

Justice Scalia often cites his work in his opinions. For example, in Justice Scalia's dissent in the [[Establishment Clause]] case of ''McCreary County v. ACLU'', 545 U.S. 844 (2005), Justice Scalia cited six of his prior concurrences and dissents, and one of his own law review articles.

== Former Clerks ==

== Former Clerks ==

As a [[U.S. Supreme Court]] Justice, Scalia has mentored over 80 clerks. They include:<ref>http://hatch.senate.gov/index.cfm?FuseAction=PressReleases.View&PressRelease_id=1665</ref>

As a [[U.S. Supreme Court]] Justice, Scalia has mentored over 80 clerks. They include:<ref>http://hatch.senate.gov/index.cfm?FuseAction=PressReleases.View&PressRelease_id=1665</ref>

:Patrick Schiltz, U.S. District Judge in Minnesota (confirmed 2006)

:Patrick Schiltz, U.S. District Judge in Minnesota (confirmed 2006)

== References ==

== References ==

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{{reflist|2}}