Antonin Scalia

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Antonin Scalia
Associate Justice of the U.S. Supreme Court
From: September 26, 1986-present
Nominator Ronald Reagan
Predecessor William H. Rehnquist
Successor Incumbent (no successor)
Spouse(s) Maureen McCarthy Scalia
Religion Roman Catholic

The Honorable 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 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."[1] 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.[2]


Justice Scalia embraces a judicial philosophy of "textualism" or "original meaning" in interpreting the U.S. Constitution and federal statutes. 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."[3]

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.


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:[4]

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.

Quintessential writing by Justice Scalia is found in his concurrence to Ring v. Arizona, which is colorful and entertaining and, some might say, self-absorbed:

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.
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.

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.[5] 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.[6] Chief Justice John Roberts, who replaced Rehnquist, also seems to be keeping the key decisions for himself to write.[7]

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 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

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.[8]

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

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

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

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.[12]

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 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"[13] -- 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:

  • 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 Troxel v. Granville, 530 U.S. 57, 91-92 (2000), Justice Scalia wrote a two paragraph dissent (not joined by Justice Thomas):[14]
In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "other [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.
Only three holdings of this Court rest in whole or in part upon a substantive constitutional right of parents to direct the upbringing of their children 1 -- two of them from an era rich in substantive due process holdings that have since been repudiated. See Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925); Wisconsin v. Yoder, 406 U.S. 205, 232-233, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). Cf. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578 (1937) (overruling Adkins v. Children's Hospital of D.C., 261 U.S. 525, 67 L. Ed. 785, 43 S. Ct. 394 (1923)). The sheer diversity of today's opinions persuades me that the theory of unenumerated parental rights underlying these three cases has small claim to stare decisis protection. A legal principle that can be thought to produce such diverse outcomes in the relatively simple case before us here is not a legal principle that has induced substantial reliance. While I would not now overrule those earlier cases (that has not been urged), neither would I extend the theory upon which they rested to this new context.
  • In United States v. Carlton, 512 U.S. 26, 40-41 (1994), Justice Scalia concurred separately and added this paragraph (joined by Justice Thomas):
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 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:

  • 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).
  • 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

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.[15] Chief Justice John Roberts, who replaced Rehnquist, also seems to be keeping the key decisions for himself to write.[16]

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 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 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

As a U.S. Supreme Court Justice, Scalia has mentored over 80 clerks. They include:[17]

Patrick Schiltz, U.S. District Judge in Minnesota (confirmed 2006)
Mark Filip, U.S. District Judge in Illinois (confirmed 2004)
Jeffrey Sutton, U.S. appellate judge for the Sixth Circuit (confirmed 2003)
Solicitor General Paul Clement, appointed interim Attorney General in 2007
Ed Whelan, President of the Ethics and Public Policy Center in Washington, D.C.

Further reading

  • Biskupic, Joan. American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (2009) online review
  • Brisbin, Jr., Richard A. Justice Antonin Scalia and the Conservative Revival (1998) excerpt and text search
  • Rossum, Ralph A. Antonin Scalia's Jurisprudence: Text And Tradition (2006) excerpt and text search
  • Scalia, Antonin. Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice ed. by Kevin A. Ring(2004)


  3. Scalia, "The Rule of Law as a Law of Rules," 56 U. Chi. L. Rev. 1175
  4. Roper v. Simmons, 543 U.S. 551, 607-08 (2005) (Scalia, J., dissenting) (citations omitted. emphasis added)
  5. See stare decisis for the quotation.
  6. 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).
  7. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006)
  8. Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897 (1988).
  9. Davis v. Washington, 126 S. Ct. 2266 (2006).
  10. United States v. Booker, 543 U.S. 220 (2005).
  11. United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006).
  12. Texas v. Johnson (1989)
  13. 544 U.S. 550, 559 (2005).
  14. [1]
  15. 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).
  16. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006)