A Life in the Law: Justice Antonin Scalia

January 29, 2009Duke Law News

Feb. 3, 2009 — Visiting Duke to judge the finals of the Dean’s Cup Moot Court Competition Jan. 29, Supreme Court Associate Justice Antonin Scalia discussed his life, formative legal experiences, and judicial philosophy before a capacity student audience.

Dean David Levi and Professor Neil Siegel acted as interviewers as Scalia often humorously recounted some of the experiences that put him on the path to the Supreme Court and described how the Court functions.

A native of Trenton, N.J., Scalia was raised in Queens, N.Y. where, he said, he benefited from “overqualified” female teachers who were precluded from advancing in other professions. He discovered his work habits and love for languages, he said, at a Jesuit military high school in Manhattan, where he studied Latin, Greek, and French.

“I wasn’t burning to be a lawyer,” noted Scalia, who majored in history at Georgetown University. But he “sort of liked” hanging out at his Uncle Vince’s law office in Trenton, he said. “He seemed to have a good life, to enjoy what he did.” Scalia said lost his ambivalence during his first year at Harvard Law. “[Y]ou can feel your mind warping to become a lawyer’s mind.”

Reflecting on legal education broadly from his vantage point on the bench, however, Scalia offered a critique which reflected his judicial philosophy of adhering to textual interpretation.

“…You spend your first year suckling at the common law, and your image of the great judge is the judge who knows what the best answer is. … It so happens that in the bad old days those judges were agents of the king. They weren’t interpreting the law, they were making it,” he said. “What has happened between then and now is something called participatory democracy. And the principle function of a judge today is to apply democratically adopted texts — statutes, ordinances, regulations of democratically adopted agencies. That’s the main thing judges do.”

Practice, academia, and public service
After graduating from law school, Scalia and his wife, Maureen McCarthy, traveled and studied in Europe for a year. Returning to the U.S., he practiced commercial law briefly, before joining the faculty of the University of Virginia.

“I miss the fang and claw of practice — you know, the parry and thrust. That’s fun, and God knows you don’t get it in academia,” he said. “I miss from academia the ability to inquire into whatever you think is worth inquiring into, rather than what somebody shoves under your nose.”

Scalia moved to Washington, D.C., in 1971, becoming general counsel for the Office of Telecommunications Policy, the first in a series of government jobs, enjoying all of them enormously. “If you want the fun of government, it is not the courts and it is not the Congress,” he said. “It is the Executive Branch. You work with a team of people, and you say ‘This is what we want to achieve.’ And it’s up to you to achieve it. By God it is exciting.”

After serving as chairman of the Administrative Conference of the U.S., Scalia became head of the Office of Legal Counsel in the Gerald Ford administration, which he called “the best lawyer’s job in the government. Not the most prestigious, but the best.”

Leaving government when President Carter took office, Scalia taught at the University of Chicago, but always hoped, he said, to return to public service. President Reagan nominated him to the U.S. Court of Appeals for the D.C. Circuit in 1982.

“I loved it, I would have stayed there,” said Scalia, who ascended to the high court bench in 1986. “It’s the same job I’m doing now, except you don’t have the ‘cert’ work. It may well have a better bar than the Supreme Court bar, because they tend to be specialists.”

An originalist on the Court
At the Supreme Court, Scalia is known for adhering to textual interpretation. Siegel, a constitutional law scholar and former Supreme Court clerk, asked Scalia to expound on his statement that he was “an originalist, not a nut.”

“When I say ‘I’m not a nut,’” Scalia replied, “I mean I accept as a limitation on the interpretive philosophy of originalism that you must accept, as a limitation on any interpretive philosophy, stare decisis.

“ … I’m not going to rip out every non-originalist decision between the Warren court and now. I’m not about to tell the people of North Carolina that the First Amendment of the Federal Constitution does not bind their government. I mean, you know, that fight’s over, it’s been half a century under the Incorporation Doctrine. I’m not going to rip that out. I’m basically saying, you know, enough is enough, just let’s not do it anymore.”

Scalia drew a line between his judicial philosophy and strict constructionism. “If you were a strict constructionist, you would have to say that the First Amendment permits Congress to censor your handwritten mail, because all it protects is freedom of speech and of the press, and a handwritten letter is neither speech nor press. Right? No, wrong. The two are fairly understood as standing for all expression, communication, and that’s how I interpret the First Amendment.”

“What about exotic dancing?” asked Levi. “I like it,” said Scalia, to laughter. “No, I draw a line there. I don’t think that is communication.”

Insight into high court dynamics
Discussing the dynamics of the nation’s highest court, Scalia said that the justices lack the time — and, sometimes, the inclination — to engage in lengthy deliberations over opinions. “If you have the image of these nine philosopher kings pondering deeply, persuading each other, forget about it. …There’s not a lot of discussion, and it’s really not a process of trying to persuade each other. … By the time people come to conference, they’ve made up their minds.”

Persuasion, if possible, can occur in one of three ways, he added: Justices might talk to each before conference to work out a point of law; they might trust the “law clerk grapevine,” to transfer information about legal opinions; or they might be swayed by comments made in the course of oral arguments.

“During the argument you can get your point across to the other judges, using the hapless counsel as a shuttlecock,” he said.

Whatever differences he has with his fellow justices on matters of law, Scalia said that he considers each of them a friend. “Some are closer friends than others. The closest is Ruth [Bader Ginsburg]. Ruth and I and our families have spent New Year’s Eve together for 22 years.

“Don’t believe the stuff you read about the court,” he said, referring to media portrayals of a court divided by philosophy. “Most of it is made up.”