Supreme Court Justice Antonin Scalia Dies At 79 NPR Legal Affairs Correspondent Nina Totenberg remembers Scalia's life and legal legacy.


Supreme Court Justice Antonin Scalia Dies At 79

Supreme Court Justice Antonin Scalia Dies At 79

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NPR Legal Affairs Correspondent Nina Totenberg remembers Scalia's life and legal legacy.

Editor's note: The audio for this story of Justice Antonin Scalia from the bench was provided by Oyez, a free law project at IIT Chicago-Kent College of Law.


President Obama called Antonin Scalia one of the towering legal figures of our time. Chief Justice John Roberts called his passing a great loss to the court and the country he so loyally served. Justice Antonin Scalia was 79. He died this weekend in West Texas. Here's NPR's Nina Totenberg.


NINA TOTENBERG, BYLINE: For decades, Antonin Scalia railed against the Supreme Court's rulings on abortion, affirmative action, gay rights and religion. He lived to see many of the decisions he so reviled trimmed and even overturned after President Bush replaced two conservative justices with even more conservative justices. But Scalia remained impatient with the pace of change. His influence continued, not by brokering consensus, but by goading his colleagues with biting dissents. He was, as solicitor general and former law clerk Paul Clement acknowledges, a fundamentalist in both his faith and his constitutional interpretation.

PAUL CLEMENT: I think that he looks for bright lines in the Constitution wherever he can. I think he thinks that his faith provides him clear answers, and you know, I think that's sufficient unto him in most areas.

TOTENBERG: A fine example of that was Scalia's landmark 2008 decision, declaring that the Constitution confers on individuals a right to own a gun. The decision was greeted with cheers by gun enthusiasts, but denounced by police chiefs and big-city mayors.


ANTONIN SCALIA: We hold that the Second Amendment guarantees an individual right to have and use arms for self-defense in the home and that the District's handgun ban violates that right.

TOTENBERG: Antonin Scalia was born in 1936, the only child of a Sicilian immigrant and a first-generation Italian-American mother. Scalia, whose parents were both teachers, was educated largely at Catholic schools until he went to Harvard Law School, where he became editor of the Law Review. At Harvard, he met Maureen McCarthy, a feisty Radcliffe student with views as conservative as his. The two married and had nine children.

In the days after law school, Scalia at first practiced law then taught it. But his love was politics and government, and he soon became a force to be reckoned with in Republican administrations. Shortly after Nixon resigned in the Watergate scandal, President Ford assigned then-Assistant Attorney General Scalia the task of determining who owned the infamous Nixon tapes and papers. Scalia decided in favor of Nixon, a reflection of his belief in a strong executive. But the Supreme Court ruled otherwise and, by a unanimous vote, declared that the tapes and papers belonged to the government and the public.

Scalia returned to academic life when the Democrats won the presidency. But when Ronald Reagan was elected, Scalia was appointed first to the federal appeals court in Washington, and four years later, he was appointed to fill the Supreme Court seat being vacated by William Rehnquist, who was being promoted to chief justice. The pairing turned out to be a lucky break for Scalia. Democrats in the minority in the Senate could only fight one battle. Rehnquist's conservatism was well-known while Scalia had only a four-year record, not to mention the fact that Italian-Americans were ecstatic about their first Supreme Court nominee. So opposition focused on Rehnquist, and Scalia skated to confirmation by a unanimous vote.

Once on the Supreme Court, Scalia almost immediately began pounding the table far more forcefully than the very conservative Chief Justice Rehnquist, particularly on hot-button social questions, while Rehnquist, for example, consistently sought to overturn the court's abortion decision, Roe versus Wade. He sided with those who sought a buffer zone at abortion clinics to protect women from being harassed. Scalia vehemently disagreed.


SCALIA: Does the deck seems stacked? You bet. The decision in the present case is not an isolated distortion of our traditional constitutional principles, but is merely the latest of many aggressively pro-abortion novelties announced by the court in recent years.

TOTENBERG: Scalia was a staunch advocate of free speech in general, surprising many when he provided the fifth vote to strike down laws banning flag burning. Over the years, he wrote many important majority decisions on the First Amendment and other topics - from property rights to environmental questions, gun control and states' rights.

But as one-time law professor Cass Sunstein observes, like the great Oliver Wendell Holmes, Scalia will likely be remembered most for his dissents.

CASS SUNSTEIN: The thing to remember about Scalia is he was one of the greatest writers in the court's history.

TOTENBERG: When the court struck down a state law that made private homosexual conduct a crime, Scalia was outraged.


SCALIA: It is clear from this that the court has taken sides in the culture war, and in particular in that battle of the culture war that concerns whether there should be any moral opprobrium attached to homosexual conduct.

TOTENBERG: Although the court's majority decision specifically denied any support for gay marriage, Scalia was dismissive.


SCALIA: Do not believe it. Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions.

TOTENBERG: Cass Sunstein, an avid Scalia admirer, says dissents like this one are illustrative of Scalia's Achilles' heel.

SUNSTEIN: He was a hysteric in the cases that he cared most about.

TOTENBERG: Scalia wrote with a sure pen. When the court, for instance, upheld the independent counsel law, Scalia alone dissented, declaring that the law would lead to unrestrained and politically driven prosecutions, a prediction that both Democrats and Republicans came to agree with when they refused to renew the law after the Clinton impeachment.

On questions of separation of church and state, Scalia was a consistent voice for accommodation between the two and against erecting a high wall of separation. When the court, by a 7-to-2 vote, struck down a Louisiana law that mandated the teaching of creationism in school if evolution is taught, Scalia was dismissive of evolution, calling it merely a, quote, "guess, and a very bad guess at that."

And when the court struck down a spoken prayer at a public school graduation, Scalia angrily dissented. The founding fathers, he said, viewed nonsectarian public prayers like this one as a mechanism for breeding tolerance and unifying people of diverse religious backgrounds.


SCALIA: To deprive our society of that important unifying mechanism in order to spare the nonbeliever, what seems to me, the minimal inconvenience of standing or even sitting in respectful nonparticipation is as senseless in policy as it is unsupported in law.

TOTENBERG: On death penalty questions, Scalia consistently dissented from decisions limiting its use, as he did when the court ruled unconstitutional the execution of the retarded.


SCALIA: The principle question is - who is to decide whether execution of the retarded is permissible or desirable? The justices of this court or the traditions and current practices of the American people? Today's opinion says very clearly, the former.

TOTENBERG: When the court struck down the death penalty for juveniles and pointed to what other countries do as evidence of what's considered cruel and unusual punishment, he dissented again.


SCALIA: The underlying thesis that American law should conform to the laws of the rest of the world is indefensible. It is our Constitution that this court is charged with expounding. The laws of foreign nations and treaties to which this nation has not subscribed should have no bearing upon that exercise.

TOTENBERG: His concept of constitutional interpretation became the focus a huge debates on the court and in the legal community. Is the Constitution a living document that adapts to the times so that, for example, punishments once accepted could now be viewed as unconstitutionally cruel and unusual?


SCALIA: The Constitution that I interpret and apply is not living, but dead, or as I prefer to call it, enduring. It means, today, not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

TOTENBERG: And since the death penalty existed when the Constitution was adopted, for instance, Scalia believed it could hardly be viewed as cruel and unusual punishment. But Scalia's critics contend that there were some issues on which the justice ignored the plain meaning of the times. For example, on the question of affirmative action, proponents note that the framers of the 14th Amendment specifically approved measures that helped the newly freed slaves and not similarly situated white people.

Scalia, however, maintained he was a textualist, that in constitutional matters, as in interpreting statutes, legislative history is immaterial. All that matters is the words on the page.

More than anything else, Scalia was an advocate for bright lines in the law, lines that everyone could follow easily. He disdained the balancing tests advocated by justices like Harlan, Powell and O'Connor.

That meant that in some criminal cases, he sided with defendants. For example, in several cases involving the defendant's constitutional right to confront accusers, Scalia said that meant videos and earlier recorded statements could not be substituted for real live witnesses being cross-examined in front of a defendant at trial.

And in a terrorism case testing whether the Bush administration could, without congressional action, imprison an American citizen indefinitely without charge, again, Scalia said no without qualification, rejecting a more equivocal approach advocated by Justice Sandra Day O'Connor.


SCALIA: If civil rights are to be curtailed during wartime, it must be done openly and democratically as the Constitution requires, rather than by silent erosion through an opinion of this court.

TOTENBERG: Such unexpected liberal moments, however, were rare. Scalia's aggressive conservatism, even when it failed to prevail, often framed the debate. And justices once considered centrists came to be viewed as liberals compared to Scalia.

Scalia changed more than legal doctrine. When he came to the court, the justices asked few questions during oral argument. And Scalia, the junior justice, jumped in, pummeling lawyers relentlessly with questions. Soon other justices took a more active approach to questioning, so that most lawyers could get less than a sentence out of their mouths before being interrupted.

Witty and sometimes savagely funny, Scalia could also be bombastic and impolitic, to the point of offending colleagues on the court. In 1989, when fellow Reagan appointee Sandra Day O'Connor deprived conservatives of a fifth vote to overturn Roe versus Wade, Scalia attacked her opinion as one that, quote, "cannot be taken seriously."

Comments like that lessened his influence, but Scalia happily observed he liked to push the envelope - that if he had a 6-to-3 majority, he hadn't pushed hard enough. Sometimes when he pushed, his views prevailed. When they didn't, he took the fight to the printed page, knowing that his carefully crafted words would live to fight on long after he was gone.

Nina Totenberg, NPR News, Washington. [POST-BROADCAST CLARIFICATION: The audio for this story of Justice Antonin Scalia from the bench was provided by Oyez, a free law project at IIT Chicago-Kent College of Law.]

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