Antonin Scalia, the judicial firebrand who stood as the intellectual leader of the U.S. Supreme Court’s conservative wing during his three-decade tenure as a justice, died Saturday at a ranch in western Texas. He was 79 years old.
“He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served,” Chief Justice John Roberts said in a statement on behalf of the Court.
President Obama, who will have the opportunity to nominate Scalia’s successor, offered his sympathies to the justice’s family on Saturday night. “He will no doubt be remembered as one of the most consequential judges to serve on the Supreme Court,” he said.
Scalia articulated a straightforward role for jurists during his 29-year career on the Court. The Constitution should be read as the Founders wrote it, he often argued, and laws should be interpreted as they are written. He rejected the idea of an evolving “living Constitution,” claimed by some of his colleagues. “I just say, ‘Let’s cut it out. Go back to the good, old dead Constitution,’” he told NPR in 2008.
Only he and Clarence Thomas championed originalism on the Supreme Court for most of his tenure, limiting the doctrine’s impact. Its adherents also initially found little room in the academy. “You could fire a grapefruit out of a cannon over the best law schools in the country—and that includes Chicago—and not hit an originalist,” he told a group of University of Chicago law students in 2003. But Scalia’s enthusiasm helped the school of legal thought enter the mainstream, with law schools such as Harvard eventually hiring professors who favor it.
“I mean, that’s amazing to me. [Fellow justice and former Harvard Law dean] Elena Kagan did that, and the reason she did it is that you want to have on your faculty representatives of all responsible points of view,” he said in a 2013 interview with Jennifer Senior. “What it means is that at least originalism is now regarded as a respectable approach to constitutional interpretation. And it really wasn’t 20 years ago, it was not even worth talking about in serious academic circles.” He rightly claimed a large share of the credit for himself.
The most colorful justice in living memory, Scalia relished his role on the Court. His aggressive questioning hastened the transformation of oral arguments into a lively exercise between the justices and the advocates. He considered each of his colleagues to be his friends, especially Justice Ruth Bader Ginsburg, whose famously warm friendship with him was recently portrayed in opera. His majority opinions aimed for an accessible, easy-to-read tone, with occasional interjections of wit. Scalia often remarked that he wrote his opinions so that first-year law students would want to read them. And his fiery dissents made him a household name, as loved by conservatives as he was loathed by liberals.
Antonin Scalia was born in Trenton, New Jersey, on March 11, 1936, to an Italian immigrant father and a mother whose parents also immigrated from Italy. Raised in a staunchly Catholic family, Scalia attended Georgetown University and then Harvard Law School. From there, he entered private practice and then taught law at the University of Virginia before serving in the Ford administration’s Justice Department. After Scalia spent a spell back in private practice and teaching during the Carter years, Ronald Reagan appointed him to the D.C. Circuit Court of Appeals in 1982.
Scalia joined the Supreme Court at the tail end of a major ideological transition in the late-20th century, as the justices from the heady liberal era of the Warren Court retired and gave way to an increasingly conservative bench under Chief Justice Warren Burger in the 1970s and 1980s. When Burger retired in 1986, President Ronald Reagan elevated Justice William Rehnquist to the top spot on the Court. To fill Rehnquist’s old seat, Reagan plucked Scalia from his posting on the D.C. Circuit, a common stepping stone to the Court. The U.S. Senate breezily confirmed him, in an era before raucous confirmation hearings and partisan votes for the justices, 98-0.
On the Court, he soon carved out a reputation for vivid, pugilistic writing. Reading an Antonin Scalia opinion with which you agreed was like uncorking champagne. In the 1988 case Morrison v. Olson, a 7-1 majority upheld the constitutionality of the Independent Counsel Act, which established an independent prosecutor outside of the Justice Department to investigate government officials.
Writing alone in one of his finest dissents, Scalia inveigled against the Court’s attack on separation of powers. Only the executive branch could conduct criminal investigations, he argued. Congress cannot lawfully grant that power a government official who wasn’t subordinate to the president. “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing,” he wrote. “But this wolf comes as a wolf.”
Scalia’s vision of a government limited to the Founders’ original understanding of the Constitution endeared him to conservative legal thinkers. Republican politicians often touted him as a model justice on the campaign trail. Perhaps his most notable majority opinion came in 2008 when Scalia penned District of Columbia v. Heller, a landmark ruling that recognized an individual right to bear arms in the Second Amendment. Scalia also wrote United States v. Jones, which forbade warrantless GPS tracking of criminal suspects’ vehicles, and Gonzalez v. Raich, a ruling upholding the federal government’s power to ban marijuana in states where it is medically legal.
Alongside other justices in the majority, Scalia voted to strike down limits on corporate and union expenditures in Citizens United, to remove caps on individual campaign donations in McCutcheon v. FEC, in favor of the Partial-Birth Abortion Ban Act in Gonzalez v. Carhart, to protect flag desecration under the First Amendment in Texas v. Johnson, and to limit the federal government's use of the Commerce Clause in United States v. Lopez, among many others.
For liberals and their allies, Scalia was an implacable adversary. Their ire was well-earned. He joined the majority to gut the Voting Rights Act of 1965 in Shelby County v. Holder in 2013; at oral arguments, he referred to the historic law as a “racial entitlement.” He argued that no right to abortion could be found in the Constitution’s text and consistently voted to limit the practice. Had the Court struck down Roe v. Wade during his tenure, Scalia might have even written the opinion himself. Years later, when asked about Bush v. Gore, he said that critics of the contentious decision should “get over it.”
When the Court began to examine LGBT rights in the 1990s and 2000s, Scalia stood firmly opposed to their judicial recognition. He dissented from a series of rulings written by Justice Anthony Kennedy, a fellow Reagan appointee, that protected gay and lesbian Americans from discrimination. In a 2003 dissent from Lawrence v. Texas, which struck down sodomy laws nationwide, Scalia complained that the Court had “largely signed on to the so-called homosexual agenda.”
But he lost the fight in United States v. Windsor, which struck down the Defense of Marriage Act in 2013, where he predicted the ruling’s logic would eventually lead to marriage equality. “The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages,” he wrote. “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”
Ironically, many lower courts subsequently did just that, often by citing Scalia’s own interpretation of the ruling. When the Court struck down bans on same-sex marriage nationwide last June in Obergefell v. Hodges, Scalia called it a “judicial putsch” and "a threat to American democracy.” Scalia frequently insisted he had no personal animus towards gay and lesbian Americans. Instead, he argued the rulings short-circuited the democratic process in favor of raw judicial power.
His longest-running argument with his colleagues was over one of the Court’s deepest fissures: the death penalty. Most justices believe that the Eighth Amendment limits how states can wield the ultimate punishment. Scalia argued instead that the amendment should be interpreted by its original understanding, when capital punishment was the norm in American criminal justice. Accordingly, he fiercely opposed most modern restrictions on its scope, including bans on juvenile death sentences and executions of the mentally disabled, that moderates like Justices Kennedy and John Paul Stevens favored.
True to his judicial philosophy, he stood by this interpretation even as other justices bent to the system’s injustices. When Justice Harry Blackmun penned an emotional 7,000-word dissent in 1994 to announce he would “no longer tinker with the machinery of death,” Scalia attached a brief opinion denouncing it. Abolitionists often drew his sternest wrath. The Eighth Amendment could not prohibit capital punishment, Scalia often told them, because other parts of the Constitution contemplate its existence. When Justice Stephen Breyer suggested it might be time to revisit the death penalty’s constitutionality last June, Scalia responded in his usual fashion.
“Welcome to Groundhog Day,” he quipped, before decrying that Breyer “rejects not only the death penalty, he rejects the Enlightenment.”
With the right justices alongside him at the right time, Scalia could have led a conservative constitutional revolution equal to the Warren Court’s liberalism in the 1950s and 1960s. But he never quite got there. Rehnquist was too hesitant. Justices Kennedy, Sandra Day O’Connor, and David Souter were too moderate. The Court’s liberals, from Justices William Brennan to Sonia Sotomayor, were too numerous. And Chief Justice John Roberts and Justice Samuel Alito were too late.
But if this bothered him, he never let on. “You know, for all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who’s regarded as: ‘He was on the losing side of everything, an old fogey, the old view,’” he said in a 2013 interview. “And I don’t care.”
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