Antonin Scalia: The Origins of a Supreme Court Originalist

He was confirmed on Constitution Day, September 17, 1986, to the nation's highest court with a unanimous Senate vote. To many who'd known Antonin Scalia it wasn't a surprise, because more than any lawyer in recent history, he held in such high esteem not just the words of the Constitution (and their original meaning) but the Constitution's structure and the purpose behind it.

In James Rosen's remarkable new book, Scalia: Rise to Greatness, readers come to learn not just the origins of Scalia's originalism but how the man the world would come to know as Nino came to be.

He was born in Trenton, New Jersey, in 1936, the only child to Salvatore and Catherine Scalia. "Nino was constantly doted upon and endlessly scrutinized by his parents and a large rotating cast of aunts and uncle," Rosen writes. "Spoiled rotten," Scalia described his upbringing. "There's a reason I am the way I am."

Part of understanding Scalia requires an understanding of his parents. When Scalia's father came to America by way of New York's Ellis Island in the late 1920s, he had $400 to his name and spoke no English. "But he did speak Spanish and French fluently, and possessed four attributes the justice later identified as characteristics of Italian Americans of that era: devout Catholicism; love of family; a capacity for hard work; and a taste for the simple physical pleasures of food, wine and song," Rosen writes.

Scalia's father married Catherine, a first-generation Italian American, who taught elementary school in Trenton. Teaching, which we later learn was one of Scalia's talents and passions, was something he inherited from both of his parents, along with a love for opera. His father too was a teacher, a professor of Romance languages, at Brooklyn College, where he worked for 30 years, with only one day of recorded absence.

"He was a great American success story in his own right," Scalia's son Eugene told Rosen. "What he did with his life and career—in a certain way, it's even more impressive than what my father did."

Scalia would attribute his accomplishments to his father's striving and assimilation, which were the hallmarks of the American Dream and weighed heavily on Justice Scalia's thinking when it came to affirmative action.

"My father came to the country when he was a teenager," Scalia wrote in 1979. "Not only had he never profited from the sweat of any black man's brow, I don't think he ever saw a black man."

Scalia wasn't finished, writing:

"I owe no man anything, nor he me, because of the blood that flows in our veins. To go down that road (or should I say to return down that road), even behind a banner as glooming as restorative justice, is to make a frightening mistake. That is not to say that I have no obligation to my fellow citizens who are black. I assuredly do not because of their race or because of any special debt that my bloodline owes theirs, but because they have (many of them) special needs, and they are (all of them) my countrymen as I believe my brothers."

He continued: "This means that I am entirely in favor of according the poor-inner city child, who happens to be black, advantages and preferences not given to my own children because they don't need them. But I am not willing to prefer the son of a prosperous and well-educated black doctor or lawyer solely because of his race to the son of a recent refugee from Eastern Europe who is working as a manual laborer to get his family ahead."

Scalia sensed hypocrisy in judges who dabbled in social engineering projects like affirmative action, with its byzantine quota systems. "I certainly felt that the Lewis Powells of the world were not going to bear the burden they were creating," Scalia said. "It wasn't their kids. It was the Polish factory worker's kid who was going to be out of a job." Or, as Rosen noted, an Italian immigrant's kid.

One of the life-changing moments for young Scalia was his family's move from Trenton, which he hated, to New York's Queens, which he loved. "It was a wonderful place," Scalia said. The streets were crammed with Greek, Irish, German, Jewish and Italian kids, bustling with things to do. "It was the face of New York City," he added.

Like kids of his generation, Scalia was blessed with a life free from playdates and soccer schedules. "Most of the sports I did were in the neighborhood—and they were not organized," he said. "Parents did not care how you spent your leisure time, much less did they feel any obligation to arrange it for you."

When he was growing up, it never entered Scalia's mind that people belonged to ethnic groups. What set him apart, he learned early, wasn't being Italian but being Catholic. His devout parents inculcated in their son the idea that Jesus Christ makes "special demands on us" that set us apart. "Whenever I wanted to go to a certain movie or place that my parents would disapprove of, I would say as children always do that everybody else was going," Scalia recalled. "My parents' invariable and unanswerable response was: 'You're not everyone else.'"

Scalia continued with his point. "It is enormously important for Christians to learn early and remember long that lesson of differentness. To learn what is perfectly lawful and permissible for everyone else—even our very close non-Christian friends—is not necessarily lawful or permissible for us."

Scalia graduated from P.S. 13 with straight A's and enrolled in Xavier High School, a Jesuit-run school in Manhattan that was also a military academy. While there, he excelled at debate, was president of the drama club and participated in two championship rifle teams.

We learn that Scalia got his reverence for texts—and text—from reading the classics at Xavier. One teacher who influenced him was Father Thomas Matthews, a "crusty non-nonsense New England Jesuit." He loved delivering what Scalia called "zingers" to his students, and one stayed with him for decades.

"The class was reading Hamlet when a smart-aleck piped up with sophomoric criticisms," Rosen wrote. "Matthews looked down at the young man and, summoning the brogue, admonished him: 'Mistah, when you read Shakespeare, Shakespeare is not on trial; you ah.' Matthews's comment was not about the passive business of watching a play but about active engagement inherent in reading a text. The admonition registered with young Nino. He would forever refer to it as the Shakespeare Principle: a solemn reminder that certain texts, unlike their readers, are eternally enduring, immutable."

Scalia also got his passion for text from his father. "If you're growing up with a man who teaches language for a living," Scalia's Catholic priest son, Paul, said, "you're not going to monkey with the translation quite so much."

Scalia's reverence for text had much to do with his family's Catholicism, a faith informed by sacred texts like the New and Old testaments. "God's word was enduring, immutable, inviolable," Paul noted in his homily for his dad in 2016. "Scripture says Jesus Christ is the same yesterday, today and forever."

Scalia, we learn, was denied acceptance into Princeton, a rare dream denied. He chose Georgetown University instead. An oral examination was not just a prerequisite for graduation there but an event that left a lifetime impression on Scalia. Near the end, history professor Walter Wilkerson tossed him what he believed to be a real softball question: Which of all the historical events he'd studied was the most important?

"There was obviously no single correct answer," Scalia said. "The French Revolution perhaps? Or the Battle of Thermopylae—or Lepanto? Or the American Revolution? I forgot what I picked because it was all driven out of my mind when Dr. Wilkerson informed me of the right answer. Of course, it was the Incarnation."

Scalia went on to graduate as valedictorian at Georgetown, just as he had done at Xavier, and went on to excel at Harvard Law as well. "People just competed for second," a Harvard classmate of Scalia's recalled. "He was just so superior academically."

After graduating from Harvard, Scalia would spend six years in private practice at Jones Day in Cleveland and at teaching jobs at the University of Virginia and the University of Chicago, along with a stint in the Ford administration. He would also, while teaching at Chicago, become one of the first prominent faculty advisers of the Federalist Society. In 1982, President Ronald Reagan appointed Scalia to the U.S. Court of Appeals for the District of Columbia Circuit and, a few years later, to the Supreme Court.

Though he was one of the most influential federal judges of the century, Scalia's greatest talent, by many accounts, was behind a lectern. "He was the best teacher I ever had," said Arthur Schwab, a student in Scalia's 1969-70 contracts class at the University of Virginia. "I never had a teacher that exciting or challenging."

"He gave all kinds of individual attention," said Ralph Feil, who studied contracts with Scalia. "He felt it wasn't his job to just tell us about it; it was his job to interact with us. He loved the interaction."

If Scalia is the star of the book, its hero is his wife, Maureen, whom Scalia described as "the best decision I ever made, the mother of the nine children, and the woman responsible for raising them with very little assistance from me. And there's not a dullard in the bunch."

Scalia's rise in the legal profession was most notable for how financially unrewarding it proved to be. Maureen had a sense of humor about it. "This was a man who had seemed to spend so much of his career looking for a job that would pay less than the one he had at the time," she once joked.

For Scalia, the role of the lawyer in society was a serious affair. "The main business of the lawyer is to take the imagination, mystery, romance, ambiguity out of everything he touches," Scalia said. "It is not for nothing that the expression is 'sober as a judge' rather than 'exciting as a judge.'"

Despite those words, Scalia's mere presence in a room—on the bench or behind a lectern—made it a more exciting place. Especially when he was teaching students, which he did regularly until his death.

"Justice Scalia would go from event to event, from group to group, exciting students, challenging students, provoking students, charming students and making them think harder than they ever thought before about how to do the law," Justice Elena Kagan noted in her dedication speech at the Antonin Scalia School of Law at George Mason University.

Kagan went on: "He'll go down as one of the most important Supreme Court judges ever and also one of its greatest. His articulation of textualist and originalist principles, communicated in that distinctive, extraordinary prose, did nothing less than transform our legal culture. It changed how almost all judges, and so almost all lawyers, think and talk about the law."

Scalia died in 2016, but his influence on the law is still with us in his Supreme Court opinions and in YouTube videos, where he will forever teach, excite, challenge, provoke and charm all of us—from heaven.