Antonin Scalia transformed the Supreme Court and American constitutional law. For decades, he stirred debate and inspired followers. But we are only beginning to see the full ramifications of his life’s work, now that conservative justices and judges make majorities on the Court, the lower federal courts, and many state supreme courts.
His arrival on the Court in 1986 was the turning point. Reflecting on Scalia’s legacy, in an interview at Harvard Law School just months before he died, Justice Elena Kagan recognized that history would remember him as “one of the most important, most historic figures in the Court.” He “taught everybody” how to interpret laws in accordance with the text’s original meaning. “We are all textualists now,” she said, “in a way that just was not remotely true when Justice Scalia joined the bench.”
In chambers, he wrote judicial opinions with a style unrivaled by all but the Court’s greatest writers: John Marshall, John Harlan, Oliver Wendell Holmes, and Robert Jackson. (“No one has ever written quite like Nino,” Justice Kagan wrote in the foreword to 2020’s The Essential Scalia, “and no one ever will.”) On the bench, he transformed the Court’s oral arguments from sleepy conversations to vibrant—often punchy—debates.
Still, we cannot yet know the full measure of Scalia’s legacy because it is still working itself out, as justices and other judges translate Scalia’s insights and instincts from his own era into the new one.
Wary of the judicial activism that had been the Court’s signature contribution in the 1960s and 1970s, Scalia was focused first and foremost on the need for judicial restraint. The judges of the right who have followed in his stead are wary of the activism emanating from the executive branch and are focused more on the need for judicial assertion. Most of Scalia’s greatest opinions were dissents that confronted his colleagues’ mistakes and sought to inspire future generations of lawyers. Today’s conservative justices and judges will be defined mostly by their own majority opinions, correcting the mistakes that Scalia could only confront.
In all of this, conservative judges and lawyers will debate the implications of Scalia’s approach, build on his legacy, and sometimes abandon what they see to be the mistakes or limits of his precedents. Everyone engaged in those debates will benefit immensely from a better understanding of Scalia’s own intellectual and professional formation.
Much of this story already has been told, and told best by Scalia himself: in essays, articles, oral histories, and other interviews. It’s been told rather less well by a pair of recent biographies: Joan Biskupic’s conventionally critical American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (2009); and Bruce Allen Murphy’s openly hostile (and thoroughly debunked) Scalia: A Court of One (2014).
Now comes the veteran journalist James Rosen with the first of two volumes on Scalia’s life and work. The second will focus on Scalia’s 30 years on the Court. But first he has given us Scalia: Rise to Greatness, 1936–1986, an astonishingly thorough account of Scalia’s pre-Court years from his childhood—even his parents’ childhood—to marriage and fatherhood, to private legal practice, to government service, to academia, to the U.S. Court of Appeals for the D.C. Circuit, and finally to his appointment to the Supreme Court.
Rosen’s account of Scalia’s formation, and thus of the reformation of modern constitutional law, is a magnificent evocation of the past, present, and future of American constitutional law.
“The first thing you’ve got to teach your kids is what my parents used to tell me all the time,” Scalia explained to Joan Biskupic in 2008. “You’re not everybody else.… We have our own standards and they aren’t the standards of the world in all respects, and the sooner you learn that the better.”
He was born in Trenton in 1936. His father, Salvatore, was an Italian immigrant; his mother, Catherine, the daughter of Italian immigrants. They named him after his father’s father, Antonino Scalia, minus the vowel. “Antonin was a made-up name,” Scalia’s oldest son told Rosen. “My grandfather decided to Americanize his name; he didn’t want him to have such an Italian name.” They called him Nino, and he would be their only child, a point that came up, amusingly, in a 1992 oral history:
Interviewer: Do you have brothers and sisters?
Scalia: Nope, I’m the only child.
Interviewer: You’re an only child.
Interviewer: I’m an only child, too.
Scalia: Really? It’s great, isn’t it?
Especially great for Nino, who was raised by two remarkable parents. Salvatore’s family landed at Ellis Island in late 1920; he spoke no English, and immigration officials shortened his name to “Sam.” Naturalized in 1926, he briefly enrolled in a music school, then bought and ran an Italian-language newspaper before eventually getting a doctorate in romance languages at Columbia. Eventually a professor at Brooklyn College, Sam was “committed to the life of the mind—much more of an intellectual than I ever was or can be,” Scalia told a religious audience at Georgetown in 1988.
And the father set high standards for his only son. “I think it’s probably a lot easier to raise an only child with high expectations,” Justice Scalia told a D.C. Circuit historian in 1992. “He always feels he’s the center of the universe and has a good deal of security. I think it must be harder to be with brothers and sisters competing for parental attention.”
Scalia’s father and mother raised him in Queens, in a faithful Catholic home. “I guess I used to think my father” had the greater parental influence, Scalia once recalled, “not because he took me in hand that much, but simply because he was a constant role model of application….But really the older I get in looking back and talking to some relatives about this or that and seeing how hard it is to raise my own children, I guess I have become more and more aware of how much influence my mother had upon me.”
Catherine Scalia, he recalled in 2008, “devoted her life to making sure I did the right things, hung out with the right people, joined the right organizations.” He went on: “She was a teacher, a grammar school teacher, and a very good one. When [my parents] died, I got some of the letters that she had kept of parents of children that she had taught.”
Rosen’s biography paints affectionate portraits of not just Scalia’s parents, but also Nino’s wife, Maureen. She outshines practically everyone else in the book. Raised in Braintree, Massachusetts, the Irish-American Maureen Fitzgerald McCarthy was an English major at Radcliffe when a friend set her up with the Harvard law student in December 1959.
According to one of the Scalia daughters, Maureen initially hedged her bets. When Nino invited Maureen to a Harvard Law Review dinner—not exactly the most romantic of outings—she told him that her dorm had a 1:00 a.m. curfew. “This was true,” Meg Scalia Bryce explained to Rosen, “except for the seniors, including Mom, who had ‘senior privilege’ and could be out until 5:00 a.m.” When the date went well, Maureen “told my dad that she would call the dorm and ask permission to stay out later. She pretended to make a phone call, then came back.”
They married in 1960 and traveled to Europe on a postgraduate fellowship that Nino had secured. Many decades later, Father Paul Scalia said that his father had been blessed with “fifty-five years of marriage to the woman he loved—a woman who could match him at every step, and even hold him accountable.” The late Judge Laurence Silberman, one of Scalia’s closest friends, describes her to Rosen as “a brilliant woman,” “profoundly conservative,” and “the dominant force” in the Scalia family.
Maureen bore great burdens to raise the family while Antonin built a legal, academic, and judicial career. In barely more than two decades, their growing family moved to Cleveland, Charlottesville, Washington, Chicago (twice), Palo Alto, and finally to Washington again for good. “Everything he accomplished,” Rosen writes, “Maureen made possible.” Together they would raise nine children.
Rosen’s account of Nino’s journey from Queens to Georgetown to Harvard is full of new, interesting details—especially a recollection from a close friend, Robert Connor. When Scalia visited Connor in 1959 to discuss Connor’s plans to become a Catholic priest, Connor asked him, “What are you going to do?” Connor remembers Scalia, then two-thirds of the way through Harvard Law, answering, “Oh, I’m going to the Supreme Court.” He would get a job at Cleveland’s Jones Day, “this law firm that’s well connected in Washington,” he said. “I will be sent to Washington, and then I will rise.”
The story seems too good to be true—and, as Connor concedes to Rosen in an endnote, Scalia himself found the “I will rise” unbelievable: “Oh, I couldn’t have said that,” Scalia would tell Connor, who occasionally needled him about it.
But, of course, Scalia did rise—through private practice, government service, academia, and the D.C. Circuit—and that ascension is the heart of Rosen’s book. The breadth of his research is astonishing: in government and academic archives, in the publicly available papers of deceased D.C. Circuit judges, in Scalia’s papers at Harvard (at least, the portion of the collection publicly available so far), and in countless interviews. In all of it, Rosen thoroughly describes and documents the formative decades Scalia’s prior biographers largely glossed over.
His legal career did begin at Jones Day—now one of the most significant law firms in Washington, but then a “prestigious” Midwestern firm that offered not just interesting work and lucrative pay but also a family-friendlier environment than New York firms. At Jones Day, he ranged widely from “litigation, anti-trust, real estate, tax, labor law, commercial law,” and more, even wills. “He did damn near everything,” a partner recalled, “and he did it well.”
He spent six years in private practice, largely enjoying it, until the drudgery of reviewing documents in a “warehouse, three hours south of Cleveland” proved the last straw. He saw his truer calling, like his father’s, elsewhere: “I enjoyed practicing so much that I just sort of forgot that I was going to go into teaching eventually.”
At the University of Virginia’s law school, he threw himself wholeheartedly into his vocation. “He enjoyed being in the classroom,” son Gene tells Rosen. This was “a manifestation of the showman in him and also his love of explaining ideas.” Yet his time at Virginia proved short: just four years, and only a few pages in Rosen’s first volume of his biography. In 1971, Nino went to Washington.
In early 1970, President Nixon created the White House Office of Telecommunications Policy. The new OTP would serve “three essential roles”: It would be the president’s “principal advisor on telecommunications policy,” “formulate policies and coordinate operations for the Federal government’s own vast communications systems,” and “enable the executive branch to speak with a clearer voice and to act as a more effective partner in discussions of communications policy” with Congress and the FCC.
One of Scalia’s old Jones Day colleagues recommended Nino, then in his mid-thirties, to be OTP’s counsel. And in that wide-ranging role, on crucial and complex policies, he flourished. Rosen draws two important connections between Scalia’s work at OTP and his future constitutional views. Reading previously unpublished OTP memos, Rosen sees Scalia’s “incisive approach to statutory interpretation that later became his hallmark.” And “perhaps most important,” Rosen sees Scalia’s experience in the executive branch, helping to administer broadly worded statutes with major policy implications, as reinforcing Scalia’s “general attitude toward deference”—that is, toward the need for courts to give some deference to agencies’ readings of the law, instead of micromanaging agency policies from the bench.
There is one more connection that Rosen might have drawn, and it relates to federalism. A decade after his OTP service, Scalia would point to telecom policy as exemplifying the kind of national issue that is best handled by the federal government instead of the states. To be sure, the conservative legal movement was born largely in reaction to federal overreach, by both the Supreme Court and Congress, and Justice Scalia would contribute to that trend. But from the very start, Scalia cautioned conservatives about erring too far in favor of the states and failing to give due respect to the federal government’s proper authority, too. At the first Federalist Society conference, in remarks later published as “The Two Faces of Federalism” (1982), Scalia cited telecom policy—specifically, relating to cable TV—as an area where federal regulation would be better than 50 sets of state rules. “I urge you, then—as Hamilton would have urged you—to keep in mind that the federal government is not bad but good,” he wrote. “The trick is to use it wisely.” Scalia remained slightly more favorable toward federal power than many of his conservative brethren, a distinction that was clearest in a 2005 Supreme Court case over the federal government’s power to legislate on marijuana.
Scalia’s new focus on administrative law and regulatory procedures deepened in 1974, when President Nixon appointed him to chair the Administrative Conference of the United States (ACUS), which Rosen aptly describes as “a kind of think tank for the regulatory state.” Made up of lawyers from government, private practice, and academia, ACUS conducts research on agency procedures and formulates reforms. As chairman, Scalia needed to be a credible consensus builder, but also an energetic leader. His time at ACUS and OTP proved pivotal. Administrative law—and thus the Constitution’s separation of powers—became the central theme of his academic and, eventually, judicial work. His interest only deepened in his next office, the Justice Department’s Office of Legal Counsel. The OLC is responsible for giving authoritative constitutional advice to the attorney general, and thus to the president and his administration. It has long been one of the most significant and respected positions in the executive branch. But the 1970s proved to be one of its most challenging eras, when the Justice Department grappled with two constitutional crises. The first was President Nixon’s abuse of his office; the second was Congress’s subsequent efforts to empower itself and disempower the presidency, in legislation such as the War Powers Act, the Independent Counsel statute, the Foreign Intelligence Surveillance Act, and more.
Scalia arrived at the OLC as the Watergate crisis crested. President Nixon nominated him in July 1974, days before resigning; the Senate confirmed his appointment just weeks after President Ford took the oath of office. “The executive branch was under siege,” Scalia recalled in his 1992 oral history. “It was enfeebled, it had a head who had never run for national office,” and it faced constant congressional investigations. For three years, Scalia grappled with fundamental questions of presidential and congressional power, including Nixon’s assertion of ownership over the Watergate tapes, and fights with Congress over its subpoenas against the Ford administration.
As Rosen recognizes in a thorough endnote, Scalia’s OLC opinion on the conflict between the executive and legislative branches foreshadowed Justice Scalia’s landmark judicial opinion—indeed, it was his favorite opinion—in Morrison v. Olson (1988), where he was the sole dissenter from the Supreme Court’s decision upholding the Independent Counsel Act. If anything, the connection runs even deeper: The “Olson” in Morrison v. Olson was Ted Olson, who had been head of the OLC under President Reagan. Olson suffered an independent-counsel investigation after failing to satisfy Congress’s own investigation against him and the Reagan administration. The Reagan administration, like the Ford administration before it, became locked in a power struggle with Congress. “That is what this suit is about,” Justice Scalia wrote in Morrison. “Power.” The constitutional stakes were not hard to see: “This wolf comes as a wolf.” At the OLC, Scalia had seen that wolf at the door.
His work at the OLC brought him for the first time into consideration for a Supreme Court appointment. Rosen describes how Attorney General Ed Levi included Scalia on an initial list of 18 possible nominees in 1975. The OLC also brought Scalia into contact with two of his most important friends: Laurence Silberman, then–deputy attorney general, and Robert Bork, then–solicitor general. In the Ford administration, Rosen writes, these three men defended executive power in principle, not partisanship, for their “loyalties lay with the republic, not the lost cause of Richard Nixon.”
All three would become leading figures in the conservative legal movement, and eventually D.C. Circuit judges. Silberman would be one of Scalia’s closest lifelong friends; Bork, too, though, as Rosen reports poignantly, their relationship would be strained by their competition for the Supreme Court.
When Ford lost the 1976 election, all three of them would decamp briefly to the American Enterprise Institute before returning to academia (for Scalia and Bork) and private practice (for Silberman). This episode in the conservative legal movement’s history has been mentioned briefly before, particularly by Irving Kristol, who recalled their brown-bag lunches in an autobiographical essay, and by Scalia himself, in his D.C. Circuit oral history. But Rosen dedicates substantial attention to this part of Scalia’s career, which deserves significant attention. During his brief residence at AEI, and continuing as an adjunct scholar from his new home at the University of Chicago’s law school, Scalia participated in AEI events and edited its in-house magazine, Regulation. There Scalia continued his work on constitutional and administrative issues, writing essays on subjects that ranged from the Federal Trade Commission to the question of whether courts should strike down broadly worded statutes as unconstitutional “delegations” of legislative powers to agencies. (On the latter question, Scalia was wary of judicial creativity, fearing that it would be a conservative replay of the Warren Court’s judicial activism.)
Rosen brings out much more detail from these years, especially in the latter years, when Scalia was left out of the initial Reagan administration. Passed over for an appointment to be Reagan’s first solicitor general—“I was bitterly disappointed,” Scalia later admitted—and conspicuously skeptical of the Reagan White House’s efforts to make cost-benefit analysis the sine qua non of regulatory reform, Scalia turned down an appointment to the Chicago-based U.S. Court of Appeals for the Seventh Circuit and focused instead on his scholarship and his students. But even at the University of Chicago, Scalia seemed stuck at “second fiddle” (according to an unnamed colleague), overshadowed by colleagues such as the prolific and eccentric Richard Posner. Scalia brought his family to Stanford for a year’s visit; he even humored the idea of returning to private practice, one of many previously unreported facts Rosen reveals in his book.
But Professor Scalia also helped to build the Federalist Society, another part of Scalia’s life that Rosen elaborates nicely, particularly in interviews with Scalia’s protégé, Lee Liberman. And eventually Scalia won the appointment that he coveted and deserved: an appointment to the U.S. Court of Appeals for the D.C. Circuit, the nation’s most significant court on regulatory and constitutional issues and a classic stepping stone to the Supreme Court.
At this point, Scalia’s career becomes much more a matter of public record. Yet even here, Rosen’s research is awe-inspiring. From the files of Scalia’s D.C. Circuit colleagues, including Bork, Skelly Wright, and Ruth Bader Ginsburg, Rosen offers readers an unprecedented account of Judge Scalia’s impact on the D.C. Circuit, particularly in cases involving the proper interpretation of legal texts, the Constitution’s separation of powers, the courts’ constitutional jurisdiction, and the courts’ approach to reviewing agency actions. All these issues would feature in Scalia’s key contributions on the Supreme Court. The D.C. Circuit’s files show that Judge Scalia’s “influence was not just episodic,” Rosen writes, “but institutional.”
Along the way, Scalia had the opportunity to leave the D.C. Circuit in 1985 to become solicitor general, the position that he had coveted just a few years earlier, and another possible stepping stone to the Court. He was tempted, until Silberman gave him some practical advice: “Nino, when you are no longer SG, you’re not going to be a judge again. You can’t go back on the D.C. Circuit.”
Even this (previously unreported) story foreshadows a later one. During the 1996 presidential campaign, Representative John Boehner had reached out to Scalia, on Bob Dole’s behalf, to raise the possibility of becoming Dole’s running mate. Scalia was tempted by the thought, or at least amused by it, until Silberman poured cold water on him again. “I was brutally honest,” Silberman said in 2016 at Scalia’s memorial service. “I asked him if he wanted to return to law practice or teaching” after an inevitable Dole loss. The point was well taken: “He declined the offer.”
Rosen’s final contribution to our understanding of Scalia’s pre–Supreme Court career is in the run-up to his nomination in 1986. He details the White House’s instincts in favor of choosing Scalia over Bork—the jurisprudential, stylistic, and actuarial differences that ultimately went in Scalia’s favor. Scalia was even considered to succeed Warren Burger as chief justice—which, Rosen reveals in an endnote, Scalia evidently did not know at the time. In the end, Reagan decided to promote Associate Justice William Rehnquist to the chief’s seat and appoint Scalia to fill Rehnquist’s initial seat. Rehnquist faced a bruising Senate confirmation fight; Scalia breezed to a 98–0 confirmation. (It might have been 100–0, if Republicans Barry Goldwater and Jake Garn had voted.)
Judge Scalia had spent decades learning America’s constitutional government, and the judicial branch’s place in it. Now Justice Scalia would spend decades applying what he had learned, to remind America what our Constitution really means, contrary to the judicial activism that Scalia set himself firmly against.
“I do believe that every era raises its own peculiar threat to constitutional democracy,” Scalia wrote a year before his appointment to the Court. And the Warren Court’s activism—the “constitutionalizing, and thus judicializing, of social judgments that ought better be left to the democratic process”—was “the distinctive threat of our times.”
But by the time of Scalia’s passing in 2016, the next generation of conservative constitutionalists had come to see in its own era a different threat to constitutional democracy: an all-powerful administrative state. Scalia’s textualism, applying the original meaning of the Constitution and other laws, would undergird their response. But Scalia’s administrative law, which counseled judicial deference to agencies’ statutory interpretations and a wariness of the nondelegation doctrine, would soon strike many as anachronistic.
One should be careful not to overstate the point. From the start, Scalia himself urged that rigorous textualism would be an important limit on the notion of deferring to executive-branch agencies. And some of his last judicial opinions and other comments suggested that he saw clearly the dangers of excessive judicial deference to agency activism. “We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery,” he wrote in a 2014 majority opinion. “We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.”
Still, conservatives and libertarians are grappling anew with questions of judicial power and judicial duty, the rule of law and democracy, within our republican constitution. And where Justice Scalia grappled with these issues too often from the limited position of dissenting opinions, conservative justices and judges will now grapple with them from the powerful position of majority opinions. For that reason, his biographer’s key contribution is not in explaining his judicial doctrines, but in illuminating his judicial character.
Scalia’s constitutionalism was partly a matter of his mind: He knew the Constitution’s words, and the ideas and national experience that it embodied. And, as Rosen makes clear, it was also a matter of his experience: He experienced constitutional conflict, and that practical experience put a finer point on the principles. But perhaps there was still more to it.
The book’s subtitle notes Scalia’s “rise to greatness.” But its story, time and time again, is Scalia’s rootedness in duty. When Scalia reflected in 2011 on his boyhood years in Xavier High School’s junior ROTC regiment, he called it “the most formative institution in my life,” saying, “The Regiment’s most important legacy was not pageantry; it was discipline, and duty, and sacrifice.”1
Years later, at the Justice Department’s Office of Legal Counsel, he saw his office not in terms of power or partisanship, but responsibility. “It’s too tendentious to call [the OLC] the ‘conscience’ of the Justice Department, but it has to call things straight. It cannot be so swept up in policy passion that it gives bad legal advice,” he explained in his D.C. Circuit oral history. “The job is to say ‘this is what the law is, take it or leave it, like it or not.’ And very often you have to say no to a proposal that the administration wants to undertake or the Justice Department wants to undertake.”
The Office of Legal Counsel is immensely powerful. So is the military. And so are the courts, for that matter. But they are powerful because they are constrained. In a republican government, especially, their power is in the limits that are imposed on them.
And Scalia learned duty, first and foremost, in his religious faith. His Catholic parents taught him that their religion “makes some special demands upon them,” quotes Rosen, “that occasionally require us to be out of step.” At a London performance of Robert Bolt’s A Man for All Seasons, the newlywedded Nino saw in Saint Thomas More the epitome of Catholic duty. As parents, Nino and Maureen instilled the same values in their children, first and foremost by their lived examples. These themes resound throughout Rosen’s book—most amusingly at a Yom Kippur when Scalia told his fasting Jewish colleagues, “Catholics have gotten so soft … skip breakfast and that’s a fast? No.” His full-day fast proved even more challenging than he expected.
His son, Father Paul Scalia, put the point beautifully at Scalia’s funeral Mass: “Dad understood that the deeper he went in his Catholic faith, the better a citizen and a public servant he became. God blessed him with a desire to be the country’s good servant, because he was God’s first.”
But none put it better than Scalia himself, in a speech he gave just months after his appointment to the Court—a speech that attracted virtually no attention during his lifetime. Speaking at the Catholic University of America, he urged his audience to resist “the notion that government is, at best, a necessary evil.” Rather, “just government has a moral claim, that is, a divinely prescribed claim, to our obedience.”
“It is not an easy truth,” he added, “because as Eden showed, obedience is not an easy virtue.” But as Scalia showed, in the years recounted by Rosen’s spectacular first volume and the years that followed, it is an essential one.
1 Years later, in a Supreme Court case involving the Virginia Military Institute, his emphatic dissent culminated with a paean to the spirit of duty that VMI sought to inculcate: “I do not know whether the men of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. … I do not think any of us, women included, will be better off for its destruction.”
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