When Judge Antonin Scalia was confirmed to a seat on the Supreme Court of the United States on September 16, 1986, no senator voted in opposition. He was confirmed by a vote of 98-to-0, a margin completely unthinkable 30 years later. When Justice Scalia died on February 13, 2016, it was the final year of the Obama presidency, which had seen a Supreme Court, as deeply divided as the American people, uphold the so-called Obamacare legislation and articulate a constitutional right to marriage for same-sex partners. Social and political questions aside, these decisions represented significant departures from textualist and originalist approaches to the statutory and constitutional interpretation for which Scalia had been known. So it is no surprise that his death and vacated seat on the Court would play a pivotal role in an already contentious and divisive presidential election season.
Scalia is remembered today as the anchor of the conservative wing of the Supreme Court over the course of the nearly 30 years that he served as a justice. His scholarship, public lectures, and judicial opinions breathed new life into debates about federalism, judicial restraint, and the proper approach to statutory and constitutional interpretation. He was a larger-than-life figure, and one of the first of only a few “celebrity judges” with a popular following and appreciation that transcends the legal profession.
The first of two volumes of James Rosen’s new biography of the late justice, Scalia: Rise to Greatness, 1936–1986, focuses on the years leading up to Scalia’s unanimous confirmation to the Court, and it could not be timelier. So many of the most pressing issues of our day drive proponents of different social positions into opposite trenches, from which both sides shoot at the compromisers in the “mushy middle.” There were almost no issues about which Scalia did not hold strong opinions, and in his later years, as the culture began to be so bitterly divided, he, too, became known to many by his positions rather than his character, his personality, his faith, or the communities to which he belonged. This fact was used brilliantly by his son, Fr. Paul Scalia, in the moving homily that he delivered at his father’s funeral. Rosen’s biography provides a detailed portrait of the person who was behind those strong, controversial opinions and formidable rhetoric.
Antonin Scalia was born March 11, 1936, just 16 years after his father, Sam Scalia, immigrated to the United States via Ellis Island as a 17-year-old born in Sommatino, Italy. His mother, Catherine, born in New Jersey, was the daughter of Italian immigrants. Both of his parents were educators—Sam was a professor of romance languages at Brooklyn College and Catherine taught elementary school. Both of them came of age and lived their whole lives immersed in Italian American communities.
As such, Scalia was born into two marginalized minority communities: the Italian American and the Catholic. In fact, when he was nominated to the Supreme Court, much was made of the fact that he was the first Italian American to receive such an honor. His confirmation also marked the first time in decades that two Catholics would serve on the Court at the same time (the other was Justice William J. Brennan), marking the end of a 150-year period during which there was an unofficial “Catholic seat” on the Court often filled by a nominee actively, even if privately, promoted by leading Catholic bishops.
Scalia endured certain indignities as a result of being an ethnic minority. As a faculty member at the University of Chicago, he had to ask a former Harvard classmate not to refer to him using a racial slur. And during his only appearance before the Supreme Court as an advocate, a justice privately wrote in the margins of his notes that he was “dark, pudgy.” His beloved wife, Maureen, the daughter of Irish Catholic immigrants herself, was discouraged from taking a serious interest in him. But the event that he commented on himself much later in life, even as a sitting Supreme Court justice, was the fact that he was denied admission to Princeton University because of his Italian heritage. Despite these experiences, he was careful, especially in recounting his unsuccessful application to Princeton, to make it clear that he did not operate as a victim. Nevertheless, these experiences certainly marked the way that he thought about race.
If Scalia’s own public comments and writing are any indication, the bias that accompanied his Catholic Christianity was much more at the front of his mind. He often encouraged fellow Christians and Catholics to “accept condemnation from civilized society,” as his son Gene summarizes it. His parents were both devout Catholics and provided their only son with a rigorous Jesuit education all the way through his college years at Georgetown University. He made some of his most lasting friendships in the crucible of these intellectually and spiritually challenging environments. He was on the debate teams, in drama productions, held positions of leadership, and even appeared on television as a high schooler. He learned to craft formidable arguments and to think quickly under the tutelage of Jesuit priests.
But he also learned to appreciate the faith he inherited from his parents. He was reminded in his final oral examination at Georgetown that it was the Incarnation that is the most seminal historical event that should shape his life. And after that reminder he charged his classmates in his valedictory address to be “leaders of a real, a true, a Catholic intellectual life.” In his professional and personal lives, the late justice was always willing to be an example in this regard.
What is helpful about Rosen’s treatment of these formative forces is that he takes them seriously. He does not provide an apology (or an apologetic) for Scalia’s faith or attempt to downplay the ethnic bias that Scalia faced, even if it might be difficult for many today to conceive a time when someone of European descent would face discrimination. (Italians are not, after all, accounted for in the acronyms “BIPOC” and “AHANA.”) In short, Rosen’s personal biases, whatever they may be, about the late justice’s faith or life experiences do not color his treatment of these realities.
A common theme among the interviews that Rosen conducted with family and friends is that Scalia was warm, loyal, and likable. Many of his friendships spanned decades and dated back to high school. The span of years included in this first volume treat the beginning of one of Scalia’s most famous friendships—that with his ideological opposite Ruth Bader Ginsburg. More on this will likely follow in the next volume, but the mutual respect and genuine affection that the liberal Ginsburg and the conservative Scalia held speaks volumes about the character of each.
But not every relationship stood the test of time. Legal observers have known for a while that Scalia and Judge Robert Bork, a colleague of Scalia and Ginsburg’s on the D.C. Circuit Court of Appeals, once enjoyed a close relationship that soured in later years. Rosen includes previously unpublished notes and internal memos that sheds some light on this. While the two judges and legal scholars held roughly equivalent judicial and legal philosophies, some of the nuanced differences between the two proved to be a source of significant tension that culminated in thinly veiled public disagreements in academic writing and judicial opinions. But this is a testament to two other aspects of Scalia’s character that made him such an effective jurist—integrity and courage. Bork was the more senior of the two and, as Rosen describes it, Scalia’s disagreements with him were like a disciple challenging a church founder’s authority. Scalia was not unaware that his disagreements with his older friend were eroding their relationship. He was simply too principled to compromise. Sharp and much more fundamental disagreements with Ginsburg, however, served only to forge their well-documented decades-long friendship.
As Rosen details Scalia’s life and work experience, one begins to appreciate the roots of some of the justice’s strongly held opinions. Owing to a grant from Harvard University, Scalia and Maureen had the unique opportunity to travel behind the Iron Curtain in the 1960s. They spoke years later about meeting some Polish peers who showed tremendous hospitality to the young married couple. His first-hand observation of the suffering caused by communist attempts to order society made him especially mindful of the harm of a government that expands and overreaches into the lives of citizens, which is a theme that found its way into his work as both an academic and a jurist.
As a law professor Scalia wrote forcefully about affirmative action, an issue before the Supreme Court at the time. He appealed to his father’s experience as an immigrant but did not explicitly depend upon his own status as an ethnic minority to state his position. It is impossible, however, to assume that this did not spark deep reflection on this issue. His father, Scalia wrote, “had … never profited from the sweat of any black man’s brow” as a post-Reconstruction immigrant to the United States, and he denied that his bloodline owed any “special debt” to any other for reasons beyond brotherly concerns for fellow man.
In short, before ascending to the federal bench, Scalia produced a body of work—academic and popular—that created a record of his thoughts on a variety of issues. Once on the D.C. Circuit, it was merely a matter of months before he had cemented his position as the most influential member of the court and a forceful and effective advocate for originalism and textualism. The unique docket of the D.C. Circuit allows judges to expound upon statutory interpretation, and Scalia took full advantage of the opportunity. It was as if the Supreme Court were always in his sights.
In fact, Rosen reports for the first time in any biography that Scalia articulated his goal of a Supreme Court appointment to a close friend from high school, Fr. Robert Connor, not long after each had graduated college. His plan was to enter private legal practice with the firm of Jones Day and eventually make it to their Washington, D.C., headquarters. “I will be sent to Washington,” Scalia told his friend, “and then I will rise.”
The path, of course, was a bit more circuitous. He did go on to practice law with Jones Day in Ohio but left to teach first at the University of Virginia and then, after a job as a lawyer in the federal government and time at the American Enterprise Institute, the University of Chicago, before being nominated and confirmed to a seat at the U.S. Court of Appeals for the D.C. Circuit and finally the Supreme Court. Rosen ends this volume just a few weeks after Justice Scalia had assumed his seat on the Supreme Court.
The second volume should prove to be interesting. It would be easy for a certain type of biographer to get lost in the minutiae of the evolution of Scalia’s jurisprudence, but Rosen is not a legal scholar. And Scalia, as Rosen has made clear in this first volume, was much more than his ideas and judicial philosophy, and hopefully the second volume will prove to be as rich and well rounded as the first.
Admittedly, I am favorably inclined to Justice Scalia’s judicial philosophy, tone and style of public engagement, and general approach to the world, but I bristle at the assertion that this sympathetic but balanced biography is merely hero worship of an icon of the right. Rosen has produced a work that is truly helpful in understanding the man, the judge, the legal thinker, and the times in which he lived and worked. Granted, it is hard not to like the Scalia presented here, and hard not to be envious of the family and friends who knew and loved him. And while Rosen may never have intended for the book to do so, I hope it will nevertheless encourage readers of all political, religious, and social persuasions to consider that behind every strongly held position is a person even opponents could find likable and possessed of a relatable background, and with whom one could engage in civil and profitable dialogue.