Antonin Scalia: US Supreme Court Justice who opposed abortion, positive discrimination and gay rights

For much of the public, their perception of Scalia was formed in the polarised court’s ruling in Bush v Gore

Mr Scalia was considered a champion of so-called originalism - the theory that tries to interpret the intentions of those who drafted the US Constitution (AP)

The US Supreme Court Justice Antonin Scalia, the intellectual cornerstone of the court’s modern conservative wing, whose elegant and acidic opinions inspired a movement of legal thinkers and ignited liberal critics, has died aged 79.

Scalia, the first Italian American to serve on the court, was nominated by President Ronald Reagan. He took his seat on 26 September 1986, and quickly became the kind of champion to the conservative legal world that his benefactor was in the political realm.

Justice Scalia was an outspoken opponent of abortion, positive discrimination and what he termed the “so-called homosexual agenda”, and his intellectual rigour, flamboyant style and eagerness to debate his detractors energised conservative law students, professors and intellectuals who felt outnumbered by liberals in their chosen professions.

Antonin Gregory Scalia – “Nino” to family, friends and colleagues – was born in Trenton, New Jersey and grew up as an only child in the New York City borough of Queens. His father, Salvatore, came through Ellis Island at 17; he learned English and became a professor of romance languages at Brooklyn College. Scalia’s mother, the former Catherine Panaro, was a second-generation Italian American and an elementary school teacher.

In 1953, he graduated first in his class at St. Francis Xavier, a military prep school in Manhattan, and won a naval scholarship, but was turned down by his first choice of college, Princeton.

A devout Catholic, he attended Georgetown University, where he was the valedictorian of the class of 1957. Scalia then entered Harvard Law School, where he was editor of the Harvard Law Review and graduated magna cum laude in 1960. That same year, he married Maureen McCarthy, a Radcliffe student he had met on a blind date. She, too, came from a small family, but they made up for it, with five sons, four daughters and dozens of grandchildren.

The Scalias moved around. After travelling across Europe for a year while he was a Harvard Sheldon Fellow, the newlyweds moved to Cleveland, where Scalia joined the Jones Day law firm in 1961.

On the cusp of becoming partner, he left private practice in 1967 to become a law professor at the University of Virginia in Charlottesville.

In 1971, he became general counsel to the new Office of Telecommunications Policy in the Nixon administration. From 1972 to 1974, he was chairman of the Administrative Conference of the United States, followed by three years as assistant attorney general for the Office of Legal Counsel.

After Jimmy Carter, a Democrat, won election to the White House, Scalia returned to academia as a professor at the University of Chicago Law School. Then Reagan came into office in 1981, and the next year nominated Scalia to the US Court of Appeals for the District of Columbia Circuit. His name quickly appeared on shortlists of potential Supreme Court nominees.

Reagan in 1981 made good on a campaign promise to appoint the court’s first woman with his choice of Sandra Day O’Connor. His next chance to leave an imprint came five years later, when Chief Justice Warren Burger announced that he was stepping down.

The president decided to elevate Justice William H. Rehnquist to the chief’s job, and Scalia and fellow D.C. Circuit Judge Robert H Bork became the finalists for the opening. Bork was the more experienced jurist and a conservative icon, but the 50-year-old Scalia was almost a decade younger and brought the added political benefit of being Italian American. He got the nomination. After a testy Senate battle over Rehnquist’s elevation, Scalia sailed through his confirmation hearings and was approved 98 to 0.

Scalia set out immediately to make his views known – and became exactly the justice conservatives had hoped for.

Reliance on legislative history as a key element of interpreting statutes was once common. But Scalia railed against the practice, saying that only the words of the statutes matter – a view known as textualism. He likened judges’ use of secondary sources such as committee reports or statements made by members of Congress during floor debates to “looking over the faces of the crowd at a large cocktail party and picking out your friends.”

Similarly, Scalia redefined and popularised originalism. His approach to understanding the Constitution focused not on the framers’ intent but on the meaning of the words to ordinary citizens in 1787. He rejected the notion that the framers wanted the Constitution to be a “living” document designed to accommodate changing circumstances and social values. He said that this approach guarded “against the passions of the moment that may cause individual liberties to be disregarded.”

Liberals, he said, should like such an approach, because it constrained conservatives such as him from turning their personal opinions into public policy. He cited his vote on flag-burning – he agreed with the court’s majority that the guarantee of free speech allows the practice – as one instance when his allegiance to the Constitution outweighed his personal views. “If it was up to me, if I were king,” he said, “I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.”

Unlike his colleagues, Scalia eagerly discussed constitutional issues and his personal opinions in public. On several occasions, his out-of-court activities prompted critics to question his impartiality. In 2006, for example, he spoke against giving alleged terrorists jury trials – right before the court was set to hear a case on detainee rights, prompting a group of retired generals and admirals to file a friend-of-the-court brief asking him to recuse himself from hearing the appeal filed by Osama bin Laden’s alleged driver, Salim Ahmed Hamdan.

Scalia participated in that case, but had to sit out one that challenged the use of the words “under God” in the Pledge of Allegiance. In remarks to a Knights of Columbus rally before the case arrived at the Supreme Court, he suggested that an appeals court had erred in agreeing with the challenger.

Scalia insisted that his religious faith and personal views did not determine the outcome of cases, because his textualist, originalist approach insulated him from bias. But his faith was integral to his identity. He objected to Vatican II and drove out of his way to find churches that celebrated Mass in Latin. He also wanted to lower the wall of separation between church and state, endorsing school prayer, nativity displays on public property and public money for religious schools.

He narrowly read individual rights and disdained policies designed to remedy discrimination against women and minorities. He was the lone dissent in a case challenging the state-run Virginia Military Institute’s right to exclude female applicants.

For much of the public, their perception of Scalia was formed in the polarised court’s ruling in Bush v Gore. Scalia wrote for himself when the court issued an emergency stay to stop the vote-counting in Florida in the 2000 presidential election. “The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election,” the justice wrote.

To Gore supporters, that sounded like an attempt not to find out which candidate got the most votes, but to protect the integrity of Bush’s win. Moreover, the five-member majority based its ultimate ruling on an expansive reading of the equal protection clause, which in previous cases involving gays, blacks and women, Scalia had preferred to read narrowly. The case was also a departure from his reluctance to endorse federal intrusion in state and local affairs.

On gay rights, Scalia fought a losing battle. He warned in his 2003 dissent in Lawrence v Texas, which struck down a state sodomy law, that the court was paving the way for same-sex marriage. He was not any happier to see his prediction come true.

His great triumph on the court came in writing the majority decision in District of Columbia v Heller, a Second Amendment case. Most lower courts had long interpreted a 1939 Supreme Court case, United States v Miller, to mean that the Second Amendment guaranteed the right to bear arms only to members of state militias like the National Guard. Scalia’s opinion made it unmistakable that the Constitution requires more than that. The Second Amendment, he said, “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defence of hearth and home.”

Antonin Scalia, judge: born Trenton, New Jersey 11 March 1936; married 1960 Maureen McCarthy (five sons, four daughters); died Marfa, Texas 13 February 2016.

© The Washington Post