Chi lascia la via vecchia per la nuova sa quel che perde e non sa quel che trova: the Italian-American experience and its influence on the judicial philosophies of Justice Antonin Scalia, Judge Joseph Bellacosa, and Judge Vito Titone.

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State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

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Chi lascia la via vecchia per la nuova sa quel che perde e non sa quel che trova: the Italian-American experience and its influence on the judicial philosophies of Justice Antonin Scalia, Judge Joseph Bellacosa, and Judge Vito Titone.

I. Introduction

In trying to describe how judges decide cases, the renowned Supreme Court Justice and New York Chief Judge Benjamin Cardozo once observed, "[w]e may try to see things as objectively as we please. None the less [sic], we can never see them with any eyes except our own."(1) Cardozo explicitly recognized that other factors besides mechanical interpretation and application of the law are involved in judicial decision making.(2) A judge's background and upbringing often influence his(3) philosophy on deciding a particular case.(4) An individual's background consists of various elements, including religion, class, race, gender, and national origin. Although studies on judicial ethnicity and its effect on case decisions are rare,(5) it has been recognized as an important factor in determining what a judge's "eyes" see.(6) As one ethnic scholar stated, "[e]thnic identity is a basic element in all political equations."(7)

One of the more controversial Justices on the United States Supreme Court is Antonin Scalia.(8) Similarly, two of the most discussed judges on the New York Court of Appeals, that state's highest court, are Joseph Bellacosa and Vito Titone.(9) All three judges are men of Italian origin, but the extent to which their ethnic background has influenced their judicial philosophies is unknown.(10) It seems clear, however, that a judge's ethnic background is a factor influencing the way a judge thinks.(11) Indeed, Judge Titone has written that it is his duty as an appellate judge to set forth the values and beliefs that underlie his legal philosophies.(12) As Mario Cuomo, another Italian-American lawyer prominent in public life, once pointed out, "the patterns of conduct and concern that are formed early in life don't really change a great deal, at least not fundamentally .... [They] operate through ... every decision on what words to write down for other people to read."(13)

The purpose of this Article is to compare the judicial opinions of Justice Scalia, Judge Bellacosa, and Judge Titone to uncover the common influences, if any, that their backgrounds as Italian-Americans have exerted. The purpose, however, is not to prove that their judicial opinions are the direct result of their Italian-American background, but to simply raise the issue. In doing so, this Article will follow several steps. First, it will discuss the general "characteristics" of Americans of Italian origin, those deriving from the concept of la via vecchia, that is, "life within the family." Second, the Article will compare the opinions of Scalia, Bellacosa, and Titone to see if these dominant Italian-American characteristics are reflected in their judicial decision making. Finally, the Article will make some general conclusions about how their Italian-American characteristics might have influenced their positions on certain issues.

II. The Defining Trait of Italian-Americans: La Via Vecchia

Identifying the characteristics of Americans of Italian origin is not an easy task.(14) Some scholars doubt that there is an "Italian-American" identity or characteristics of such an identity.(15) There is very little psychoanalytical and statistical evidence on the question of how Italian ancestry affects values, attitudes, and behaviors.(16) Many scholars, however, have been able, by examining Italian history and other factors, to discern some general characteristics exhibited by Italian-Americans.(17) Two of the sub-characteristics that fall within the defining trait of Italian-Americans, l...

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