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.

• Author: Lauricella, Peter A.
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

1. 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.

2. 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, la via vecchia, are a cohesive and traditional structure to the family unit, and a strong penchant to live by strict rules.(18)

   Two points should be made before discussing each of these individual characteristics. First, these characteristics are derived from not just an "Italian" background, but more specifically, a southern Italian background. Scholars have found that there are tremendous cultural differences between northern and southern Italians and their emigrants to America.(19) It is the characteristics of southern Italian-Americans that are more relevant to this Article. This is because of the heavier influx of immigrants to the United States from southern Italy.

   Second, today's Italian-Americans do not exhibit the discussed characteristics to the same degree as the original Italian immigrants or the first generation Italian-Americans.(20) Scholars have found that these traits have weakened from generation to generation.(21) Scalia, Bellacosa, and Titone are all first-generation Italian-Americans (sons of immigrants), and some traits and sub-traits of Italian-Americans may well have weakened in this first-generation.

   1. Italian Familial Cohesiveness

      The strong cohesiveness of the family(22) is one of the defining social characteristics of the early Italian-American.(23) As stated by one Italian-American scholar, "it is impossible to be untouched, if not determined, by la via vecchia. An understanding of this pattern of family life is critical to any understanding of Italian-Americans of any generation."(24) This characteristic developed not so much because southern Italians necessarily had a stronger love for family members than other ethnic groups, but rather it developed more out of necessity.(25) There are several historical reasons for this.(26) One can be traced back to the unification of Italy in 1870 and its aftermath.(27) In its drive for unification, the central government (Rome -- northern Italians) sought to impose formal education on southern Italians in a class-based, and biased manner.(28) Southern Italians strongly resisted this campaign because they were generally poorer and needed their children's labor to help sustain the family. Education threatened to break this cohesiveness and the southern Italian peasants strongly resisted. In addition, the fact that Italy was a weakly unified state contributed to the tribalism exhibited by southern Italians.(29)

      Another reason for family cohesiveness among Italian immigrants was the prejudice inflicted upon Italians in America. Early Italian immigrants were considered "dark, swarthy" people who could not be trusted.(30) In addition, the onset of World War II caused a further backlash against Italian-Americans because one of the United States' opponents was Facist Italy.(31) These events and prejudices caused Italian-Americans to rely on their families for protection.(32) As described by one scholar, "[t]he [Italian] immigrant's home was his sanctuary, his retreat from the harshness of [American] life."(33)

   2. Rules to Live By

      It is equally important to examine the characteristics within the "cohesive" Italian-American family. The structure of the Italian-American family was strongly patriarchal, at least in the sense that the father set the rules.(34) "The rule of the parents, especially [the] father, was law" in the Italian family.(35) The father was the highest figure and the breadwinner of the family.(36) While the father was generally considered the highest person in the family, this did not mean that the mother had a diminished status.(37) Although Italian-American families were father-dominated, they were "mother-centered."(38) The mother was the center of domestic life and did not work for wages.(39) She often

      aligned the children on their side of the battlefield against

      the father.... Outwardly [the father] did appear to rule the

      family. In reality, the wife had a sickly power, tightening the

      circle of mother and children to the exclusion of the father.

      Within this alliance, or camp, she offered her entire being as

      a martyr for her children.(40)

      Therefore, the mother and the father played different, but equally important roles in the Italian family.(41)

      As a result of the authoritarian structure of the Italian-American family, personal freedom for the children was not encouraged, or expected.(42) Again, this is attributable to the history of southern Italian families in Italy. After centuries of oppression from the Italian government, "one way to secure both bread and dignity was by playing it safe -- within the family structure."(43) The result was a high level of child nurturance by the parents, strict discipline techniques, and delayed independence from the family.(44) Family income was placed well ahead of personal ambition. As one scholar put it, "[t]here was little opportunity or need for individual initiative within the communal family group ... because all activities and patterns of thought were based upon traditional folkways and customs."(45) Basically, there were rules Italian-American children were to follow, no questions asked, which gave them a strong sense of right and wrong. This rule-oriented upbringing led Italian-American scholar John Horace Mariano to conclude that two resultant characteristics of Italian-Americans are "[s]traightforwardness and honest dealing" and "[s]ubmission to the majesty of the law."(46)

3. La Via Vecchia: Its Influence on the Italian-American Judges

   This section will examine the judicial opinions, writings, and speeches of Justice Scalia, Judge Bellacosa, and Judge Titone to try to discern the extent to which the overriding Italian-American characteristics of la via vecchia have influenced these judges. Again, the influence may not always be obvious and explicit. The point is the opinions and writings of these judicial figures may well reflect the influence of these characteristics.

   1. Italian Familial Cohesiveness

      1. Justice Scalia(47)

         Justice Antonin Scalia of the United States Supreme Court has not written many judicial opinions on family law issues. When he has, however, his writings have revealed the types of families he believes are legitimate and should receive legal protection. Scalia's opinions on the subject show a trend that upholds the traditional Italian-American notion of family -- namely a cohesive, married, husband-and-wife-headed family with children.(48)

         Particularly revealing is Scalia's plurality...