Scalia, Antonin (1936–) (Update)

• Author: Joseph D. Grano
• Pages: 2315-2316

Page 2315

Antonin Scalia is an Associate Justice on the United States Supreme Court. A graduate of Harvard Law School, he taught law at the University of Virginia and at the University of Chicago. Between these academic appointments, Scalia held several legal positions, including head of the Justice Department's Office of Legal Counsel. In 1982, President RONALD REAGAN appointed Scalia to the United States Court of Appeals for the District of Columbia Circuit. In 1986, Reagan appointed Scalia the 103rd Justice of the United States Supreme Court.

Scalia is often viewed as a leader of the conservative backlash against the WARREN COURT. Notwithstanding his conservatism, his judicial philosophy is much more complex. Scalia differs in important respects from the other two Reagan appointees?SANDRA DAY O'CONNOR and ANTHONY M. KENNEDY?and even from WILLIAM H. REHNQUIST, whom Reagan elevated to Chief Justice. Of the conservative appointees, only CLARENCE THOMAS, appointed by President GEORGE H. W. BUSH, seems to share Scalia's philosophy (although Rehnquist may come close). That philosophy has been described by various labels, but TEXTUALISM or ORIGINALISM probably is most fitting.

Textualism is often confused with the philosophy of ORIGINAL INTENT. Thus, it is frequently said that courts should give effect to the intention of the legislators who enacted a law. But Scalia believes what the legislature actually enacted should control, rather than what it subjectively intended. Of course, the two may concur, but when they do not, courts must look to what the legislature promulgated, not what it intended to promulgate.

Scalia believes that a democratic society is bound by validly passed laws, not by the unexpressed intent of the lawgiver. Besides, judges are likely to conclude that the legislature intended what a reasonable and intelligent person ought to have intended, which means they are likely to decide the statute means what they think it should mean. Thus, we would have government by the unelected and politically unaccountable federal judiciary rather than by the politically responsible legislature.

Scalia distinguishes textualism from STRICT CONSTRUCTIONISM. A statute should not be construed strictly or leniently, he says; rather, it should be construed reasonably to stand for all that it fairly means. In Smith v. United States (1993), for example, the statute provided for an enhanced sentence if a person "uses" a gun in...