The Story of Justice Scalia: From His Immigrant Roots to the Highest Court in the Land

This is Lee Habib, and this is Our American Stories, the show where America is the star and the American people, and we love to tell stories about everything on this show, including the American Dream and the law. This next story, the story of Justice Antonin Scalia, is about both. Here to tell the story of this remarkable man and judge is James Rosen, author of Scalia: Rise to Greatness. And by the way, you can find our discussion of the earlier life of Justice Scalia at Our American Stories dot com. Here to continue the story is James Rosen.

Scalia wound up attending Harvard Law School, and it was terribly grinding work. He said he would not look back on his years at Harvard Law School with misty-eyed, mellow reflection, just because the sheer workload was so punishing. He wound up graduating in the top five of his class at Harvard Law School. But the best thing that happened to him while he was at Harvard Law was that young Antonin Scalia was set up on a blind date with a Radcliffe student, every inch his intellectual equal, named Maureen McCarthy. She had heard about him in advance, that he was some big deal on the campus of Harvard Law, but she thought, “Gosh, it sounds like he might be dull.” And in fact, the date was that he brought Maureen to a Harvard Law Review dinner. This was his idea of a good time out on the town. So, knowing all this in advance, Maureen privately connived to have an out so that if she weren’t enjoying the evening, she could make a phone call and say that she had a curfew. But she found young Nino Scalia so mesmerizing, so brilliant, so enchanting, so vivid and funny to be around, that she went and made the phone call at the appointed hour, but then connived another excuse and told him this so that she could stay out. And they stayed out till one in the morning together, and within a very short time of knowing each other, he proposed to her. The ring was from his mom, and thus was born one of the great love stories of our times. After touring Europe with Maureen for the better part of a year as newlyweds, Scalia came back to the United States and had a job that he had lined up for himself with Jones Day, the Cleveland-based powerhouse law firm. And then, six years of private practice under his belt, Scalia accepts a teaching position at the University of Virginia Law School. It was the late sixties. Campus unrest was spreading throughout the United States, and Charlottesville was by no means immune to it. And Scalia saw some extraordinary campus unrest, complete with the authorities called out, tear gas on the Charlottesville care campus at that time. In late 1970, Scalia was recruited to serve as the General Counsel to a new government agency. It was called the White House Office of Telecommunications Policy. It was started, created by the Nixon administration. The men around Nixon recognized that telecom was the future. They also recognized the need for the federal government’s telecom policy, which at that time was spread across a riot of different interagency entities such as the FCC in the State Department. That telecom policy needed to be brought under the administrative control of the White House. This was the vision of a young man, younger than Scalia at the time, named Tom Whitehead, who held multiple advanced degrees from places like MIT, who had worked for the Rand Corporation, and who was an honest-to-God genius and visionary in his own right. And the first thing he did when he was now entrusted with running this new agency, the White House Office of Telecommunications Policy, was to hire a smart lawyer, and that was Antonin Scalia, just a couple of years older than Tom Whitehead. Whitehead and Scalia were sort of like a Butch Cassidy and Sundance Kid for the dawn of the telecom era in the early 1970s. They worked to get implemented against the resistance of the bureaucracy, something known as the Open Skies policy. Until that time, in the central business of launching of domestic space satellites, only one entity, a quasi-public corporation known as Comsat, was allowed to launch a domestic space satellite. Whitehead and Scalia wanted to introduce free-market principles into this extraordinary business. They wanted that any qualified firm that had the requisite technical prowess and capital reserves could launch a domestic space satellite into space, and Whitehead and Scalia succeeded in implementing this Open Skies policy that it opened up for free-market competition the critical business of the launching of domestic space aatellites. It turbocharged the telecom revolution. He and his colleagues were throwing around terms like shared computer networks and mobile communications that wouldn’t escape the lips of ordinary Americans for another quarter century. And in his writings as early as 1971, we see Scalia writing about the computer society, and he says that in the future. He says this openly. He says, “In the future, remote users at computer terminals will not only be able to watch hundreds of different channels of television, they’ll be able to do their banking from those terminals, and they’ll be able to retrieve information from just about any library in the world.” So not only did Scalia predict the internet, but he also predicted the privacy concerns that would be attendant with the rise of that technology. Scalia’s next significant government job comes when he is appointed by Richard Nixon shortly before President Nixon’s resignation to serve as Assistant Attorney General for the Office of Legal Counsel at the Department of Justice. It’s an unwieldy title: Assistant Attorney General for the Office of Legal Counsel at the Department of Justice. But it’s a very important position, and it’s been summarized as the President’s lawyer’s lawyer. The Assistant Attorney General for the Office of Legal Counsel is responsible for providing legal opinions to anyone in the Executive Branch who asks for one, from the President on down, as to whether a given policy or initiative would be lawful or unlawful. And these opinions are binding. So the Assistant Attorney General for the Office of Legal Counsel holds great power and can scotch or scuttle a particular administration’s initiative or policy by declaring that it’s not legal. William Rehnquist had held that job when President Nixon appointed him to the Supreme Court in 1971. There came a point when every covert operation that the government wanted to conduct, they were running past the Assistant Attorney General for the other Office of Legal Counsel for his legal review and his approval. And here was Nino Scalia, not yet forty, a kid from Queens, amazed to find himself standing astride the American intelligence apparatus.

And you’ve been listening to author James Rosen tell the story of Justice Antonin Scalia. When we come back, more of this remarkable story here on Our American Stories. Lee Habib here, and I’d like to encourage you to subscribe to Our American Stories on Apple Podcasts, the iHeartRadio app, Spotify, or wherever you get our podcasts. Any story you missed or want to hear again can be found there daily. Again, please subscribe to the Our American Stories podcast on Apple Podcasts, the iHeartRadio app, or anywhere you get your podcasts. It helps us keep these great American stories coming, and we continue with Our American Stories and with author James Rosen. His book, Scalia: Rise to Greatness, is available on Amazon and all the usual suspects. Pick it up; you will not put it down. Let’s pick up with the story. Here’s James.

On the afternoon of April 30, 1975, Scalia got a call from the Ford White House saying, “We need your opinion within the next three hours as to whether it would be lawful under the War Powers Act for the U.S. military to land its helicopters on the roof of the U.S. Embassy in Saigon and evacuate our personnel from the Embassy that way.” And of course, we’ve all seen those famous photographs of helicopters evacuating personnel from the roof of the American Embassy on April 30, 1975, amid the catastrophic fall of Saigon. Scalia gave the opinion that yes, it was lawful. But he said, and this is quoted in this book for the first time: “What if I hadn’t given my approval, would they have called off this evacuation operation? On advisive Counsel? What is the world coming to?” After his work in the Ford administration, Scalia accepted a scholar’s role with the American Enterprise Institute, and he taught law at the University of Chicago Law School. This was 1977 to 1982. During that time, Scalia appeared on television a number of times in these debates that would be staged by AEI and on PBS and other programs. In one of these debates, which focused on the existence of an imperial judiciary, Scalia made his first public comments on abortion, essentially making the argument that this was something that should be returned to the States for a democratic vote and should not be legislated from the bench by nine people in robes. Another of these televised debates focused on the value of a constitutional convention. Scalia, at least in the late 1970s, favored the holding of a constitutional convention simply because he thought it would return power to the people, away from the imperial judiciary and away from a Congress that wasn’t fully responsive to the people’s desires. And he said, and this would be 1979, the heart of the Jimmy Carter era, the period of the so-called “Malaise Speech.” Scalia said at that time that there was a widespread, deep feeling of powerlessness in the country. And he continued, “The people do not feel that their wishes are observed. They’re heard, but they’re not observed, particularly at the federal level. The basic problem is simply that the Congress has become professionalized. It has an interest much higher than ever existed before in remaining in office. It has a bureaucracy that is serving it. It is much more subject to the power of individualized pressure groups as opposed to the unorganized feelings of the majority of the citizens. All of these reasons have created this feeling, which is real and which I think has a proper basis of powerlessness.” And this would become the mission of Scalia’s tenure, both on the appellate bench and on the Supreme Court, to rein in the power of the courts, to take a much more modest view of the role of judges and courts in our society, and to return the power usurped by those unelected judges and justices to the people. In 1982, President Reagan nominated Professor Scalia to serve on the Court of Appeals for the District of Columbia Circuit. It is the appellate court that is one rung below the Supreme Court, and which is often itself described as the second most powerful court in America. And at the time that Scalia served on that court as a judge, the years 1982 to 1986, you are looking at an incredible murderer’s row of judicial talent that was serving at that same time. You have Robert Bork, Ruth Bader Ginsburg, Antonin Scalia, Kenneth Starr, later judge, Larry Silberman, James Buckley. It’s an extraordinary constellation of legal talent. We’re all familiar with the famous celebrated friendship between Justice Scalia and Justice Ruth Bader Ginsburg. They were ideological and jurisprudential opposites on the two courts where they served together, but they were truly the best of friends. They rang in New Year’s every year together with their spouses. Justice Scalia and Justice Ginsburg attended the opera together. They rode elephants in India together. And in today’s social media era, which has outlasted them, the words Ginsburg-Scalia or Scalia-Ginsburg serve as a kind of meme-balm, an all-purpose metaphor for the value of civility amongst ideological combatants. This friendship has been enshrined in stage plays and in operas, and I even recently saw a life coach out there urging us all to go out and find the Ginsburg for our inner Scalia. I am the first researcher to go through Ruth Bader Ginsburg’s papers at the Library of Congress. There’s some 220-plus boxes there. Her papers from the Supreme Court tenure are closed. Indeed, almost all of Justice Scalia’s papers at the Harvard Law School library are closed, but RBG’s papers from the D.C. Circuit period are open. And the stream of handwritten notes, letters, memos, correspondence, draft opinions that flew back and forth between the chambers of Ruth Bader Ginsburg and Antonin Scalia when they were both judges together on that appellate court. I call these the RBG-Nino papers, and there are hundreds of examples of these documents flying back and forth between them, where they’re scribbling on each other’s drafts and they’re kidding each other. You see not only two legal geniuses squaring off over the fine points of the First Amendment and the other issues that arose before their court, but you see their spar wits. You see their affection for each other, and really you see the birth and the blossoming playing out in real time in their own words of this celebrated friendship. Scalia devoted his life to the law, and he had a vision of what it is that lawyers do. As he put it, “The main business of the lawyer is to take the imagination, the mystery, the romance, the ambiguity out of everything that he touches.” “It is not for nothing,” Justice Scalia once said, “that the expression is ‘sober as a judge,’ rather than ‘exciting as a judge’ or ‘inspiring as a judge.’” Now the irony there, of course, is that Scalia himself was a very humorous fellow and was exciting and inspiring to legions of people, and not just lawyers. What he meant in saying that the lawyer’s job is to take the ambiguity, the romance, the mystery out of things is that lawyers, especially when they’re crafting contracts, are always planning for worst-case scenarios. And if there’s any ambiguity in that contract, then neither party to it is going to be very well served. Everything has to be explicitly laid out in the very fine print down to the last detail, so that there is nothing mysterious or ambiguous about it. But he had a view too of what happens when a lawyer becomes a judge and the kinds of things that they’re presented with. He viewed the legal profession and the judging business as a kind of crosswalks for all human society. And he said, “By and large, human fault and human perfidy are what the cases are about. We’ve seen the careless, the avaricious, the criminal, the profligate, the foolhardy parade across the pages of the case reports. We have seen evil punished and virtue rewarded. But we have also seen prudent evil flourish and foolish virtue fail. We have seen partners become antagonists, brothers and sisters become contesting claimants, lovers become enemies. Expect to find here no more a dreamer than a poet.” One of the revelations of Scalia: Rise to Greatness is a conversation between Antonin Scalia and William Rehnquist that has never been reported before. And I got this from two sources who were privy to Justice Scalia, relating this story after William Rehnquist had died. But the way the story went is that when Scalia was a judge on the Court of Appeals here in Washington, he was already a member of a long-running poker game that brought together Supreme Court justices’, Cabinet secretaries, professors, and one of his poker buddies in this long-running game was Justice William Rehnquist of the Supreme Court. And while Scalia was still a judge on the Court of Appeals, Justice Rehnquist said to him, “You know, Nino, ‘you focus too much on the reasoning. Just get to the right result.’” It was a critique of Scalia’s opinions. And as much affection as Scalia held for Bill Rehnquist, and he really did adore him, that was not the kind of justice that Antonin Scalia intended to be.