Antonin Scalia: From a Child of Immigrants to the United States Supreme Court

Leonard F. Amari, partner in the real estate tax reduction firm Amari & Locallo, has been invited to write a scholarly legal article for publication in the newsletter of the National Italian-American Bar Association.

The article he submitted on the late United States Supreme Court Justice Antonin Scalia is attached below.

Antonin Scalia was born on March 11, 1936, in Trenton, New Jersey, and died on February 13, 2016, in Shafter, Texas. Scalia was an associate justice of the Supreme Court of the United States from 1986 to 2016 and was known for his strong legal conservatism. The fact that we share the same ethnic heritage, and a similar political philosophy has caused me to have a particular interest in this justice. Until Justice Samuel A. Alito was appointed to the Supreme Court, Justice Scalia was the only Italian American appointee.

Scalia’s father, Salvatore Scalia, was 17 when he arrived in the United States from Sicily in 1920 with his parents and sister. The family emigrated from a little town in Sicily called Sommatino, a suburb of a larger town called Caltanissetta (not far from my family’s town in Sicily called Partinico). The elder Scalia’s were uneducated, but Salvatore earned several degrees and eventually taught Romance languages at Brooklyn College. Justice Scalia’s mother, Catherine Panaro, was a first-generation Italian American whose parents immigrated to New York City around 1900. Panaro’s family later moved to Trenton, New Jersey, where her father sold men’s suits (not uncommon for Italian immigrant men of that time) and became a leader of "L’Ordine Figli d’Italia in America,” the Order Sons of Italy, an Italian American cultural group.

Justice Scalia attended Xavier High School in New York City, class of 1953, and graduated as class valedictorian from Georgetown University (A.B. 1957) in Washington D.C. He attended Harvard Law School, where he edited the prestigious Harvard Law Review and graduated in 1960. He then worked for a law firm in Cleveland, Ohio for a few short years before moving to Charlottesville, Virginia, where from 1967-74 he taught at the University of Virginia School of Law. While at Virginia, he served the federal government as general counsel to the Office of Telecommunications Policy from 1971-72, and as chairman of the Administrative Conference of the United States from 1972-74. In 1974 Scalia left academia to serve as assistant attorney general in the Office of Legal Counsel of the U.S. Department of Justice.

In 1977, Scalia resumed his academic career at Georgetown University and at the University of Chicago Law School from 1977-82. For part of the latter period, he served as editor of Regulation, a review published by the conservative American Enterprise Institute. In 1982 President Ronald Reagan nominated him to the U.S. Court of Appeals for the District of Columbia Circuit, and then to the Supreme Court in 1986, where he won unanimous confirmation in the U.S. Senate.

Justice Scalia was an outspoken opponent of “judicial activism,” arguably the tendency of some judges to usurp the power of elected legislators by making the law rather than merely interpreting it (often called “social engineering”). Scalia favored a restrained judiciary, with great deference to the “original public meanings” of legislative and constitutional texts, and the conservative outlook of a federal government. Scalia endorsed fixed-meaning modes of interpretation: “originalism” in cases involving the Constitution and “textualism” (a method that he helped to establish) in cases involving statutory interpretation – that the meaning of a legal text should be determined not by examining the intentions or purposes of the drafters, but rather by consulting the common, everyday understanding of the terms in which the text was written at the time it went into effect. For Scalia, such interpretive methods were essential to minimizing the judiciary’s role in resolving matters that should be left to democratic, legislative processes.

Scalia’s judicial approach created volumes of criticism from other judges and legal scholars, arguing that drawing arguments based on a strict reading of legal texts amounted to a rejection of simply being a good judge. Critics further argued that Scalia’s method did not identify a single best interpretation any more readily than other approaches and consequently left just as much room for judges to base decisions on personal beliefs. For example, Scalia’s majority opinion in the significant and well-known case of District of Columbia v. Heller (2008) found that Washington D.C.’s ban on handguns was unconstitutional because the original meaning of the text of the Second Amendment protected an individual right to bear arms independent of service in a state militia.

I had the great pleasure of getting to know Justice Scalia personally during my years as a board member and then President of (then) The John Marshall Law School (now UIC Law). His dear friend, the late Supreme Court Justice John Paul Stevens had a career history of involvement with JMLS, having started his brilliant career as adjunct faculty member, and because of their very close friendship and relationship there were numerous times when Scalia visited the school for conferences and dedications and the like. I sat next to him at a few lunches, at a conference, and I found him to be cold, a little rude, aloof in fact, bordering on hostility. After the passing of Justice Stevens and upon the dedication of its ceremonial court room at the school in his name and honor, I found myself spending an entire day with Justice Scalia, oftentimes just the two of us, between activities of the day. This provided me the opportunity to spend quality time with him as just two Sicilians, two people, two lawyers, privately without any ceremony or protocols. I got to know him as a person, gentle, considerate, affable, in fact. I became so comfortable talking with him, I “sold” him a Sicilian pocketknife, with the name of the law firm on one side of the blade and Il’Siciliano on the other side. Let me explain: For years the law firm of Amari & Locallo has been importing small copper pocketknives (coltellini tascabilli) as a nice marketing gesture. But as a Sicilian legend and lore goes, one can’t gift a sharp object – it’s bad luck, so we sell them for a coin of any denomination. So, the Justice “bought” his cotello for a dime – which I still have and treasure. At the time he said to me, “my father said a man should always carry a pocketknife.” I came to truly like this man I had admired my entire career.

Scalia was well known for his conservative attitude, which was reflected in his legal opinions. He consistently favored gun rights, state support of religion, and states’ rights while opposing abortion rights, affirmative action, and civil rights protections for historically disadvantaged groups. Over the last several decades when attitudes regarding the morality and legality of same-sex relationships changed, Scalia clearly and consistently proclaimed that the Constitution afforded no protections on the basis of sexual orientation. Another opinion that drew significant criticism was his dissent in Lawrence v. Texas (2003), where the court had struck down a Texas antisodomy law as an unconstitutional invasion of privacy.

Scalia believed that the Constitution imposed non-negotiation of the democratic process by eliminating particular policies from consideration by voters and legislators, arguing those constitutional constraints that he considered to be well established in historical practice. Such constraints included: (1) limits on federal power and guarantees of state sovereignty – e.g., his majority opinion in Printz v. United States (1997), where he held that the federal government could not require state and local law-enforcement agencies to perform background checks on prospective gun owners; (2) the checks and balances imposed by the separation of powers - e.g., his lone dissent in Morrison v. Olson (1988), where he held that the Independent Counsel Act (1978) infringed on powers that the Constitution provided exclusively to the executive branch; and (3) the individual rights articulated in the Bill of Rights - e.g., his majority opinion in Crawford v. Washington (2004), which found that the use of out-of-court statements by witnesses who are not present at trial violates the Sixth Amendments’ Confrontation Clause (which protects the right of criminal defendants to confront the witnesses against them). Scalia believed that issues that went beyond such limitations were the legerdemain of the legislature or constitutional amendment rather than being decided by judges.

Whether you love him and his philosophies or not, Justice Scalia, a child of Sicilian immigrants, certainly left his mark and influence in American government.

Only in America can one come to this country a poor immigrant and rise to one of the highest offices in the land - GOD BLESS AMERICA.

?

About the author:

Leonard F. Amari is the founder and co-managing partner of the Illinois law firm of Amari & Locallo. He served as past president of the Justinian Society of (Chicago) Lawyers (1979-1980), past president of the 32,000 member Illinois State Bar Association (1989-1990), and president of the John Marshall Law School (Now the University of Illinois Chicago School of Law) from 2007 to 2017 – (amariandlocallo.com).