Nino Scalia, The Making of an Originalist

Few names are more significant in conservative legal philosophy than Antonin Scalia, or Nino as he was known to his friends. The first Italian-American Supreme Court justice, he struck fear in the hearts of liberals who considered him authoritarian and brought jubilation to conservatives who revered him. Now with newly declassified documents open to the public, James Rosen gives us the portrait of Nino’s “rise to greatness” from his boyhood in Queens, New York, to Justice of the Supreme Court in Washington D.C.

The rise of Nino begins with his father, then a teenager “passing through Ellis Island in December 1920” in the aftermath of the First World War and Spanish Flu. Salvatore Scalia, who became an accomplished professor, was the stereotypical Catholic of the time: devout, with a strong “love of family,” belief in the importance of “hard work,” and a love for “food, wine, and song.” One of Salvatore’s son, Antonin, would soon be following in his father’s footsteps.

Nino was a perfectionist, much like his father. In fact, his father was disappointed in A’s instead of A+’s. Nonetheless, Nino was a stellar student (as any straight A student is, with or without the + mark). Attending the elite Jesuit preparatory school, Xavier High School, Nino fell in love with the demands of academic rigor and the spirit of art, theatre, and drama while also excelling in debate and sports. He was an all-star student in everything he did.

It was at Xavier that the earliest signs of Nino’s textual originalism were nurtured. Arts and drama, perhaps surprisingly to some, was developing a “reverence for the text” instead of merely “reading a text.” Shakespeare became Nino’s love and the reverence for Shakespeare’s plays, as his Jesuit teachers promoted at the time, would have a long-lasting legacy on Nino’s intellectual outlook in all things—judicial interpretation included. His theological education, too, emphasized a deep reverence for the written word.

Nino’s graduation from Xavier brought him to Georgetown. Then from Georgetown to Harvard Law, then still a bastion of liberal WASP culture where social construction was all the rage. It was at Harvard Law School that Nino encountered the so-called “outer limits of semantic possibility” and the emergent philosophy “that judges should assist the legislative branch.” Nino recoiled at such notions because they fundamentally abrogated the separation of powers which he held to be sacred from the Constitution’s textual design.

An ever-busy young man, Rosen describes Nino’s hectic life as he aged and matured. Debate. Tennis. Travel. Conferences. It was a minor miracle that a young woman, Maureen McCarthy, a student at nearby Radcliffe College, entered Nino’s life through a blind date arranged by a friend. It wasn’t long after the two were married and children started to grace the newly christened Scalia family.

After Harvard Law and marriage, Nino spent time at a well-respected law firm in Cleveland. There he cut his teeth and made his mark before some good fortune and friendly connections led him away from legal practice and toward the corridors of power in Washington D.C. Nino’s path to Washington was the result of his friendship with Tom Whitehead, a “Midwesterner, electrical engineer, MIT graduate, army veteran, Nixon-Ford official, genius, visionary.” Sometimes it is good to be fortunate, as Nino himself admitted.

Through his friendship with Tom, Nino ended up working in the Office of Telecommunications Policy. Not exactly a judicial appointment. Not exactly a job with prestige. But it was a start. And it brought Nino into the chambers of power and exposed him to the wrestling and wrangling with Congress that would prove useful to his later judicial appointments. As Rosen writes, “Scalia’s tenure at OTP helped prepare him for the bench.”

Working in the Nixon Administration, though, came at a heavy price. Nixon’s Watergate scandal and Nino’s defense of the Nixon tapes as being private and therefore not needing to be handed over to federal investigators meant he ended up on the wrong side of the Watergate scandal. Nixon resigned and Gerald Ford became president. And when Ford lost reelection in 1976 to Jimmy Carter, Nino was thrust into an opposing role testifying against the Carter Administration’s policies to the House Government Operations Committee.

It was during Nino’s first stint in government that he began to hone in his textualist legal philosophy with clarity and precision, even persuasiveness. Through wrestling with a Democratic-majority Congress, Nino defended the literal meaning of the Constitution even if it was not popular or part of the political zeitgeist. By the time Nino was leaving government work and seeking a professorial appointment (at the University of Chicago, then a bastion of moderate and conservative academia in a sea of liberalism), “Scalia’s legal philosophy—originalism, as practiced through textualism—was taking shape. The meaning of a law, and accordingly its interpretation by judges, should not evolve and change over time; rather, the interpretation should adhere to what the law meant, what it was widely understood to mean, at the time it was enacted.”

Returning to academia brought Nino into another role, one that would advance textualist originalism for a new generation. The nascent Federalist Society, seeking to stem the tide of positivistic legal philosophy, had just been created to give conservative and libertarian students in law a home. Nino took an active role in its shaping and nurturing. As he reflected near the end of his life, looking back on his role in helping the Federalist Society blossom, Nino said, ‘We thought we were just planting a wildflower among the weeds of academic liberalism. It turned out to be an oak.’” Nino’s work in helping the Federalist Society grow and flourish would reap rich rewards, even after his death.

But Nino’s academic life was short-lived. Although generally considered a superb teacher, his personality sometimes felt overbearing to his students. Likewise, he wasn’t happy playing second-fiddle to the tenured law and economics professors at Chicago who garnered all the publicity leaving Nino in the shadows. He wanted more. After the 1980 election which saw Ronald Reagan win the presidency and revive the fortunes of Movement Conservatism which had lay largely dormant since Barry Goldwater’s defeat in 1964, Reagan’s victory eventually brought Nino back to D.C.

Initially, Nino thought he would be appointed solicitor general, the position he desired most. Nope. Then came Reagan’s first Supreme Court choice. Sandra Day O’Connor and not Nino. Then the D.C. Circuit Court got its first vacancy. Nino was passed over in favor of Robert Bork, the burly Yale professor and godfather of legal conservatism. However, it wasn’t long after that another vacancy on the D.C. Circuit Court appeared. And this time Nino got the call.

The autumn of 1982 saw Nino don his robes for the judicial appointment he had come to hope for, the position that would give him a platform to rise to the Supreme Court. Soon after his appointment, Nino was making his presence felt. Though junior to Bork and another future Supreme Court justice, Ruth Bader Ginsberg, Nino’s intellectual acuity and sharp wit had him outmaneuvering everyone else in the D.C. Circuit Court. As Rosen notes in assessing Nino’s time there, “His influence was not just episodic but institutional.”

Nino’s legal mind, experience in grading, and textualist rigor led to the formation of odd friendships. Ginsberg, though a liberal, ended up accepting Nino’s revisionary suggestions to her drafts in many rulings. This resulted in one of the out of the most ordinary friendships that we, living in the age of polarization, find hard to fathom. Despite ideological differences, Ginsberg was in awe of Nino’s mind and ability to spot the slightest potential loophole or ambiguity in court decisions. She valued Nino’s sharpness and willingness to help others, even those with whom he disagreed. Bork and the rest of the D.C. Circuit Court reluctantly followed suit. If there was one judge who could ensure tight judicial documents and rulings, Nino was the go-to man. Even when in dissent, he would give advice to others on how to tighten up their own writings to prevent future revisitation.

Nino’s time on the D.C. Circuit Court didn’t go unnoticed. Liberals who were horrified by his legal philosophy considered him “particularly dangerous.” On the D.C. Circuit Court, Nino further entrenched his originalist philosophy, surpassing even Bork (which brought a rupture in their friendship even though Nino had served as a groomsman in Bork’s wedding). Nino’s commitment to “separation of powers; the modest role of judges and courts; and the centrality of original meaning, with textualism as the metal detector to find it” had come to fruition and it was horrifying to the liberal media. He was the king of conservative legal philosophy (much, also, to Bork’s distaste who wanted to wear the crown).

Nino’s work on the Circuit Court started to attract the attention of the Reagan Administration. Nino quickly rose through the ranks of potential Supreme Court nominations. In the summer of 1986, the time arrived for Nino’s final ascent into greatness and entry into the Supreme Court. With the resignation of Warren Burger, a new Supreme Court vacancy opened up. Nino was tapped by the Reagan officials, bypassing the godfather of legal conservatism, Robert Bork (who would eventually be nominated but rejected by the Senate in 1987), to the surprise of many. The “son of an Italian immigrant with a sharp wit and jovial smile, at once cocky and humble,” was now a national figure.

Reagan’s decision to appoint Nino brought with it an intense fight. But there was no denying the Nino’s qualifications. Nino’s work in government during the Nixon and Ford years gave him great experience, notwithstanding his time on the D.C. Circuit Court. Furthermore, his work in academia also gave him an intellectual and theoretical backing too. Nino was no dunce as liberals often try to present conservatives as being. Nino could run circles around most Senators who, despite their own law school backgrounds, were often slow to respond and quickly outwitted and made to look foolish during testimonial back-and-forths. Though Nino had a well-known reputation as a conservative judge, he was approved 98-0. Imagine that in today’s world! Despite ideological differences, sharp ideological differences, Nino’s near perfect approval reflected his skill, charm, and acumen. The work, the perseverance, and the grit had finally paid off.

James Rosen’s superb writing brings Nino Scalia to life. Scalia: Rise to Greatness, 1936-1986 will prove to be the definitive biography of one of the Supreme Court’s most famous (and controversial) justices. Readers will find a treasure of new material previously inaccessible to Scalia’s earlier ungrateful biographers which reveal a well-respected, affable, and impeccable soul. And if Rosen intends to complete the life of Scalia with a second part detailing his life and time on the Supreme Court, readers should look forward to the conclusion of the remarkable life of Nino.

Scalia: Rise to Greatness, 1936-1986
By James Rosen
Washington D.C.: Regnery, 2023; 500pp

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