On this episode of Our American Stories, James Rosen, author of Scalia: Rise to Greatness, shares the story of Antonin Scalia’s unlikely but inevitable rise to the U.S. Supreme Court. His family, faith, and immigrant roots were the drivers of his unwavering belief in the Constitution, which, in turn, led to him becoming one of the most impactful judges in American history.
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Speaker 1 (00:10):
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
(00:31):
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.
Speaker 2 (00:50):
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
(01:11):
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
(01:35):
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 Ninoscalia so mesmerizing,
so brilliant, so enchanting, so vivid and funny to be around,
(01:58):
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
(02:21):
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
(02:44):
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 nineteen seventy,
(03:04):
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
(03:28):
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
(03:49):
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
(04:09):
Sundance Kid for the dawn of the telecom era in
the early nineteen seventies. 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
(04:30):
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 Sky's policy
(04:54):
that it opened up for free market competition the critical
business of the launching of domestic space aatellites. It turbo
charged 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 nineteen seventy one,
(05:17):
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
(05:37):
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 Leek Council
(06:00):
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
(06:23):
who asks for once 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
(06:44):
had held that job when President Nixon appointed him to
the Supreme Court in nineteen seventy one. 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 Ninoscalia, not yet forty, a
(07:07):
kid from Queen's amazed to find himself standing astride the
American intelligence apparatus.
Speaker 1 (07:14):
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 lihabib here,
and I'd like to encourage you to subscribe to Our
American Stories on Apple Podcasts, the iHeartRadio app, Spotify, or
(07:38):
wherever you get our podcasts. Any story you missed or
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Please subscribe to the Our American Stories podcast on Apple Podcasts,
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helps us keep these great American stories coming and we
(08:09):
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 Jane.
Speaker 2 (08:25):
On the afternoon of April thirty, nineteen seventy five, 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 US military to land its helicopters on the
roof of the US Embassy in Saigon and evacuate our
personnel from the Embassy that way, And of course we've
(08:47):
all seen those famous photographs of helicopters evacuating personnel from
the roof of the American Embassy on April thirty, nineteen
seventy five, 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
(09:08):
called off this evacuation operation? On advisive Council? What is
the world coming to? After his work in the Ford administration,
Scali accepted a scholar's role with the American Enterprise Institute
and he taught law at the University of Chicago Law School.
This was nineteen seventy seven to nineteen eighty two. During
(09:31):
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
(09:54):
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 nineteen seventies,
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
(10:17):
fully responsive to the people's desires. And he said, and
this would be nineteen seventy nine, the heart of the
Jimmy Carter era, the period of the so called Malaise Speech.
Scullia 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.
(10:38):
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
(10:59):
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 Scullia'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,
(11:21):
and to return the power usurped by those unelected judges
and justices to the people. In nineteen eighty two, 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
(11:43):
powerful court in America. And at the time that Scalia
served on that court as a judge, the years nineteen
eighty two to eighty six, 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.
(12:06):
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,
(12:29):
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
(12:52):
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 two
hundred and twenty plus boxes there. Her papers from the
Supreme Court tenure are closed. Indeed, almost all of Justice
(13:15):
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
(13:38):
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
(13:59):
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
(14:21):
to take the imagination, the mystery, the romance, the ambiguity
out of everything that he touches. It is not for nothing,
Justice Clia 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
(14:42):
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 two it is
(15:03):
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
(15:25):
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.
(15:45):
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
(16:08):
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
(16:29):
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 Justice's cabinet, secretaries, professors,
and one of his poker buddies in this long running
game was Justice William Renquist 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
(16:53):
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 Anton and Scalia intended to be.
Speaker 1 (17:10):
And you're listening to author James Rose and tell the
story of Supreme Court Justice Danton and Scalia, who died
in twenty sixteen, but whose work has left an enduring legacy.
He's worked particularly around originalism and the original meaning of
the Constitution. And we've been tracking the development of this philosophy,
(17:30):
which we captured in an earlier story, to the story
you're hearing today. You're learning who this man was and
what he thought, and particularly that part about the people
not feeling like they're not in control of their own government.
When we come back, more of this remarkable story, the
story of the rise of Justice Anton and Scalia to
(17:51):
the Supreme Court. Here on our American story and we
continue with our American stories. And James Rose an author
(18:13):
of Scalia Rise to Greatness. The book is available on
Amazon in all the usual suspects. Let's pick up where
we last left off.
Speaker 2 (18:22):
Here's Jane for Scalia. The outcome, the result was almost superfluous.
What mattered most was doing it by some neutral principles
so that the process is the same every time out.
And Scalia had his own process for doing that, which
he called originalism and textualism. But Scalia many times came
(18:45):
down with judicial rulings and decisions that he personally didn't
favor as a conservative. One of them, for example, was
to find that people who burn the American flag had
a constitutionally protected First Amendment right to do so. As
Scalia would say many times, I personally, as a law
and order type and as a conservative, do not approve
of what he called bearded sandal wearing weirdos running around
(19:08):
burning the American flag. But he applied the law neutrally,
and sometimes he came up with decisions he himself approved
of and sometimes he didn't, and that to him was
the mark of an honest judge, if you were applying
a neutral process to each case. As a high school student,
Scalia was a very active actor in drama and theatrics.
(19:29):
He played in Macbeth, and he was very proud of
that who On's saying is probably the most significant thing
he had ever done. Do you know how many lines
there are in Macbeth. So he had a great theatricality
about him and his students, both at the University of
Virginia Law School later at the University of Chicago Law
School Stanford, where he spent a year teaching, they all
remembered him bringing to bear on the teaching of contracts
(19:53):
and administrative law and constitutional law this extraordinary sense of theatricality.
In his contract class, Scalia was given to running from
one side of the stage to the other side of
the stage to act out the parts of two parties
who were disputing over a contract, and he was an
empathetic teacher. Previous biographers really didn't interview that many of
his students. I went back and I found his students
(20:15):
going all the way back into the late sixties, and
they told me, to a person, best teacher I ever had,
most challenging teacher I ever had, demanding expected the best
out of us, but gave us the best as well.
One student recalled the occasion on June sixth, nineteen sixty eight,
the morning after the assassination of Robert F. Kennedy. When
(20:36):
Scalia was supposed to administer a test to his students,
and despite the trauma and grief and shock that the
entire nation was feeling at that moment, Scalia told the students,
I know how difficult it must be for you to
try and focus and concentrate right now, but you have
to do so because we're going forward with the test.
As a teacher, Scalia was very influenced by one of
(20:57):
his Harvard law professors named Bisse, who specialized in the
Socratic method, the answering of a question with a question,
and Scalia really loved also to what he called teach
against the class. He loved to take a contrarian position,
even if he personally didn't believe it, just to evoke
some reaction from the students, to help them clarify their
(21:18):
own thinking, and to get them to sharpen their own
arguments in coming back at him. He always said, it's
neither any fun nor any use in preaching to the choir.
And he said, this endearing quality of saying the right
thing at the wrong time is the secret of my popularity.
On June seventeenth, nineteen eighty six, reporters were summoned to
(21:39):
a White House press briefing room event with very little
notice and with no idea what President Reagan was about
to announce. And at the appointed hour into the press
briefing room strolled President Reagan, followed by Chief Justice Warren Berger,
Associate Justice William Rehnquist, and this short, stocky, dark haired
fellow that nobody knew who was Antonin Scalia. And if
(22:02):
you look back at the videos and the audio recordings
of that event, the first thing to come out of
President Reagan's mouth as a triumphant little he because he
was so pleased at the gasp that the reporters let
out when they saw a Burger and Rehnquist. They understood
immediately what this meant. That there was going to be
a tectonic shift in the personnel of the Supreme Court.
(22:24):
And that day, June seventeenth, nineteen eighty six, what I
call Announcement Day, marked the great dividing line in Antonin
Scalia's life, the moment he became a national figure, his
rise to greatness now beamed coast to coast, an instant celebrity,
a symbol of the American dream, and a myth unto
himself people had been saying about this man that he
(22:44):
was destined to go to the Supreme Court from the
early nineteen seventies. Brian Lamb of Sea Span fame, who
worked with Antonin Scalia at his first government job in
the White House Office of Telecommunications Policy in the early
nineteen seventies, told me we knew in nineteen seventy one
this man was going to the Supreme Court. There was
not a doubt in our mind. Another lawyer who worked
(23:05):
with Scalia at that time told me when Scalia would
leave the room, we would joke behind his back and
Nino's off to the Supreme Court. Now, this was almost
fifteen years before he was nominated to the Supreme Court.
Lawrence Silberman, later himself a judge often described as the
most important judge who never made it to the Supreme Court,
also told me that when he hired Antonin Scalia in
(23:26):
nineteen seventy four, he said to himself upon first meeting Scalia,
this man is destined for the Supreme Court. Scalia, as
he rose through the executive in judicial branches, was subjected
to four FBI background checks within fourteen years. These files
were not declassified until after his death and this biography
is the first to make use of them. They run
(23:47):
hundreds of pages, and as he is vetted by the
FBI on these four separate occasions between nineteen seventy two
and nineteen eighty six, and page after page, hundreds of pages,
the FBI agents, who were fanned out out across the country,
the vast machinery of the nation's pre eminent law enforcement
organization cranked up in an effort to find any kind
(24:08):
of derogatory information about Antonin Scalia that might exist anywhere
in the world, turned up empty for the simple reason
that there existed no derogatory information about the man. He
lived in exemplary life. As the agents heard page after page,
this is the most honest man I've ever met. This
is the smartest man I've ever met. This is not
(24:28):
a qualified man to become the federal judge. This is
the most qualified person you could find to become a
federal judge. And so yes, there was a kind of
air of destiny about Antonin Scalia's rise to the Supreme Court.
In a previously unreported conversation detailed here for the first time,
one of his dearest friends in his life, someone who
(24:49):
graduated from high school with him, and but for an interregnum,
maintained a close friendship with him for the rest of
Scalia's life. Father Bob Connor, still active, still preaching an
Opus Day priest, told me that Scalia confided to him
in nineteen fifty nine, I am going to the Supreme Court.
I will be sent to Washington, and I will rise.
And as Father Connor described as to me, it was
(25:12):
almost like a shared epiphany, a transcendence, a convergence, as
he put it, of two transcendent moments. And so yes,
there was an air of predestination about Scalia's rise to greatness.
His most ardent defenders, his family members, his clerks, others
have always been leery of attributing this ambition to him
too early in his life, because they are leery of
(25:34):
contributing to what they regard and what I regard as
a false narrative promulgated in the earlier biographies of Justice Scalia,
which was that his rise to greatness and to the
Supreme Court was not the product of his Catholic faith,
his extraordinary industry, his genius, his affability, the contributions of
Maureen Scalia, but was rather the product of careerist cunning
(25:55):
of tailoring his opinions so that he would please people
who were in a position to advance his career. Nothing
could be further from the truth. But the fact is
there are people in life who just know early on
what they want to do and where they belong. Charles Shuls,
the creator of Peanuts, Charlie Brown and Snoopy, later said
he knew he wanted to be a cartoonist at the
(26:16):
age of five. Antonin Scalia understood very early on, at
least by the age of twenty two, that he knew
what the Supreme Court was and why he belonged there.
And he pursued this avidly and of course within the
bounds of propriety, and everyone, including his most ardent defenders,
are all better off that he did.
Speaker 1 (26:38):
And a terrific job on the editing, production and storytelling
by our own Greg Hengler. And a special thanks to
author James Rosen. His book Scalia Rise to Greatness is
available at Amazon and all the usual suspects. Pick up
the book again you will not put it down. And
what a life well lived. And we covered the earlier
life of Scalia and in early your story. Go to
(27:00):
Ouramerican stories dot com. Type the word Scalia in the
search part and take a listen. Justice Scalia's life is
the epitome of the American dream. Some pursue wealth, other's
meaning and consequence. The story of Justice Antonin Scalia. Here
on our American Story.
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
(00:31):
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.
Speaker 2 (00:50):
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
(01:11):
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
(01:35):
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 Ninoscalia so mesmerizing,
so brilliant, so enchanting, so vivid and funny to be around,
(01:58):
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
(02:21):
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
(02:44):
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 nineteen seventy,
(03:04):
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
(03:28):
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
(03:49):
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
(04:09):
Sundance Kid for the dawn of the telecom era in
the early nineteen seventies. 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
(04:30):
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 Sky's policy
(04:54):
that it opened up for free market competition the critical
business of the launching of domestic space aatellites. It turbo
charged 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 nineteen seventy one,
(05:17):
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
(05:37):
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 Leek Council
(06:00):
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
(06:23):
who asks for once 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
(06:44):
had held that job when President Nixon appointed him to
the Supreme Court in nineteen seventy one. 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 Ninoscalia, not yet forty, a
(07:07):
kid from Queen's amazed to find himself standing astride the
American intelligence apparatus.
Speaker 1 (07:14):
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 lihabib here,
and I'd like to encourage you to subscribe to Our
American Stories on Apple Podcasts, the iHeartRadio app, Spotify, or
(07:38):
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
(08:09):
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 Jane.
Speaker 2 (08:25):
On the afternoon of April thirty, nineteen seventy five, 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 US military to land its helicopters on the
roof of the US Embassy in Saigon and evacuate our
personnel from the Embassy that way, And of course we've
(08:47):
all seen those famous photographs of helicopters evacuating personnel from
the roof of the American Embassy on April thirty, nineteen
seventy five, 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
(09:08):
called off this evacuation operation? On advisive Council? What is
the world coming to? After his work in the Ford administration,
Scali accepted a scholar's role with the American Enterprise Institute
and he taught law at the University of Chicago Law School.
This was nineteen seventy seven to nineteen eighty two. During
(09:31):
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
(09:54):
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 nineteen seventies,
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
(10:17):
fully responsive to the people's desires. And he said, and
this would be nineteen seventy nine, the heart of the
Jimmy Carter era, the period of the so called Malaise Speech.
Scullia 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.
(10:38):
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
(10:59):
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 Scullia'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,
(11:21):
and to return the power usurped by those unelected judges
and justices to the people. In nineteen eighty two, 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
(11:43):
powerful court in America. And at the time that Scalia
served on that court as a judge, the years nineteen
eighty two to eighty six, 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.
(12:06):
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,
(12:29):
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
(12:52):
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 two
hundred and twenty plus boxes there. Her papers from the
Supreme Court tenure are closed. Indeed, almost all of Justice
(13:15):
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
(13:38):
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
(13:59):
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
(14:21):
to take the imagination, the mystery, the romance, the ambiguity
out of everything that he touches. It is not for nothing,
Justice Clia 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
(14:42):
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 two it is
(15:03):
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
(15:25):
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.
(15:45):
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
(16:08):
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
(16:29):
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 Justice's cabinet, secretaries, professors,
and one of his poker buddies in this long running
game was Justice William Renquist 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
(16:53):
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 Anton and Scalia intended to be.
Speaker 1 (17:10):
And you're listening to author James Rose and tell the
story of Supreme Court Justice Danton and Scalia, who died
in twenty sixteen, but whose work has left an enduring legacy.
He's worked particularly around originalism and the original meaning of
the Constitution. And we've been tracking the development of this philosophy,
(17:30):
which we captured in an earlier story, to the story
you're hearing today. You're learning who this man was and
what he thought, and particularly that part about the people
not feeling like they're not in control of their own government.
When we come back, more of this remarkable story, the
story of the rise of Justice Anton and Scalia to
(17:51):
the Supreme Court. Here on our American story and we
continue with our American stories. And James Rose an author
(18:13):
of Scalia Rise to Greatness. The book is available on
Amazon in all the usual suspects. Let's pick up where
we last left off.
Speaker 2 (18:22):
Here's Jane for Scalia. The outcome, the result was almost superfluous.
What mattered most was doing it by some neutral principles
so that the process is the same every time out.
And Scalia had his own process for doing that, which
he called originalism and textualism. But Scalia many times came
(18:45):
down with judicial rulings and decisions that he personally didn't
favor as a conservative. One of them, for example, was
to find that people who burn the American flag had
a constitutionally protected First Amendment right to do so. As
Scalia would say many times, I personally, as a law
and order type and as a conservative, do not approve
of what he called bearded sandal wearing weirdos running around
(19:08):
burning the American flag. But he applied the law neutrally,
and sometimes he came up with decisions he himself approved
of and sometimes he didn't, and that to him was
the mark of an honest judge, if you were applying
a neutral process to each case. As a high school student,
Scalia was a very active actor in drama and theatrics.
(19:29):
He played in Macbeth, and he was very proud of
that who On's saying is probably the most significant thing
he had ever done. Do you know how many lines
there are in Macbeth. So he had a great theatricality
about him and his students, both at the University of
Virginia Law School later at the University of Chicago Law
School Stanford, where he spent a year teaching, they all
remembered him bringing to bear on the teaching of contracts
(19:53):
and administrative law and constitutional law this extraordinary sense of theatricality.
In his contract class, Scalia was given to running from
one side of the stage to the other side of
the stage to act out the parts of two parties
who were disputing over a contract, and he was an
empathetic teacher. Previous biographers really didn't interview that many of
his students. I went back and I found his students
(20:15):
going all the way back into the late sixties, and
they told me, to a person, best teacher I ever had,
most challenging teacher I ever had, demanding expected the best
out of us, but gave us the best as well.
One student recalled the occasion on June sixth, nineteen sixty eight,
the morning after the assassination of Robert F. Kennedy. When
(20:36):
Scalia was supposed to administer a test to his students,
and despite the trauma and grief and shock that the
entire nation was feeling at that moment, Scalia told the students,
I know how difficult it must be for you to
try and focus and concentrate right now, but you have
to do so because we're going forward with the test.
As a teacher, Scalia was very influenced by one of
(20:57):
his Harvard law professors named Bisse, who specialized in the
Socratic method, the answering of a question with a question,
and Scalia really loved also to what he called teach
against the class. He loved to take a contrarian position,
even if he personally didn't believe it, just to evoke
some reaction from the students, to help them clarify their
(21:18):
own thinking, and to get them to sharpen their own
arguments in coming back at him. He always said, it's
neither any fun nor any use in preaching to the choir.
And he said, this endearing quality of saying the right
thing at the wrong time is the secret of my popularity.
On June seventeenth, nineteen eighty six, reporters were summoned to
(21:39):
a White House press briefing room event with very little
notice and with no idea what President Reagan was about
to announce. And at the appointed hour into the press
briefing room strolled President Reagan, followed by Chief Justice Warren Berger,
Associate Justice William Rehnquist, and this short, stocky, dark haired
fellow that nobody knew who was Antonin Scalia. And if
(22:02):
you look back at the videos and the audio recordings
of that event, the first thing to come out of
President Reagan's mouth as a triumphant little he because he
was so pleased at the gasp that the reporters let
out when they saw a Burger and Rehnquist. They understood
immediately what this meant. That there was going to be
a tectonic shift in the personnel of the Supreme Court.
(22:24):
And that day, June seventeenth, nineteen eighty six, what I
call Announcement Day, marked the great dividing line in Antonin
Scalia's life, the moment he became a national figure, his
rise to greatness now beamed coast to coast, an instant celebrity,
a symbol of the American dream, and a myth unto
himself people had been saying about this man that he
(22:44):
was destined to go to the Supreme Court from the
early nineteen seventies. Brian Lamb of Sea Span fame, who
worked with Antonin Scalia at his first government job in
the White House Office of Telecommunications Policy in the early
nineteen seventies, told me we knew in nineteen seventy one
this man was going to the Supreme Court. There was
not a doubt in our mind. Another lawyer who worked
(23:05):
with Scalia at that time told me when Scalia would
leave the room, we would joke behind his back and
Nino's off to the Supreme Court. Now, this was almost
fifteen years before he was nominated to the Supreme Court.
Lawrence Silberman, later himself a judge often described as the
most important judge who never made it to the Supreme Court,
also told me that when he hired Antonin Scalia in
(23:26):
nineteen seventy four, he said to himself upon first meeting Scalia,
this man is destined for the Supreme Court. Scalia, as
he rose through the executive in judicial branches, was subjected
to four FBI background checks within fourteen years. These files
were not declassified until after his death and this biography
is the first to make use of them. They run
(23:47):
hundreds of pages, and as he is vetted by the
FBI on these four separate occasions between nineteen seventy two
and nineteen eighty six, and page after page, hundreds of pages,
the FBI agents, who were fanned out out across the country,
the vast machinery of the nation's pre eminent law enforcement
organization cranked up in an effort to find any kind
(24:08):
of derogatory information about Antonin Scalia that might exist anywhere
in the world, turned up empty for the simple reason
that there existed no derogatory information about the man. He
lived in exemplary life. As the agents heard page after page,
this is the most honest man I've ever met. This
is the smartest man I've ever met. This is not
(24:28):
a qualified man to become the federal judge. This is
the most qualified person you could find to become a
federal judge. And so yes, there was a kind of
air of destiny about Antonin Scalia's rise to the Supreme Court.
In a previously unreported conversation detailed here for the first time,
one of his dearest friends in his life, someone who
(24:49):
graduated from high school with him, and but for an interregnum,
maintained a close friendship with him for the rest of
Scalia's life. Father Bob Connor, still active, still preaching an
Opus Day priest, told me that Scalia confided to him
in nineteen fifty nine, I am going to the Supreme Court.
I will be sent to Washington, and I will rise.
And as Father Connor described as to me, it was
(25:12):
almost like a shared epiphany, a transcendence, a convergence, as
he put it, of two transcendent moments. And so yes,
there was an air of predestination about Scalia's rise to greatness.
His most ardent defenders, his family members, his clerks, others
have always been leery of attributing this ambition to him
too early in his life, because they are leery of
(25:34):
contributing to what they regard and what I regard as
a false narrative promulgated in the earlier biographies of Justice Scalia,
which was that his rise to greatness and to the
Supreme Court was not the product of his Catholic faith,
his extraordinary industry, his genius, his affability, the contributions of
Maureen Scalia, but was rather the product of careerist cunning
(25:55):
of tailoring his opinions so that he would please people
who were in a position to advance his career. Nothing
could be further from the truth. But the fact is
there are people in life who just know early on
what they want to do and where they belong. Charles Shuls,
the creator of Peanuts, Charlie Brown and Snoopy, later said
he knew he wanted to be a cartoonist at the
(26:16):
age of five. Antonin Scalia understood very early on, at
least by the age of twenty two, that he knew
what the Supreme Court was and why he belonged there.
And he pursued this avidly and of course within the
bounds of propriety, and everyone, including his most ardent defenders,
are all better off that he did.
Speaker 1 (26:38):
And a terrific job on the editing, production and storytelling
by our own Greg Hengler. And a special thanks to
author James Rosen. His book Scalia Rise to Greatness is
available at Amazon and all the usual suspects. Pick up
the book again you will not put it down. And
what a life well lived. And we covered the earlier
life of Scalia and in early your story. Go to
(27:00):
Ouramerican stories dot com. Type the word Scalia in the
search part and take a listen. Justice Scalia's life is
the epitome of the American dream. Some pursue wealth, other's
meaning and consequence. The story of Justice Antonin Scalia. Here
on our American Story.
Host
Lee Habeeb
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