On this episode of Our American Stories, author James Rosen tells the story of Antonin Scalia's unlikely but inevitable rise to the U.S. Supreme Court. His family, his faith, and his immigrant roots were the drivers.
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Speaker 1 (00:15):
And we continue with our American stories. And as you know,
we love to tell stories about everything on this show,
including the American dream and the law. This next story,
the story of Antonin Scalia, is about both. Affectionately known
as Nino. He would become a judge on the highest
court in the land, the US Supreme Court, and he
(00:36):
did it not through family connection or privilege, but hard
work and merit. Few judges have had as much influence
on the law changing as Justice Elena Kagan remarked not
long after Scalia's death in twenty sixteen, how almost all
lawyers think and talk about the law. Here to tell
a story of this remarkable man and judge. Who's James Rosen,
(00:58):
author of Rise to Greatness. Here's James.
Speaker 2 (01:10):
Antonin.
Speaker 3 (01:11):
Scalia was confirmed to be an Associate Justice of the
Supreme Court, the first Italian American who would sit on
the Supreme Court, on September seventeen, nineteen eighty six, very
fittingly Constitution Day. It was an extraordinary moment because Scalia
was confirmed by the US Senate by a vote of
ninety eight to nothing to become an Associate Justice of
(01:31):
the Supreme Court, the first Italian American to sit on
the Supreme Court, and from the perspective of the small
number of White House aides and Justice Department officials who
were managing the Scalia confirmation process, they were obviously ecstatic
at a ninety eight to nothing vote, all the more
so because Scalia's nomination was actually part of a pair
(01:53):
of Supreme Court nominations. Joined to his nomination was the
elevation of the Associate Justice William Renco Twist to Chief
Justice of the United States, and that did not go
so smoothly. Ranquist was a controversial figure in his own right.
He had been for many years the Court's leading conservative voice,
so frequently writing in solo dissent that his own clerks
(02:15):
gave him a lone ranger doll. And so bitter and
partisan and nasty were the confirmation process and the hearings
for renquist salivation to Chief that they were dubbed the Requisition,
and in the end for his vote. Ranquist was confirmed
as Chief Justice with what was then a record high
number of opposition votes sustained by any confirmed nominee. It
(02:39):
was sixty five to thirty three. Even that looks quaint today,
so by the standards of the Requisition, ninety eight to nothing.
For Scalia was looking great. And there's a story in
this book, Scalia Rise to Greatness. It actually begins the book.
It's never been told before, and it was told to
me by John Bolton, the same John Bolton who served
as White House National Security Advisor under President and Trump
(03:00):
and earlier as UN Ambassador for the United States. Back
in nineteen eighty six. John Bolton still had the mustache,
by the way, I did confirm that with him. He
was thirty seven years old at the time, and he
was the Assistant Attorney General for the Office of Legislative
Affairs at the Department of Justice, and it was his
job on September seventeen, nineteen eighty six, that evening when
the votes were taken, to inform Judge Scalia, then Justice
(03:25):
Designate Scalia about the vote. The only problem was getting
a hold of Scalia. He was a social beast, and
on this particular evening, the very evening where he reached
the pinnacle of his profession and embodied the American dream.
He was out on the town at a black tie
rubber chicken dinner out at the Willard Hotel in downtown Washington,
(03:46):
and this presented John Bolton with a bit of a problem.
So the way Bolton solved this problem was to establish
a dedicated phone line in the hotel kitchen and to
enlist a Willard Hotel employee to corral Scalia at the
appointed hour and bring him to that telephone. And that's
exactly what played out, And the way Bolton told the
story to me was he called up the hotel kitchen
(04:07):
phone at the Willard, the employee brought Scullia to the phone,
and he says to him, Nino, congratulations, you've been confirmed.
Ninety eight to nothing. Isn't that fantastic? And Bolton is
enjoying the reverie of the moment until he realizes that
the other end of the line has fallen silent. And
finally Scalia says, who were the two who didn't vote?
(04:29):
And Bolton says, oh it was it was Barry Goldwater
and Jake garn But my goodness, ninety eight to nothing
isn't this fantastic? No, noo, congratulations, And the other end
of the line has fallen silent again, and with a
hint of rebuke in his voice, Scalia now says to
John Bolton, you mean to tell me we couldn't get
Goldwater and garn as if to say, and probably true,
that those should have been two reliable votes. And Bolton,
(04:53):
as he told me, was now getting a little bit irritated,
especially after the requisition, and he says to Scullia, look,
Barry Goldwater, we just couldn't find My research later turned
up that Goldwater had gone home sick on the evening
of the vote when the vote was delayed, and has
Bolton told Scalia, Jake Garne is in the hospital donating
(05:13):
his kidney to his daughter. Concentrate, Nino. You've just been
confirmed ninety eight to nothing. And there's a pause on
the other end of the line again, and finally Scalia.
Speaker 2 (05:23):
Says, you're right. That's great, that's great, thank you.
Speaker 3 (05:27):
But this small imperfection of a ninety eight to nothing
vote bothered Scalia because a commitment not only to excellence
but to perfection was the hallmark of his entire life
and as laid into the twenty first century. As his
nineteenth term on the Supreme Court, Justice Scalia can be
seen on c SPAN videos bringing school students into the
(05:48):
Supreme Court for a talk and telling them that he
was confirmed ninety eight to nothing. And then adding, let's
make it one hundred. Antonin Scalia was born March eleventh,
nineteen thirty six, in a hospital in Trenton, New Jersey.
His father was an Italian immigrant, Salvatore Scalia, who came
to this country in nineteen twenty with just four hundred
(06:12):
dollars in his pocket and not speaking a word of English,
and yet who made of himself a renowned professor of
Romance languages. Scalia's mother, Catherine Panero Scalia, was herself the
daughter of Italian immigrants, and she made of herself a
school teacher.
Speaker 2 (06:27):
They were devout.
Speaker 3 (06:28):
Catholics, and from these three influences, his mother the schoolteacher,
who venerated composition in grammar and form in the classics,
his father, the Romance languages professor, who warned in his
own published writings about the prospect of an original text,
a sacred text, even being distorted in translation. And from
(06:49):
the influence of the Catholic Church, with its foundational sacred
texts and its liturgy, young Nino Scalia emerged with a
profound reverence for the original meaning of texts, and he
carried this forward with him throughout his life and into
his work. As a judge and ultimately as a justice
on the Supreme Court. Justice Scalia was an only child.
(07:10):
There was from the beginning of his life a sense
of specialness. His onliness was a kind of a miracle
unto itself, because when you count his parents and his
parents brothers and sisters on both sides, you're looking at
nine families that could have produced any number of children,
and they only produced the one child who would be
(07:32):
the future Supreme Court. Justice Scalia used to say that
the fact that he was an only child had a
lot to do with his personality and how he turned out. Spoiled, rotten.
He would tell an interviewer, there's a reason why I
am the way I am, and Scalia continued, it's probably
a lot easier to raise an only child with high expectations.
(07:52):
He always feels he's the center of the universe and
has a good deal of security. I think it must
be harder to be with brothers and sisters compete for
parental attention. That was never an issue in my life.
I was the apple of my parent's eye, Which is
not to say I wouldn't have preferred to have brothers
and sisters. I very much would have I have no cousins.
My mother was one of five sisters and two brothers,
(08:14):
and my father was one of two children. He has
a sister, and I am the only offspring from that
side too, so I am really the last of the Mohicans,
Scalia would say. At the time of his ascension to
the Supreme Court, Justice Scalia was widely regarded as the
embodiment of the American dream, and there was every good
reason for that. His story spoke to the immigrant experience,
(08:37):
to the making of a self made man in a sense.
But it was from his father, in particular, that Justice
Scalia inherited his extraordinary capacity for hard work, and in fact,
a number of the attributes that made Justice Scalia so successful.
We can see in his father and in that immigrant
class from that time. When Salvador Scalia in the United
(09:01):
States in nineteen twenty, he only had four hundred dollars
in his pocket. He spoke fluent French and Spanish, but
he spoke no English whatsoever. But he possessed, as his
family would later recount, the four traits that were identifiable
in the Italian Americans of that era. Devout Catholicism, love
(09:23):
of his family, This incredible capacity for hard work and
a taste for what Justice scale would call the simple
physical pleasures of food, wine, and song.
Speaker 1 (09:33):
And you've been listening to author James rose and tell
the story Justice antonin Scalia. When we come back more
of this remarkable story here on our American Stories. And
(10:09):
we returned to our American Stories and to James Rosen,
author of Scalia Rise to Greatness. Let's pick up with
James where we last left off.
Speaker 3 (10:21):
By nineteen thirty five, the middle of the Great Depression,
Salvatore Scalia secured the teaching position that he would enjoy
at Brooklyn College for the next thirty plus years the
end of his career, and throughout that entire time, Professor Scalia,
this is the Justice's father. A thirty plus years of
(10:41):
teaching at Brooklyn College, only recorded one day of absence
in that entire time span, and it speaks to that
extraordinary capacity for hard work that was one of the
characteristics that defined Italian Americans of that generation and certainly
defined Justice Scalia's own career. Scullia grew up in a
(11:02):
very different time and age. He moved from Trent to
New Jersey, where he was born, to Queens, one of
the outer boroughs of New York City when he was
five and where he hadn't really enjoyed Trenton very much.
He loved Queens and he was out on the streets
playing ball after school till it got dark. He was
playing baseball, basketball, football, roller hockey, marbles, penknife games, ringo levio,
(11:26):
and what he called the quintessential game of his youth, stickball.
Speaker 2 (11:29):
And he said most.
Speaker 3 (11:30):
Of the sports he played were in the neighborhood and
they were not organized. It was remarkable to Justice Scullia
many years later, when he and his wife, Maureen Scullia
produced nine children and thirty odd grandchildren, to see that
the activities of children would come to dominate the scheduling
and the lives of parents, because they would be constantly
(11:52):
driving them to play organized soccer and so on. And
Scalia said that his parents never drove him anywhere because
they did have a car. For him as a young
man in Queen's entertainment was watching the one neighbor who
had a car. A packer had washed the thing on weekends,
and his parents would simply say to him, go play,
go find a game, and you were expected to leave
(12:13):
and go find a game, and your parents had no
idea where you.
Speaker 2 (12:16):
Were and didn't care where you were.
Speaker 3 (12:18):
And as Scully you put it, and I'm quoting now,
so long as you did your homework, kept your grades up,
stayed out of trouble, and in my case, practiced the piano,
which was a form of self discipline and penance. Parents
did not care how you spent your leisure time, much
less did they feel any obligation to arrange it for you.
Family life did not revolve around the child's extracurricular activities.
(12:40):
Kids were left pretty much to decide for themselves what
games they would play. Nobody worried about kids carrying knives.
Nobody ever heard about a bicycle helmet. You would go
over to the field on a Saturday morning or Sunday
afternoon and choose up sides. No adult supervision, no conceivable
financial liability, and in fact, even as a young man
into high school, Scalia attended Xavier High School in Manhattan,
(13:03):
which required him to commute back and forth on the
subway from Queen's and Xavier was a very unusual school.
Speaker 2 (13:11):
It was a hybrid.
Speaker 3 (13:12):
It was both a Jesuit private school and a military
Academy and Justice Scalia used to love telling audiences about
how he, as a high school student in the early
nineteen fifties, commuting back and forth from Queen's on the subway,
would casually have his twenty two rifles slung over his
shoulder right there on the subway, and nobody batted an eye.
(13:33):
One episode at Xavier High School that stayed with Justice
Scalia for the rest of his days was when this
class was studying Hamlet, and a smart alec in the class,
not Scalias, somebody else piped up with some sophomark snarky
comment about the play. And there was a particular teacher,
the teacher teaching this class who was a profound influence
(13:54):
on Justice Scalia. He was a fearsome Irish Jesuit priest
who spoke with a thick Boston broke. His name was
Father Tom Matthews. And in this moment what happened next
Sclee used to call it the Shakespeare principle. Father Matthews
glared down at the smart Alec in the class and
said to him, Mistah, when you are reading Shakespeare, Shakespeare.
Speaker 2 (14:13):
Is not on trial. You are.
Speaker 3 (14:16):
And the meaning for Scalia was that the inheritance of
the Ages, what William F.
Speaker 2 (14:23):
Buckley Junior used to like to call.
Speaker 3 (14:24):
The patrimony the received wisdom of the Ages, which includes
these foundational sacred texts from the Bible, the Catholic Liturgy,
and yes, Shakespeare. These things were never to be monkeyed with,
They were not to be disrespected. These texts were inviolable,
and Scalia carried this forward throughout the rest of his life,
(14:45):
this view of sacred texts as inviolable into his work
as a judge and a justice.
Speaker 2 (14:50):
Indeed, at his.
Speaker 3 (14:51):
Father's funeral service in twenty sixteen, Father Scalia said, scripture
says Jesus Christ is the same yet yesterday, today, and forever.
Speaker 2 (15:06):
To his dying day.
Speaker 3 (15:07):
Justice Scalia loved ethnic jokes. He loved to tell them,
he loved to receive them. He didn't care if someone
told a good Italian joke.
Speaker 2 (15:14):
He liked to hear it.
Speaker 3 (15:15):
Growing up in Queens in Elmhurst, it was very much
a multi ethnic society. And there were Jews, and there
were Germans and they're Irish, and there were Italians and
there were Latino families.
Speaker 2 (15:29):
And frankly, it.
Speaker 3 (15:29):
Never dawned on Scalia that he was part of an
ethnic group, or that his friend the class cut up
in school, Hugh McGee, belonged to some ethnic group. What
actually did make Scullia feel somewhat apart from the rest
of the students, what gave him a sense of being excluded,
was his Catholicism. Even in areas with large Catholic populations,
(15:53):
he would say, it was a little bit strange to
be a Catholic. A one manifestation of this was release time,
where an hour early every Wednesday, Scalia and the other
Catholic students at PS thirteen there in Elmhurst Queen's were
let out of class to go attend religious instruction, and
this was again a manifestation of his partners. There were others,
(16:16):
such as eating fish on Fridays when other kids could
enjoy hot dogs, and Scalia spoke about this for the
rest of his life, the idea that the devout Catholic would,
from time to time feel himself acutely made to be
or made to feel a fool for Christ. And he said,
and I quote, whenever I wanted to go to a
(16:37):
certain movie or a certain place that my parents disapproved of,
I would say, of course, as children always do that
everybody else was going. My parents invariable and unanswerable response was,
you are not everybody else. It is enormously important for
Christians to learn early and remember long that lesson of differentness,
to recognize that what is perfectly lawful and perfectly permissible
(16:59):
for everyone else, even our very close non Christian friends,
is not necessarily lawful and permissible for us. And this
was something that was said to Scalia as a young man,
and then he and Maureen Scalia said this to their
own children, and their children recounted it at Justice Scalia's
memorial service. You're not like everybody else, You're a Scalia.
(17:25):
For Scalia, the defining feature of his years at Xavier,
this extraordinary Jesuit private school slash military academy from which
he graduated as valedictorian, was the emphasis that the Jesuits
placed on the formation of moral character. This dovetailed with
something that his father, Salvator Scalia, told the future Justice
(17:46):
when he was a young man, and that he took
with him for the rest of his days, which is
that brains are like muscles. They can be rented by
the hour. The only thing that's never for sale, his
father told him, is character and set of the formation
of his character at Xavier and I quote, by demanding
obedience to duty, manly honor, and discipline, frank and forthright,
(18:09):
acknowledgment of error, respect for ranks above and solicitude for
ranks below, assumption of responsibility, including the responsibility of command,
willingness to sacrifice for the good of the core. By
demanding all those difficult things, the Regiment of Xavier develops
moral courage, which, in the last accounting we must give,
is the kind that matters.
Speaker 1 (18:31):
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. When we come back more of this remarkable
story here on our American Stories. And we returned to
(19:39):
our American stories and to James Rosen, author of Scalia
Rise to Greatness. Let's pick up with James where we
last left off.
Speaker 3 (19:50):
Catherine Scalia was the kinder and gentler apparent to young Ninoscualia,
the future justice. Certainly then his father there was if
the young boy who had all straight a's throughout public school,
high school, graduated as valedictorian of his high school, and
his college graduated top five in his class at Harvard
(20:10):
Law School. Despite that record of academic achievement, if young
Nino Scalia showed up with an AUS, his father was
the type to ask why wasn't it an A or
an A plus? But Scalia said that his mother, he
realized later in life, was devoted to making sure that
he did the right things, that he hung out with
the right people, that he joined the right organizations associated
(20:31):
with young people that would not get him into trouble,
but which would make him a better person. And so
it was his mother who was the den mother for
the cub Scouts, who had them over to the Scalia's
home for their cub Scout meetings, and who really took
an interest in him in ways that his father, who
perpetually had his nose in a book, couldn't quite achieve.
(20:52):
And I should say this, Scalia's parents died almost exactly
at the same time as each other, in a kind
of a freakish episode, just before he was nominated to
the Supreme Court, so they never lived to see their
son reach the pinnacle of his profession, and truly placed
that capstone on the American dream. For some American figures,
(21:15):
the Great Depression might be the historical context from which
we might say that they came forth.
Speaker 2 (21:21):
For some, it might be World War II.
Speaker 3 (21:24):
For Antonin Scalia, the historical context that gives rise to
him is the immigrant experience. The immigrant experience carried forth
into Scalia's thinking, his development, and even into his work
as a judge and then as a justice on the
Supreme Court. And nowhere in no area of the law
(21:45):
was this clearer than in Scalia's writings and rulings on
affirmative action, which he viewed pretty simply as reverse racism.
Scalia gave a lecture at Washington University in nineteen seventy eight.
It was published the following year as a Law Review article,
and the title of it was The Disease as Cure.
(22:07):
This was Scalia's way of saying that if we want
to cure the disease of racism in this country, we
can't employ the very disease itself as our attempted cure.
We can't resort to racist means in hiring or in admissions,
or in other areas of American life to move us
beyond racism. This speech and this Law Review article by
(22:29):
then Professor Scalia, when he was at the University of
Chicago Law School, was one of the most incredibly brave, tough,
and fearless expositions on the evils of affirmative action that
was ever written, certainly in the period of the late
nineteen seventies, when the criticism of affirmative action was exceptionally
(22:51):
taboo in academ at that time. But it was his
father's experience that informed Scalia in these views. And he said,
my father came to this country when he was a teenager.
Not only had he never profited from the sweat of
any black man's brow, I don't think he'd ever seen
a black man. And in this remarkable essay, Scalia developed
(23:12):
a satirical Swiftian program that he called the restorative justice
handicapping points system. Again, this was satire, but he carried
it forth in this Law Review article at some length
explaining how each group that oppressed African Americans at some
point in greater or lesser degrees would be assigned at
(23:33):
birth going forward a number of handicap points that would
denote the nature and the scope of their debt to
African Americans. The whole point of this was to show
that for every creditor race, then there was going to
have to be debtor races as well, And the whole idea,
of course, was offensive to Scalia. And eventually he drops
the Swiftian pose and he writes as follows, I owe
(23:57):
no man anything, nor he me because of the blood
that flows in our veins. This is not to say
that I have no obligation to my fellow citizens who
are black. I assuredly do not because of their race,
or because of any special debt that my bloodline owes
to theirs, but because they have, many of them special needs,
and they are all of them my countrymen, and as
I believe my brothers, this means that I am entirely
(24:20):
in favor of according the poor inner city child who
happens to be black advantages and preferences not given to
my own children, because they don't need them. But I
am not willing to prefer the son of a prosperous
and well educated black doctor or lawyer solely because of
his race, to the son of a recent refugee from
Eastern Europe who's working as a manual labor to get
(24:40):
his family ahead, and Scalia sensed hypocrisy in the person
of those Supreme Court justices who ruled in favor of
affirmative action in admissions and in quotas for hiring, because,
as he put it, he felt that the Lewis Powells
of the world, one of these Supreme Court justices who
ruled in this way, were not going to bear the
(25:02):
burden that they were creating. It wasn't their kids who
would be disadvantaged by affirmative action schemes. Rather, Scalia said,
it was the Polish factory worker's kid who's going to
be out of a job. And from his own experience
we can certainly infer that he also believed it would
be the Italian immigrants kid who might be out of
that job or that slot at that academic institution. One
(25:24):
of the revelations of scalia Rise to Greatness, I think,
is how often Antonin Scalia experienced rejection, more than we
might imagine from what looked to outside appearances like such
a meteoric rise. He was rejected from the first Catholic
school that he wanted to attend for high school, and
then he was the valedictorian in high school. There's a
(25:46):
photograph in the photo section of this book of it's
Scalia's graduation photo from when he was valedictorian at Xavier.
Speaker 2 (25:56):
He's got his uniform on.
Speaker 3 (25:58):
You can see the metals on his chest because he
earned so many medals and honors for both his academic
excellence and also for his participation in extracurriculars. He's got
his black hair parted perfectly to the side. He's got
a winning smile, and he looks trim and handsome. I
think a lot of people might even be surprised to
realize that that's Antonin Scalia in that photo. But despite
(26:21):
his incredible performance at Xavior, Scalia was rejected for the
first choice that he had for his higher education, which
was Princeton University. And in a secret oral history that
he conducted in his Supreme Court chambers in nineteen ninety two,
its contents published in this book for the first time,
Scalia described how he interviewed with the Princeton alumni for
(26:45):
admission and could feel the palpable presence in the room
of anti Italian prejudice. He told his oral history interviewer
that he could tell at a glance that the Princeton
alumni took one look at him and decided he was
not the Princeton sort. And when his interviewer asked, what
does that mean, not the Princeton sort, he said, not
waspy enough, not a member of the right clubs. Well,
(27:08):
Scalia got a complete scholarship to Georgetown University, another Jesuit institution,
and he emerged as the valedictorian there as well. There's
an extraordinary moment that, again Scalia carried with him for
the rest of his life. It occurs as he is
taking his oral exam as a prerequisite for graduation, and
he was just crushing it. As Scalia himself said, he
(27:31):
felt like Babe Ruth that day, just hitting it out
of the park with every question that's asked of him
by his oral examiners, a series of professors, and he
feels like he's just about out of the exercise.
Speaker 2 (27:42):
He's just about done.
Speaker 3 (27:44):
When his history professor, Walter Wilkinson, who's a soft spoken man,
posed what originally Scalia thought must be a softball question.
He said, of all the historical events you studied, mister Scalia,
which one had the greatest impact on the world and
Scalia thinks to himself, well, how can I possibly get
this wrong? He said, there was obviously no single correct answer.
(28:07):
The only issue was what good answer I should choose?
The French Revolution, the Battle of Thermopyla, the American Revolution.
And he forgot what he picked, but it was all
driven out of his mind. He said, when doctor Wilkinson
informed me that there was only one right answer, and
he hadn't chosen it. And he said to him the Incarnation,
mister Scalia, the Incarnation, and the way. Wilkinson said that
(28:31):
with a sad shake of the head. It just left
Scalia devastated. The Incarnation. How could I have been so foolish?
Of course Christ is above all things. Of course that
is the most important historical event. And for Scalia, the
lesson he took from this moment, the Incarnation, mister Scalia,
the Incarnation, was that he should never separate his Christian
(28:54):
faith from his pursuit of excellence in his academic and
professional works.
Speaker 1 (29:00):
And a terrific job on the editing, production and storytelling
by our own Greg Hengler and a special thanks to
James Rosen.
Speaker 2 (29:07):
His book Scalia.
Speaker 1 (29:09):
Rise to Greatness is available on Amazon and all of
the usual suspects. Pick it up, you will not put
it down. And we learned so much about the origins
of the originalist Scalia. Why he took the sacred text
of the Constitution so seriously. His father was a Romance
language professor, and the sacred text of Shakespeare and Chaucer
(29:31):
and so many of the greats reading Dostoevsky, the Bible, Plato, well,
these are not things to meddle with. And of course
the Bible, as we learn, was a key fixture in
Scalia's life, his Catholicism, and of course his Italian immigrant
experience as well. We learn about all of it, and
(29:52):
all of it brought together beautifully by James Rosen. The
story of Justice antonin Scalia, his rise to great witness
and in the end for the law at least, to
enduring consequence. His story here on our American stories
And we continue with our American stories. And as you know,
we love to tell stories about everything on this show,
including the American dream and the law. This next story,
the story of Antonin Scalia, is about both. Affectionately known
as Nino. He would become a judge on the highest
court in the land, the US Supreme Court, and he
(00:36):
did it not through family connection or privilege, but hard
work and merit. Few judges have had as much influence
on the law changing as Justice Elena Kagan remarked not
long after Scalia's death in twenty sixteen, how almost all
lawyers think and talk about the law. Here to tell
a story of this remarkable man and judge. Who's James Rosen,
(00:58):
author of Rise to Greatness. Here's James.
Speaker 2 (01:10):
Antonin.
Speaker 3 (01:11):
Scalia was confirmed to be an Associate Justice of the
Supreme Court, the first Italian American who would sit on
the Supreme Court, on September seventeen, nineteen eighty six, very
fittingly Constitution Day. It was an extraordinary moment because Scalia
was confirmed by the US Senate by a vote of
ninety eight to nothing to become an Associate Justice of
(01:31):
the Supreme Court, the first Italian American to sit on
the Supreme Court, and from the perspective of the small
number of White House aides and Justice Department officials who
were managing the Scalia confirmation process, they were obviously ecstatic
at a ninety eight to nothing vote, all the more
so because Scalia's nomination was actually part of a pair
(01:53):
of Supreme Court nominations. Joined to his nomination was the
elevation of the Associate Justice William Renco Twist to Chief
Justice of the United States, and that did not go
so smoothly. Ranquist was a controversial figure in his own right.
He had been for many years the Court's leading conservative voice,
so frequently writing in solo dissent that his own clerks
(02:15):
gave him a lone ranger doll. And so bitter and
partisan and nasty were the confirmation process and the hearings
for renquist salivation to Chief that they were dubbed the Requisition,
and in the end for his vote. Ranquist was confirmed
as Chief Justice with what was then a record high
number of opposition votes sustained by any confirmed nominee. It
(02:39):
was sixty five to thirty three. Even that looks quaint today,
so by the standards of the Requisition, ninety eight to nothing.
For Scalia was looking great. And there's a story in
this book, Scalia Rise to Greatness. It actually begins the book.
It's never been told before, and it was told to
me by John Bolton, the same John Bolton who served
as White House National Security Advisor under President and Trump
(03:00):
and earlier as UN Ambassador for the United States. Back
in nineteen eighty six. John Bolton still had the mustache,
by the way, I did confirm that with him. He
was thirty seven years old at the time, and he
was the Assistant Attorney General for the Office of Legislative
Affairs at the Department of Justice, and it was his
job on September seventeen, nineteen eighty six, that evening when
the votes were taken, to inform Judge Scalia, then Justice
(03:25):
Designate Scalia about the vote. The only problem was getting
a hold of Scalia. He was a social beast, and
on this particular evening, the very evening where he reached
the pinnacle of his profession and embodied the American dream.
He was out on the town at a black tie
rubber chicken dinner out at the Willard Hotel in downtown Washington,
(03:46):
and this presented John Bolton with a bit of a problem.
So the way Bolton solved this problem was to establish
a dedicated phone line in the hotel kitchen and to
enlist a Willard Hotel employee to corral Scalia at the
appointed hour and bring him to that telephone. And that's
exactly what played out, And the way Bolton told the
story to me was he called up the hotel kitchen
(04:07):
phone at the Willard, the employee brought Scullia to the phone,
and he says to him, Nino, congratulations, you've been confirmed.
Ninety eight to nothing. Isn't that fantastic? And Bolton is
enjoying the reverie of the moment until he realizes that
the other end of the line has fallen silent. And
finally Scalia says, who were the two who didn't vote?
(04:29):
And Bolton says, oh it was it was Barry Goldwater
and Jake garn But my goodness, ninety eight to nothing
isn't this fantastic? No, noo, congratulations, And the other end
of the line has fallen silent again, and with a
hint of rebuke in his voice, Scalia now says to
John Bolton, you mean to tell me we couldn't get
Goldwater and garn as if to say, and probably true,
that those should have been two reliable votes. And Bolton,
(04:53):
as he told me, was now getting a little bit irritated,
especially after the requisition, and he says to Scullia, look,
Barry Goldwater, we just couldn't find My research later turned
up that Goldwater had gone home sick on the evening
of the vote when the vote was delayed, and has
Bolton told Scalia, Jake Garne is in the hospital donating
(05:13):
his kidney to his daughter. Concentrate, Nino. You've just been
confirmed ninety eight to nothing. And there's a pause on
the other end of the line again, and finally Scalia.
Speaker 2 (05:23):
Says, you're right. That's great, that's great, thank you.
Speaker 3 (05:27):
But this small imperfection of a ninety eight to nothing
vote bothered Scalia because a commitment not only to excellence
but to perfection was the hallmark of his entire life
and as laid into the twenty first century. As his
nineteenth term on the Supreme Court, Justice Scalia can be
seen on c SPAN videos bringing school students into the
(05:48):
Supreme Court for a talk and telling them that he
was confirmed ninety eight to nothing. And then adding, let's
make it one hundred. Antonin Scalia was born March eleventh,
nineteen thirty six, in a hospital in Trenton, New Jersey.
His father was an Italian immigrant, Salvatore Scalia, who came
to this country in nineteen twenty with just four hundred
(06:12):
dollars in his pocket and not speaking a word of English,
and yet who made of himself a renowned professor of
Romance languages. Scalia's mother, Catherine Panero Scalia, was herself the
daughter of Italian immigrants, and she made of herself a
school teacher.
Speaker 2 (06:27):
They were devout.
Speaker 3 (06:28):
Catholics, and from these three influences, his mother the schoolteacher,
who venerated composition in grammar and form in the classics,
his father, the Romance languages professor, who warned in his
own published writings about the prospect of an original text,
a sacred text, even being distorted in translation. And from
(06:49):
the influence of the Catholic Church, with its foundational sacred
texts and its liturgy, young Nino Scalia emerged with a
profound reverence for the original meaning of texts, and he
carried this forward with him throughout his life and into
his work. As a judge and ultimately as a justice
on the Supreme Court. Justice Scalia was an only child.
(07:10):
There was from the beginning of his life a sense
of specialness. His onliness was a kind of a miracle
unto itself, because when you count his parents and his
parents brothers and sisters on both sides, you're looking at
nine families that could have produced any number of children,
and they only produced the one child who would be
(07:32):
the future Supreme Court. Justice Scalia used to say that
the fact that he was an only child had a
lot to do with his personality and how he turned out. Spoiled, rotten.
He would tell an interviewer, there's a reason why I
am the way I am, and Scalia continued, it's probably
a lot easier to raise an only child with high expectations.
(07:52):
He always feels he's the center of the universe and
has a good deal of security. I think it must
be harder to be with brothers and sisters compete for
parental attention. That was never an issue in my life.
I was the apple of my parent's eye, Which is
not to say I wouldn't have preferred to have brothers
and sisters. I very much would have I have no cousins.
My mother was one of five sisters and two brothers,
(08:14):
and my father was one of two children. He has
a sister, and I am the only offspring from that
side too, so I am really the last of the Mohicans,
Scalia would say. At the time of his ascension to
the Supreme Court, Justice Scalia was widely regarded as the
embodiment of the American dream, and there was every good
reason for that. His story spoke to the immigrant experience,
(08:37):
to the making of a self made man in a sense.
But it was from his father, in particular, that Justice
Scalia inherited his extraordinary capacity for hard work, and in fact,
a number of the attributes that made Justice Scalia so successful.
We can see in his father and in that immigrant
class from that time. When Salvador Scalia in the United
(09:01):
States in nineteen twenty, he only had four hundred dollars
in his pocket. He spoke fluent French and Spanish, but
he spoke no English whatsoever. But he possessed, as his
family would later recount, the four traits that were identifiable
in the Italian Americans of that era. Devout Catholicism, love
(09:23):
of his family, This incredible capacity for hard work and
a taste for what Justice scale would call the simple
physical pleasures of food, wine, and song.
Speaker 1 (09:33):
And you've been listening to author James rose and tell
the story Justice antonin Scalia. When we come back more
of this remarkable story here on our American Stories. And
(10:09):
we returned to our American Stories and to James Rosen,
author of Scalia Rise to Greatness. Let's pick up with
James where we last left off.
Speaker 3 (10:21):
By nineteen thirty five, the middle of the Great Depression,
Salvatore Scalia secured the teaching position that he would enjoy
at Brooklyn College for the next thirty plus years the
end of his career, and throughout that entire time, Professor Scalia,
this is the Justice's father. A thirty plus years of
(10:41):
teaching at Brooklyn College, only recorded one day of absence
in that entire time span, and it speaks to that
extraordinary capacity for hard work that was one of the
characteristics that defined Italian Americans of that generation and certainly
defined Justice Scalia's own career. Scullia grew up in a
(11:02):
very different time and age. He moved from Trent to
New Jersey, where he was born, to Queens, one of
the outer boroughs of New York City when he was
five and where he hadn't really enjoyed Trenton very much.
He loved Queens and he was out on the streets
playing ball after school till it got dark. He was
playing baseball, basketball, football, roller hockey, marbles, penknife games, ringo levio,
(11:26):
and what he called the quintessential game of his youth, stickball.
Speaker 2 (11:29):
And he said most.
Speaker 3 (11:30):
Of the sports he played were in the neighborhood and
they were not organized. It was remarkable to Justice Scullia
many years later, when he and his wife, Maureen Scullia
produced nine children and thirty odd grandchildren, to see that
the activities of children would come to dominate the scheduling
and the lives of parents, because they would be constantly
(11:52):
driving them to play organized soccer and so on. And
Scalia said that his parents never drove him anywhere because
they did have a car. For him as a young
man in Queen's entertainment was watching the one neighbor who
had a car. A packer had washed the thing on weekends,
and his parents would simply say to him, go play,
go find a game, and you were expected to leave
(12:13):
and go find a game, and your parents had no
idea where you.
Speaker 2 (12:16):
Were and didn't care where you were.
Speaker 3 (12:18):
And as Scully you put it, and I'm quoting now,
so long as you did your homework, kept your grades up,
stayed out of trouble, and in my case, practiced the piano,
which was a form of self discipline and penance. Parents
did not care how you spent your leisure time, much
less did they feel any obligation to arrange it for you.
Family life did not revolve around the child's extracurricular activities.
(12:40):
Kids were left pretty much to decide for themselves what
games they would play. Nobody worried about kids carrying knives.
Nobody ever heard about a bicycle helmet. You would go
over to the field on a Saturday morning or Sunday
afternoon and choose up sides. No adult supervision, no conceivable
financial liability, and in fact, even as a young man
into high school, Scalia attended Xavier High School in Manhattan,
(13:03):
which required him to commute back and forth on the
subway from Queen's and Xavier was a very unusual school.
Speaker 2 (13:11):
It was a hybrid.
Speaker 3 (13:12):
It was both a Jesuit private school and a military
Academy and Justice Scalia used to love telling audiences about
how he, as a high school student in the early
nineteen fifties, commuting back and forth from Queen's on the subway,
would casually have his twenty two rifles slung over his
shoulder right there on the subway, and nobody batted an eye.
(13:33):
One episode at Xavier High School that stayed with Justice
Scalia for the rest of his days was when this
class was studying Hamlet, and a smart alec in the class,
not Scalias, somebody else piped up with some sophomark snarky
comment about the play. And there was a particular teacher,
the teacher teaching this class who was a profound influence
(13:54):
on Justice Scalia. He was a fearsome Irish Jesuit priest
who spoke with a thick Boston broke. His name was
Father Tom Matthews. And in this moment what happened next
Sclee used to call it the Shakespeare principle. Father Matthews
glared down at the smart Alec in the class and
said to him, Mistah, when you are reading Shakespeare, Shakespeare.
Speaker 2 (14:13):
Is not on trial. You are.
Speaker 3 (14:16):
And the meaning for Scalia was that the inheritance of
the Ages, what William F.
Speaker 2 (14:23):
Buckley Junior used to like to call.
Speaker 3 (14:24):
The patrimony the received wisdom of the Ages, which includes
these foundational sacred texts from the Bible, the Catholic Liturgy,
and yes, Shakespeare. These things were never to be monkeyed with,
They were not to be disrespected. These texts were inviolable,
and Scalia carried this forward throughout the rest of his life,
(14:45):
this view of sacred texts as inviolable into his work
as a judge and a justice.
Speaker 2 (14:50):
Indeed, at his.
Speaker 3 (14:51):
Father's funeral service in twenty sixteen, Father Scalia said, scripture
says Jesus Christ is the same yet yesterday, today, and forever.
Speaker 2 (15:06):
To his dying day.
Speaker 3 (15:07):
Justice Scalia loved ethnic jokes. He loved to tell them,
he loved to receive them. He didn't care if someone
told a good Italian joke.
Speaker 2 (15:14):
He liked to hear it.
Speaker 3 (15:15):
Growing up in Queens in Elmhurst, it was very much
a multi ethnic society. And there were Jews, and there
were Germans and they're Irish, and there were Italians and
there were Latino families.
Speaker 2 (15:29):
And frankly, it.
Speaker 3 (15:29):
Never dawned on Scalia that he was part of an
ethnic group, or that his friend the class cut up
in school, Hugh McGee, belonged to some ethnic group. What
actually did make Scullia feel somewhat apart from the rest
of the students, what gave him a sense of being excluded,
was his Catholicism. Even in areas with large Catholic populations,
(15:53):
he would say, it was a little bit strange to
be a Catholic. A one manifestation of this was release time,
where an hour early every Wednesday, Scalia and the other
Catholic students at PS thirteen there in Elmhurst Queen's were
let out of class to go attend religious instruction, and
this was again a manifestation of his partners. There were others,
(16:16):
such as eating fish on Fridays when other kids could
enjoy hot dogs, and Scalia spoke about this for the
rest of his life, the idea that the devout Catholic would,
from time to time feel himself acutely made to be
or made to feel a fool for Christ. And he said,
and I quote, whenever I wanted to go to a
(16:37):
certain movie or a certain place that my parents disapproved of,
I would say, of course, as children always do that
everybody else was going. My parents invariable and unanswerable response was,
you are not everybody else. It is enormously important for
Christians to learn early and remember long that lesson of differentness,
to recognize that what is perfectly lawful and perfectly permissible
(16:59):
for everyone else, even our very close non Christian friends,
is not necessarily lawful and permissible for us. And this
was something that was said to Scalia as a young man,
and then he and Maureen Scalia said this to their
own children, and their children recounted it at Justice Scalia's
memorial service. You're not like everybody else, You're a Scalia.
(17:25):
For Scalia, the defining feature of his years at Xavier,
this extraordinary Jesuit private school slash military academy from which
he graduated as valedictorian, was the emphasis that the Jesuits
placed on the formation of moral character. This dovetailed with
something that his father, Salvator Scalia, told the future Justice
(17:46):
when he was a young man, and that he took
with him for the rest of his days, which is
that brains are like muscles. They can be rented by
the hour. The only thing that's never for sale, his
father told him, is character and set of the formation
of his character at Xavier and I quote, by demanding
obedience to duty, manly honor, and discipline, frank and forthright,
(18:09):
acknowledgment of error, respect for ranks above and solicitude for
ranks below, assumption of responsibility, including the responsibility of command,
willingness to sacrifice for the good of the core. By
demanding all those difficult things, the Regiment of Xavier develops
moral courage, which, in the last accounting we must give,
is the kind that matters.
Speaker 1 (18:31):
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. When we come back more of this remarkable
story here on our American Stories. And we returned to
(19:39):
our American stories and to James Rosen, author of Scalia
Rise to Greatness. Let's pick up with James where we
last left off.
Speaker 3 (19:50):
Catherine Scalia was the kinder and gentler apparent to young Ninoscualia,
the future justice. Certainly then his father there was if
the young boy who had all straight a's throughout public school,
high school, graduated as valedictorian of his high school, and
his college graduated top five in his class at Harvard
(20:10):
Law School. Despite that record of academic achievement, if young
Nino Scalia showed up with an AUS, his father was
the type to ask why wasn't it an A or
an A plus? But Scalia said that his mother, he
realized later in life, was devoted to making sure that
he did the right things, that he hung out with
the right people, that he joined the right organizations associated
(20:31):
with young people that would not get him into trouble,
but which would make him a better person. And so
it was his mother who was the den mother for
the cub Scouts, who had them over to the Scalia's
home for their cub Scout meetings, and who really took
an interest in him in ways that his father, who
perpetually had his nose in a book, couldn't quite achieve.
(20:52):
And I should say this, Scalia's parents died almost exactly
at the same time as each other, in a kind
of a freakish episode, just before he was nominated to
the Supreme Court, so they never lived to see their
son reach the pinnacle of his profession, and truly placed
that capstone on the American dream. For some American figures,
(21:15):
the Great Depression might be the historical context from which
we might say that they came forth.
Speaker 2 (21:21):
For some, it might be World War II.
Speaker 3 (21:24):
For Antonin Scalia, the historical context that gives rise to
him is the immigrant experience. The immigrant experience carried forth
into Scalia's thinking, his development, and even into his work
as a judge and then as a justice on the
Supreme Court. And nowhere in no area of the law
(21:45):
was this clearer than in Scalia's writings and rulings on
affirmative action, which he viewed pretty simply as reverse racism.
Scalia gave a lecture at Washington University in nineteen seventy eight.
It was published the following year as a Law Review article,
and the title of it was The Disease as Cure.
(22:07):
This was Scalia's way of saying that if we want
to cure the disease of racism in this country, we
can't employ the very disease itself as our attempted cure.
We can't resort to racist means in hiring or in admissions,
or in other areas of American life to move us
beyond racism. This speech and this Law Review article by
(22:29):
then Professor Scalia, when he was at the University of
Chicago Law School, was one of the most incredibly brave, tough,
and fearless expositions on the evils of affirmative action that
was ever written, certainly in the period of the late
nineteen seventies, when the criticism of affirmative action was exceptionally
(22:51):
taboo in academ at that time. But it was his
father's experience that informed Scalia in these views. And he said,
my father came to this country when he was a teenager.
Not only had he never profited from the sweat of
any black man's brow, I don't think he'd ever seen
a black man. And in this remarkable essay, Scalia developed
(23:12):
a satirical Swiftian program that he called the restorative justice
handicapping points system. Again, this was satire, but he carried
it forth in this Law Review article at some length
explaining how each group that oppressed African Americans at some
point in greater or lesser degrees would be assigned at
(23:33):
birth going forward a number of handicap points that would
denote the nature and the scope of their debt to
African Americans. The whole point of this was to show
that for every creditor race, then there was going to
have to be debtor races as well, And the whole idea,
of course, was offensive to Scalia. And eventually he drops
the Swiftian pose and he writes as follows, I owe
(23:57):
no man anything, nor he me because of the blood
that flows in our veins. This is not to say
that I have no obligation to my fellow citizens who
are black. I assuredly do not because of their race,
or because of any special debt that my bloodline owes
to theirs, but because they have, many of them special needs,
and they are all of them my countrymen, and as
I believe my brothers, this means that I am entirely
(24:20):
in favor of according the poor inner city child who
happens to be black advantages and preferences not given to
my own children, because they don't need them. But I
am not willing to prefer the son of a prosperous
and well educated black doctor or lawyer solely because of
his race, to the son of a recent refugee from
Eastern Europe who's working as a manual labor to get
(24:40):
his family ahead, and Scalia sensed hypocrisy in the person
of those Supreme Court justices who ruled in favor of
affirmative action in admissions and in quotas for hiring, because,
as he put it, he felt that the Lewis Powells
of the world, one of these Supreme Court justices who
ruled in this way, were not going to bear the
(25:02):
burden that they were creating. It wasn't their kids who
would be disadvantaged by affirmative action schemes. Rather, Scalia said,
it was the Polish factory worker's kid who's going to
be out of a job. And from his own experience
we can certainly infer that he also believed it would
be the Italian immigrants kid who might be out of
that job or that slot at that academic institution. One
(25:24):
of the revelations of scalia Rise to Greatness, I think,
is how often Antonin Scalia experienced rejection, more than we
might imagine from what looked to outside appearances like such
a meteoric rise. He was rejected from the first Catholic
school that he wanted to attend for high school, and
then he was the valedictorian in high school. There's a
(25:46):
photograph in the photo section of this book of it's
Scalia's graduation photo from when he was valedictorian at Xavier.
Speaker 2 (25:56):
He's got his uniform on.
Speaker 3 (25:58):
You can see the metals on his chest because he
earned so many medals and honors for both his academic
excellence and also for his participation in extracurriculars. He's got
his black hair parted perfectly to the side. He's got
a winning smile, and he looks trim and handsome. I
think a lot of people might even be surprised to
realize that that's Antonin Scalia in that photo. But despite
(26:21):
his incredible performance at Xavior, Scalia was rejected for the
first choice that he had for his higher education, which
was Princeton University. And in a secret oral history that
he conducted in his Supreme Court chambers in nineteen ninety two,
its contents published in this book for the first time,
Scalia described how he interviewed with the Princeton alumni for
(26:45):
admission and could feel the palpable presence in the room
of anti Italian prejudice. He told his oral history interviewer
that he could tell at a glance that the Princeton
alumni took one look at him and decided he was
not the Princeton sort. And when his interviewer asked, what
does that mean, not the Princeton sort, he said, not
waspy enough, not a member of the right clubs. Well,
(27:08):
Scalia got a complete scholarship to Georgetown University, another Jesuit institution,
and he emerged as the valedictorian there as well. There's
an extraordinary moment that, again Scalia carried with him for
the rest of his life. It occurs as he is
taking his oral exam as a prerequisite for graduation, and
he was just crushing it. As Scalia himself said, he
(27:31):
felt like Babe Ruth that day, just hitting it out
of the park with every question that's asked of him
by his oral examiners, a series of professors, and he
feels like he's just about out of the exercise.
Speaker 2 (27:42):
He's just about done.
Speaker 3 (27:44):
When his history professor, Walter Wilkinson, who's a soft spoken man,
posed what originally Scalia thought must be a softball question.
He said, of all the historical events you studied, mister Scalia,
which one had the greatest impact on the world and
Scalia thinks to himself, well, how can I possibly get
this wrong? He said, there was obviously no single correct answer.
(28:07):
The only issue was what good answer I should choose?
The French Revolution, the Battle of Thermopyla, the American Revolution.
And he forgot what he picked, but it was all
driven out of his mind. He said, when doctor Wilkinson
informed me that there was only one right answer, and
he hadn't chosen it. And he said to him the Incarnation,
mister Scalia, the Incarnation, and the way. Wilkinson said that
(28:31):
with a sad shake of the head. It just left
Scalia devastated. The Incarnation. How could I have been so foolish?
Of course Christ is above all things. Of course that
is the most important historical event. And for Scalia, the
lesson he took from this moment, the Incarnation, mister Scalia,
the Incarnation, was that he should never separate his Christian
(28:54):
faith from his pursuit of excellence in his academic and
professional works.
Speaker 1 (29:00):
And a terrific job on the editing, production and storytelling
by our own Greg Hengler and a special thanks to
James Rosen.
Speaker 2 (29:07):
His book Scalia.
Speaker 1 (29:09):
Rise to Greatness is available on Amazon and all of
the usual suspects. Pick it up, you will not put
it down. And we learned so much about the origins
of the originalist Scalia. Why he took the sacred text
of the Constitution so seriously. His father was a Romance
language professor, and the sacred text of Shakespeare and Chaucer
(29:31):
and so many of the greats reading Dostoevsky, the Bible, Plato, well,
these are not things to meddle with. And of course
the Bible, as we learn, was a key fixture in
Scalia's life, his Catholicism, and of course his Italian immigrant
experience as well. We learn about all of it, and
(29:52):
all of it brought together beautifully by James Rosen. The
story of Justice antonin Scalia, his rise to great witness
and in the end for the law at least, to
enduring consequence. His story here on our American stories
Host
Lee Habeeb
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