On this episode of Our American Stories, in honor of the late justice's birth, 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, He's James Rosen,
(00:58):
author of Rise to Greatness.
Speaker 2 (01:02):
Here's Jans.
Speaker 3 (01:10):
Antonin 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
(01:31):
of the Supreme Court, the first Italian American to sit
on the Supreme Court, and from the perspective of the
small number of White House aids 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
(01:52):
pair of Supreme Court nominations. Joined to his nomination was
the elevation of the Associate Justice William Renquick 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 Trump and
(03:00):
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 Designate Scalia,
(03:27):
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, and
this presented John Bolton with a bit of a problem.
(03:48):
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
phone at the Willard, the employee brought Scalia to the phone,
(04:11):
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?
And Bolton says, oh it was it was Barry Goldwater
(04:31):
and Jake garn But my goodness, ninety eight to nothing
isn't this fantastic? No, no, 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, as he
(04:53):
told me, was now getting a little bit irritated, especially
after the requisition, and he says to Scullia, look, Barry,
go Oldwater. 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 as
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 says,
you're right. That's great, that's great, thank you. But this
small imperfection of a ninety eight to nothing vote bothered
Scalia because a commitment not only to excellence but to
(05:35):
perfection was the hallmark of his entire life, and as
late 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 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,
(06:03):
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 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
(06:23):
Italian immigrants, and she made of herself a school teacher.
They were devout 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.
(06:48):
And from 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
(07:09):
only child. There was from the beginning of his life
a sense of specialness. His onliness was a kind of
a miracle onto 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
(07:32):
would be 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. He always feels he's
(07:53):
the center of the universe and has a good deal
of security. I think it must be harder to be
with brothers and sisters competeeing for parental attention. That was
never an issue in my life. I was the apple
of my parents' 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, and my father
(08:15):
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, to the making
(08:38):
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 (10:20):
By nineteen thirty five, the middle of the Great Depression,
Salvatorre 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. Thirty plus years of teaching
(10:41):
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 very
(11:02):
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, pen knife games, ringo levio, and what
(11:26):
he called the quintessential game of his youth, stickball. And
he said most 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
(11:48):
the scheduling and the lives of parents, because they would
be constantly driving them to play, organize, soccer and so on.
And Scalia said that his parents never drove him anywhere
because they didn't 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,
(12:10):
go play, Go find a game, and you were expected
to leave and go find a game. And your parents
had no idea where you were and didn't care where
you were. 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
(12:31):
leisure time, much less did they feel any obligation to
arrange it for you. Family life did not revolve around
the child's extra curricular activities. 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.
(12:52):
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, which required him to commute
back and forth on the subway from Queen's and Xavier
was a very unusual school. It was a hybrid. It
was both a Jesuit private school and a military academy.
(13:17):
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.
One episode at Xavier High School that stayed with Justice
Scalia for the rest of his days was when this
(13:39):
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
on Justice Scalia. He was a fearsome Irish Jesuit priest
who spoke with a thick Boston broke. His name was
(14:00):
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
is not on trial. You are. And the meaning for
Scalia was that the inheritance of the ages what William F.
(14:23):
Buckley Junior used to like to call 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, this
(14:45):
view of sacred texts as inviolable into his work as
a judge and a justice. Indeed, at his father's funeral
service in twenty sixteen, father Scalia said, scripture says Jesus
Christ is the same yes, esterday, today, and forever to
(15:06):
his dying day. 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. He liked
to hear it. 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. And frankly, it never
(15:30):
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.
(15:50):
Even in areas with large Catholic populations, he would say,
it was a little bit strange to be a Catholic.
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
(16:12):
a manifestation of his partners. There were others, 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,
(16:35):
whenever I wanted to go to a 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're not everybody else.
It is enormously important for Christians to learn early and
remember long that lesson of differentness, to recognize that what
(16:57):
is perfectly lawful and perfectly permissible 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
(17:18):
not like everybody else, You're a Scalia. 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
(17:40):
of moral character. This dovetailed with something that his father,
Salvator Scalia, told the future Justice 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 said of the formation of his character at Xavier
(18:02):
and I quote, by demanding obedience to duty, manly honor,
and discipline, frank and forthright, 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,
(18:22):
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 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 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, the
(21:16):
Great Depression might be the historical context from which we
might say that they came forth. For some, it might
be World War Two. 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
(21:38):
even into his work as a judge and then as
a justice on the Supreme Court. And nowhere in no
area of the law 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
(22:01):
year as a Law Review article, and the title of
it was The Disease as Cure. 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
(22:22):
areas of American life to move us beyond racism. This
speech and this Law Review article by 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,
(22:45):
certainly in the period of the late nineteen seventies, when
the criticism of affirmative action was exceptionally 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
(23:07):
black man. And in this remarkable essay, Scalia developed 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
(23:30):
in greater or lesser degrees would be assigned at 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,
(23:50):
was offensive to Scalia. And eventually he drops the Swiftian
pose and he writes as follows, I owe no man anything,
nor he me because of the blood 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,
(24:12):
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 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
(24:33):
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 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
(24:56):
felt that the Lewis Powells of the world, one of
the Supreme Court justices who who ruled in this way,
were not going to bear the 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
(25:18):
who might be out of that job or that slot
at that academic institution. One 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
(25:41):
attend for high school, and then he was the valedictorian
in high school. There's a photograph in the photo section
of this book of it's Scalia's graduation photo from when
he was valedictorian at Xavier. He's got his uniform on.
You can see the metals on his chest because he
earned so many medals and honors for both his academic
(26:05):
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
his incredible performance at Xavior, Scalia was rejected for the
(26:26):
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
admission and could feel the palpable presence in the room
(26:50):
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 is
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,
Scalia got a complete scholarship to Georgetown University, another Jesuit institution,
(27:14):
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
felt like Babe Ruth that day, just hitting it out
(27:34):
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. He's
just about done. 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
(27:55):
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. The only issue was
what good answer I should choose? The French Revolution, the
Battle of Thermopyla, the American Revolution. He forgot what he picked,
(28:16):
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 wilkinsondered said that with a sad shake of the head.
It just left Scalia devastated. The Incarnation. How could I
(28:36):
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 faith from his pursuit of excellence in his
(28:57):
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. His book Scalia Rise to Greatness is available
on Amazon and all of the usual suspects.
Speaker 2 (29:14):
Pick it up. You will not put it down.
Speaker 1 (29:16):
And we learn 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 and so
many of the greats reading Dostoevsky, the Bible, Plato, well,
(29:37):
these are not things to meddle with.
Speaker 2 (29:38):
And of course the Bible.
Speaker 1 (29:41):
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 all of it
brought together beautifully by James Rosen. The story of Justice
Antonin Scalia, his rise to greatness and in the end
(30:02):
for the law at least, to enduring consequence.
Speaker 2 (30:05):
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, He's James Rosen,
(00:58):
author of Rise to Greatness.
Speaker 2 (01:02):
Here's Jans.
Speaker 3 (01:10):
Antonin 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
(01:31):
of the Supreme Court, the first Italian American to sit
on the Supreme Court, and from the perspective of the
small number of White House aids 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
(01:52):
pair of Supreme Court nominations. Joined to his nomination was
the elevation of the Associate Justice William Renquick 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 Trump and
(03:00):
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 Designate Scalia,
(03:27):
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, and
this presented John Bolton with a bit of a problem.
(03:48):
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
phone at the Willard, the employee brought Scalia to the phone,
(04:11):
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?
And Bolton says, oh it was it was Barry Goldwater
(04:31):
and Jake garn But my goodness, ninety eight to nothing
isn't this fantastic? No, no, 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, as he
(04:53):
told me, was now getting a little bit irritated, especially
after the requisition, and he says to Scullia, look, Barry,
go Oldwater. 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 as
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 says,
you're right. That's great, that's great, thank you. But this
small imperfection of a ninety eight to nothing vote bothered
Scalia because a commitment not only to excellence but to
(05:35):
perfection was the hallmark of his entire life, and as
late 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 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,
(06:03):
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 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
(06:23):
Italian immigrants, and she made of herself a school teacher.
They were devout 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.
(06:48):
And from 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
(07:09):
only child. There was from the beginning of his life
a sense of specialness. His onliness was a kind of
a miracle onto 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
(07:32):
would be 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. He always feels he's
(07:53):
the center of the universe and has a good deal
of security. I think it must be harder to be
with brothers and sisters competeeing for parental attention. That was
never an issue in my life. I was the apple
of my parents' 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, and my father
(08:15):
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, to the making
(08:38):
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 (10:20):
By nineteen thirty five, the middle of the Great Depression,
Salvatorre 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. Thirty plus years of teaching
(10:41):
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 very
(11:02):
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, pen knife games, ringo levio, and what
(11:26):
he called the quintessential game of his youth, stickball. And
he said most 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
(11:48):
the scheduling and the lives of parents, because they would
be constantly driving them to play, organize, soccer and so on.
And Scalia said that his parents never drove him anywhere
because they didn't 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,
(12:10):
go play, Go find a game, and you were expected
to leave and go find a game. And your parents
had no idea where you were and didn't care where
you were. 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
(12:31):
leisure time, much less did they feel any obligation to
arrange it for you. Family life did not revolve around
the child's extra curricular activities. 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.
(12:52):
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, which required him to commute
back and forth on the subway from Queen's and Xavier
was a very unusual school. It was a hybrid. It
was both a Jesuit private school and a military academy.
(13:17):
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.
One episode at Xavier High School that stayed with Justice
Scalia for the rest of his days was when this
(13:39):
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
on Justice Scalia. He was a fearsome Irish Jesuit priest
who spoke with a thick Boston broke. His name was
(14:00):
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
is not on trial. You are. And the meaning for
Scalia was that the inheritance of the ages what William F.
(14:23):
Buckley Junior used to like to call 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, this
(14:45):
view of sacred texts as inviolable into his work as
a judge and a justice. Indeed, at his father's funeral
service in twenty sixteen, father Scalia said, scripture says Jesus
Christ is the same yes, esterday, today, and forever to
(15:06):
his dying day. 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. He liked
to hear it. 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. And frankly, it never
(15:30):
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.
(15:50):
Even in areas with large Catholic populations, he would say,
it was a little bit strange to be a Catholic.
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
(16:12):
a manifestation of his partners. There were others, 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,
(16:35):
whenever I wanted to go to a 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're not everybody else.
It is enormously important for Christians to learn early and
remember long that lesson of differentness, to recognize that what
(16:57):
is perfectly lawful and perfectly permissible 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
(17:18):
not like everybody else, You're a Scalia. 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
(17:40):
of moral character. This dovetailed with something that his father,
Salvator Scalia, told the future Justice 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 said of the formation of his character at Xavier
(18:02):
and I quote, by demanding obedience to duty, manly honor,
and discipline, frank and forthright, 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,
(18:22):
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 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 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, the
(21:16):
Great Depression might be the historical context from which we
might say that they came forth. For some, it might
be World War Two. 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
(21:38):
even into his work as a judge and then as
a justice on the Supreme Court. And nowhere in no
area of the law 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
(22:01):
year as a Law Review article, and the title of
it was The Disease as Cure. 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
(22:22):
areas of American life to move us beyond racism. This
speech and this Law Review article by 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,
(22:45):
certainly in the period of the late nineteen seventies, when
the criticism of affirmative action was exceptionally 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
(23:07):
black man. And in this remarkable essay, Scalia developed 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
(23:30):
in greater or lesser degrees would be assigned at 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,
(23:50):
was offensive to Scalia. And eventually he drops the Swiftian
pose and he writes as follows, I owe no man anything,
nor he me because of the blood 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,
(24:12):
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 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
(24:33):
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 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
(24:56):
felt that the Lewis Powells of the world, one of
the Supreme Court justices who who ruled in this way,
were not going to bear the 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
(25:18):
who might be out of that job or that slot
at that academic institution. One 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
(25:41):
attend for high school, and then he was the valedictorian
in high school. There's a photograph in the photo section
of this book of it's Scalia's graduation photo from when
he was valedictorian at Xavier. He's got his uniform on.
You can see the metals on his chest because he
earned so many medals and honors for both his academic
(26:05):
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
his incredible performance at Xavior, Scalia was rejected for the
(26:26):
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
admission and could feel the palpable presence in the room
(26:50):
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 is
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,
Scalia got a complete scholarship to Georgetown University, another Jesuit institution,
(27:14):
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
felt like Babe Ruth that day, just hitting it out
(27:34):
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. He's
just about done. 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
(27:55):
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. The only issue was
what good answer I should choose? The French Revolution, the
Battle of Thermopyla, the American Revolution. He forgot what he picked,
(28:16):
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 wilkinsondered said that with a sad shake of the head.
It just left Scalia devastated. The Incarnation. How could I
(28:36):
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 faith from his pursuit of excellence in his
(28:57):
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. His book Scalia Rise to Greatness is available
on Amazon and all of the usual suspects.
Speaker 2 (29:14):
Pick it up. You will not put it down.
Speaker 1 (29:16):
And we learn 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 and so
many of the greats reading Dostoevsky, the Bible, Plato, well,
(29:37):
these are not things to meddle with.
Speaker 2 (29:38):
And of course the Bible.
Speaker 1 (29:41):
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 all of it
brought together beautifully by James Rosen. The story of Justice
Antonin Scalia, his rise to greatness and in the end
(30:02):
for the law at least, to enduring consequence.
Speaker 2 (30:05):
His story here on our American stories
Host
Lee Habeeb
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