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Antonin Scalia
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Antonin Scalia
Associate Justice of the Supreme Court of the United States

Born: March 11, 1936 in Trenton, New Jersey
Died: n/a
Harvard Law: 1960
Associate Justice: September 26, 1986-

Appointed to fill the vacant seat of William Rehnquist after he was elevated to the position of Chief Justice, Antonin Scalia is sometimes referred to as the first the first Italian-American to be on the Supreme Court, but he is also the first Roman Catholic and to be appointed the nation's highest court since William J. Brennan. That, however, is just about all these two justices share in common.

Whereas Brennan became one of the most important liberal voices on the Supreme Court, Scalia has played a crucial role in the increasing conservatism of the Court in the latter half of the 20th century (with Chief Justice William Rehnquist and Associate Justice Clarence Thomas). It isn't unusual for Scalia to write strident dissenting and concurring opinions, where he engages in scathing attacks on the reasoning of other justices, even those whose conclusions he agrees with. He has called the reasoning of other justices "silly," "nonsense," and even "incomprehensible."

One might find such candor refreshing, but it is worth wondering just how much Antonin Scalia respects his colleagues, especially the liberal ones, and what that means for the working atmosphere on the Court. One of the consequences of this is that he keeps playing the role of loner and outsider, never that of consensus builder. He doesn't try to bring people together in an effort to create a solid legal foundation for a decision - for that reason, it is unlikely that he will ever be appionted as Chief Justice, despite his popularity among conservatives.

Curiously, though, Scalia is unusual among conservative judges in that he rejects the Original Intent doctrine, according to which the best way to interpret a law or the Constitution is to find out what the original authors intended it to mean and to do. According to Scalia, "It is our task ...not to enter the minds of the Members of Congress - who need have nothing in mind in order for their votes to be both lawful and effective." Instead, Scalia focuses on what he calls "original meaning" - he looks at what the authors of the Constituton meant at the time because it creates a "rock-solid" foundation upon which he can base objectively correct decisions, but does not rely upon it solely.

Antonin Scalia's judicial conservativism may not be based not upon the doctrine of Original Intent, but it is based upon his conviction that the judicial branch of the government should have a much more limited role in affairs than it currently does. This may sound like many of the arguments offered by conservatives who despair over "judicial activism," but Scalia goes much further than they. Even most conservatives, like Chief Justice Rehnquist, do not shy away from an active judiciary when it is used to serve their interests. Scalia, however, attacks conservative judicial activism with the same ferocity that he uses against liberal judicial activism.

Scalia's methodology of dealing with the text of the Constitution is generally called Textualism. According to this position, the "plain and ordinary meaning" of the text should be the guiding principle of any interpretation, although he has admitted that the original intent of the authors should also play a role in where a judge must begin interpretation. This means that he reads the text in as literal a manner as is possible, refusing to allow any broad interpretations of the document to allow for rights or powers which are not explicitly and unequivocally right there.

Thus, for Antonin Scalia there is no such thing as a right to privacy which is protected by the Constitution because those words simply do not appear anywhere in the text. This may some times create problems or hardships not predicted by the drafters of the laws in question - and that is particularly true of the Constitution, considering its age. However, that is simply irrelevant for Scalia and any judges following his pattern. According to this brand of judicial restraint and judicial conservativism, judges have no role whatsoever in softening the uintended blows of the law. That job belongs to the Congress alone - if the people want a law softened, they must turn to the legislative branch of the government, not to the judicial branch.

And what happens when the "plain and ordinary meaning" of the text does not provide a judge with a ready answer? In such situations, a judge must look to objective legal and judicial standards. Once again, Scalia will not simply rely on the original intent of the authors; instead, he looks to the vast scope of legal history generally and, if possible, the history and tradition behind statutes of this particular type. If the legal history and legislative traditions tend to support one position or the other, than is the one Scalia will be most likely to vote for.

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Related Resources:

What are Political and Legal Philosophy
The Philosophy of Politics and the Philosophy of Law are often studied separately, but they are presented here jointly because they both come back to the same thing: the study of force. Politics is the study of political force in the general community, while jurisprudence is the study of how laws can and should be used to achieve political and social goals.

What is Philosophy?
What is philosophy? Is there any point in studying philosophy, or is it a useless subject? What are the different branches of philosophy - what's the difference between aestheitcs and ethics? What's the difference between metaphysics and epistemology?

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