Antonin Scalia Totally Explained

Everything about Antonin Scalia totally explained

(born March 11, 1936) is an American jurist and the second most senior Associate Justice of the Supreme Court of the United States. Appointed by Republican President Ronald Reagan, he's considered to be a core member of the conservative wing of the court.
Justice Scalia is a vigorous proponent of textualism in statutory interpretation and originalism in constitutional interpretation, and a passionate critic of the idea of a Living Constitution. He does, however, sometimes have a more favorable view of national power and a strong executive than his more ardent states' rights conservative colleague, Clarence Thomas.

Early life

Antonin Scalia was born in Trenton, New Jersey. His mother, Kathy Panaro,was born in the United States; his father, S. Eugene, a professor of romance languages, was born in Sicily. When Scalia was five years old, his family moved to the Elmhurst section of Queens, New York City, during which time his father worked at Brooklyn College in Flatbush, Brooklyn.
Scalia started his education at Public School 13 in Queens. A practicing member of the Roman Catholic Church, Scalia attended the prestigious Xavier High School, a Catholic and Jesuit school in Manhattan. He graduated first in his class and summa cum laude with an A.B. from Georgetown College at Georgetown University in 1957. While at Georgetown, he also studied at the University of Fribourg, Switzerland and went on to study law at Harvard Law School (where he was a Notes Editor for the Harvard Law Review). He graduated magna cum laude from Harvard Law in 1960, becoming a Sheldon Fellow of Harvard University the following year. The fellowship allowed him to travel throughout Europe during 1960–1961.
On September 10, 1960, Scalia married Maureen McCarthy, an English major at Radcliffe College. Together they've nine children – Ann Forrest (born September 2, 1961), Eugene (labor attorney, former Solicitor of the Department of Labor), John Francis, Catherine Elisabeth, Mary Clare, Paul David (now a priest in the Catholic Diocese of Arlington at St. Rita's Catholic Church), Matthew (a West Point graduate and U.S. Army Major currently serving as an ROTC instructor at the University of Delaware), Christopher James (currently an English professor at the University of Virginia's College at Wise), and Margaret Jane (studying at the University of Virginia). As of April 2008, they've 28 grandchildren.

Legal career

Scalia began his legal career at Jones, Day, Cockley and Reavis in Cleveland, Ohio, where he worked from 1961 to 1967, before becoming a Professor of Law at the University of Virginia in 1967. In 1971, he entered public service, working as the general counsel for the Office of Telecommunications Policy, under President Richard Nixon, where one of his principal assignments was to formulate Federal policy for the growth of cable television. From 1972 to 1974, he was the chairman of the Administrative Conference of the United States, before serving from 1974 to 1977 in the Ford administration as the Assistant Attorney General for the Office of Legal Counsel.
   Following Ford's defeat by Jimmy Carter, Scalia returned to academia, taking up residence first at the University of Chicago Law School from 1977 to 1982, and then as Visiting Professor of Law at Georgetown University Law Center and Stanford University. He was chairman of the American Bar Association's Section of Administrative Law, 1981–1982, and its Conference of Section Chairmen, 1982–1983.
   In 1982, President Ronald Reagan appointed Scalia to be a Judge of the United States Court of Appeals for the District of Columbia Circuit. Four years later, in 1986, Reagan nominated him to replace William Rehnquist as an Associate Justice of the Supreme Court of the United States after Rehnquist had been nominated by Reagan to serve as Chief Justice of the United States. Scalia, whose nomination was backed by liberals such as Mario Cuomo, was approved by the Senate in a vote of 98-0 (with Barry Goldwater and Jake Garn absent) and he took his seat on September 26, 1986, becoming the first Italian-American Justice on the Supreme Court of the United States.
   His law clerks have included prominent figures such as Paul Clement, the Solicitor General under George W. Bush, Lawrence Lessig, a law professor and activist, Joel Kaplan, former Marine Officer and currently the Deputy Chief of Staff for Policy under President George W. Bush, and Stephen G. Calabresi, professor of law at Northwestern University School of Law and founder of the Federalist Society.

Legal philosophy and approach

Statutory and constitutional interpretation

A formalist, Scalia is considered the Court's leading proponent of textualism and originalism (he is careful to distinguish his philosophy of original meaning from original intent). These schools of jurisprudence emphasize careful adherence to the text of both the Constitution of the United States and federal statutes as that text would have been understood to mean when adopted. Scalia will typically use dictionaries contemporaneous with the text's adoption to discern its meaning.
   By implication from his originalism, Scalia vigorously opposes the idea of a living constitution, which says that the judiciary has the power to modify the meaning of constitutional provisions to adapt, as expressed in Trop v. Dulles, to "the evolving standards of decency that mark the progress of a maturing society." For Scalia, this idea misunderstands and negates what he calls the "anti-evolutionary purpose" of a constitution. A society that adopts a constitution, he says, "is skeptical...that societies always 'mature,' as opposed to rot." Scalia notes further that many important social advances, such as women's suffrage, were achieved not by judicial fiat but constitutional amendments — whose adoption, Scalia adds, is slow and cumbersome by design. The idea is that amending of the Constitution allows for democratic change as opposed to top down rule by judges.
   Scalia often relies upon tradition and history to discern the original meaning of unclear constitutional provisions, but when interpreting statutory language, he considers legislative history to be an irrelevant and unreliable interpretive tool. This aversion for legislative history is a central tenet of textualism, and is infused with both an appreciation for public choice theory and of the realities of legislative compromise (for example, the statutory text being the only reliable evidence of the deal that was struck). This position often puts him at odds with Justice Breyer, who is perhaps the Court's most steadfast proponent of attempting to discern the overarching legislative objectives of statutes, and who values legislative history in that pursuit.
   Consistent with his formalist sensibilities, Scalia—at least in his earlier opinions—sought to maximize the role of the legislature in shaping law, and to minimize judicial discretion in its interpretation. For this reason he favored bright-line rules over abstract balancing tests (one of his most frequently-cited works off the bench is an essay titled "The Rule of Law as a Law of Rules," which also neatly encapsulates Scalia's formalist view of law), and frowned upon judicially-crafted compromises between the requirements of the Constitution and perceived expediency (see, for example, his dissent in Maryland v. Craig); he's frequently pointed out that, regardless of whether or not moderate views are a good idea in politics, they're at root incompatible with the job of a judge: "[w]hat is a 'moderate interpretation' [ofthe Constitution])? Halfway between what it says and what you want it to say?"
   Scalia's originalism frequently puts him on the conservative side of the Court in constitutional cases, and he's generally perceived as a conservative member of the court. He has received the lowest Segal-Cover score of the current justices, and the lowest of all Supreme Court nominees measured; whereby the lower the score the more conservative a justice is presumed to be, and the higher the score the more liberal a justice is presumed to be. In a 2003 statistical analysis of Supreme Court voting patterns, Scalia (and Justice Thomas) emerged as the most conservative. However, his originalism occasionally brings results that defy conservative administrations. Judged by results alone, like his colleague Justice Clarence Thomas, Scalia has handed down decisions that might be called liberal in certain cases.

Hamiltonian political principles

In contrast to libertarian conservatives, Scalia has a rather positive view of governmental power. At a 1982 conference on federalism, Scalia challenged conservatives to reexamine what he regarded as their hostile view toward national power. At a time when the presidency and Senate were in the hands of Republicans, Scalia maintained that a "do nothing" approach toward national policymaking was "self-defeating" for purposes of achieving conservative policy goals. Scalia urged the members of the audience—"as Hamilton would have urged you—to keep in mind that the federal government isn't bad but good. The trick is to use it wisely." As a judge, Scalia has coupled his positive view of governmental power with a defense of Hamiltonian political principles.
In Court opinions and extra-judicial writings, he's defended a formalistic view of separation of powers, which protects the least powerful institutions from overreaching by Congress, and which gives the executive branch substantial freedom to act with energy. Scalia has defended an energetic executive, whose powers are not limited to the explicit grants of authority under Article II and which is regarded as the sole organ in foreign affairs. He has defended a "political" conception of public administration that rejects the Progressive idea of administration as a neutral science, and he's embraced the three central components of Hamilton's administrative theory—unity, discretion, and policymaking. Scalia has defended a strong and independent federal judiciary, which is unafraid of striking down state and federal laws that conflict with the Constitution, but which is ultimately regarded as the least dangerous branch of government. And Scalia has defended a conception of the U.S. federal system where the federal government’s authority is dominant and the states are primarily protected against federal encroachment by the political process and the structural provisions of the Constitution.

Stare decisis

While Scalia's approach to textual interpretation is famously categorical, his approach to stare decisis isn't easily described, not least because originalists have not arrived at a singular answer on stare decisis. In An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good, 36 N.M. L. Rev. 419 (2006), Prof. Lee Strang argued, echoing Justice Frankfurter's formulation in Coleman v. Miller, that stare decisis was sufficiently embedded in the common law understanding of courts to be implicit in Article III's grant of the judicial power, which means that originalists must find some account for stare decisis; Scalia's approach is best described as "moderate".
   Unlike Justice Thomas, who is prone to reject stare decisis when he feels that a previous case has misinterpreted the Constitution, Scalia has steered a more moderate course. On the one hand, he's called for overruling many entrenched precedents that he considers unprincipled, most notably on abortion, criminal procedure, the Eighth Amendment, and campaign finance regulations. Moreover, having a formalist preference for clear rules rather than malleable balancing tests, as described above, he's rejected certain Court-instituted doctrines. For example in Tennessee v. Lane (2004) he rejected the Congruence and Proportionality test (adopted by the Court seven years earlier for reviewing Congressional enforcements of the Fourteenth Amendment) as a "standing invitation to judicial arbitrariness and policy-driven decisionmaking." However, in his solo dissent in that case, his explanation—"principally for reasons of stare decisis"—of his ultimate choice of a standard to replace Congruence and Proportionality hints at a willingness to allow stare decisis to trump his own judicial philosophy. More notably, he's declined to revisit several New Deal-era precedents—on federalism—which according to many originalists unconstitutionally expanded Congress's power and restricted states' powers using overbroad interpretations of the Commerce Clause. This might be explained, however, by Scalia's Hamiltonian political principles and, in particular, his favorable view of national power.
   That Scalia would uphold some and overrule other precedents that contradict his judicial philosophy is an apparent inconsistency that has led Scalia's critics to note that the written constitution isn't silent on precedent, and they conclude that originalism can't be reconciled with stare decisis. Scalia has responded that stare decisis is a "pragmatic exception" to, not a part of, originalism. For example, overruling New Deal precedents would be impractical because entrenched Congressional enactments and federal regulations, such as the Social Security Act, would be invalidated (this is, however, the modus operandi encouraged by purists). In any event, it seems Scalia will vote to uphold entrenched statutes even if they may violate originalism (like New Deal legislation), but he'll also vote to uphold statutes that violate entrenched precedent as long as they satisfy originalism (like certain regulations on abortion).
   Because Scalia's approach to precedent has the intent, if not the effect, of deferring to popularly enacted statutes in many cases, he's drawn praise as a judicial restraintist but criticism as a majoritarian.

Jurisprudence in practice

On the Eighth Amendment In Regards To Torture

Scalia believes strongly that torture doesn't violate the Eighth Amendment, as long as it's not designed to punish. For example, according to Scalia, torture in police interrogations is perfectly acceptable.
   In an interview with 60 Minutes in April 2008: "I don't like torture." "Although defining it's going to be a nice trick. But who's in favor of it? Nobody. And we've a law against torture. But if the - everything that's hateful and odious isn't covered by some provision of the Constitution," he says.
   "If someone's in custody, as in Abu Ghraib, and they're brutalized by a law enforcement person, if you listen to the expression 'cruel and unusual punishment,' doesn't that apply?" 60 Minutes correspondent Lesley Stahl asks.
   "No, No," Scalia replies.
   "Cruel and unusual punishment?" Stahl asks.
   "To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."
   "Well, I think if you're in custody, and you've a policeman who's taken you into custody…," Stahl says.
   "And you say he's punishing you?" Scalia asks.
   "Sure," Stahl replies.
   "What's he punishing you for? You punish somebody…," Scalia says.
   "Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.
   "It's the latter. And when he's hurting you in order to get information from you…you don’t say he's punishing you. What’s he punishing you for? He's trying to extract…," Scalia says.
   "Because he thinks you're a terrorist and he's going to beat the you-know-what out of you…," Stahl replies.
   "Anyway, that’s my view," Scalia says. "And it happens to be correct."

Rights

Scalia claims to defend rights explicit in the Constitution or recognized by longstanding social or legal traditions, but refuses to enforce other rights on the presumption that the courts are the default vindicators of any claim deemed rightful. One exception to this is the Right to Privacy, which isn't explicitly mentioned in the Constitution but is a long-standing legal tradition. Scalia has said on several occasions that he doesn't believe the Constitution guarantees a right to privacy. He has vociferously asserted that the Fourteenth Amendment's Due Process Clause doesn't protect abortion, sodomy, assisted suicide, parental control over child visitation, or manufacturers from large punitive damages. With respect to the First Amendment, Scalia has voted to strike down laws restricting flag-burning, cross-burning, campaign contributions, and abortion protests.
With respect to procedural rights, he's resisted his colleagues' attempts to restrict the employment of the death penalty following the Eighth Amendment's prohibition of "cruel and unusual Punishment." He holds that the Constitution doesn't bar capital punishment of people who were juveniles at the time of the crime, as he was the author of Stanford v. Kentucky, and he dissented in both Thompson v. Oklahoma and Roper v. Simmons. On the Fifth Amendment, Scalia has criticized the Miranda warning. Conversely, he's ardently defended procedural rights explicit in the Constitution, for example arguing in Hamdi v. Rumsfeld (joined in dissent by his usual ideological opponent, Justice Stevens) that the government's detention of a U.S. citizen as an enemy combatant without charge was unconstitutional because Congress hadn't suspended the writ of habeas corpus. Scalia is similarly wary of government violations of the procedural guarantees of the Fourth, Fifth, and Sixth Amendments (for example the Confrontation Clause in Maryland v. Craig discussed above).

Separation of powers

Regarding the Constitution's allocation of power among the Executive, Legislative and Judicial branches, Scalia favors clear lines of separation over pragmatic considerations. In a 1989 dissent he argued that the U.S. Sentencing Commission, which authorized federal judges to make policy in an executive capacity, violated the separation of power of the Judicial branch from the Executive. In a 1987 dissent he criticized the Independent Counsel law as an unwarranted encroachment on the Executive branch by the Legislative. Justice Scalia has defended a formalistic interpretation of separation of powers primarily on the ground that it'll make government officials more accountable and thereby better protect liberty. But there appears to be another reason for Scalia's formalism: to protect the powers of the executive branch. A central purpose of the framers' system of separation of powers was to guard against legislative tyranny, which hasn't been lost on Justice Scalia. He has said that the doctrine of separation of powers "not only protects, but pre-eminently protects, the Executive obligation to "take care that the Laws be faithfully executed," and he's warned that if government officials (particularly, the members of Congress) don't begin giving "more than lip service" to the doctrine "we will soon find ourselves living not under the Constitution but under a parliamentary democracy...." Some claim there exists a double standard in Justice Scalia's separation of powers jurisprudence, alleging that he's been much less concerned about enforcing a formalistic interpretation of separation of powers when the executive branch's authority is called into question, and that he's shown more concern about congressional conferrals of core legislative power on the executive branch than he's shown about congressional usurpation of core executive functions. The latter, critics claim, was most apparent in his dissenting opinion in Clinton v. City of New York, where he supported (against Presentment Clause objections) the conferral of line-item veto authority on the president.

Administrative law

Scalia was a former Professor of Administrative Law at the University of Chicago. He is very dubious of agency authority to, in his view, create law. As his dissent in the Brand X cable TV ISP case indicates, he was suspicious that the FCC rules to make one service telecommunications service rather than an information service in an arbitrary way by analogizing from the example of home delivered pizza. Scalia reasoned that the majority's view would have courts divide the delivery service apart from the pizza baking service.

Important cases

This section lists cases which form an essential introduction to Scalia's jurisprudence, views and writing style.

Edwards v. Aguillard, 482 U.S. 578 (1987) (dissenting)
United States v. Taylor 487 U. S. 326 (1988) (concurring)
Morrison v. Olson, 487 U. S. 654 (1988) (dissenting)
Thompson v. Oklahoma, 487 U. S. 815 (1988)
Coy v. Iowa, 487 U. S. 1012 (1988) (cf. Maryland v. Craig, 497 U.S. 836 (1990), dissenting)
Stanford v. Kentucky, 492 U.S. 361 (1989)
Texas v. Johnson, 491 U.S. 397 (1989) (concurring)
Oregon v. Smith, 494 U.S. 872 (1990) (author of majority opinion)
Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)
Harmelin v. Michigan, 501 U. S. 957 (1991) (concurring in part and writing for the Court in part)
Lee v. Weisman, 505 U. S. 577 (1992) (dissenting)
Planned Parenthood v. Casey, (dissenting)
Lamb's Chapel v. Center Moriches School District, 508 U.S. 384 (1993) (concurring)
Mertens v. Hewitt Associates,
Romer v. Evans, 517 U.S. 620 (1996) (dissenting)
United States v. Virginia, 518 U. S. 515 (1996) (dissenting)
Wabaunsee County v. Umbehr, 518 U. S. 668 (1996)
United States v. Playboy Entertainment Group, 529 U.S. 803 (2000)
Troxel v. Granville,
Stenberg v. Carhart, 530 U. S. 914 (2000) (dissenting)
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (dissenting)
Rogers v. Tennessee, 532 U.S. 451 (2001) (dissenting)
Adarand Constructors v. Peña, 515 US 200 (1995) (concurring)
Atkins v. Virginia, 536 U.S. 304 (2002) (dissenting)
McConnell v. Federal Elections Commission, 540 U. S. 93 (2003)
Lawrence v. Texas, 539 U. S. 558 (2003), (dissenting)
Hamdi v. Rumsfeld 542 U. S. 507 (2004), (dissenting, joined by Justice John Paul Stevens)
Crawford v. Washington, 541 US 36 (2004)
Roper v. Simmons, (dissenting)
Brand X, (dissenting)
Gonzales v. Raich, Docket No. 03-1454, (concurring)
McCreary County v. ACLU of Kentucky, Docket No. 03-1693, (dissenting)

2005 Term

Gonzales v. Oregon, (dissenting)

Georgia v. Randolph, (dissenting)

Hamdi v. Rumsfeld, (dissenting)

1986 Term

American Trucking Associations v. Scheiner, (dissenting)

Sixth Amendment case study

There is a particularly striking line of cases, beginning in 1989 and reaching its logical conclusion in 2005 with Booker, which illustrates Scalia's writing style and views on a particular subject, viz., the requirement that a jury must determine all facts which relate to a sentence, a Constitutional guarantee which endangered (in Blakely) and then led to the toppling (in Booker) of the Federal Sentencing Guidelines as the sole means of determining a sentence for a federal crime. That line of cases is as follows:

Mistretta v. United States, 488 U.S. 361 (1989) (dissenting)

Neder v. United States, (dissenting)

Apprendi v. New Jersey, (concurring)

Harris v. United States, (concurring)

Ring v. Arizona, (concurring)

Blakely v. Washington,

Schriro v. Summerlin,

United States v. Booker (concurring in part and dissenting in part) (Refer to Morano, "Justice Scalia: His Instauration of the Sixth Amendment in Sentencing"

for pre-Booker discussion of this line of cases).

Judicial temperament and personality

Scalia's approach to textual interpretation isn't the only substantial change he's brought to the bench. In a position that has often been characterized by substantial circumspection in writing and public behavior, Scalia has been especially willing to display his personality and wit and to attract, if not embrace, public controversy. Scalia is sometimes referred to by the nickname "Nino", and his colleagues refer to the frequent short case-related memos he sends as Ninograms. Despite ideological differences, he's socially friendly with Ruth Bader Ginsburg, who considers Scalia her closest confidant and colleague, and keeps in her office pictures of herself and Scalia together at the Washington Opera and on a trip to India.

At oral argument and in written opinions

Scalia is well known for his lively questioning during arguments before the court; one litigator who argued before the Court compared Scalia's questioning style to "a big cat batting around a ball of yarn." It has been observed that his aggressive questioning style at oral argument was virtually unknown upon his arrival at the Court, but has become virtually the norm in the succeeding twenty years as new Justices arrived.
In his concurring and dissenting opinions, he frequently refers to fellow Justices personally, quoting them from past opinions to point out what he considers inconsistencies in their reasoning or broad judicial philosophy, or accusing them of inventing legal standards out of thin air. "[Alt]hough Scalia's judicial philosophy resemble[s] that of Hugo Black, his temperament [i]s closer to that of William O. Douglas, and that proved to be his undoing." Rosen, The Supreme Court 183 (2007). His strongest commentary has often been directed at his more moderate fellow conservatives, Justices Sandra Day O'Connor and Anthony Kennedy, for reasons including what he saw as the former's equivocation on abortion and the latter's willingness to take persuasive guidance from foreign law in his opinions. His written opinions are also known, in the context of judicial custom, for their uncommonly commonplace phrasing. The combination of Scalia's often pointed, uncompromising and corrosive writing with his layman approach to penmanship have led some to deduce an intention of influencing future lawyers and legal practitioners to accord with his judicial philosophy. Already affecting legal discourse and practice is Scalia's persistent criticism of the use of legislative history in statutory interpretation, according to Judge Alex Kozinski, who has said that "legislative history just ain't worth what it was a few years ago." Scalia has even earned respect from political liberals; Senate Democratic leader Harry Reid has said, "[T]his is one smart guy. And I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute." Others have commented that Justice Scalia's aggressive criticisms of Justices Kennedy and O'Connor may have diminished the willingness of those Justices to form a stable conservative coalition on the Court.

Relations with the electronic media

Strongly protective of his privacy, Scalia formerly severely restricted the electronic media from recording his speaking engagements, citing his "First Amendment right not to speak on the radio or television when I don't wish to do so."
In April 2004, at a Scalia speech in Hattiesburg, Mississippi, U.S. Marshal Melanie Rube, acting as security detail, confiscated the audio tape of a reporter covering the event. After some controversy over the incident, Scalia apologized and stated he didn't order the Marshal to do so. He has since amended his policy so that print reporters are now allowed to record his speeches to "promote accurate reporting."
More recently, he appears to be relaxing the electronic media structure as well—at least two of his recent speeches have been covered by C-SPAN. This is possibly related to the graduation from college of the last of his children, whose privacy has potentially been a major factor in the strongly family-oriented Scalia's desire for privacy (see discussion in Mark Tushnet, A Court Divided), and Scalia has recently been quoted as saying that "My kids have been working on me to get out and do more public appearances...They think it makes it harder to demonize you—and I agree."

Views on televising Supreme Court sessions

Like Justice Souter — who has averred that "the day you see a camera come into our courtroom, it's going to roll over my dead body" — Scalia has opposed the introduction of live television broadcasts of Supreme Court oral arguments. In an early 2005 roundtable discussion with Justices O'Connor and Breyer at the National Archives, also carried by C-SPAN, he noted that he'd approve of both audio and television broadcasts if he could be confident that it would go out and be watched gavel-to-gavel. He characterized his objections as relating to the possibility for sensationalism, excerptation, and the fostering of an inaccurate picture of the Supreme Court's operation.

Recusals and non-recusals

Perhaps more than any other recent Justice, Scalia's choices regarding whether to recuse himself from upcoming cases following controversial statements and acts have garnered public attention.

Scalia did recuse himself in one case, Elk Grove Unified School District v. Newdow, following public comments in Virginia while the case was pending that were characterized (by the Mayor who introduced Scalia at the appearance) as making it "clear that he [Scalia] thought anyone who didn't want school children to say the Pledge of Allegiance with the words 'under God' in it deserved a spanking." It isn't universally accepted that Scalia was under any obligation to do so, and in light of subsequent events, some have suggested that he should not have done so.

Scalia refused, however, to recuse himself in the case of Cheney v. United States District Court for the District of Columbia, a case dealing with the right of the Vice-President to keep secret the membership of an advisory task force on energy policy. Scalia was asked to recuse because he'd previously gone on a hunting trip with various persons including Cheney; Scalia refused, and took the relatively uncommon step of defending his refusal to recuse himself from the case with a public memorandum, focusing on the distinction between official capacity and personal capacity suits, and concluding that because Vice President Cheney was sued in his official capacity, any personal relationship that existed between the two men was irrelevant to Scalia's ability to render an impartial judgment. "I don't believe my impartiality can reasonably be questioned," concluded Scalia. Scalia, concurring with the majority, supported Cheney's position in the case.

Scalia was again asked to recuse from Hamdan v. Rumsfeld. While the case was pending before the court, Scalia answered a question during a Q&A session at the University of Fribourg in Switzerland, where he rejected in principle that detainees at Guantanamo Bay have the right to be tried in civil courts. Having noted that the Constitution applies to Americans the world over and to all persons in the United States, Scalia explicitly rejected the notion that the Constitution protects non-Americans outside of the United States, and added: � :War is war, and it has never been the case that when you captured a combatant you've to give them a jury trial in your civil courts. Give me a break. If he was captured by my [America's] army on a battlefield, that's where he belongs.

Also of concern to those petitioning for recusal in Hamdan was an additional comment that "I had a son [MatthewScalia] on that battlefield; they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial." Scalia declined to recuse himself from Hamdan, this time without comment. This incident led law professor and conservative commentator Ron Cass to complain that it was becoming fashionable in certain circles for those who oppose Scalia to demand that Scalia recuse himself as a strategy to nullify his vote.Further Information

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