Students in the audience for the opening day of Harvard Law School in mid-September 1957 quickly realized when Dean Erwin Griswold rose to speak that they were in a new academic world. The class, consisting of about five hundred students, including twelve women, was told, “We have no glee clubs here. This is hard work. I know you are all high-achieving students, and you are used to being at the top of your class. But I want to tell you everybody here was at the top of their class. We have 300 Phi Beta Kappas in this class, 200 Magna Cum Laudes, and 100 Summa Cum Laudes. We have a Doctorate in Philosophy from Budapest and a Doctorate in Economics from Oxford. And . . .” Griswold said after a short pause, “we also have Miss Apple Dessert Queen from Virginia.” The men in the audience “hoot[ed] and whistl[ed] and cheer[ed],” scanning the room for a beauty queen, while Zona F. Hostetler, a distinguished graduate from the College of William and Mary who would go on to become a highly respected advocate for civil rights and the rights of the poor, sank in her chair. “I was the Apple Dessert Queen of Virginia all right,” Hostetler later recalled, “but it was a 4-H title, not a beauty queen title.” It would be years later before she would learn that her two recommending professors had put that tidbit in their letters because, they told her, “We were afraid you wouldn’t get in and so we figured we better spice up your record.”1
Scalia, who later described himself as a “greasy grind” student in those days, fit in well. The buttoned-down students always wore suit jackets and ties and worked constantly, developing a disciplined approach to the study of law. Frank Michelman, a law review editor with Scalia who later taught at Harvard, recalled that law students at that time were “very much anchored in the fifties,” taking “the attitude that there was truth, and method, and enlightenment to be gathered from this educational experience.” Fellow classmate Daniel Mayers, later a Washington corporate attorney, explained that Harvard Law students at the time “were a very traditionalist group of people. Many of us had done two years of military service before going to graduate school.”2
Harvard Law students, who were divided into four sections of about 125, were very much individual scholars, sometimes banding together in study groups. “In those days, you really didn’t know your professors outside of the classroom, and the classes were large,” Zona Hostetler later recalled.3 All first-year students took the same classes: Agency, Civil Procedure, Contracts, Criminal Law, Property I, Torts, and a “Group Work” session of sixteen or seventeen students, led by teaching fellows, to consider legal problems applying the theory they had learned to real-world situations.4 In the second year, students took Administrative Law, Commercial Law, Corporations, Taxation, Trusts, Accounting, Constitutional Law, and a course exploring the links between law and such subjects as legal philosophy, history, legislation, international organization, and comparative law in order to provide more context for their case work.5 For their third year, students were left to choose from a series of electives as well as one of the third-year legal seminars in which students would concentrate on one field of law and apply all that they had learned toward solving some of the major problems in that area of study.6
Classes were “a fearsome thing,” recalls Scalia classmate Charles Tighe. This was the era of the Socratic “case method,” in which students were assigned heavy reading loads and professors called on individual students to stand and answer a series of increasingly difficult legal hypothetical questions, applying the reading assignments to other cases and situations. “There was a lot of interchange,” recalled Tighe of those classes. “The professor would expect you to be prepared. Every single one of the people in the class were expected to be prepared on the cases they had to read the previous night. They were called on to recite the facts of the case or to explain the rationale and that sort of thing. If you didn’t know it, it could be quite embarrassing. It was edifying for everybody.”7 This helped students learn how a slight change in facts could change the outcome of a case, and enabled them to analyze the law under pressure, just as they would have to do in a courtroom.
The intellectual and personal challenges of the school were great, but by applying his well-honed work ethic to his Harvard classes, Scalia thrived. He ranked in the top 5 percent of his class after the first-year grades were computed. In recognition of this achievement, he was invited to join the staff of the prestigious Harvard Law Review. The publication put out eight issues per academic year, comprising more than sixteen hundred pages of articles and notes of interest to those in the legal world. Staff members prepared several editions at once, selecting, writing, or editing articles for future editions, while checking citations and proofreading galleys or page proofs for editions about to be published. Students worked in the law review’s office in Gannett House for over forty hours per week, making it almost impossible to remain current with their daily classwork. But since law review membership was considered a mark of success, ensuring a better job after law school, it was a task worth undertaking.8
While being on the staff of the law review was good, being elected an editor was even better. By his third year, Scalia was Notes coeditor for Volume 73, making him responsible for writing or coauthoring several unsigned law notes and for editing other students’ comments and critiques of current Supreme Court cases, some running up to fifteen pages long. The job of an editor was even more demanding. As the Harvard Law yearbook put it, an editor “has two full-time jobs—and time for only one.”9
Life for the Law Review staff was always lively, and Scalia helped to make it so. The Harvard class was predominantly liberal. There were many conservatives sprinkled among the student body, but Scalia was the only one who served on the law review. That never intimidated him; he loved to argue with his fellow classmates on any issue. “He has those bushy eyebrows that furrow up when he’s concentrating,” said fellow law review member and Harvard law professor Philip Heymann, “and for 45 minutes on end, he had that furrowed look.”10 “If you didn’t feel like having a good debate about something,” Heymann continues, “you’d better avoid him.”11 Frank Michelman, who served as Notes coeditor on the law review with Scalia, remembered him “as having delighted in chiding [Adlai] Stevenson liberals about the excesses of government regulation. . . . I don’t remember anyone I thought was more fun to be with and argue with.”12
Friends noticed that Scalia did not have any sympathy at the time for the plight of the poor people in the country, whom John F. Kennedy would later call “the forgotten Americans.” Daniel Mayers, who served on the law review with Scalia, recalled “conversations with him—not intellectual conversation, more like what you’d talk about drinking beer at night—where it was clear that he believed there were more important things in life than to go out and struggle on behalf of the poor, and that God or somebody had ordained there were inevitably going to be a lot of poor people in the world, and there wasn’t much to do about it.”13
Scalia did find time, though, to explore the links between his religion and his new profession during his years at Harvard. He was a member of the St. Thomas More Society all three years. According to the 1958 yearbook, the club “aspires to offer Catholic students at the Law School a community in which they can develop an appreciation of the relevance of Christian philosophy and values to the law and to contemporary society. It recognizes that the vocation of the Christian lawyer is to further the process of development by which the law responds to human needs.”14 The group met each month, had an annual banquet with a speaker from the Boston legal community, and participated in Communion breakfasts, which enabled them to interact with local legal experts and academics on “matters of interest linking the legal and spiritual realms.”15 For Scalia, pursuing this interconnection between religion and law became a lifelong mission.
• • •
The school’s faculty and philosophy of the day were dominated by one universal theme: follow the principles of the school’s former faculty member and leading conservative on the Supreme Court, Associate Justice Felix Frankfurter. Peter Edelman, whose time at the school coincided with two of Scalia’s years there, remembered, “Felix Frankfurter was God.” Observing Frankfurter’s work, Edelman recalled, “We . . . were taught judicial restraint and neutral principles. We were taught that if one used the right method, it would yield the right answer. If it happened that one side tended to win fairly routinely, this was incidental, merely the product of the methodology.”16 William Wiecek, who also attended Harvard during Scalia’s time there, recalls the affection held during that time for “Our Felix” by the faculty, and their moniker for him, “Teacher of the Law,” which was invented by their beloved Dean Griswold.17
The curriculum at that time was shaped largely by two casebooks. The first was The Legal Process: Basic Problems in the Making and Application of Law, coauthored by Henry M. Hart Jr., a former assistant to and coauthor with Frankfurter when he taught at Harvard Law School, and Albert M. Sacks, a former Frankfurter Supreme Court law clerk, both of whom were self-restraint advocates who taught at Harvard. It outlined a Frankfurter-style theory of judging by an adherence to a clear set of decision-making rules rather than ideology. As Wiecek explained, “Where there are no controlling precedents that would dispose of the case on the basis of its authority alone, judges had to articulate the reasons for their result and lay out that reasoning in a coherent manner. This was meant to avoid arbitrary or irrational bases of judging, such as the judge’s hostility to a party’s counsel.”18
The other influential casebook was The Federal Courts and the Federal System, written by Professor Hart and another of Frankfurter’s disciples, Professor Herbert Wechsler of Columbia Law School. This book was described by William Wiecek as “the single most influential casebook in American legal education.”19 Students in the third year used the book in an advanced course in public law and judicial administration in which the principal emphasis was on “the central problems of legal statesmanship in the delimitation of the powers of the government with which the federal courts have been and are confronted.”20
Proponents of Frankfurter’s view heard a clear, straightforward explanation of that philosophy in the Oliver Wendell Holmes Lecture on April 7, 1959, near the end of Scalia’s second year at the school. The speech, “Toward Neutral Principles of Constitutional Law,” was given by the casebook coauthor Herbert Wechsler. Frank Michelman later wrote of the importance of this occasion: “In those days, the Holmes Lectures were truly festival events for which everyone turned out, and in fact two of the most famous lecturers in the series occurred on our watch as students: Learned Hand’s probing and eloquent ‘The Bill of Rights’ in 1958, and Herbert Wechsler’s daring ‘Toward Neutral Principles of Constitutional Law’ in 1959.”21
Michelman recalled that in theorizing about “the role of courts in general and the Supreme Court in particular in our constitutional tradition,”22 Wechsler offered a disciplined critique of the Supreme Court’s decision making. He argued that while the Supreme Court “cannot escape the duty of deciding whether actions of the other branches of the government are consistent with the Constitution, when a case is properly before them,” that what mattered most was “the standards to be followed in [the] interpretation” of the Constitution.23 Rather than seeking to right an individual wrong, a correctly decided case is “one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.”24 Using this approach, Wechsler critiqued the Supreme Court’s liberal ruling five years earlier in Brown v. Board of Education that segregation in public schools was unconstitutional. Despite the fact that Wechsler favored the result in this case, he made clear that only a neutral, “principled decision” should allow the Court to consider extending the desegregation decision to other areas of public life, such as public transportation, hotels, and recreation businesses. And for him, Brown, with its reliance on data dealing with the self-esteem of children in segregated schools rather than legal precedents, was more politically motivated than principled.25
As Wechsler saw it, the Brown case “rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed; that is, the group that is not dominant politically and, therefore, does not make the choice involved.”26 For Wechsler, this was not a neutral principle, as “the question posed by state-enforced segregation is not one of discrimination at all.” Rather, he posited that the more neutral principle was “the denial by the state of freedom to associate,” as the denial of this right “impinges in the same way on any groups or races that may be involved.” For Wechsler, the more principled way to resolve the school segregation cases was to answer the following question: “Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail?”27 Lending credence to Wechsler’s argument was the fact that Frankfurter, the self-proclaimed wearer of the judicial self-restraint mantle passed down by his judicial heroes and mentors, Louis D. Brandeis and Oliver Wendell Holmes, was reluctant to join Chief Justice Warren’s opinion, though he ultimately supported it.28
It was a powerful argument, and it had a significant effect on the entire Harvard Law community. Michelman recalled: “It was stunning. Professor Wechsler had stood before us declaring himself unable to explain the legitimacy of Brown. He had done so by way of illustrating . . . what he called ‘neutral principles’ and their bearing on adjudicative legitimacy. The aptness of the illustration was later to be very sharply questioned, but no one can doubt its having been good for memorability. From personal knowledge I can say the illustration was well chosen to leave the neutral-principles thesis deeply imprinted in the minds and memories of those in attendance.”29 Scalia classmate Mayers recalls of that speech: “We were all very struck by this argument that there were neutral principles of law which, if you really disciplined yourself, you could apply without regard to your own political preferences.”30 In Michelman’s words, the “core of the lesson” for the judicial process was clear: “The adjudicative act earns its legitimacy by contracting a debt to the future, for which its author signs in the script of neutral principle. In that signature lies ‘the very essence’ of the judicial (as opposed to the political) method of decision-making.”31
Scalia later claimed that he did not attend the lecture, a claim that many questioned. Michelman conceded, “I cannot today claim eyewitness recall of . . . Nino attending the lectures, but I’d lay odds that [he] attended. . . . Everybody did. It was de rigueur.”32 Regardless of his attendance, Scalia certainly would have been familiar with Wechsler’s message since the law review board edited his speech for its first article in the following year’s issue.33
While Georgetown shaped Scalia’s view of his religious mission, Harvard Law School layered over that foundation both a refinement of his political conservatism and an understanding of his legal mission to realize it. The conservatism and judicial self-restraint theories of Felix Frankfurter, the “legal process” lessons of Frankfurter’s acolytes on the Harvard Law faculty, and the “search for neutral principles” of Wechsler laid the cornerstone for Scalia’s theories for working in the law. As Peter Edelman put it:
Reading Justice Scalia’s opinions thirty years later, there is a sense of déjà vu. Harvard may have moved on to Critical Legal Studies and other postmodern curiosities, but much of Justice Scalia’s work reads like the Harvard Hit Parade of the 1950s. Justice Scalia is no doubt a product of many influences; one, most assuredly, is the Harvard Law School of the 1950s. Like Justice Frankfurter, Justice Scalia seems to believe that methodology is a significant part of the message. He spends a great deal of time defending his method of reading the Constitution, to the point where it sometimes means to tell us that the results on the merits are incidental.34
The raw materials were there for Scalia to exercise his affinity for using a textual analysis and historical originalism when considering his decisions. What made it so perfect, though, was the harmony between this approach and his earlier experiences. Like the close, textual analysis taught him by his father, and the literal biblical tradition favored by his faith, this conservative legal approach could reach his desired policy goals by relying on a careful reading and application of ancient legal sources.
• • •
In his final year of Harvard Law School, Scalia met another person who would have a lasting influence on his life: a senior student in English at Radcliffe (Harvard’s women’s college) named Maureen McCarthy. They met on a blind date, and had a seven-month courtship before marrying on September 10, 1960. They jokingly referred to it as a “mixed marriage” because he was of Italian descent while her ancestors were Irish. After Scalia’s magna cum laude graduation from Harvard Law they spent their first year out of school traveling in Europe. Years later, Scalia would say, “Actually, the main reason she married me was that, after graduation, I had a Sheldon Fellowship. Under this traveling fellowship, Harvard gives you money to travel with virtually no strings attached, with one exception. You cannot enroll for a degree in any university, which, after seven years of college and law school, was the farthest thing from my mind!”35 This fellowship allowed Scalia to take his new wife to many of the locales he had seen while studying at the University of Fribourg during his Georgetown years.
Maureen was a devout Catholic, like her new husband. When it came to the family plans, Scalia explained, “We’re just old-fashioned Catholics, you know, playing what used to be known as Vatican Roulette.”36 Indeed, practicing no birth control, the Scalias would welcome their first child into the world, a daughter they named Ann Forrest, a year after they were married, on September 2, 1961. In time, they would have nine children, born over a nineteen-year span, and by 2012 the only child of his extended family’s generation would be a grandfather to thirty-three children.
Maureen Scalia filled the same role with their children that Scalia’s own mother had with him. “She went to all the [kids’] games,” he said, to which Maureen Scalia added, “I would get five minutes at each on a Saturday.”37 While Scalia became engrossed in his legal work, his wife remained fixed in the real world. Noting the disparity, she would call her husband “Mr. Clueless.”38
After the year of travel, Scalia’s first job out of law school was in the prominent Cleveland, Ohio, law firm of Jones, Day, Cockley & Reavis. Partner James Lynn loved to tell the story of how he hired one of Harvard’s finest students to join his firm. Lynn happened to be on Harvard’s campus late one Saturday night looking for future law graduates to interview. Knowing that the best people might be found working on the law review, Lynn made his way to the publication’s office in the library on the top floor of Gannett House. There he spied a heavyset, bushy-eyebrowed, black-haired law student who happened to be the law review’s notes coeditor. The young man was buried in law books editing a manuscript. This was hardly an unusual situation. As classmate Daniel Mayers recalled, Scalia “would bring cannoli from a Cambridge bakery to the office and eat them hunched over his desk” while doing his work.39 Even though Scalia made clear to the man interrupting him that Cleveland was hardly where he envisioned moving, Lynn finally persuaded the earnest student to join him for a late night meal of bacon and eggs at a restaurant on Harvard Square.
Lynn pursued Scalia for two months, and was certain he had found the right man for the job when he observed Scalia on a trip to interview with the firm. Holding a drink in his hand and leaning against the fireplace mantel in the senior partner’s Shaker Heights home, Scalia held his own in an argument with eight other senior members of the firm over the merits of a Harvard Law Review article he had edited on the Supreme Court’s decisions dealing with Sunday blue laws forcing businesses to close for the day. Lynn recalled later: “He already had that habit of getting intensely serious with those heavy black eyebrows of his scrunching up and his jaw setting so that he spoke without moving his jaw much. We were shouting at each other saying things like, ‘How did you ever make law review?’ It didn’t seem to bother him that everyone was on the other side.” Scalia gave no quarter and, job or no job, he was still arguing until three in the morning with the men who would vote on his hiring. “It was one against eight,” one partner, Richard Pogue, said later. “He was so intense and enthusiastic. I tell you, it was the best recruiting session I have ever been to.”40
When he was offered the job, Scalia accepted. Scalia later told a gathering of law students and recent law graduates at a Philadelphia meeting of the Federalist Society, “I worked for my first job in Cleveland. Cleveland! The New York law firms were already sweat shops, but [the lawyers working at] Jones Day, did not work nights, or weekends, unless it was an emergency.” By working there, Scalia added, it allowed him to “fulfill his other responsibilities to his family, to his church, and to his community.”41 For the next six years Scalia worked in Cleveland, continuing to impress every member of the firm.
While his personal and professional lives improved dramatically, the course of his religious life took an unexpected turn. Scalia’s faith was tested, first by the nature of American politics, and later by Pope John XXIII’s religious reforms. Like many Catholics in 1960, Scalia, eligible for the first time to vote in a presidential election, was delighted to see a Catholic from Boston, Senator John F. Kennedy, run for president. With a chance to become the first member of his faith to win the office, Kennedy found himself in a difficult religious situation in the West Virginia Democratic primary. Faced with the latent and open bigotry of the heavily Protestant electorate in the state, fueled by Senator Hubert Humphrey’s campaign song, “Give Me That Old Time Religion,” Kennedy had to deemphasize his religious background.42 Speaking to the national convention of the American Society of Newspaper Editors in Washington, D.C., on April 21, 1960, Kennedy assured everyone that the Catholic Church “has no claim over my conduct as a public officer sworn to do the public interest.” For him, this meant that, “I do not speak for the Catholic Church on issues of public policy—and no one in that church speaks for me.”43 The argument was persuasive enough to the West Virginia voters that Kennedy won the state easily, taking more than 60 percent of the vote, and Humphrey was forced to withdraw from the race for the presidential nomination.
During the general election campaign, Kennedy, whose religious views were not especially devout, told a gathering of Protestant ministers at the Greater Houston Ministerial Association on September 12, 1960, “what kind of church I believe in . . . should matter only to me.” As he explained: “I believe in an America where the separation of church and state is absolute—where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote—where no church or church school is granted any public funds or political preference—and where no man is denied public office merely because his religion differs from the President who might appoint him or the people who might elect him.”44 Creating a separation between his personal faith and his public duties, Kennedy added: “I believe in a President whose religious views are his own private affair, neither imposed by him upon the nation or imposed by the nation upon him as a condition to holding that office.” Later in the speech, Kennedy seemed ready to construct, in the words of Thomas Jefferson and James Madison, his own personal “high wall of separation” between his religion and his political obligations: “I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens also to be a Catholic.” Then, repeating his line from the West Virginia primary speech, he added: “I do not speak for my church on public matters, and the church does not speak for me. Whatever issue may come before me as president—on birth control, divorce, censorship, gambling or any other subject—I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.”45 Michael Sean Winters, a journalist who covered the Catholic Church, correctly described Kennedy’s view of the relationship between religion and politics this way: “For Kennedy, religion was private . . . denying the public consequences of his faith.”46 As a result, Kennedy “was a candidate first, and a Catholic second. . . . He was trying to lay to rest the fear of overt papal intrusions in a Catholic presidency as well as the fear that, as a Catholic, he was of a certain cast of mind attuned to obedience, mystery, and dogma.”47
Like so many of Kennedy’s legendary speeches, these words contained the perfect pitch and tone to secure his election, but they cost him the support of conservative Catholics like Antonin Scalia. The notion that Kennedy would disregard his Catholic roots in the Oval Office was distasteful to Scalia. “I was offended by John F. Kennedy when he was running for president and said he hoped no one would vote against him because of his religious affiliation,” Scalia later recalled, noting that the views of the abolitionists and many public decency laws, such as those against bigamy and public nudity, all had their basis in religion.48 When Scalia later faced a similar choice serving on the United States Supreme Court, blogged Catholic law professor Rick Garnett, he would not “put aside” his religious views and teaching in the performance of his duties.49 He explained his views as a federal judge: “A religious person cannot divide his view of man. He can’t separate religion from his own natural inclinations. Catholicism is not some superficial overlay. . . . It is who I am and how I see [the world].” For Scalia, “religiously motivated work is not un-American. . . . Official public expression of God and God’s law distinguish us from most Western countries.”50
Years later, Scalia would use these arguments to try to persuade an audience that religion did not drive his judicial decision making. But few would believe him because, when put in a situation similar to that of Kennedy, Scalia reached the opposite conclusion, and pursued a different course.
This debate over the role of religion in the White House was a precursor of what was to come for the followers of the Catholic faith. On October 11, 1962, Pope John XXIII convened the 21st Ecumenical Council of the Catholic Church. Called the Second Vatican Council, or Vatican II, because for only the second time the council met at St. Peter’s Basilica in the Vatican, over the next four years, up to 2,300 Catholic religious figures from around the world met to determine the direction of the Church in the modern world. The participants reviewed all of the religion’s teachings, finishing under Pope John’s successor, Pope Paul VI. The sixteen documents that they promulgated changed the face of Roman Catholicism. Perhaps the biggest change coming from Vatican II, and the one that had the greatest impact on the thinking of Catholics such as Scalia, was in the baseline philosophy governing these changes. The existing approach of a “return to the sources,” promulgated in Vatican I nearly a century earlier was abandoned in favor of “updating and modernizing.” This new approach went “beyond the sources” in a process sometimes called the “new theology.”51
No longer was the Catholic faith to be governed vertically by monarchical, hierarchical relationships within the religious bureaucracy or between the priests and their congregations. The new model was more open, with equal participation between the priests and their parishioners. Masses would be said in the congregants’ native language, meaning a switch from Latin to English in the United States, and with the priest facing the congregation (instead of away from them toward an altar) and inviting all to participate fully in the liturgy. Religion would be more inclusive, even to visitors from other religions, with readings being made available in new English translations. Worshippers were taught and encouraged to think for themselves, to interpret the Bible and their religion themselves, and work side by side with their priest and others in the congregation, sharing their new understanding. As a result of this change, many American Catholics would begin to drift away from the strict observance of the past to develop their own form of the religion, with many, possibly even a majority, choosing to take an “à la carte” approach, picking and choosing those parts of the religion that they wanted to follow.
The precise text of the old Catholic sources no longer mattered as much as what was called “the spirit of the [Vatican II] council.” As church historian Father John W. O’Malley explains: “ ‘Spirit’ here meant an overriding vision that transcended the particulars of the documents and had to be taken into account in interpreting the council. The vagueness of the ‘spirit’ is brought down to earth and made verifiable when we pay attention to the style of the council, to its unique literary form and vocabulary, and draw out their implications. Through an examination of ‘the letter’ (form and vocabulary) it is possible to arrive at ‘the spirit.’ ”52 This was certainly not the textual, historical approach taught to Scalia by his father, using his theory of “literalness.” Said David Snow, a partner in the Jones Day firm who knew Scalia at the time, “In the sixties, I can recall him being perturbed by the liberalizations in the Catholic Church.”53 From the moment that Vatican II took hold in America, Antonin Gregory Scalia was a man out of tune with his time and his religion. He now realized that he was a member of a religious minority even within his Catholic faith, which itself was a minority in America. The double-sided nature of that identity as a minority would help to shape his later views and actions.