January 20, 1977, inauguration day for President Jimmy Carter, saw a tide of Republican conservative operatives who had worked in the Nixon and Ford administrations since 1969 leaving office. Like thousands of other conservatives, Antonin Scalia needed to find a new job. After sampling private legal practice, teaching law school, and government service, he looked to augment his résumé to be in a prime position for a better job when the Republicans returned to the White House. Now on the outside of the revolving door of Beltway politics, he sought a place in private life that would allow him to earn a living and, most importantly, make new and broader contacts among conservatives.
Normally, political activists remain in Washington at lobbying firms or think tanks in order to continue to position themselves for their next opportunity. But the ever-confident and capable Scalia was not one to follow the normal path, and he was still uncertain where his interests would take him. Initially, he took an offer of a temporary teaching position for the spring term at the Georgetown University Law Center. This allowed him to determine whether, after the adrenaline rush of government service, the more sedate world of academia would hold enough interest for him while providing the school’s administration time to consider whether to offer him a long-term appointment. In order to maintain his public service contacts, Scalia also accepted a position as a resident scholar in the American Enterprise Institute, a conservative think tank headed by William J. Baroody Jr., an Office of Public Liaison official for Gerald Ford. This position not only afforded Scalia maximum flexibility to study whatever conservative political issues interested him, but also to discuss them with the institute’s renowned conservatives, including political émigrés from the Nixon and Ford administrations.
As a consequence of this new association, in July 1977 Scalia joined the editorial board of the institute’s new bimonthly Regulation magazine, featuring articles on government regulation, antitrust issues, and trade restrictions.1 Scalia’s conservative bent fit well with the magazine’s basic philosophy that government “regulation could be sensible, cost-efficient, and as unburdensome as the nature of its objectives will allow.”2
Scalia described his work on Regulation: “I participated to varying degrees in the writing for the Perspectives portion of the publication, which consists of four or five unsigned pieces. In most cases it would be difficult to say which of those pieces were ‘mine,’ and to what degree.”3 The editorial board at that time consisted of many of the leading conservative legal and political thinkers, including Yale professor Robert Bork, journalist Irving Kristol, future U.S. ambassador to the United Nations Jeane Kirkpatrick, and conservative political scholar Austin Ranney. In time, legal thinker Laurence Silberman was added to the board. This editorial group began to function as a conservative public policy incubator, generating a wide range of ideas for advancing the small government philosophy that would guide the next Republican administration. In time Scalia would become a coeditor of the magazine, along with Murray Weidenbaum, later the chairman of the Council of Economic Advisers, and then the sole editor of Regulation, affording him total control over the publication.
By the fall of 1977, Scalia decided to return to the relatively peaceful life of the Midwest, accepting a teaching post at the University of Chicago Law School. The law school was becoming the home of a coterie of conservative legal economics thinkers who argued that the law was best understood by applying the same cost-benefit analysis used by economists. For Scalia, who had already begun to establish his credentials as a conservative legal scholar, the University of Chicago Law School was the perfect place to hone his views and network in the academic world. And his continued work with Regulation and the American Enterprise Institute allowed him to maintain his contacts in Washington.
There was an additional personal advantage to academic life that could not be ignored: the Scalias then had eight children, and the two oldest, Ann and Eugene, were sixteen and fourteen. Chicago offered college tuition assistance for children of faculty members. The large Scalia family moved into a former fraternity house just off campus in Hyde Park. Over the next five years, Chicago would become his academic home, interrupted only by a one-year visiting professorship at Stanford Law School from 1980 to 1981.4
At that time, the law school was filled with academic luminaries—many of whom were at one point or another considered for the Supreme Court, including Constitutional Law professor Philip Kurland, a former law clerk to Justice Felix Frankfurter; Jurisprudence professor Edward Levi, Scalia’s boss in President Ford’s Justice Department; and Torts professor Richard Posner, later to become one of the nation’s most visible Court of Appeals judges, serving on the Seventh Circuit. There were also many promising junior professors, including conservative law and economics theorist Richard Epstein, who taught Torts and Corporate Tax, and the equally impressive Geoffrey Stone, then teaching Evidence but who would later become one of the nation’s leading scholars on constitutional law and the First Amendment. Scalia taught a full load of courses, including the first-year Contracts course, and second- and third-year courses in Administrative Law, Constitutional Law I, Constitutional Law II: Freedom of Expression, Regulated Industries, as well as seminars of twenty students or fewer in both Federal Communications Law and Federal Regulatory Reform.5 Of Scalia’s early teaching, his student and later federal Court of Appeals judge Michael McConnell said, “[Scalia] gave of his time very generously and was very good one on one with students. But at the time he did not have much of a classroom presence.”6
Scalia came to Chicago just a few years after the death of that school’s highly influential conservative political philosopher Leo Strauss. Strauss had preached to his growing band of devoted academic followers the need for strict adherence to a careful textual reading of philosophical works, bolstered by rigorous historical analysis, in an effort to deconstruct texts to uncover what they argued were their hidden meanings within. One of Strauss’s most influential lessons dealt with the “idea of the perfect speech,” or the notion that a certain kind of speech, if understood properly, can be perfectly revealing of a political reality.7 With the proper examination of text, driven by the right kind of intelligence applied to the correct set of analytical materials, Strauss explained, a deeper meaning can be revealed to the careful reader. Strauss’s teaching, which spawned generations of conservative political scientists, was still alive at Chicago during that period.
The rigorous rules of intellectual and verbal engagement at the University of Chicago Law School were a bit different from other law schools. Both in and out of class, discussions operated on what Professor Richard Epstein called an “invisible set of legal rules that would have made the Marquess of Queensbury proud.” Under highly democratic, but inevitably Darwinian, discussion rules known as the “first possession rule,” people who got the floor, regardless of age or rank, were “allowed to keep it. The shy [had] to remain silent on the sidelines. But keeping the floor [was] not simply a matter of moving one’s jaw. You had to say something that was worth hearing, or else you found yourself quieted under our local version of the gong show.” The result was a “cultural feature [that] liberates debate by creating, as we Chicagoans like to say, the right kind of incentive structure. Senior faculty members are kept on their toes because they know that rank has few if any privileges. Junior faculty members get on their toes because they know that they can participate from the get-go in the life of the community.”8 The process taught everyone the value of successful argument, but it also bred in the more junior people an antiestablishment iconoclasm that fit well with Scalia’s world view. The result was what Epstein described as “a laboratory for Social Darwinism, red in tooth and claw.”
For Scalia, who had been schooled in Georgetown college debate, and then again in the rigorous Socratic argumentation of his law school colleagues at Harvard Law, the adjustment from the more respectful, hierarchical world of governmental service had taken little time. Scalia was fully prepared for the effect of the iconoclastic classroom that this culture encouraged. His performance in class “brought a sense of lightness and humor to the classroom—at first,” one of his students remembered. He “seemed intent on making Contracts fun, or at least comprehensible. He was an energetic teacher and anxious to succeed, just as we were, so we viewed him sympathetically.”9 As he proposed hypothetical twists on the day’s legal concepts, Scalia tried to make them entertaining, referring to everyman as “John Q. Public” and “Joe Six-Pack,” representatives of the average American blue-collar person.10 The hypothetical contracts always seemed to involve some kind of bizarre sale situation for the legendary Albemarle Pippins, a tasty apple that was discovered by George Washington and Benjamin Franklin and became the favorite of Thomas Jefferson. The students loved it: “His choice of the humble apple for his hypotheticals seemed a brilliant stroke. What better way to introduce students to legal complexities than through easily understood examples involving apples?”11
One of the stories from Scalia’s early years of teaching said much about who he was in the classroom and who he would become. Fueled by Chicago Law’s cultural lack of hierarchy, Scalia’s class members decided to play a prank on him to relieve some of the stress of this educational pressure cooker. One day, as Scalia was conducting his class, someone began banging on the door. When it was opened, a tall, blond, second-year female student, her hair in braids, marched into the room outfitted in “farmer’s overalls and a red-checked shirt” with “a hayseed between her teeth.” Only the teacher seemed perplexed by the scene. “Antonin Scalia?” the farm girl shouted in a down-home drawl. “We got yer shipment for ya. C’mon boys, bring ’em in.” As the confusion on Scalia’s face became more apparent, students dressed as farmers brought bushel after bushel of ripe apples and placed them in front of the room. “These here are yer Albemarle Pippins,” one of the “farmers” said. Scalia smiled as the students began to laugh heartily.
But the mood changed a few moments later. One student recalled:
For a few minutes we enjoyed the pleasant delirium of group participation in a shared joke. Then Scalia stopped . . . smiling. He didn’t merely stop—his entire demeanor changed. Perhaps he suddenly felt we were laughing at him, not with him. That perception couldn’t have been further from the truth, but it might explain the transformation that took place. One moment, Scalia was the jovial teacher, absolutely certain of his abilities and completely secure in the admiration of his students. In an instant, his entire affect changed. “That’s enough,” he said angrily, dismissing the farmer actors. Our laughter died down in a hurry as we returned to the case at hand.12
And from that day on, Scalia’s demeanor in class changed, as John Q. Public and Joe Six-Pack took their Albemarle Pippins and left the teacher’s world. Scalia became a stern taskmaster and “never recovered his prior avuncular manner, preferring instead to grill students harshly about legal issues. No more cheerful repartee in class.” Rather than seeing the class prank as evidence that his students “liked him so much,” their teacher seemed to take offense.13 In following years, Scalia “regained his equilibrium and once again displayed a spirited and brilliant teaching style,” but some of the students in the apple-incident class wondered whether the teacher who came “across as self-assured” was in fact much more “thin-skinned.”14
As he closed many of his classes, Scalia drew from the lesson he had learned from his undergraduate days at Georgetown that it was not possible “to separate your religious life from your intellectual life. They’re not separate.” Using his dramatic reading skills, Scalia would read a passage from Robert Bolt’s play A Man for all Seasons, detailing the religious and legal battles between Britain’s lord chancellor Sir Thomas More and King Henry VIII. Standing on religious and legal principles, More dared to refuse to sanction an annulment of the king’s marriage to Catherine of Aragon, the first of his six wives, in order for the king to marry Anne Boleyn. More paid for his beliefs with his life. Scalia read from a powerful passage in which More refuses to order the arrest of the man who would commit perjury against him, telling his future son-in-law, William Roper, “Whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I’ll hide my daughter with me! Not hoist her up to the mainmast of your seagoing principles! They put about too nimbly!”15 Later, Scalia would explain his use of this passage to close his classes to his biographer Joan Biskupic: “It’s such a beautiful expression of the importance of law.”16 Left unsaid, though, was the fact that More’s life resonated so well with Scalia because it also represents such a “beautiful expression” of the importance of religion in law, as More sought to defend his faith and the power of the pope against Henry’s claim of religious supremacy.
Beyond the formal classes, Scalia helped to organize and lead what would become an army of young legal conservatives. Law school faculty members in the late 1970s, many having been educated during the liberal, activist, Warren Court years, were predominantly liberal. The comparative handful of conservative faculty members and law students found themselves vastly outnumbered and unorganized. Change began as a result of a report by Michael Horowitz to the conservative Scaife Foundation in 1979 analyzing the nonprofit, public interest legal reform prospects for conservative law students. The widely distributed report argued there was a need for a network of conservative legal scholars and students. It took three years before the idea began to take hold.17
Early in the 1981–82 academic year, coincident with the start of Ronald Reagan’s presidency, a small group of conservative students at Yale Law School, led by a second-year law student named Steven Calabresi and advised by their antitrust professor, University of Chicago alumnus Robert Bork, launched a debating society through which conservative law students and faculty could discuss constitutional and legal ideas. That same year, two conservative law students at the University of Chicago, Lee Liberman Otis and David McIntosh, both of whom had known Calabresi when they were undergraduates at Yale, approached Scalia and persuaded him to become the faculty adviser for a chapter of the Yale group at Chicago. The students named their group the Federalist Society for Law and Public Policy Studies, or more commonly the Federalist Society. Rallying around a silhouette profile of James Madison, they sought to limit what they saw as the liberal, activist excesses of the federal judiciary in expanding federal rights. Instead, they favored returning to a strict adherence to the text of the Constitution and the Bill of Rights. Eventually, the group would offer as its mission statement: “[The Federalist Society] is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.”18
Professors Scalia and Bork played an indispensable role in developing their new student organizations, meeting with students, teaching them about conservative legal philosophy, and speaking at their events. Despite Bork’s nomination to the federal Court of Appeals for the District of Columbia in December 1981, his contribution was enormous. The students’ early efforts were hampered by people taking down their meeting announcements or scrawling graffiti such as “fascist” on them.19 Rather than striking back, Bork convinced Calabresi to focus on developing a national organization through which they could institutionalize their discussions, and plan for a national symposium on law, while also plotting strategy for undermining the liberal control over the federal judiciary. Years later, Calabresi would say of Bork’s guidance that he “did more than anyone else . . . to help create, nourish, and legitimize the Federalist Society. . . . Judge Bork had faith in us when we were a small handful of law students, and he spent hours teaching us, setting an example for us, speaking at our events and helping us get started. Without Judge Robert H. Bork there would be no Federalist Society today. He was, and is, our inspiration, our teacher, and our hero.”20
With Bork leaving for the Court of Appeals after his Senate confirmation on February 8, 1982, Scalia’s role became even more important to the development of the new Federalist Society. He helped to raise funds and used his contacts at Harvard and Stanford law schools to help organize a national group by inviting prominent conservative law faculty and their students to Chicago to speak to his students, even, at times, hosting them at his home. Because of these institution-building efforts, Steven Teles, in his definitive history of the origins of the conservative legal movement, describes Scalia as “the most important elite sponsor of the [Federalist] Society in its early years.”21
Buoyed by a $25,000 grant from the conservative Institute for Educational Affairs, directed by journalist Irving Kristol and William Simon, secretary of the Treasury under Presidents Nixon and Ford, along with support from the conservative Olin Foundation and Intercollegiate Studies Institute, the Yale and Chicago Federalist Society chapters decided to hold their first national symposium in New Haven in April 1982. They invited two other conservative law student organizations from Harvard and Stanford. All of these groups used the occasion to organize debates about law, presenting all points of view in the belief that the conservative views would win out. They were joined in this effort by E. Spencer Abraham, founder of Harvard Law School’s Journal of Law and Public Policy, which would serve as the journal for the society.
Seventy-five students gathered at Yale Law School on April 24–25 for the group’s first national symposium, on the topic “Federalism: Legal and Political Ramifications.” Judge Robert Bork was the keynote speaker, with Scalia also giving a prominent address.22 Calabresi recalled that Bork, by reason of his new appointment to the prestigious D.C. Court of Appeals, “was the marquee name who everyone else came to our conference to see.”23
As they heard Bork speak, everyone in the room believed that with Ronald Reagan in control of Supreme Court appointments, and the Republicans in control of the Senate, it was only a matter of time before he would be elevated to the High Court. Having already been considered twice before for the Supreme Court vacancies in 1975 and 1981, first and foremost among the names on any list of people who should be considered by the Reagan administration for the next vacancy on the United States Supreme Court was Robert Bork.24 Bork’s visibility in this race was well earned. He had served as solicitor general of the United States from June 1973 through January 1977. On October 20, 1973, with Richard Nixon under fire as a result of the Watergate break-in controversy, the president ordered his attorney general, Elliot Richardson, to fire the Watergate special prosecutor, Archibald Cox. Richardson refused and resigned, as did his deputy, William Ruckelshaus, who was then fired. Nixon then made Bork the acting attorney general, from which position he did the president’s bidding in firing Cox in what became known as the “Saturday Night Massacre.” While the action enraged liberals, it delighted conservatives in both the Ford and Reagan administrations, who considered Bork among their leading legal intellects.
Bork’s seminal book The Antitrust Paradox: A Policy at War with Itself, published in 1978, helped to cement his scholarly reputation. In it he argued against the nation’s antitrust laws, relying on both “original intent” evidence, that is, the intent of the Constitution’s or other laws’ drafters, and a “law and economics” public policy argument in positing that the corporate mergers resulting from governmental deregulation would promote economic competition as well as consumer welfare.25
While the goal of the young legal conservatives in the new Federalist Society was to establish a national conservative legal organization, the society served another important function. As described by Yale law professor Owen Fiss: “[it was] less a philosophic society than a mutual support group, a therapeutic community in which people who feel aggrieved and alienated can find comfort and support from those with similar feelings.”26 Almost immediately after the first national symposium, bolstered by coverage in William F. Buckley’s conservative National Review magazine, law students at fifteen other law schools contacted Calabresi about forming their own chapters. Over time a web of conservative lawyers was spun nationwide, as Federalist Society historian Steven Teles explains: “The nascent Federalist Society was beginning to connect conservative law students from across the country, and the involvement of Scalia [among others] connected the society to the conservative legal establishment.”27 From there, the value of these contacts became apparent. Otis, Calabresi, and McIntosh would be hired by Reagan attorney general Edwin Meese and given the mandate as assistant attorneys general to build a Federalist Society network within the Justice Department, which in turn would develop lists of conservative lawyers to be appointed to the federal judiciary. New law school chapters formed around the country along with companion lawyer divisions of alumni. In the beginning the chapters were small. Justice Samuel Alito recalled that when he was a member of Reagan’s Justice Department, the Washington chapter was so small that its monthly meetings were held in a Chinese restaurant called the Empress. The meetings were so secretive, with few admitting they attended. Alito later recalled bumping into another Justice Department official at one of the gatherings. “Well you’re here,” the fellow said to Alito. “This is like meeting a friend at a bordello.”28
In time, though, the number and size of these chapters grew so rapidly that by the fall of 1985, political journalist Sidney Blumenthal wrote about the society’s rising power in The Washington Post. It became clear that membership, and leadership, in the Federalist Society was now considered a requirement for seeking a legal position in the Reagan administration.29 In time, journalists would call the movement the “Conservative Elite.”30 By 1986, Otis and McIntosh would tell journalists that half of the 150 political appointees in the Justice Department were former members of the society.31 Society members became the group to look to for conservative federal clerkships and other political positions during the presidencies of Reagan and George H. W. Bush, as well as for a network of influential conservative legal scholars. Even after Bork and Scalia had left their academic appointments to serve in the federal judiciary, both men continued to travel to speak at Federalist Society chapters around the country to foster the organization’s growth.
This organization that Scalia, Bork, and their law students launched in the early 1980s never stopped growing. Twenty-five years after their first national convention, there would be chapters in nearly two hundred law schools, bolstered by so many burgeoning companion lawyer chapters that the group that once met in a Chinese restaurant now drew enough attendees in 2007 from its national membership of forty thousand to fill Union Station’s massive lobby in Washington for its twenty-fifth anniversary convention.32 And among the many dignitaries praising the founders’ vision and the courage was one of those early faculty supporters. Antonin Scalia, by then a Supreme Court justice, would boast from the podium, “We thought we were just planting a wildflower among the weeds of academic liberalism and it turned out to be an oak.”33
Once more, a lucky star seemed to hang over Scalia’s career. As one of the founding faculty leaders of the new conservative network of Federalist Society law students and lawyers, Scalia would enjoy the organization’s support in all of his future career moves. It would provide sustenance for him in facing his liberal critics.
But in 1982 Robert Bork was the more visible of these two conservative legal scholars. With Bork on the Court of Appeals, though, Scalia would continue working to build his résumé.
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Beyond all of his accomplishments at the University of Chicago, Scalia took on considerable work with the Chicago-based American Bar Association. Launched by his service in the Ford administration, Scalia moved through the administrative ranks in the ABA’s maze of committees. He became the chairman of the Committee on Judicial Review from 1979 to 1980, then chairman-elect of the Section of Administrative Law and Regulatory Practice, becoming its chairman in 1981. This position gave Scalia an opportunity to write a “Chairman’s Message” for the ABA’s Administrative Law Review and to give speeches on many of his favorite administrative law bêtes noires, including administrative oversight of congressional legislation, the Freedom of Information Act, and the constitutionality of the legislative veto.34
He maintained his contacts in Washington. Continuing his work with the American Enterprise Institute, Scalia built up his publication record, writing many essays articulating his conservative philosophy. His first article for the maiden issue of Regulation in July 1977, titled “Two Wrongs Make a Right: The Judicialization of Standardless Rulemaking,” was exactly what the Nixon and Ford administration officials had seen in his work for the Office of Legal Counsel and the Office of Telecommunications Policy.35 It was a learned piece of scholarly research and analysis, targeting his conservative audience’s cherished anti-regulation views while also offering some of his trademark phrasemaking and metaphorical imagery.36 Following that article, Scalia made full use of his new platform on the Regulation magazine Board of Editors by commenting on all manner of public policy issues, frequently attacking those government policies that most vexed him. He did not spare the federal courts either, writing, “We live in an age of ‘hair-trigger unconstitutionality,’ and almost no result produced or about to be produced by the democratic process at any level of government seems immune from attack by some Scribe or Pharisee with a law degree on the ground that it contravenes the Basic Charter of our Liberties.”37
In 1983, Scalia had a chance to take aim at one of his favorite targets, the legislative veto. The case involved Jagdish Rai Chadha, a student from Kenya who had overstayed his visa. Ordinarily he would have been deported, but the attorney general had suspended deportations under the existing federal immigration law. Under the legislative veto provision of that law, the House of Representatives vetoed the suspension, thus dooming Chadha to deportation. After the U.S. Court of Appeals for the Ninth Circuit ruled that legislative vetoes were unconstitutional, and the Supreme Court indicated that it would review the appeal, the American Bar Association decided to submit an amicus curiae brief in support of the Ninth Circuit’s decision. As chairman for the ABA’s Section of Administrative Law and Regulatory Practice, Scalia wrote most of the first draft of the brief to be presented to the Supreme Court. Taking the strong pro–presidential power approach that he had developed in Ford’s Office of Legal Counsel, Scalia argued that such vetoes were unconstitutional “because they permitted legislative inteference in executive functions and purported to authorize the legislature to take acts of legislative character and effect without following the procedures mandated by the Constitution.”38 The Supreme Court largely adopted Scalia’s position by ruling that the blending of the constitutional legislative and executive powers in the legislative veto provisions of dozens of federal laws made them unconstitutional.39
Scalia had made clear in his work in the Office of Legal Counsel his opposition to the Freedom of Information Act. One of Scalia’s most visible and quoted Regulation commentaries came on this topic in 1982, in a piece titled “The Freedom of Information Act Has No Clothes.”40 Scalia termed the FOIA “the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored.”41 Scalia’s real target was not the original act in 1966, which he termed “a relatively toothless beast,” but the 1974 amendments that he had unsuccessfully tried to undo in Ford’s Office of Legal Counsel. To him, while these were “promoted as a boon to the press, the public interest group, the little guy; they have been used most frequently by corporate lawyers.”42 Noting that any effort to reform the FOIA process “take[s] on an Alice-in-Wonderland air,” Scalia concluded, “The defects of the Freedom of Information Act cannot be cured as long as we are dominated by the obsession that gave them birth—that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press.” Instead, once more pressing for greater democracy, Scalia pointed out that all of the recent revelations of presidential excesses during the Watergate investigation, and the revelations in the 1970s about the excesses of the CIA and the FBI, which he had fought during the Ford years, resulted not from FOIA investigations but instead were “primarily the product of the institutionalized checks and balances within our system of representative democracy.”43 While he admitted that FOIA was “probably part of the permanent legacy of Watergate,” Scalia pleaded, “We need not, however, admire the emperor’s clothes.”44
Scalia also found the opportunity to increase his visibility and make his views known in testifying before Congress. In early 1978, he took time out from his first year of teaching at Chicago to return to Washington to testify in support of a plan to create federal college tuition tax credits. This proposal was designed in Congress as a response to President Carter’s plan to create college scholarships designed to benefit middle-class college students. Scalia was particularly distressed that the Carter Office of Legal Counsel was arguing that the congressional tuition tax credit legislation was unconstitutional and would be struck down by the Supreme Court. Scalia took issue with that reading, arguing that Congress’s plan would, and should, constitutionally benefit religious education at the college level. In reviewing what he described as “the utter confusion of Supreme Court pronouncements in the church-state area,” Scalia argued that the constitutionality of such tuition tax credit programs “has not been resolved by any holding, or even by any consistent line of dictum, from the Supreme Court.” Scalia urged Congress to take responsibility for this measure because it was expressing the democratic will: “In approving or disapproving the present proposal on constitutional grounds, you will not be following—and cannot pretend to be following—any dictate of the Supreme Court, but will rather be expressing your sense, and the sense of the society, as to what our most profound national convictions require. Your expression, in turn, can be expected to influence the course which the Supreme Court will steer in the future.”45
That said, the man who, during his time in the Office of Legal Counsel had routinely opposed Congress in order to protect President Ford, now placed the issue squarely in their hands. “I urge you, then, to approach this issue as a question of what the constitutional law ‘should be,’ rather than vainly seeking to determine what it ‘is’ under the decisions of the Court. For me, the answer to that question seems quite clear. There is no doubt, of course, that the tuition tax relief provided by this legislation is constitutional as applied to parents and students paying tuition to nonreligious private schools. . . . You must ask yourselves whether the special solicitude for religion contained in the Constitution was meant to produce such a distinctively anti-religious result.”46 Three years later, Scalia recrafted these remarks into a policy article, writing that “these issues should be discussed in Congress at a principled level. They should not be foreclosed by lawyerly hair-splitting of selected hairs and brash judicial entrail-reading of the sort represented by the Justice Department opinions.”47
Scalia used some of his most impassioned rhetoric when discussing governmental affirmative action programs that had been flourishing since the Supreme Court’s endorsement of that policy in the 1978 Regents of the University of California v. Bakke decision.48 Affirmative action programs sought to balance results by including race as a factor in decision making when all other factors were equal in order to increase diversity.
In a law review article titled “The Disease as Cure,” this son of an Italian immigrant who had made his living in academia during xenophobic times had no tolerance for governmental programs that gave advantages to people based on their race or gender. In a scathing piece mocking the Supreme Court’s logic and decisions, Scalia argued that “tak[ing] account of race,” as Harry Blackmun argued in the Bakke case, in order to give some people a “plus factor” in programs distributing benefits of some kind, was itself a racist policy. In what was becoming his trademark hyperbolic style, Scalia criticized the Court’s work in race cases as “an embarrassment to teach” and “an historic trivialization of the Constitution,” creating an “utterly confused field.” The program was, Scalia explained, “based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need.” People who had never discriminated were compelled to suffer in order for others of a different race or gender to benefit.49 He argued instead on behalf of a merit-based system, allowing for success based only on individual achievement.50 In considering federal Court of Appeals judge John Minor Wisdom’s opposing concept of “restorative justice” in the form of affirmative action programs, Scalia turned to his own family history. “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 had ever seen a black man. There are, of course, many white ethnic groups that came to this country in great numbers relatively late in its history—Italians, Jews, Irish, Poles—who not only took no part in, and derived no profit from, the major historic suppression of the currently acknowledged minority groups, but were, in fact, themselves the object of discrimination by the dominant Anglo-Saxon majority.” As for Scalia himself, “I owe no man anything, nor he me, because of the blood that flows in our veins.”51 Seeking to ridicule the Court’s decisions, Scalia offered a satirical “modest proposal” for an affirmative action program called “RJHS—the Restorative Justice Handicapping System” by which “each individual in society would be assigned at birth Restorative Justice Handicapping Points, determined on the basis of his or her ancestry.”52
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With his conservative credentials renewed inside the Beltway by all of these efforts, his legal credentials were bolstered with each passing year that he taught his law classes at the University of Chicago. And with his effect on future generations of young conservative attorneys expanding every time the Federalist Society met, Scalia knew that if he had any interest in moving into the federal judiciary, whereupon the American Bar Association would review his résumé upon his nomination, he would have to find a way to renew his credentials as a practicing attorney. For that, he would have to demonstrate that he could handle himself in a courtroom. He decided to demonstrate his legal credentials and bolster his conservative intellectual bona fides, not to mention at times his finances, by joining various legal teams arguing cases in front of appellate court panels.
The range of cases that he joined was impressive. In the spring of 1977 he became of counsel to the prominent Chicago law firm Baker & McKenzie to plan strategy and draft the petitions and legal briefs for Dresser Industries in its fight against the Securities and Exchange Commission. The issue concerned the so-called Voluntary Disclosure Program created by the agency in 1975 to encourage industries to disclose any bribery payments to people in other countries in order to further the American firm’s business, even though such activity was not illegal in the other country. The Dresser firm’s leadership was concerned that such revelations would endanger the careers or even the lives of those foreign nationals who had agreed to assist their business. When the Department of Justice began to investigate, arguing that the corporation had paid “extortionate” amounts to foreign nationals, Dresser Industries sought to block its subpoenas for a grand jury. Scalia’s work on the appeal before the District of Columbia federal appellate court was initially successful in keeping the company’s files from the Justice Department.53
In another case, the attorneys for the drug company Merck hired Scalia to write a legal brief in a controversial class action tort case called Payton v. Abbott Labs. The case involved a suit in Massachusetts state court against Merck for the use of a drug called DES, which was designed to prevent miscarriages. However, DES was alleged to cause abnormalities in pregnant women’s reproductive organs. The issue was that the complainants were often unable to say which company had produced the drug they had used. Under the legal theory known as “market share liability” the plaintiffs argued that each company producing the drug, among them Merck, should be liable for its share of the product sold, regardless of whether it had been used by the plaintiffs or whether it could be demonstrated to have caused the physical problems. Merck hired Scalia in an effort to avoid being subjected to market share liability, knowing that if it were adopted by the court the company might have to pay damages for harms it had not committed and would be barred from proving lack of responsibility in the case. In the end, Scalia’s argument in the legal brief helped to persuade the Massachusetts Supreme Judicial Court to reject this general shared liability theory, arguing that it might compel some companies to pay more in damages than their products had actually caused.54
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With all of these efforts Scalia had made himself one of a handful of the most visible legal academics in the United States. But he and his wife were ready to leave Chicago to return to the East Coast—so much so that he began exploring other law school positions. He was hoping to be appointed Reagan’s solicitor general. This position was everything that Scalia could wish for. Being charged with briefing and arguing cases before the United States Supreme Court gave one the kind of visibility and access to key officials in the Department of Justice and the White House that could lead to an important federal judicial appointment.
Few doubted that Scalia had the necessary credentials for the position. He had demonstrated the kind of legal acumen and political insight required to solve the most perplexing legal problems for the administration. In the competition for the solicitor generalship as well as other administrative positions, Scalia benefited both from his legal experience and his national heritage. The Scalia appointment file, being developed by Pendleton James, the director of personnel management for the Reagan transition team, bulged with letters solicited and unsolicited from conservative allies supporting Scalia and sent both to James and Attorney General–designate William French Smith.55 As well, the National Italian American Foundation launched an orchestrated lobbying effort for him.56
As the months dragged on into early 1981, Scalia’s main competition for the solicitor generalship became Rex Lee, who had been the assistant attorney general in the Civil Division of the Department of Justice in the Ford administration and was then the dean of the law school at Brigham Young University in Provo, Utah. In the spring of 1981, both Scalia and Lee were asked to come to Washington for an interview with Attorney General Smith. For the first time in his professional life, however, Scalia came out second best, with the appointment going to Lee on May 22, 1981. Devastated, Scalia met with Ernest Gellhorn, the managing partner of Scalia’s old Jones Day law firm’s Los Angeles office. Gellhorn tried to console him by pointing out that this failure might “be a blessing in disguise.” When a vacancy occurred on the Supreme Court, Gellhorn told Scalia, he would be considered for selection “without the dangerous baggage that solicitors general carry from all the briefs they sign in controversial cases.”57
Scalia was again reminded that he had not yet made it to the A List of appointees later that year when the new administration passed over him for vacancies on the federal Court of Appeals. Scalia saw well-respected conservatives Ralph Winter and Richard Posner receive appointments for the Second Circuit and the Seventh Circuit, respectively. When a vacancy occurred on the Circuit Court for the District of Columbia in late 1981, that seat went instead to Robert Bork.58 For Scalia, these disappointments were an indication that as of early 1982 in any competition for a vacancy for the Supreme Court, which was occurring less and less often as justices served longer and longer, he would be no better than third in line behind Bork and Lee, and without a Court of Appeals seat on his résumé, likely not even that high.
Despite his fears, the Reagan people had not forgotten Scalia. In the spring of 1982, he was offered a seat on the federal Court of Appeals for the Seventh Circuit, based in Chicago. But Chicago was no longer where he and his family wanted to be, and the Seventh Circuit held no attraction for him. It was not considered a springboard to the Supreme Court, Justice John Paul Stevens’s appointment in 1975 aside, and that bench did not hear the administrative law cases well known to him and most advantageous to his future career prospects. Those were reviewed in the D.C. Circuit. With seven of the eleven members on the D.C. Circuit having been appointed before 1971, four of them before the mid-1960s, the likelihood of vacancies on the rapidly aging Court seemed great. After considering his options, the forty-six-year-old Scalia decided, “Hell, I’ll wait.”59
It was the career gamble of a confident man, but it was also the decision of a man who knew that, the solicitor generalship position aside, these choices had almost always worked out in his favor. And this was no different. For, unknown to him, the wheels had already been set in motion for his next career move.