Introduction
It began with a hinting that Antonin Scalia was outspoken. That is the
paramount quest in a classroom: to find something that stands out. Dr.
Ulmschneider had run through the ideology, the history, and the practices
of the Supreme Court of the United States, but we had yet to really sink
our collective set of teeth into the justices themselves. Scalia was characterized
as argumentative and relatively cocky. This, of course, was the signal
to begin research.
It is the grand experiment: regurgitation, accompanied by interpretation.
This paper seeks to combine both history and probable hypothetical. The
first step is to recite elements of Scalia’s past and ideologies; the second
is to use these knowns to solve an unknown-- in this instance, a possible
case appearing before the Supreme Court: Weaver v. Fort Sane College. What
must be discovered by this experiment is how justices’ pasts and individual
philosophies influence their decisions.
Part One
II.
On the eleventh of March, in 1936 , another screaming baby came into the
world, the only son of a Sicilian language professor and a first-generation
Italian-American schoolteacher. Antonin Scalia was vocal, even
then. He graduated from a Manhattan Jesuit prep school, a valedictorian,
and received his A.B. in 1957, the combined effort of Georgetown University
and the University of Fribourg, in Switzerland. He graduated magna
cum laude from Harvard in 1960, and married later that same year
to Maureen McCarthy. He was admitted to the Ohio Bar in 1962, and to the
Virginia Bar in 1970; Scalia practiced law with the private firm of Jones,
Day, Cockley and Revis in Cleveland, Ohio, from 1961-1967. He became a
professor of law at the University of Virginia in 1967, and has been
lecturing people ever since.
His (federal) public life began with an appointment to the Office of Telecommunications
Policy in the Executive Office of the President in 1971. He later served
as chairman for the Administrative Conference of the United States,
and as Assistant Attorney General for both Nixon and Ford. Scalia,
then, was well-aquainted with the executive branch of politics. His judicial
career started with a judgeship at the U.S. Court of Appeals for the District
of Columbia Circuit in 1982, and Scalia became an Associate Justice of
the Supreme Court just four years later, on September 26, 1986, following
a unanimous recommendation by the Senate Judiciary Committee, and a less
than controversial 76-word final report.
III.
It has been quoted to me several times: “Good art will never match your
furniture.” I never found out who said it, originally. The illustrative
point here, though, is that an active mind will seldom-- if ever-- conform.
Despite surprising “enormity of the workload”, Scalia survived his
first year on the High Court, and turned out to be one of its most outspoken
members, writing quite a few opinions that year. It also soon became
apparent that he was even more outspoken in the courtroom than on paper.
Associate Justice Lewis F. Powell once asked, “Do you think he knows that
the rest of us are here?” during one lengthy questioning of counsel.
Scalia defends his argumentative manner by stating, “It is academic in
me [to question]. The Devil makes me do it.” Devil’s advocate he
may be, but it’s for a purpose. “He uses arguments as a conversational
tool to explore the intricacies of a case for himself and his colleagues,”
a former clerk mentioned in the Chicago Tribune. However, Antonin
Scalia is not as contrary as this would make him out to be. He averages
7.6 dissents per term: relatively high for the Rhenquist Court, but definitely
low in comparison with Stevens, most members of the Burger Court, and Rhenquist
himself.
This justice is also less combative in private life. “Nino,” as his friends
call him, is blunt and congenial, known to sing along at the opera, to
choose beer over the aristocratic drinks, to relish pizza with anchovies,
and to play the piano for amusement, even at parties.
Scalia’s philosophy,
however, is well-defined and narrow. He is, in his own words, a “textualist”,
who views the U.S. Constitution as unchanging in interpretation.
“Words do have a limited range of meaning,” he maintained stoutly.
He seeks to keep constitutional meanings as they were when they were first
devised, and opposes those who would seek to interpret an evolving constitution.
Such changes to the document would be “the end of the Bill of Rights”,
as it would mean only what the majority wanted it to mean, thus cutting
off minority opinions. “They do not want flexibility. They want rigidity.
They want their desires on one issue after another to be adopted from coast
to coast on the basis of five votes,” he said at a Thomas Aquinas College
in 1997. Because of his strict constitutionalism, Scalia is also
against using stare decisis as sole argument for adopting a change in constitutional
interpretation. “Yeah, it’s wrong, but we’ve decided it and you can’t re-invent
the wheel...so we’ll accept what’s past,” he commented about this philosophy.
What, then, can countries do to change society? Pass a law! Want a right
to abortion? Follow the most democratic path: pass a statute or bill that
provides for it. Scalia considers the Supreme Court to be dangerous
to the freedoms of the American people: there are too few to make such
judgments. “I don’t even try to be in touch [with the American people,]”
he has said. How, then, would he know the kinds of things a congressman
should know? Scalia’s personal philosophy is to separate his sense of morality
from the interpretation of the constitution. He believes that the
founding fathers did indeed believe in inalienable human rights, but that
the U.S. Constitution said nothing about enforcing those rights.
This has led some critics to say that Scalia is against human rights, or
that he is willing to sacrifice those rights at the expense of other interests.
Another criticism is that he doesn’t practice what he idealistically hold
to be true. “Openness to persuasion [is] essential...so also is...generous
acceptance of the majority’s judgment,” he said in a speech in ‘97.
Despite this gentlemanlike statement, Scalia bitterly opposed O’Conner’s
stance in Webster v. Reproductive Health services when she refused to overturn
Roe v. Wade, and other members of the court have been put off by
his criticism.
However, Antonin Scalia has been largely embraced by the conservative movement.
Nino’s famous “I’m just a lawyer,” doesn’t span the love many conservatives--
fiscal and social-- have for his policies. First of all, there is his stance
on abortion: that it’s wrong. A devout Roman Catholic with nine children,
Scalia even attends a church who recently dedicated a monument to unborn
children. More importantly from a political standpoint, he supports
rights of abortion protesters.
There is also his firm position with regards to affirmative action: it,
too, is wrong-- unconstitutional, in fact. “In the eyes of the government,
we are just one race here. It is American,” he once said, echoing his stance
on the Supreme Court in this matter.
As for free speech, Scalia goes so far as to support prayer-- not just
a moment of silence-- at school graduations, which has effective
importance to the hypothetical case.
So beloved is Antonin Scalia that he is the only Associate Justice of the
U.S. Supreme Court to have several websites devoted to him alone. Another
interesting development from conservatives in his favour was that he has
been suggested as President of the United States by the National Review--
the nation’s largest conservative opinion magazine. Representative Boehner
(R-Ohio) even asked Scalia to be Dole’s running-mate the last election.
He has declined the idea of such a move, of course...
Part Two
IV.
Less than a year ago, the valedictorian of this year’s graduating class
at Fort Sane College, the petitioner, asked that the graduation ceremony
be changed from Saturday to another day in the week. Saturday was her Sabbath,
and she wished to speak at the graduation. The college denied her request,
but she later received a court order that demanded the college acquiesce.
Two months before the ceremony, she then submitted a copy of her speech,
which the institution then banned from the graduation until she removed
two statements: one arguing that the Bible requires separation of races;
the other stating that war between races is soon to come, and that hoarding
weapons and forming military units were things to consider because of this.
Fort Sane College cited its antiharassment policy in making its decision,
which reads:
“It is the policy of FSC to maintain the campus as a place of work and study for faculty, staff, and students free from all forms of harassment. Racial harassment is verbal or physical conduct that demonstrates hostility toward another on the basis of race and such conduct has the purpose or effect of unreasonably interfering with an individual’s employment or academic performance or creating an intimidating, offensive, or hostile environment for that individual’s employment, education, or participation in a university activity.”The valedictorian moved to keep her speech unedited, and the date the court ordered to remain, on the grounds that such demands by the college violate the 1st Amendment freedoms of speech and religion, Establishment Clause, and Equal Access Act. The college claimed that the court order to reschedule violated the Establishment Clause, and placed an “undue burden” upon the college; it also claimed that it had the right to edit the valedictorian’s speech, as it was to a “captive audience” and not in a public forum. We granted certiorari.
V.
In construing the order of the Federal District Court in this case, we
must look to the Constitutional framework that it is balanced upon. As
there is no record of that court’s opinion, we must assume that the argument
as submitted by the valedictorian is the argument which the lower court
upheld: namely, that Fort Sane violated the Free Exercise Clause of the
First Amendment, and students’ freedom of religion.
There is ample background for the decision of the lower court; at least,
there are several decisions which could be construed to assist thee valedictorian
in her claim that her rights were violated. What do they actually mean,
and do they have any true relevancy in this instance? Sherbert v. Vernon,
374 U.S. 398 (1963) allowed for employees to exercise their various faiths
without fear of dismissal-- to hold the Sabbath. Was the valedictorian--
Ms. Weaver-- in danger of losing her diploma if she did not keep with this
ceremony? No. Like the deli worker who does not get extra pay on Sunday
because she decides to go to church on those days, Ms. Weaver will not
get the added benefit of attending the graduation ceremony. This is no
cause for citing violation of religious freedom. Another case is Lee v.
Weisman, 505 U.S. 577 (1992). Here, high school students do not have to
attend public functions that establish a certain religion. One wonders,
though, why Ms. Weaver did not consider the students whose Sabbaths occurred
on the date the college set after the court ordered a change.
It doesn’t truly matter, however, what the religious values of the students
or administrators were at this school. Such views will always be divergent.
This court feels that changing such a long-held date places an unnecessary
burden on the college. Moreover, debates about college graduation dates
have no leverage in the Constitution. There simply isn’t a word in the
document that may be construed to allow a court to mandate such a change
in the ceremony. In such cases, it is best to leave scheduling of assemblies
to the institutions which are responsible for them.
VI.
Restrictions placed on “time, place, or manner,” have been upheld by this
court consistently; that is, if free speech was not also a factor.
Therefore, it is plain that the issue of editing Ms. Weaver’s valedictory
speech by the petitioner is a major issue at hand, as one cannot decide
one element with not regard to the next.
This court had held that regulations based on content are invalid.
In R.A.V. v. St. Paul, 505 U.S. 377 (1992), it was held that “the government
may not regulate use based on hostility-- or favoritism-- towards the underlying
message expressed. Fort Sane’s antiharassment policy only targets racially
hostile words or action for punishment. It has been found in several court
cases that such singling out has the effect of expressing disfavour only
to certain ideas, and where equally hostile statements of other ideals
would go unedited or unpunished. Such favouritism is not permissible
under the U.S. Constitution.
Conclusion
Let there be no misunderstanding: even though a college or university may
set its graduation date at any time, the prohibition of speech on such
strict grounds as “hostility toward another race” is unconstitutional.
The judgment of the Federal District Court is reversed.
It is so ordered.
Footnotes
1 “Antonin Scalia.”
Available INTERNET:
2 Marquand, Robert.
“High Court’s Colorful Man in Black.” The Christian Science Monitor 3 March
1998. Available INTERNET:
3 Elsasser, Glen.
“No Contest: Top Court’s Top Fighter is Scalia.” Chicago Tribune 27 May
1997. Available INTERNET:
4 ”Antonin Scalia,” 1.
5 Marquand, “Colorful Man,” 3.
6 “Antonin Scalia,” 1.
7 Ibid.
8 Marquand, “Colorful Man,” 3.
9 “Antonin Scalia,” 1.
10 O’Brian, David M. Storm Center: The Supreme Court in American Politics. 4th ed. New York: W.W. Norton & Company, 1996, 96.
11 qtd. O’Brian, Storm Center, 286.
12 Ibid.
13 Jackson, David.
“The Supreme Conservative: Justice Antonin Scalia Attacks What He Calls
“Elite” Judges in Supporting Traditional Values.” The Dallas Morning News
25 May 1997. Available INTERNET:
14 qtd. O’Brian, Storm Center, 286.
15 Elassser, “No Contest,” 2.
16 O’Brian, Storm Center, 331.
17 Jackson, “Supreme Conservative,” 4.
18 Marquand, “Colorful Man,” 2.
19 Scalia, Antonin. “A Theory of Constitution Interpretation.” Speech at The Catholic University of America, Washington D.C. 18 October 1996. (was) Available INTERNET: http://www.courttv.com/library/rights/scalia.html>, 1.
20 Ibid., 4
21 Marquand, “Colorful Man,” 2.
22 Scalia, Antonin, et al. A Matter of Interpretation: Federal Courts and the Law. Princeton University Press, 1997.
23 Scalia, Antonin.
Speech at Thomas Aquinas College. 24 January 1997. Available INTERNET:
24 Ibid., 16.
25 Scalia, “Constitution Interpetation,” 4.
26 Ibid., 5.
27 Scalia, Speech at Thomas Aquinas, 9.
28 Ibid., 10.
29 Jackson, “Supreme Conservative,” 2.
30 Scalia, Speech at Thomas Aquinas, 3.
31 O’Brian, Storm Center, 45.
32 Jackson, “Supreme Conservative,” 5.
33 Scalia, “Constitution Interpretation,” 6.
34 O’Brian, Storm Center, 45.
35 Marquand, “Colorful Man,” 2-3.
36 Elsasser, “No Contest,” 3.
37 O’Brian, Storm Center, 97.
38 Elsasser, “No Contest,” 3.
39 Ibid.
40 Jackson, “Supreme Conservative,” 2.
41 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984)
42 Consolidated Edison of N.Y. v. Public Service Commission of N.Y., 447 U.S. 530, 536 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972); Simon & Shuster, Incorporated v. Members of N.Y. State Crime Victims Board, 502 U.S. 115 (1991)
43 R.A.V. v.
St. Paul, 505 U.S. 675 (1986); Carey v. Brown, 447 U.S. 455 (1980)
*NOTE: hypothetical was brainchild of Dr. Georgia Ulmschneider, a professor at Indiana University--Purdue University, Fort Wayne (IPFW)
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