The Story of Justice Scalia: From His Immigrant Roots to the Highest Court in the Land (Pt. 1)

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Like a good neighbor, State Farm is there. And we continue with our American stories. And as you know, we love to tell stories about everything on this show, including the American dream and the law. This next story, the story of Antonin Scalia, is about both. Affectionately known as Nino, he would become a judge on the highest court in the land, the U.S. Supreme Court.

And he did it not through family connection or privilege, but hard work and merit. Few judges have had as much influence on the law, changing as Justice Elena Kagan remarked not long after Scalia's death in 2016 how almost all lawyers think and talk about the law. Here to tell the story of this remarkable man and judge is James Rosen, author of Scalia Rise to Greatness.

Here's James. Antonin Scalia was confirmed to be an associate justice of the Supreme Court, the first Italian American who would sit on the Supreme Court on September 17, 1986, very fittingly Constitution Day. It was an extraordinary moment because Scalia was confirmed by the U.S. Senate by a vote of 98 to nothing to become an associate justice of the Supreme Court, the first Italian American to sit on the Supreme Court. And from the perspective of the small number of White House aides and Justice Department officials who were managing the Scalia confirmation process, they were obviously ecstatic at a 98 to nothing vote, all the more so because Scalia's nomination was actually part of a pair of Supreme Court nominations. Joined to his nomination was the elevation of the Associate Justice William Rehnquist to Chief Justice of the United States.

And that did not go so smoothly. Rehnquist was a controversial figure in his own right. He had been, for many years, the court's leading conservative voice, so frequently writing in solo dissent that his own clerks gave him a Lone Ranger doll. And so bitter and partisan and nasty were the confirmation process and the hearings for Rehnquist's elevation to Chief that they were dubbed the Rehnquisition. And in the end, for his vote, Rehnquist was confirmed as Chief Justice with what was then a record high number of opposition votes sustained by any confirmed nominee.

It was 65 to 33. Even that looks quaint today. So by the standards of the Rehnquisition, 98 to nothing for Scalia was looking great. And there's a story in this book, Scalia Rise to Greatness.

It actually begins the book. It's never been told before, and it was told to me by John Bolton, the same John Bolton who served as White House National Security Advisor under President Trump and earlier as UN Ambassador for the United States. Back in 1986, John Bolton still had the mustache, by the way.

I did confirm that with him. He was 37 years old at the time, and he was the Assistant Attorney General for the Office of Legislative Affairs at the Department of Justice. And it was his job on September 17, 1986, that evening when the votes were taken, to inform Judge Scalia, then Justice Designate Scalia, about the vote. The only problem was getting a hold of Scalia. He was a social beast.

And on this particular evening, the very evening where he reached the pinnacle of his profession and embodied the American dream, he was out on the town at a black tie rubber chicken dinner out at the Willard Hotel in downtown Washington. And this presented John Bolton with a bit of a problem. So the way Bolton solved this problem was to establish a dedicated phone line in the Willard Hotel kitchen and to enlist a Willard Hotel employee to corral Scalia at the appointed hour and bring him to that telephone.

And that's exactly what played out. And the way Bolton told the story to me was he called up the hotel kitchen phone at the Willard. The employee brought Scalia to the phone, and he says to him, Nino, congratulations.

You've been confirmed 98 to nothing. Isn't that fantastic? And Bolton is enjoying the reverie of the moment until he realizes that the other end of the line has fallen silent. And finally, Scalia says, who were the two who didn't vote? And Bolton says, oh, it was Barry Goldwater and Jake Garn. But my goodness, 98 to nothing. Isn't this fantastic?

Congratulations. And the other end of the line has fallen silent again. And with a hint of rebuke in his voice, Scalia now says to John Bolton, you mean to tell me we couldn't get Goldwater and Garn? As if to say, and probably true, that those should have been two reliable votes. And Bolton, as he told me, was now getting a little bit irritated, especially after the requisition. And he says to Scalia, look, Barry Goldwater, we just couldn't find. My research later turned up that Goldwater had gone home sick on the evening of the vote when the vote was delayed. And as Bolton told Scalia, Jake Garn is in the hospital donating his kidney to his daughter.

Concentrate, Nino, you've just been confirmed 98 to nothing. And there's a pause on the other end of the line again. And finally, Scalia says, you're right. That's great. That's great.

Thank you. But this small imperfection of a 98 to nothing vote bothered Scalia because a commitment not only to excellence, but to perfection was the hallmark of his entire life. And as late into the 21st century as his 19th term on the Supreme Court, Justice Scalia can be seen on C-SPAN videos bringing school students into the Supreme Court for a talk and telling them that he was confirmed 98 to nothing and then adding, let's make it 100. Antonin Scalia was born March 11, 1936 in a hospital in Trenton, New Jersey. His father was an Italian immigrant, Salvatore Scalia, who came to this country in 1920 with just $400 in his pocket and not speaking a word of English, and yet who made of himself a renowned professor of romance languages. Scalia's mother, Catherine Panero Scalia, was herself the daughter of Italian immigrants, and she made of herself a schoolteacher. They were devout Catholics. And from these three influences, his mother, the schoolteacher who venerated composition and grammar and form in the classics.

And his father, the romance languages professor who warned in his own published writings about the prospect of an original text, a sacred text even, being distorted in translation. And from the influence of the Catholic Church with its foundational sacred texts and its liturgy, young Nino Scalia emerged with a profound reverence for the original meaning of texts. And he carried this forward with him throughout his life and into his work as a judge and ultimately as a justice on the Supreme Court. Justice Scalia was an only child. There was from the beginning of his life a sense of specialness. His only-ness was a kind of a miracle unto itself because when you count his parents and his parents' brothers and sisters on both sides, you're looking at nine families that could have produced any number of children, and they only produced the one child who would be the future Supreme Court justice. Scalia used to say that the fact that he was an only child had a lot to do with his personality and how he turned out. Spoiled rotten, he would tell an interviewer, there's a reason why I am the way I am. And Scalia continued, it's probably a lot easier to raise an only child with high expectations.

He always feels he's the center of the universe and has a good deal of security. I think it must be harder to be with brothers and sisters competing for parental attention. That was never an issue in my life. I was the apple of my parents' eye, which is not to say I wouldn't have preferred to have brothers and sisters.

I very much would have. I have no cousins. My mother was one of five sisters and two brothers, and my father was one of two children.

He has a sister, and I am the only offspring from that side, too. So I am really the last of the Mohicans, Scalia would say. At the time of his ascension to the Supreme Court, Justice Scalia was widely regarded as the embodiment of the American dream, and there was every good reason for that. His story spoke to the immigrant experience, to the making of a self-made man, in a sense. But it was from his father in particular that Justice Scalia inherited his extraordinary capacity for hard work. And in fact, a number of the attributes that made Justice Scalia so successful, we can see in his father and in that immigrant class from that time. When Salvador Scalia arrived in the United States in 1920, he only had $400 in his pocket. He spoke fluent French and Spanish, but he spoke no English whatsoever. But he possessed, as his family would later recount, the four traits that were identifiable in the Italian Americans of that era. Devout Catholicism, a love of his family, this incredible capacity for hard work, and a taste for what Justice Scalia would call the simple physical pleasures of food, wine, and song. And you've been listening to author James Rosen tell the story of Justice Antonin Scalia when we come back. More of this remarkable story here on Our American Stories. Digital currency is helping to form the base layer for a new global commerce infrastructure, and stablecoins like USDC, issued by Circle, help to bring faster payments at internet scale.

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That's goldco.com slash iHeart. And we return to our American stories and to James Rosen, author of Scalia Rise to Greatness. Let's pick up with James where we last left off. By 1935, the middle of the Great Depression, Salvatore Scalia secured the teaching position that he would enjoy at Brooklyn College for the next 30 plus years, the end of his career. And throughout that entire time, Professor Scalia, this is the justice's father, a 30 plus years of teaching at Brooklyn College only recorded one day of absence in that entire time span.

And it speaks to that extraordinary capacity for hard work that was one of the characteristics that defined Italian Americans of that generation and certainly defined Justice Scalia's own career. Scalia grew up in a very different time and age. He moved from Trenton, New Jersey, where he was born to Queens, one of the outer boroughs of New York City when he was five and where he hadn't really enjoyed Trenton very much. He loved Queens and he was out on the streets playing ball after school till it got dark. He was playing baseball, basketball, football, roller hockey, marbles, penknife games, Ringo Livio, and what he called the quintessential game of his youth, stickball. And he said most of the sports he played were in the neighborhood and they were not organized. It was remarkable to Justice Scalia many years later when he and his wife Maureen Scalia produced nine children and 30-odd grandchildren to see that the activities of children would come to dominate the scheduling and the lives of parents because they would be constantly driving them to play organized soccer and so on. And Scalia said that his parents never drove him anywhere because they didn't have a car.

For him, as a young man in Queens, entertainment was watching the one neighbor who had a car, a Packard, wash the thing on weekends. And his parents would simply say to him, go play, go find a game. And you were expected to leave and go find a game. And your parents had no idea where you were and didn't care where you were. And as Scalia put it, and I'm quoting now, so long as you did your homework, kept your grades up, stayed out of trouble, and in my case practiced the piano, which was a form of self-discipline and penance, parents did not care how you spent your leisure time, much less did they feel any obligation to arrange it for you. Family life did not revolve around the child's extracurricular activities. Kids were left pretty much to decide for themselves what games they would play. Nobody worried about kids carrying knives. Nobody ever heard about a bicycle helmet.

You would go over to the field on a Saturday morning or Sunday afternoon and choose up sides, no adult supervision, no conceivable financial liability. And in fact, even as a young man into high school, Scalia attended Xavier High School in Manhattan, which required him to commute back and forth on the subway from Queens. And Xavier was a very unusual school.

It was a hybrid. It was both a Jesuit private school and a military academy. And Justice Scalia used to love telling audiences about how he, as a high school student in the early 1950s, commuting back and forth from Queens on the subway, would casually have his.22 rifle slung over his shoulder right there on the subway, and nobody batted an eye. One episode at Xavier High School that stayed with Justice Scalia for the rest of his days was when this class was studying Hamlet, and a smart aleck in the class, not Scalia, somebody else, piped up with some sophomoric, snarky comment about the play. And there was a particular teacher, the teacher teaching this class, who was a profound influence on Justice Scalia. He was a fearsome Irish Jesuit priest who spoke with a thick Boston brogue.

His name was Father Tom Matthews. And in this moment, what happened next, Scalia used to call it the Shakespeare principle. Father Matthews glared down at the smart aleck in the class and said to him, Mr., when you're reading Shakespeare, Shakespeare's not on trial.

You are. And the meaning for Scalia was that the inheritance of the ages, what William F. Buckley Jr. used to like to call the patrimony, the received wisdom of the ages, which includes these foundational sacred texts from the Bible, the Catholic liturgy, and yes, Shakespeare. These things were never to be monkeied with. They were not to be disrespected.

These texts were inviolable. And Scalia carried this forward throughout the rest of his life, this view of sacred texts as inviolable, into his work as a judge and a justice. Indeed, at his father's funeral service in 2016, Father Scalia said, quote, Scripture says Jesus Christ is the same yesterday, today, and forever. To his dying day, Justice Scalia loved ethnic jokes. He loved to tell them. He loved to receive them. He didn't care if someone told a good Italian joke.

He liked to hear it. Growing up in Queens, in Elmhurst, it was very much a multi-ethnic society. And there were Jews, and there were Germans, and there were Irish, and there were Italians, and there were Latino families. And frankly, it never dawned on Scalia that he was part of an ethnic group or that his friend, the class caught up in school, Hugh McGee, belonged to some ethnic group. What actually did make Scalia feel somewhat apart from the rest of the students, what gave him a sense of being excluded, was his Catholicism. Even in areas with large Catholic populations, he would say, it was a little bit strange to be a Catholic. One manifestation of this was release time, where an hour early every Wednesday, Scalia and the other Catholic students at PS 13 there in Elmhurst, Queens, were let out of class to go attend religious instruction. And this was, again, a manifestation of his apartness.

There were others, such as eating fish on Fridays when other kids could enjoy hot dogs. And Scalia spoke about this for the rest of his life, the idea that the devout Catholic would, from time to time, feel himself acutely made to be or made to feel a fool for Christ. And he said, and I quote, whenever I wanted to go to a certain movie or a certain place that my parents disapproved of, I would say, of course, as children always do, that everybody else was going. My parents' invariable and unanswerable response was, you're not everybody else. It is enormously important for Christians to learn early and remember long that lesson of differentness. To recognize that what is perfectly lawful and perfectly permissible for everyone else, even our very close non-Christian friends, is not necessarily lawful and permissible for us. And this was something that was said to Scalia as a young man, and then he and Maureen Scalia said this to their own children, and their children recounted it at Justice Scalia's memorial service.

You're not like everybody else. You're a Scalia. For Scalia, the defining feature of his years at Xavier, this extraordinary Jesuit private school slash military academy, from which he graduated as valedictorian, was the emphasis that the Jesuits placed on the formation of moral character. This dovetailed with something that his father, Salvatore Scalia, told the future justice when he was a young man and that he took with him for the rest of his days, which is that brains are like muscles.

They can be rented by the hour. The only thing that's never for sale, his father told him, is character. And Scalia said of the formation of his character at Xavier, and I quote, by demanding obedience to duty, manly honor and discipline, frank and forthright acknowledgement of error, respect for ranks above and solicitude for ranks below, assumption of responsibility, including the responsibility of command willingness to sacrifice for the good of the core, by demanding all those difficult things, the regiment at Xavier develops moral courage, which in the last accounting we must give. We must give is the kind that matters. And you're listening to author James Rosen tell the story of Supreme Court Justice Danton and Scalia, who died in 2016, but whose work has left an enduring legacy. He's worked particularly around originalism and the original meaning of the Constitution. When we come back, more of this remarkable story here on Our American Stories. Digital currency is helping to form the base layer for a new global commerce infrastructure, and stable coins like USDC, issued by Circle, help to bring faster payments at Internet scale.

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Visit goldco.com slash I heart to get up to $10,000 in free silver. That's goldco.com slash I heart and we return to our American stories and to James Rosen, author of Scalia rise to greatness. Let's pick up with James where we last left off. Catherine Scalia was the kinder and gentler apparent to young Nino Scalia, the future justice, certainly than his father was. If the young boy who had all straight A's throughout public school, high school, graduated as valedictorian of his high school and his college, graduated top five in his class at Harvard Law School. Despite that record of academic achievement, if young Nino Scalia showed up with an A minus, his father was the type to ask, why wasn't it an A or an A plus? But Scalia said that his mother, he realized later in life was devoted to making sure that he did the right things, that he hung out with the right people and he joined the right organizations associated with young people that would not get him into trouble, but which would make him a better person. And so it was his mother who was the den mother for the Cub Scouts who had them over to the Scalia's home for their Cub Scout meetings and who really took an interest in him in ways that his father, who perpetually had his nose in a book, couldn't quite achieve. And I should say this, Scalia's parents died almost exactly at the same time as each other in a kind of a freakish episode just before he was nominated to the Supreme Court. So they never lived to see their son reach the pinnacle of his profession and truly place that capstone on the American dream. For some American figures, the Great Depression might be the historical context from which we might say that they came forth.

For some it might be World War II. For Antonin Scalia, the historical context that gives rise to him is the immigrant experience. The immigrant experience carried forth into Scalia's development and even into his work as a judge and then as a justice on the Supreme Court. And nowhere in no area of the law was this clearer than in Scalia's writings and rulings on affirmative action, which he viewed pretty simply as reverse racism. Scalia gave a lecture at Washington University in 1978.

It was published the following year as a law review article, and the title of it was The Disease as Cure. This was Scalia's way of saying that if we want to cure the disease of racism in this country, we can't employ the very disease itself as our attempted cure. We can't resort to racist means in hiring or in admissions or in other areas of American life to move us beyond racism. This speech and this law review article by then Professor Scalia when he was at the University of Chicago Law School was one of the most incredibly brave, tough, and fearless expositions on the evils of affirmative action that was ever written, certainly in the period of the late 1970s when the criticism of affirmative action was exceptionally taboo in academe at that time. But it was his father's experience that informed Scalia in these views, and he said, 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'd ever seen a black man. And in this remarkable essay, Scalia developed a satirical Swiftian program that he called the restorative justice handicapping points system. Again, this was satire, but he carried it forth in this law review article at some length, explaining how each group that oppressed African Americans at some point in greater or lesser degrees would be assigned at birth going forward a number of handicapped points that would denote the nature and the scope of their debt to African Americans. The whole point of this was to show that for every creditor race, then there was going to have to be debtor races as well.

And the whole idea, of course, was offensive to Scalia, and eventually he drops the Swiftian pose. And he writes as follows, I owe no man anything nor he me because of the blood that flows in our veins. This is not to say that I have no obligation to my fellow citizens who are black. I assuredly do, not because of their race or because of any special debt that my bloodline owes to theirs, but because they have, many of them, special needs, and they are, all of them, my countrymen and, as I believe, my brothers. This means that I am entirely in favor of according the poor inner city child who happens to be black. Advantages and preferences not given to my own children because they don't need them. But I am not willing to prefer the son of a prosperous and well-educated black doctor or lawyer solely because of his race to the son of a recent refugee from Eastern Europe who's working as a manual laborer to get his family ahead. And Scalia sensed hypocrisy in the person of those Supreme Court justices who ruled in favor of affirmative action in admissions and in quotas for hiring because, as he put it, he felt that the Lewis Powells of the world, one of the Supreme Court justices who ruled in this way, were not going to bear the burden that they were creating.

It wasn't their kids who would be disadvantaged by affirmative action schemes. Rather, Scalia said it was the Polish factory worker's kid who was going to be out of a job. And from his own experience, we can certainly infer that he also believed it would be the Italian immigrant's kid who might be out of that job or that slot at that academic institution. One of the revelations of Scalia's rise to greatness, I think, is how often Antonin Scalia experienced rejection more than we might imagine from what looked to outside appearances like such a meteoric rise. He was rejected from the first Catholic school that he wanted to attend for high school. And then he was the valedictorian in high school.

There's a photograph in the photo section of this book which I absolutely love. It's Scalia's graduation photo from when he was valedictorian at Xavier. He's got his uniform on. You can see the medals on his chest because he earned so many medals and honors for both his academic excellence and also for his participation in extracurriculars. He's got his black hair parted perfectly to the side.

He's got a winning smile and he looks trim and handsome. I think a lot of people might even be surprised to realize that that's Antonin Scalia in that photo. But despite his incredible performance at Xavier, Scalia was rejected for the first choice that he had for his higher education, which was Princeton University. And in a secret oral history that he conducted in his Supreme Court chambers in 1992, its contents published in this book for the first time, Scalia described how he interviewed with the Princeton alumni for admission and could feel the palpable presence in the room of anti-Italian prejudice. He told his oral history interviewer that he could tell at a glance that the Princeton alumni took one look at him and decided he was not the Princeton sort.

And when his interviewer asked, what does that mean, not the Princeton sort, he said, not waspy enough, not a member of the right clubs. Well, Scalia got a complete scholarship to Georgetown University, another Jesuit institution, and he emerged as the valedictorian there as well. There's an extraordinary moment that, again, Scalia carried with him for the rest of his life.

It occurs as he is taking his oral exam as a prerequisite for graduation, and he was just crushing it. As Scalia himself said, he felt like Babe Ruth that day, just hitting it out of the park with every question that's asked of him by his oral examiners, a series of professors. And he feels like he's just about out of the exercise, he's just about done, when his history professor, Walter Wilkinson, who is a soft-spoken man, posed what originally Scalia thought must be a softball question. He said, of all the historical events you've studied, Mr. Scalia, which one had the greatest impact on the world? And Scalia thinks to himself, well, how can I possibly get this wrong? He said there was obviously no single correct answer. The only issue was what good answer I should choose.

The French Revolution, the Battle of Thermopylae, the American Revolution. And he forgot what he picked, but it was all driven out of his mind, he said, when Dr. Wilkinson informed me that there was only one right answer and he hadn't chosen it. And he said to him, the incarnation, Mr. Scalia, the incarnation.

And the way Wilkinson had said that, with a sad shake of the head, it just left Scalia devastated. The incarnation, how could I have been so foolish? Of course Christ is above all things.

Of course that is the most important historical event. And for Scalia, the lesson he took from this moment, the incarnation, Mr. Scalia, the incarnation, was that he should never separate his Christian faith from his pursuit of excellence in his academic and professional works. And a terrific job on the editing, production, and storytelling by our own Greg Hengler. And a special thanks to James Rosen. His book, Scalia, Rise to Greatness, is available on Amazon and all of the usual suspects.

Pick it up, you will not put it down. And we learn so much about the origins of the originalist. Scalia, why he took the sacred text of the Constitution so seriously. His father was a romance language professor in the sacred text of Shakespeare and Chaucer. And so many of the greats reading Dostoevsky, the Bible, Plato.

Well, these are not things to meddle with. And of course, the Bible, as we learn, was a key fixture in Scalia's life. His Catholicism, and of course, his Italian immigrant experience as well.

We learn about all of it. And all of it brought together beautifully by James Rosen. The story of Justice Antonin Scalia. His rise to greatness. And in the end, for the law at least, to enduring consequence.

His story here on Our American Stories. I'm Malcolm Gladwell. I live way out in the country. I drive everywhere.

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