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In 1986, Chief Justice Warren Burger informed the White House of his intent to retire. Reagan first decided to nominate Associate Justice William Rehnquist to become Chief Justice. That choice meant that Reagan would also have to choose a nominee to fill Rehnquist's seat as associate justice.[38] Attorney General Edwin Meese, who advised Reagan on the choice, seriously considered only Scalia and Robert Bork, a fellow judge on the DC Circuit.[39] Feeling that this might well be Reagan's last opportunity to pick a Supreme Court justice, the president and his advisers chose Scalia over Bork. Many factors influenced the decision. Reagan wanted to appoint the first Italian-American justice.[40] In addition, Scalia was ten years younger and would likely serve longer on the Court.[38] Scalia also had the advantage of not having Bork's "paper trail";[41] the elder judge had written controversial articles about individual rights.[42] Scalia was called to the White House and accepted Reagan's nomination.[38]
The 1989 case of Mistretta v. United States challenged the United States Sentencing Commission, an independent body within the judicial branch whose members (some of whom were federal judges) were removable only for good cause. The petitioner argued that the arrangement violated the separation of powers and that the United States Sentencing Guidelines promulgated by the commission were invalid. Eight justices joined in the majority opinion written by Blackmun, upholding the Guidelines as constitutional.[49] Scalia dissented, stating that the issuance of the Guidelines was a lawmaking function that Congress could not delegate[50] and dubbed the Commission "a sort of junior-varsity Congress".[48]
Scalia took a broad view of the Eleventh Amendment, which bars certain lawsuits against states in the federal courts. In his 1989 dissent in Pennsylvania v. Union Gas Co., Scalia stated that there was no intent on the part of the framers to have the states surrender any sovereign immunity and that the case that provoked the Eleventh Amendment, Chisholm v. Georgia, came as a surprise to them. Professor Ralph Rossum, who wrote a survey of Scalia's constitutional views, suggests that the justice's view of the Eleventh Amendment was actually contradictory to the language of the Amendment.[64]
In 2007, the Court upheld a federal statute banning partial-birth abortion in Gonzales v. Carhart.[70] University of Chicago law professor Geoffrey R. Stone, a former colleague of Scalia's, criticized Gonzales, stating that religion had influenced the outcome because all five justices in the majority were Catholic, whereas the dissenters were Protestant or Jewish.[71] This angered Scalia to such an extent that he stated he would not speak at the University of Chicago as long as Stone was there.[72]
In 2003, Bowers was formally overruled by Lawrence v. Texas, from which Scalia dissented. According to Mark V. Tushnet in his survey of the Rehnquist Court, during the oral argument in the case, Scalia seemed so intent on making the state's argument for it that the Chief Justice intervened.[83] According to his biographer, Joan Biskupic, Scalia "ridiculed" the majority in his dissent for being so ready to cast aside Bowers when many of the same justices had refused to overturn Roe in Planned Parenthood v. Casey.[84] In March 2009, openly gay Congressman Barney Frank described him as a "homophobe".[85] Maureen Dowd described Scalia in a 2003 column as "Archie Bunker in a high-backed chair".[86] In an op-ed for The New York Times, federal appeals judge Richard Posner and Georgia State University law professor Eric Segall called Scalia's positions on homosexuality radical and characterized Scalia's "political ideal as verg[ing] on majoritarian theocracy".[87] Former Scalia clerk Ed Whelan called this "a smear and a distraction."[88] Professor John O. McGinnis responded as well,[89] leading to further exchanges.[90][91]
During oral argument before the Court, Scalia asked more questions and made more comments than any other justice.[122] A 2005 study found that he provoked laughter more often than any of his colleagues did.[123] His goal during oral arguments was to get across his position to the other justices.[124] University of Kansas social psychologist Lawrence Wrightsman wrote that Scalia communicated "a sense of urgency on the bench" and had a style that was "forever forceful".[122] After Chief Justice John Roberts joined the Court in 2005, he took to quizzing lawyers in a manner similar to Scalia's; sometimes the two questioned counsel in seeming coordination.[124] Dahlia Lithwick of Slate described Scalia's technique as follows:
Scalia wrote numerous opinions from the start of his career on the Supreme Court. During his tenure, he wrote more concurring opinions than any other justice. Only two other justices have written more dissents.[126] According to Kevin Ring, who compiled a book of Scalia's dissenting and concurring opinions: "His opinions are ... highly readable. His entertaining writing style can make even the most mundane areas of the law interesting".[127] Conor Clarke of Slate comments on Scalia's written opinions, especially his dissents:
Scalia's originalist approach came under attack from critics, who viewed it as "a cover for what they see as Scalia's real intention: to turn back some pivotal court decisions of the 1960s and 70s" reached by the Warren and Burger Courts.[20] Ralph Nader argued in 2008 that Scalia's originalist philosophy was inconsistent with the justice's acceptance of the extension of certain constitutional rights to corporations when at the time of the Fourteenth Amendment's ratification, corporations were not commonly understood to possess constitutional rights.[141] Nader's view preceded the Court's 2010 decision in Citizens United v. Federal Election Commission. Scalia, in his concurrence in that case, traced his understanding of the rights of groups of individuals at the time of the adoption of the Bill of Rights. His argument was based on the lack of an exception for groups such as corporations in the free speech guarantee in the Bill of Rights and on several examples of corporate political speech from the time of the adoption of the Bill of Rights.[142] Professor Thomas Colby of George Washington University National Law Center argued that Scalia's votes in Establishment Clause cases do not stem from originalist views but simply from conservative political convictions.[143] Scalia responded to his critics that his originalism "has occasionally led him to decisions he deplores, like his upholding the constitutionality of flag burning", which according to Scalia was protected by the First Amendment.[20]
In 2006, upon leaving church, Scalia was asked by a reporter whether being a traditionalist Catholic had caused problems for him, and he responded by asking, "You know what I say to those people?" and with a gesture, cupping his hand under his chin and flicking his fingers out. The gesture, which got captured by a photographer, was initially reported by the Boston Herald as obscene. Scalia responded to the reports with a letter to the editor, accusing the news staff of watching too many episodes of The Sopranos and stating that the gesture was a strong brush-off. Roger Axtell, an expert on body language, described the gesture as possibly meaning "I've had enough, go away" and noted, "It's a fairly strong gesture".[159] The gesture was parodied by comedian Stephen Colbert during his performance at the White House Correspondents' Association Dinner later that year, with the justice in attendance; cameras showed that unlike most of the butts of Colbert's jokes that evening, Scalia was laughing.[160][161]
Scalia died in his sleep[2] at age 79. His body was discovered on the morning of February 13, 2016, in his room[7] at Cibolo Creek Ranch in Shafter, Texas. He had gone quail hunting the afternoon before, and then dined as the guest of John B. Poindexter, owner of the ranch.[174][175] After Poindexter discovered the body, he called the Presidio County sheriff's department to ask for the number of the U.S. Marshals Service to report a death. Poindexter was reluctant to say who had died to Sheriff Danny Dominguez. Dominguez had the Marshal's Service call the ranch owner, and both the marshals and the sheriff went to the ranch, where they were shown Scalia's body. Dominguez instructed his office to call local justice of the peace Juanita Bishop, but she was out of town.[176]
County Judge Cinderela Guevara pronounced Scalia dead of natural causes.[177] She did not see the body, which under Texas law is not required, nor did she order an autopsy.[7] Bishop, as well as David Beebe, another justice of the peace, later disagreed with the decision not to order an autopsy for Scalia. Guevara, who conferred by telephone with Scalia's physician, stated that she made the determination to pronounce Scalia dead from natural causes after being told by county sheriff Dominguez on the scene that "there were no signs of foul play" and that Scalia "was having health issues".[7][178] Scalia's physician, Rear Admiral Brian P. Monahan, told her Scalia had a history of heart trouble, including high blood pressure, and was recently deemed too weak to undergo surgery for a torn rotator cuff.[179][180] According to Sunset Funeral Home director Chris Lujan, Scalia's family also declined to have an autopsy performed after his body was transferred to his El Paso funeral home, prior to its return to Fairfax, Virginia.[181]
Writing in The Jewish Daily Forward in 2009, J.J. Goldberg described Scalia as "the intellectual anchor of the court's conservative majority".[192][193] Scalia traveled to the nation's law schools, giving talks on law and democracy.[126] His appearances on college campuses were often standing room only.[194] Justice Ruth Bader Ginsburg indicated that Scalia was "very much in tune with the current generation of law students ... Students now put 'Federalist Society' on their resumes".[195] John Paul Stevens, who served throughout Scalia's tenure until his 2010 retirement, said of Scalia's influence, "He's made a huge difference. Some of it constructive, some of it unfortunate".[195] Of the nine sitting justices, Scalia was most often the subject of law review articles.[194]
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