Antonin Scalia Was a Diversity Hire
The late justice spent his career ridiculing the notion that elite institutions had any interest in diversity. He might not have made the Supreme Court without it.
In 2003, the Supreme Court in Grutter v. Bollinger upheld the University of Michigan Law School’s right to consider the race of applicants when making admissions decisions, for the purposes of assembling a “diverse” student body. Justice Antonin Scalia, a staunch opponent of affirmative action who had hoped the Court would use Grutter to get rid of the practice once and for all, was furious. In a separate opinion, he ridiculed the notion that some vague, abstract desire to build a more inclusive society could or should play a role in decisions like these: The law school’s justification for its policy, Scalia wrote, “challenges even the most gullible mind.”
In December 2015, when the Court heard oral argument in another legal challenge to affirmative action, Scalia reiterated his skepticism of the constitutional legitimacy of prestigious institutions taking applicants’ backgrounds into account. He suggested that Black students might even perform better at “less-advanced” or “slower-track” schools where “they do not feel that they’re being pushed ahead in classes that are too fast for them.” Scalia died before the Court issued its decision in that case, Fisher v. University of Texas, thus preventing him from committing any more of his casual racism to the pages of the United States Reports.
Three decades earlier, the Senate that confirmed Scalia to the Supreme Court by a vote of 98-0 felt very differently about diversity. At his Senate Judiciary Committee hearing in 1986, the dominant theme was not Scalia’s originalist jurisprudence, his reactionary politics, or his enduring fondness for attending the opera. It was instead celebrating the milestone accomplishment of his all-but-assured confirmation: At long last, after nearly two centuries, the Supreme Court would have its first Italian American justice.
“This is a magnificent tribute to the Italian Americans of this nation,” declared New Mexico Republican Pete Domenici. New York Republican Al D’Amato called it “a source of great pride to all Americans, and particularly to all Americans of Italian descent, that this brilliant son of an immigrant is being nominated to our nation’s highest court.” Arizona Democrat Dennis DeConcini described Scalia as “another example of immigrants who have risen to outstanding positions in our government,” and as living proof that “the rapid assimilation of immigrants pumps strength and vitality into this great nation.”
At Scalia’s hearing, every lawmaker who had some sort of Italian roots made it a point to say so. Vermont’s Patrick Leahy, for example, called his Italian ancestry on his mother’s side “a source of pride” for his family, and joked that like him, the children of Scalia and his wife, Maureen McCarthy, had “the best of all possible worlds—an Italian parent and an Irish parent.” Those who could not claim Italian roots improvised as best they could: After dramatically announcing that his great-great-grandfather had been married to a woman who had previously been married to an Italian American man, Alabama Democrat Howell Heflin showed off his familiarity with the latest Census data, welcoming Scalia to the hearing “on behalf of the 4,022 Italian Americans in Alabama—and the other four million people.”
After sailing through the confirmation process, Scalia traveled to Italy, where he apparently received a hero’s welcome. “I think they thought that I even was Ronald Reagan,” he told his biographer, Joan Biskupic, remembering the crowds that greeted him. “They were cheering so much that I felt like Mussolini.”
Scalia’s Italian heritage was not coincidental to his selection as a justice. As Jan Crawford Greenburg recounts in her book, Supreme Conflict, the final two candidates for the seat were Scalia and Robert Bork, another well-known conservative appeals court judge. But Scalia was younger and in better health than Bork, and the officials who vetted both men were espcially enamored with the bump in approval ratings that they expected would follow Reagan’s nomination of the first-ever Italian American justice. Italian-adjacent interest groups were ecstatic at the news: The former president of the American Justinian Society of Judges, a group that described itself as “composed of over 1200 judges of Italian descent from throughout the United States,” issued a press releasing praising Reagan for showing “millions of Americans of Italian derivation” that in this country, anyone, Italian or otherwise, “can progress as far as their talents can carry them.”
Reagan nominated Bork to a different vacancy on the Court the following year. But in a memo to Reagan’s chief of staff, White House Communications Director Pat Buchanan wrote that as between Scalia and Bork, he “would lean” toward Scalia, whose nomination Buchanan called “a tremendous achievement for what is America’s largest ethnic minority, not yet fully assimilated into the melting pot.” Buchanan also brought a little electoral strategy into the decisionmaking calculus, pointedly noting that Italian Americans had been responsible for delivering Republicans “crucial margins of victory in New Jersey, Connecticut and New York.”
The senators at Scalia’s hearing were careful to praise his substantive qualifications: Domenici, for example, said that Scalia was “the very best” candidate, and “happens also to be an Italian American.” But all of these lawmakers were operating from the same basic and apparently uncontroversial premise: that a Court that reflects the diversity of the country it serves is better than one that does not. Iowa Republican Chuck Grassley hailed Scalia’s nomination as “further evidence of our truly pluralistic society.” Illinois Democrat Paul Simon, who was more critical of Scalia than many of his colleagues, nevertheless noted that his presence on the Court would make it a more “representative body,” at least.
Even Scalia acknowledged that the perspective that a son of Italian immigrants could bring to the Court—historically, one of the WASPier institutions in American politics, which is saying something—might be a legitimate factor in the selection process. When asked by Simon if it would be “fundamentally wrong” for Reagan to have picked Scalia over other equally qualified candidates on the basis of his ancestry, Scalia said, “No, I think it is a good thing.” Scalia then started to add something about how he “tried to have a mix of people” among his law clerks, but Simon cut him off before he could extol the virtues of diversity any more enthusiastically.
The problem with Scalia’s answer is not that it is wrong. It is that after giving it, Scalia spent the balance of his career trying to prevent nonwhite people from benefiting from the same basic considerations that propelled him to the top of the president’s Supreme Court shortlist. In Antonin Scalia’s mind, diversity was noble and important when it helped him land the prestigious job he wanted. It was unseemly and wrong when it helped anyone else.
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