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Targeting Scalia’s Secrets

There are a few things you may know about Antonin Scalia. Nominated by President Ronald Reagan, he joined the nation’s highest court in 1986. He’s among the most conservative of the nine Supreme Court justices.

But what if you really dug into his life? Here are a few other things you’d discover about the 73-year-old justice if you scour the Internet and prepare a 15-page dossier on him:

Among friends, he goes by the nickname Nino. He has a big Catholic family, with nine children. His McLean home, bought in 1983 for $325,000, has quadrupled in value. He’s rumored to be a fan of Sex and the City after being seen chatting with Sarah Jessica Parker in New York. A.V. Ristorante—the Italian joint on DC’s New York Avenue that closed in 2007—was his favorite restaurant. Though he now often can be found at Tosca for lunch, he thinks it’s overpriced. He’s the funniest member of the Supreme Court; Ruth Bader Ginsburg says he’s the only justice who can reliably make her laugh.

But Scalia wasn’t making jokes when he discovered he was the target of a privacy invasion by a professor and 15 students at New York’s Fordham law school.

Justice Scalia unwittingly invited the invasion during a trip to New York in January. He follows the judicial philosophy of originalism, an adherence to the precise words of the Constitution as they were meant when written by the Founding Fathers. Because the Constitution doesn’t mention any “right to privacy,” Scalia is skeptical of that right and has indicated that he’s untroubled by online advertising technology that tracks a person’s Internet searches. Speaking at a January conference on privacy issues, he said, “Every single datum about my life is private? That’s silly.”

Fordham professor Joel Reidenberg saw that as a challenge. He had his information-privacy-law class “cyber-stalk” Scalia as a lesson in the availability of personal information online.

Reidenberg hoped the project would convince his students that lawmakers and adjudicators need to strengthen laws to safeguard privacy online. Invasion of privacy using online property records and free comprehensive-search databases such as can be directed at anyone, the professor argues.

The Scalia dossier is more than a dozen pages long and includes the justice’s home address, home phone number, favorite movies, and food preferences as well as his wife’s personal e-mail address and “photos of his lovely grandchildren.”

Scalia wasn’t pleased to learn that his quote had been used to justify the online investigation. Aggregation of such publicly available data is legal, but Scalia argued that such things shouldn’t be done—not for legal reasons but for moral ones. He said he stands by the remarks he made at the conference on privacy issues.

“I was referring, of course, to whether every single datum about my life deserves privacy protection in law,” Scalia wrote in an e-mail to the legal blog Above the Law. “It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.”

Reidenberg says he has no plans for the Scalia dossier. It’s on a password-protected site that only members of his class can access—for now.

This article first appeared in the June 2009 issue of The Washingtonian. For more articles from that issue, click here.   

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