Scalia v. Scalia

Does his faith influence his judicial decision making?

By Dahlia Lithwick

March was a hugely important month for religion and the Supreme Court, and a pivotal moment for Justice Antonin Scalia, the subject of a fat new biography. Too bad we couldn’t talk plainly about what was, and is, at stake. In a country historically averse to political debates about competing faiths, nowhere is frank discussion of religion more taboo than at the U.S. Supreme Court. “Religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company,” as Jeff Shesol, the author of a book about the New Deal Court, put it. He was speaking with NPR’s Nina Totenberg in 2010, when John Paul Stevens was looking at retirement and, for the first time in American history, there was the prospect of six Catholics, three Jews, and no Protestants on the highest court in the land—a watershed almost too “radioactive,” Totenberg remarked, even to note. And beware of venturing any further than that, as the University of Chicago Law School’s Geoffrey Stone did in a controversial 2007 blog post suggesting that the Supreme Court’s five conservatives likely derived their abortion views from Catholic doctrine: Scalia—a devout Catholic, and the current Court’s longest-serving conservative—announced a boycott of the school until Stone leaves the faculty.

The problem of engaging religion openly at the high court extends beyond the unspoken agreement not to talk about the justices’ religions. The Court itself has opted not to probe the intensity or validity of a plaintiff’s religious conviction, in part thanks to Scalia’s reasoning. Get too deep into second-guessing matters of spiritual belief, he noted in his landmark 1990 opinion denying peyote-using Native Americans an exemption from everyday drug laws, and there’s no getting out: “What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?” Neutral laws must hold sway, or every religious objector becomes, in Scalia’s words, “a law unto himself.”

Nowhere is discussion of religion more taboo than at the Supreme Court.

Fast-forward to March 2014, when the Court heard arguments in another case about religious dissenters from general laws: Sebelius v. Hobby Lobby Stores, Inc.—probably the most important case of the term, and a revealing capstone in Scalia’s jurisprudential career. Nobody that day dreamed of questioning the religious beliefs of the arts-and-crafts chain’s Christian owners, who were seeking exemption from the Affordable Care Act mandate to provide insurance coverage for birth control. Certainly the justices on the left wing of the Court and the Obama administration didn’t: whatever science, medical consensus, or neutral law may say on the subject of abortion-causing drugs and devices, the government wasn’t about to challenge Hobby Lobby’s belief that particular forms of birth control cause abortions (or to note that the business, even if inadvertently, once covered the same contraceptive methods its owners abhor). Nor was Scalia, who this time—in a dramatic about-face from his 1990 position—clearly supported the religious objectors. In fact, in the course of grilling the lawyers, he blurted out what sounded like agreement with the plaintiffs’ claims that these items were abortifacients. The spectacle was enough to make one wonder, quietly: Peyote didn’t sway him, but what about his own brand of piety?

A version of Scalia’s question about the inscrutability of religion back in 1990 can be asked about him: What principles or empirical approach can be brought to bear to evaluate the justice’s heartfelt assertion that no act of his on the Court is ever grounded in his personal faith? In Bruce Allen Murphy, Scalia has met a timely and unintimidated biographer ready to probe. A professor of civil rights at Lafayette College, Murphy refuses to be daunted by the silence that surrounds most discussions about religion and the Court. In his view, understanding one of the most dazzling and polarizing jurists on the Supreme Court entails, above all, examining the inevitably murky relationship between judicial decision making and religious devotion.

In Scalia: A Court of One, Murphy painstakingly reviews the evidence, much of which lies in Scalia’s own writing and speeches over many decades, going back to his college commencement address at Georgetown University. Murphy does not shrink from adjudicating Scalia’s dueling public claims: that separating faith from public life is impossible and, at the same time, that he himself has done just that on the Court. Murphy’s conclusion—at once obvious and subversive—is that Justice Scalia is very much the product of his deeply held Catholic faith. The pristine border between faith and jurisprudence is largely myth and aspiration.

Scalia certainly presents a stark puzzle. On the one hand, he wears his Catholic loyalties on his sleeve. Born in Trenton, New Jersey, in 1936, he was a brilliant only child whose mother was a teacher and whose Italian immigrant father was deeply intellectual and conservative. Early on, Scalia embraced a hero Murphy frequently invokes as a historical comparison: Thomas More, who refused to sanction the annulment of Henry VIII’s marriage to Catherine of Aragon and died a martyr for his religious principles. Already in his Georgetown commencement address, in 1957, Scalia was urging his classmates not to separate their religious life from their intellectual life. “If we will not be leaders of a real, a true, a Catholic intellectual life, no one will!” he said. “The responsibility rests upon all of us whatever our future professions.”

Scalia has sounded that same theme at the religious events he has frequented ever since (sometimes, Murphy thinks, flouting judicial ethics rules). In a 2012 speech at a Living the Catholic Faith conference, for example, Scalia celebrated More for “not seeing with the eyes of men, but with the eyes of faith.” Famously, Scalia showed up at President Obama’s second inauguration wearing a replica of More’s hat. Was it a sartorial protest against the birth-control mandate? While the blogosphere furiously debated the religious symbolism, officially the usual silence reigned.

On the other hand, Scalia has steadfastly argued that his constitutional methodology immunizes him against accusations of religious bias. He is a religious man, yes. But he has a shield: his adherence as an appeals-court judge and then a Supreme Court justice to a mechanical interpretive approach, rooted in textualism and original public understanding. Scalia reads the Constitution attending only to the words on the paper. He derives their meaning not from his own values and preferences, he insists, but from the historically grounded meaning of the document’s authors. What he personally believes as a judge is thus immaterial; his religion never enters into his decision-making process.

Murphy carefully lays out the flaws in Scalia’s claim that simply channeling history is a neutral enterprise. Scalia vaunts his departures from Church doctrine, as evidenced, for instance, in a 2002 vote in favor of capital punishment—a stand at odds with Pope John Paul II’s opposition to the death penalty in “Evangelium Vitae.” Writing in the journal First Things, Scalia cited that position as proof that legal rules alone guide him. Yet what really goaded him, Murphy persuasively argues, was that the pope shifted his position on capital punishment, just as proponents of living constitutionalism have done at the Supreme Court. This is not, in Murphy’s view, a value-neutral position. Whether Scalia acknowledges it publicly or not, he is channeling a fundamentalist reading of the Bible—Leviticus in particular.

Scalia’s religious self-certainty, Murphy concludes, has had a practical effect as well as a jurisprudential one. It has, over the decades, isolated him on the Court and eroded his influence among the other justices. The man who arrived on the Court in 1986, as Murphy recounts, was amply endowed with charm and powers of persuasion. He had plenty of experience as a negotiator and a compromiser—all deployed to good effect during his stints in various government agencies in the Nixon and Ford administrations. But once he was ensconced among the chosen few, a dogmatic (Murphy would say quasi-religious) need to be right became his guide. Rather than operate as an effective coalition builder, Scalia emerged as an Old Testament–style Jeremiah, often hollering alone in the wilderness.

Slowly, he alienated all the centrist justices, from Lewis Powell to Sandra Day O’Connor to Anthony Kennedy. Scalia dismissed their opinions, often with ad hominem attacks on their logic. (Commenting on a Kennedy opinion in a 1992 public-prayer case, Scalia remarked, “Interior decorating is a rock-hard science compared to psychology practiced by amateurs.”) Murphy anoints him “a Court of One,” estranged from potential allies, a man of undisputed brilliance and vision who has done little to shape the larger life of the law. Whereas some might salute the Kennedy Court or the Roberts Court, Murphy writes, no one will ever invoke the Scalia Court.

Yet perhaps Murphy misses the moral of his own story. Scalia is in fact leaving a very powerful mark, as precisely the lone, uncompromising figure his latest biographer portrays so astutely. The Hobby Lobby case serves as a reminder of a profound shift on the Court over the 24 years since Scalia evoked the specter of the religious objector as “a law unto himself.” That may have been his nightmare in 1990, but in so many ways it is Scalia’s legacy in 2014. Scalia represents the living embodiment of the besieged religious dissenter, the “Christian as cretin,” in his parlance, the man who believes that the only remaining front in the American war for civil rights is the battle to defend religion. Two decades ago, nobody could have imagined that five members of the Court would align themselves with that posture.

But in the years since Samuel Alito joined the Court in 2006, replacing the centrist Sandra Day O’Connor, the five conservatives on the bench have shown less and less solicitude for the rights of women, workers, voters, minorities, the elderly, the environment, the poor, and most criminal defendants—and they have shown growing and seemingly boundless patience for religious objectors. The Court is currently hearing, and will continue to hear, passionate challenges to a secular society from religious dissenters seeking not just the right to deny contraception to their workers, but the right to pray at town-council meetings and—somewhere down the line, it seems likely—the right to deny services to same-sex couples. Murphy may be correct that Scalia is a court of one. But in the religious-rights revival now in progress in America, one is perhaps all that is needed.

This article available online at:

http://www.theatlantic.com/magazine/archive/2014/06/scalia-v-scalia/361621/