Justice Scalia On Trial

Justice Antonin Scalia is nothing if not newsworthy. At the start of the term of the Supreme Court of the United States in October, the press dutifully reported that he had checked in with a full set of whiskers. About the same time, in a talk at the Catholic University of America’s School of Philosophy, the justice declared that there is nothing in the Constitution to guarantee a “right to die.”

This triggered sharp criticism from some sources, including Court TV, since the Court had just agreed to hear two cases from lower courts striking down prohibitions of physician-assisted suicide. According to his critics, Justice Scalia was imprudent, if not worse, in expressing his public opinion on an issue to be heard by the court.

Of course in an earlier day, it will be recalled, the late Justice Douglas was not above making comparable remarks. And does anyone remember the pointed questions asked of presidential nominees for the Supreme Court by members of the Senate Judiciary Committee?

Most significantly of all, perhaps, Scalia seems to invite attention as a poster boy of the cultural wars. For those still confused by that concept, the handling that the justice received from the media in the spring of last year may provide a few illuminating insights. The story runs as follows.

Scalia Among the Baptists

The Christian Legal Society (CLS) is an organization of lawyers whose defining principle is a belief in the divinity of Jesus Christ. In April of last year, a chapter of CLS at the Mississippi College School of Law, affiliated with the Southern Baptists, invited Supreme Court Justice Antonin Scalia to speak at a prayer breakfast. The event was held at the First Baptist Church in Jackson.

Though cameras were barred, and no text of the justice’s speech was distributed, the meeting was open to the press. The Jackson Clarion-Ledger carried an account, later supplemented by interviews with those who attended. A Christian with even a tenuous link to traditional teaching would have found the substance of the remarks by the justice unexceptional.

That the event was deemed newsworthy at all is a measure of the width of the cultural divide. Scalia reminded members of his audience that the world, particularly those considering themselves intellectuals, tends to dismiss Christians as simple-minded because they believe in miracles. He urged them to stand up for their faith, echoing the familiar words of Paul: “We are fools for Christ’s sake.”

In a flash of his well-known wit, Scalia said: “The wise do not believe in the resurrection of the dead. It is really quite absurd. . . . So everything from Easter morning to the Ascension had to be made up by the groveling enthusiasts as part of their plan to get themselves martyred.”

To illustrate his point about the world’s view of miracles, the justice commented on the manner in which the Washington Post covered a story concerning a priest who reportedly had received the stigmata, the wounds of Christ. In his opinion, the newspaper articles reflected a perplexing ambivalence about the subject and a disposition on the part of reporters to dismiss even the possibility of its occurrence.

At the same time, the justice insisted that “Reason and intellect are not to be laid aside where matters of religion are concerned.”

His remarks, apparently hitting home with the six hundred-plus people in attendance, evoked a standing ovation. But when the story made the headlines, the reaction was somewhat different. News accounts stated the talk was “surprising,” and a “remarkably personal defense of Christianity.” The Salt Lake Tribune ponderously editorialized: “Does it bother anyone that a US Supreme Court Justice is preaching Christian and political conservatism on the speaking circuit? Perhaps it should.”

A spokesman for Americans United for Church and State stated that the talk “undermines public confidence in his objectivity regarding religious controversies.” Observing the interest the story was attracting, one reporter called it “a media dust-up of sorts.”

Some of the reaction was visceral, perhaps driven by implacable hostility to public Christianity, or a disdain for the jurisprudence of the speaker.

Sensitive Pundits

The prize for ad hominem attack was won by syndicated columnist Richard Cohen. Obviously agitated by the assertion that the Washington Post coverage of a purported stigmata was stunted and biased, Cohen decided to pull out all the stops in his denunciation. He called Scalia a cheap-shot artist, an abuser of the Washington Post, a fool by his own admission, and a man who misjudges the nature and motives of those who insist on a wall between church and state. Somehow the columnist also worked into his indictment the information that Scalia is the father of nine children (how sinister can you get?), and a master of sarcasm, which in Washington, he said, passes for intelligence.

Another columnist, Colman McCarthy, under a heading “Martyrs in Their Own Minds,” fulminated that “this was less a speech than an outburst.” According to McCarthy, Scalia was trying to make the case that Christians in our society are persecuted, but the columnist wasn’t buying such fantasy. Obsessed with rebutting a claim of persecution that the justice never made, McCarthy labored to establish the negative by pointing out there is a Red Mass for the Supreme Court at St. Matthew’s Cathedral every October, and a National Prayer Breakfast. Besides, Cal Thomas has a column of his own in the newspapers. Eventually, however, McCarthy drifted back to what appears to be an underlying theme of many of the critics; to wit: These Christians whom Scalia is worried about are nothing more than right-wingers who cut aid to God’s poor in Congress and shovel financial help to “right-thinking” political candidates.

This straw-man interpretation of Scalia’s talk was invoked by others as well, with James Dunn, the director of the Baptist Joint Committee on Public Affairs, being quoted as saying there is a modern myth that religion is persecuted in American life. This is a right-wing litmus test, he said, with everybody “competing to see who can whine the loudest.”

Of course, all of this disregarded the fact that Scalia said nothing about persecution. If anything, his contention that sophisticates scorn religious believers would suggest that modern society has such contempt for the “cretins” (i.e. Christians) that it has no appetite, or need, to persecute them.

The temptation to give a political twist to the speech and then repudiate the views that had been imagined proved irresistible. Commentators Jack Germond and Jules Witcover (under the heading “The Scalia Speech: Raw Meat to the Religious Right”) purported to see a not-so-subtle attempt by Scalia to encourage the “Religious Right” to continue its efforts to influence election campaigns and pending legislation. Decrying what they considered the moral arrogance of conservative Christians, they delivered this coup de grace: “Thus, for example, many fundamentalist leaders depict the debate over abortion rights as one between those who sanction murder and those who do not.” Presumably to keep things simple, no mention was made of partial-birth abortions.

Judicial Propriety

Not all the commentary was negative. Columnist Edwin M. Yoder Jr. recognized that the themes the justice expounded are the staple of millions of churchgoers, and the discomfort felt by his critics was a reaction to religious discourse emanating from a knowledgeable public figure.

In Yoder’s view, “What is in some ways more mysterious than the mysteries of theology is the treatment of religion as if it were a rare disease, to be strictly quarantined.” In an editorial in the Washington Times, the point was made that some people were arguing that Scalia was unfit for secular service simply because he “invoked his faith, in a private setting.”

Those who were negative in their assessment were handicapped by the fact that one can hardly deny the right of a justice to air his personal views on religion. Even members of the judiciary are protected by the free-speech provisions of the First Amendment. Accordingly, the attacks on Scalia’s remarks had to be formulated to raise questions about their propriety. Do such comments interfere with the impartiality of a judge, or its appearance? Would nonbelievers feel they would not be treated as equals under the law? Did Scalia cross the line?

The media were able to locate one professor of constitutional law, James Raskin at American University, to confirm that the line had been crossed. Raskin expressed the view that Americans expect Supreme Court justices “to be the most secular of our public servants.” The implication here seems to be that there are different degrees of secularity, their specification and attribution to various public offices yet to be announced.

However, Professor Raskin allowed that Supreme Court justices may have religious beliefs, as long as they don’t flaunt them. Flaunting would make “us” (Americans) uncomfortable. Expanding on his remarks, Raskin compared Scalia’s comments to a judge “participating in an anti-abortion march, taking part in a campaign rally or selling flowers for the Hare Krishnas at National Airport. . . .”

Other than displaying the elasticity of legally trained minds when in hot pursuit of an analogy, these comparisons suffer from the consideration that nothing said in Jackson, Mississippi by Justice Scalia reflected in any manner on issues that are likely to come up in pending cases. As Steven Lubet, a professor of law from Northwestern University, convincingly explained: “A statement of religious belief in miracles manifestly does not compromise impartiality.” A practicing lawyer put the matter more directly: “That a justice has religious values does not strike me in and of itself as a problem.”

To others, the matter was not so clear. Elliott Mincberg, the legal director for the People for the American Way— glowingly described in the newspaper article as a “District-based advocacy group for constitutional liberty”—thought that Scalia’s remarks suggested he believes separation of church and state must be anti-Christian.

In order to reach this incredible conclusion, Mincberg first asserts that the words of the justice reminded him of the words of Pat Robertson and Patrick Buchanan, both of whom supposedly believe that the country is full of anti-Christian bigotry. This means that Scalia interprets things designed to protect religious liberty as anti-Christian. The analysis may appear complicated, but there is a thought in there somewhere, and when the reader fully grasps it he will have to judge whether it is more noteworthy for its crudity or its vacuity.

  • John E. Dunsford

    At the time this article was published, John E. Dunsford was the Chester A. Myers Professor of Law at St. Louis University.

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