The National Catholic Review

Antonin Scalia did not grow up the son of typical Italian immigrants. Unlike most of us, whose fathers were brick-layers and masons, carpenters, steel-workers and coal-miners, his father was a university professor. As Scalia has said, he was not the poor son of immigrants who had to lift themselves up by their bootstraps.

He attended Xavier High School in Manhattan, a Jesuit school, and from there he went on to Georgetown, the nation’s pre-eminent Jesuit university, and then Harvard Law School. He caught the debating bug at Xavier and honed it well at Georgetown and Harvard. He has used those skills expertly as an appellate judge, not just in his questioning of counsel during oral arguments, but also in judicial conferences after oral argument and in his written opinions, which often skewer what Scalia sees as the faulty reasoning of those who disagree with him.

The subtitle of Bruce Allen Murphy’s extensively researched biography, Scalia: A Court of One, is indicative of what would appear to be Scalia’s tragic flaw—his inability to let go of his side of an issue to the point of alienating even those who are in partial, if not total, agreement with him. Murphy’s book recounts numerous Supreme Court cases where Scalia’s biting opinions attack even those justices on his own conservative side of the judicial spectrum for not seeing things exactly his way. When he was Chief Justice, William Rehnquist had to write Scalia about the bitterness of one of his draft opinions, dissenting from an opinion written by Justice Sandra Day O’Connor. “Nino,” Chief Justice Rehnquist wrote, “you are pissing off Sandra again. Stop it.”

Murphy spends a good bit of his biography pondering how Scalia’s Catholicism has affected his judicial decisions and his judicial philosophy. I must admit that I feel a bit queasy about these exercises because of their easy potential for Catholic-bashing. One of Murphy’s chapter headings is “Opus Scotus,” a pun on “Opus Dei,” the controversial Catholic organization, replacing “Dei” or “of God” (“Opus Dei” means “The Work of God”) with the initials for the Supreme Court of the United States, “Scotus.” While there may be a potential value in this exercise, I found it troubling reading. Do we evaluate the Jewish justices on the Court for how their faith has affected their judicial philosophy and opinions? And as for evaluating how any Protestant justices on the court are affected by their faith, we need to recall that for the first time in its long history, there are no Protestants on the nation’s highest court.

Murphy does not claim that Scalia is a member of Opus Dei, but he does see a clear connection between Scalia’s conservative version of Catholicism and his judicial philosophy of originalism. Originalism is Scalia’s announced yardstick for deciding whether a law is constitutional or not. Scalia holds that the original meaning that would have been given to the words of the Constitution or its amendments by the persons living when those terms were adopted controls the meaning of the words. (In the oral arguments on a case concerning whether the First Amendment prohibited a California law that outlawed the sale of unusually violent video games to minors, Scalia’s conservative colleague on the court, Justice Samuel Alito, joked that what Justice Scalia really wanted to know was what James Madison thought about video games.) But Murphy ponders whether Scalia’s version of Catholicism, which Murphy refers to as “pre-Vatican II” and his originalism theory of constitutional interpretation are not “so parallel in their approach that Scalia could not help but realize that by using his originalism theory he could accomplish as a judge all that his religion commanded without ever having to acknowledge using his faith in doing so.”

Murphy’s analysis clearly implies that Scalia’s well-known opposition to Roe v. Wade—because nothing in the constitution mentions a right to an abortion, which is Scalia’s originalism analysis—is really based on his Catholic faith’s abhorrence of abortion. That is quite some charge, and I wonder if it would be made about a judge of any other faith. Murphy also writes about the “possible link between the existing Catholic majority on the Court and the reversal of the [partial birth] abortion decision in the Gonzales v. Carhart case.” Unfortunately Murphy is not alone in this speculation, citing as he does a number of national journalists and bloggers who expressed similar thoughts. Instead of blaming the majority’s Catholic faith, might not the reason for Gonzales lie in the fact that pulling a child part way out of its mother’s womb in order to end its life is something that no civilized society can accept as a fundamental value worthy of constitutional protection?

Scalia has numerous times had to deny that he functions as a “Catholic” justice. He has said, “There is no such thing as a Catholic judge,” just as there is no such thing as “a Catholic way to cook a hamburger.” When pressed, he has admitted that only two teachings of his faith affect his judicial work: “Be thou perfect as thy heavenly Father is perfect,” and “Thou shalt not lie.” Those are hardly uniquely Catholic concepts.

Of course, there is always the possibility that Scalia is being disingenuous, that he says one thing and does another. But, at least from my point of view, his “originalism” decisions are far from four-square with the Catholic faith. As Murphy recounts, Scalia has yet to see a death penalty that he does not believe the Constitution approves of, including executing 15-year-olds. The court’s decision in Employment Division v. Smith, which Scalia authored, did more to eviscerate the constitutional rights of churches than any other Supreme Court decision before or since. And on that video games case, where California tried to keep extremely violent video games out of the hands of minors on the quite reasonable proposition that playing games like those taught impressionable kids the acceptability of violence against one’s neighbors—you know, those people Christ said to love—Scalia voted to overturn the law.

Murphy’s analysis of the Supreme Court decisions that Scalia has been involved with, apart from his religious speculation, is quite well done. Murphy has a true ability for explaining complex legal issues in a way that is easily accessible to the layperson. This is a doorstop of a book, about a man who has had a phenomenal influence on American law, worthy of a long read, but with a grain of salt when it comes to trying to guess what a justice’s religious motivations are in rendering a particular decision.

Nicholas P. Cafardi is a professor at Duquesne University Law School in Pittsburgh.

Recently by Nicholas P. Cafardi

The Commodification Curse (March 16, 2016)
Follow the Money (July 8, 2015)
Traditions of Conscience (July 22, 2014)
Winning War, Losing Peace (April 15, 2014)
What Was Lost (December 10, 2013)