No Agenda? A Humanist View of Justice Scalia

With the death Saturday of the conservative lion of the U.S. Supreme Court, Justice Antonin Scalia, we revisit David Niose’s analysis of his jurisprudence and Joan Biskupic’s 2009 biography, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia.

At first glance Joan Biskupic appears almost ideally qualified to author a biography of Antonin Scalia, the Supreme Court’s most vocal and controversial justice. An experienced reporter with legal credentials, Biskupic has covered the Supreme Court for two decades and is already the author of a well-received biography of Scalia’s former colleague Sandra Day O’Connor.

Yet as one begins to digest the details of Scalia’s saga, one realizes that a psychology degree, rather than a background in law and journalism, might be the better qualification for putting Scalia’s life and work in perspective. A qualified analyst, much more so than a legal scholar, could perhaps make sense of the seemingly inconsistent stew that is Scalia jurisprudence.

Like no other Supreme Court justice before or since, Scalia is famous (or infamous) for his uncompromising positions and combative style, his judicial opinions that often burst forth with brazenly injudicious rhetoric, and for his frequently sarcastic dismissal of opposing views. Indeed, Scalia’s reputation can perhaps be best summarized by the story of a visit Scalia made to a college campus, where he met with students after giving a speech. One student approached Scalia and mentioned that he had named his pet fish “Justice Scalia” in his honor. Someone nearby then asked, “Do you have other fish named after the other justices?”

“No,” the student replied. “Justice Scalia ate all the others.”

Scalia’s style certainly makes for interesting reading but, as Biskupic points out, it’s his role as a prime figure in building and defining conservative jurisprudence—which itself has helped fuel the conservative movement as a whole—that makes him an important subject for biography. From empowering the conservative Federalist Society in academia to playing the role of outspoken dissenter in his early days on the Court to now seeing many of his views adopted by one much more receptive to his arguments, Scalia has arguably done more than any other single person to move the United States to the right over the last quarter century. Phrases such as “activist judges” and “legislating from the bench” have become regular ammunition in the arsenal of conservative politicians, thanks in large part to the political marketability of Scalia’s judicial approach.

As Biskupic aptly explains, Scalia prides himself on many things, but perhaps nothing more than claimed consistency. That is, by championing the “originalist” constitutional philosophy, which approaches constitutional issues mainly by considering what the Constitution literally says and asking what its framers intended, rather than attempting to apply evolving modern standards to the Constitution, Scalia is able to claim intellectual honesty. Though many will disagree with the outcomes of his analyses, he nevertheless claims without blushing that he applies a consistent originalist standard.

Viewing the Constitution through an originalist lens, Scalia is of course highly critical of Roe v. Wade, which ensures women a right to abortion, because the Constitution is silent on the issue of abortion. The same originalist approach leads him to conclude that he cannot view the death penalty as unconstitutionally cruel and unusual, because capital punishment was commonplace in colonial times and is even expressly mentioned in the Constitution itself. If it was acceptable to the Founders, who are we to say otherwise?

Indeed, claimed intellectual consistency is so important to Scalia that he is quick to point out that his honest application of originalist jurisprudence sometimes requires him to reach conclusions that, from a policy standpoint, he disfavors. Hence, he has reluctantly sided with flag burners on free speech grounds (“I don’t like scruffy, bearded, sandal-wearing people who go around burning the United States flag,” he explains), and his reading of the Sixth Amendment has overturned mandatory criminal sentencing, a somewhat surprising result for a justice with a tough, conservative reputation.

Such surprising policy outcomes, however, are relatively rare, and a skeptic could view them in a light that is less favorable to Scalia. After all, occasional unexpected policy outcomes serve a very useful practical purpose, by creating an appearance of sound intellectual consistency. And since originalism relies upon the claim of intellectual consistency for legitimacy and credibility, this is a small price to pay.

This is where the psychologist’s couch might prove more useful in understanding Scalia than law review commentaries or the journalist’s pen, for Scalia’s jurisprudence is less remarkable for its consistency to originalism (in fact, inconsistencies abound) than for how it complements his worldview, including his theology. The man who claimed, “I have no agenda,” at his confirmation hearing has, by claiming adherence to originalist judicial philosophy, spent his career rendering decisions that promote public policy that supports his worldview. Scalia expects us to believe that this favorable public policy outcome is not the result of ideological advocacy on his part, but simply a fortunate coincidence.

The intersection of Scalia’s religion and jurisprudence has been the subject of much writing and speculation, and Biskupic unfortunately does not venture very deeply in considering the influence of the former on the latter. Nevertheless, she does present many of the relevant facts. Scalia’s ancestry, upbringing, personal development, academic background, and adult life all exude not just Catholicism, but often a conservative Catholicism, and the influence of this theological foundation on Scalia’s work would be difficult to exaggerate.

While religiosity is not unusual in a public figure, and while it is often correctly considered mainly a private matter, there are instances when it would be a grave mistake to declare the subject off-limits. One of those times is when religion not only informs the values of a public figure, but when it almost completely dictates his worldview and shapes his public policy agenda. While Scalia claims that he has no agenda (an implausible statement in itself), he has made it clear that his view of government and law are largely shaped by his religious views. When we consider the facts, we find that even this admission is probably an understatement.

The father of nine and grandfather to at least thirty, Scalia is entirely devoted to the Roman Catholic Church and its theology, and he is critical of the church only when it shows hints of liberalism or modernism. For example, rather than attend the nearest Catholic parish, he instead seeks out those rare parishes that will conduct a Latin mass. When an unfortunate parish priest once suggested that the Christmas nativity scene was not to be taken literally, Scalia scolded the cleric for deviating from church teaching.

As one would suspect, this religious loyalty was instilled in Scalia from childhood, as was his sense of responsibility for defending the Catholic worldview. “Nino,” as he was known, was the only child of an Italian Catholic couple (an unusual phenomenon in the 1930s) and had seven uncles and aunts, none of whom had any children, meaning he was the only child of two Italian bloodlines. Doted upon in a conservative Catholic family, with a highly educated father who was not easily impressed and with numerous other successful and educated relatives, Nino, demonstrating academic abilities that proved impressive, was poised for achievement.

Attending the all-boys Jesuit Xavier High School in Manhattan, where all students participated in junior ROTC and wore sharp, blue uniforms displaying rank, Scalia found an environment that perfectly complemented him. Disciplined, ordered, respecting authority, and of course religious, Xavier and Scalia seemed a match made in heaven. From Xavier he went to another Jesuit institution, Georgetown University, where he again excelled as valedictorian of the class of 1957.

If there is any doubt about the religious slant at Georgetown in the 1950s, consider the story of Scalia’s senior-year oral exam as a history major. Though he impressed his examiners, they threw one question his way that caught him off guard. Considering all of history, an examiner asked Scalia, what is the one historical event that is most significant? Relaying the story years later, Scalia couldn’t remember his answer, but he did remember that the examiner disapproved of it. “No, Mr. Scalia. The Incarnation.” (God becoming man through Jesus Christ.) We have no reason to think Scalia did not take this lesson to heart.

Thus, before Scalia ever entered law school, his confident personality had developed and his general inclinations were set. Like the church to which he was devout, he valued order, authority, discipline, hierarchy, and tradition; both he and his church had a firm understanding of right and wrong, with a clear sense of superiority over those unfortunate souls who did not share such values. As he ventured to Harvard to study law, he naturally gravitated to the judicial philosophy that would, like his church, require a nostalgia for pre-modern times, a strong preference for yesterday over today.

Originalism, like Catholicism, is in many ways troubled by modernity. Faced with a world that is rushing ahead technologically and socially, with the inevitable problems that arise as a result thereof, both turn to tradition for security and reassurance. When one sees modernity itself as the problem, the solution can be as simple as turning back to the good old days.

Ironically, as Scalia insists that today’s Constitutional questions should be resolved by determining what the eighteenth-century drafters intended, it is worthwhile to consider how radical, for their times, those drafters were. While there was some variety in the religious beliefs of the Founders, it is fair to say that, overall, they inhabited the far left end of the religious spectrum of their day, some of them rejecting outright the notion of revelation-based religion. In an age when open rejection of Christianity was still dangerous, the Founders were, all in all, a group of religiously liberal pre-Darwinian skeptics, men who exalted reason and science over dogma and creed. The notion of a twenty-first-century justice channeling these men, while also berating a parish priest for deviating from the literal nativity story, is enough to make today’s humanists laugh, or perhaps cry.

It should be little surprise then that the Catholic Scalia finds friendly bedfellows with the evangelical and fundamentalist Protestant right of today (another development that would have surprised the Founders). Scalia defends the rights of conservative Protestants to teach creationism in public schools, supports the efforts of divinity students to obtain state support, and of course upholds efforts to inject religion into public life. All of this, Scalia would argue, has little to do with his personal preferences and everything to do with his honest originalist interpretation of the Constitution.

But this is where Scalia’s consistency falls apart. As part of his Constitutional stance, for example, Scalia’s view of federalism cites a strong preference for states’ rights, seeing the Constitution as generally allowing the states, not the federal government, to set public policy locally. This is part of the basis for his belief that Roe v. Wade should be overturned—the decision has the federal government setting policy on a matter that belongs with the states. Yet when it is convenient for his public policy goals, Scalia’s brand of originalism has no problem with the federal courts overturning state public policy decisions. Scalia voted to overturn Oregon’s assisted suicide law, for example, and to invalidate California’s medical marijuana law, despite his claimed allegiance to states’ rights.

And of course the pinnacle of judicial hypocrisy in this area of federalism is Scalia’s decision to trump state authority in Bush v. Gore, which overruled the Florida Supreme Court and handed the 2000 election to fellow conservative George W. Bush. Judicial restraint, indeed.

Cries of judicial activism followed the Supreme Court’s January 21, 2010, decision in Citizens United v. Federal Election Commission, in which Scalia, as part of a 5-4 majority, struck down established limits on corporate campaign spending.  Writing on Slate, Richard L. Hasen commented, “Make no mistake, this is an activist court that is well on its way to recrafting constitutional law in its image.”  Whereas the Court could have made its ruling in favor of corporate-backed Citizens United via a narrow ruling that had no broad implications, Scalia and his conservative colleagues instead chose to issue a broad ruling that overturned longstanding precedent.  In doing so, they not only transform federal election law, but probably set the stage for overturning state election rules as well.

Thus, Scalia can be quite a judicial activist when he chooses, and quite a legislator from the bench. As pointed out by Indiana University law professor Dawn Johnsen, Scalia’s originalism, though presented as a highly intellectual judicial philosophy, is in real life merely a persuasive political ideology. What makes it most effective, and dangerous, is that it cunningly presents itself to the casual observer as an honest jurisprudence.

Of course intellectual rationalization is nothing unusual, but what’s troubling with Scalia is the actual worldview that is promoted through his rationalization. Some Catholics live and preach the social gospel, emphasizing care for the poor, humility, and peace, and if Scalia’s Catholicism and judicial activism resulted in such public policy one could argue that the world would be a better place. But Scalia has distaste for left-leaning Catholicism, and it’s unlikely that you’ll find him singing hymns with folk guitarists at the local church. The Catholicism of Daniel Berrigan or even Robert Drinan is not what drives Scalia, who instead opts for a hard-right Catholicism that is less concerned with the poor and oppressed and more interested in power, authority, and righteousness.

And perhaps nowhere is this more evident than in Scalia’s zealous defense of executive power. In another manifestation of his personal policy preferences that (apparently by sheer coincidence) are supported by his peculiar view of originalism, we find Scalia consistently promoting the notion of strong presidential power. At almost every opportunity, whether by limiting the scope of the Freedom of Information Act or allowing the chief executive virtual carte blanche in the handling of offshore prisoners, Scalia is seen thwarting attempts to use the legislature and the courts to restrain the authority of the White House.

One can imagine, as the originalist Scalia might claim, that Jefferson and his companions envisioned presidential power in this manner, but somehow Justice Scalia’s opinions seem to be less about the views of Jefferson than the views of Antonin Scalia—the views of a tough, conservative, moralizing Catholic achiever with a disdain for modernity.

When casual critics mention Scalia, they often refer to his opposition to abortion rights as a primary issue of concern, but abortion is just one of many issues where Scalia’s views threaten modern progressive values. In fact, there is little reason to believe that he would stop at Roe v. Wade if he had his way, for his originalist views would just as easily overturn Griswold v. Connecticut, which ensures a right to birth control. The possibility of states with politically powerful fundamentalists outlawing birth control, or at least severely limiting access to it, is a realistic concern under a Scalia constitutional interpretation. Gay rights, separation of church and state, and even desegregation are also vulnerable targets for conservative activists under Scalia’s view of the law. Strong executive power, deference to the military, and regulation of personal behavior by the state are all likely to prevail under his view.

Given that so much hangs in the balance, that the very direction of American society will be determined in large part by the success of Scalia’s policy agenda, one must step back and consider the entire picture when assessing his judicial philosophy, and Biskupic’s biography provides much information to assist in this endeavor. For humanists and other progressives, it’s not enough to look at the likely direction that Scalia’s philosophy will take the country and thereby conclude that this direction is undesirable, because the desirability of that direction is always open to debate. In fact many conservatives will argue that such policy outcomes are precisely the right direction for the United States. This is why the philosophical validity (or invalidity) of Scalia’s approach is important to consider, including underlying factual assumptions and truth claims, core values, and their practical applicability.

In conducting this exercise, one common criticism of Scalia’s originalism is the sheer fiction of attempting to apply the literal intent of eighteenth-century authors to cases arising from the complex technological and social realities of twenty-first-century America. (In fact Scalia has himself acknowledged this flaw in originalism, though he downplays its significance.) Just as importantly, Scalia’s inability to apply his own standards consistently, such as his refusal to defer to states’ rights when his public policy preferences are sufficiently strong, raises questions about the real-world applicability of his originalism.

But while some critics would stop there, Scalia’s own assertiveness, his uncompromising combativeness and insistent righteousness, described at length by Biskupic, require that a thorough criticism (and certainly a thorough humanist criticism) must go further, taking into consideration the foundational assumptions that underlie his views. That is, to fully understand Scalia’s jurisprudence, we must understand that it is based firmly on a religious foundation, specifically a conservative Christian foundation. If there is any question about this, then I refer you to his article, “God’s Justice and Ours,” where he famously states that “for the believing Christian, death is no big deal.”

Adapted from remarks he gave at a conference sponsored by the Pew Forum on Religion and Public Life, Scalia goes into detail to demonstrate that his legal philosophy is rooted firmly in religion. Citing Paul of Tarsus as a basis for reconciling his support of the death penalty, pointing out that Paul recognized the state’s ability to kill even though individuals do not have such authority (a prime example of religious rationalization for exaltation of the state), Scalia goes on to say that “government derives all of its authority from God.” He criticizes “secular Europe” and points out that secularized countries tend to disfavor the death penalty for reasons that he attributes, no doubt correctly, to their gravitation away from biblical dictates.

This forces the objective observer to ask a question that is not ordinarily asked in American political or judicial discussion, but perhaps should be: If one’s views on law or public policy are based on ancient, revelation-based theology, how plausible are the claimed truths that underlie that theology, and how sound is that revelation-based foundation? Such questions should not be seen as an “attack” on religion, for there would be no such questioning if critical matters of jurisprudence and public policy were not reliant on such theological claims. Any private religious belief would normally be irrelevant in the public forum, until the person who holds that belief then claims that public policy should be based on those personal theological views.

Public policy outcomes, regardless of what they are based upon, should be justifiable as ends in themselves. Even if one claims a religious foundation for one’s public policy views, the ends sought should be justifiable in a secular sense. Perhaps one favors increasing public welfare benefits because one feels that God would want such an outcome, for example, but in convincing the legislature and the public on the wisdom of such policy one must point to other, more practical and secular reasons.

This is why an honest critique of Justice Scalia’s record should include consideration not just of his stated judicial philosophy, but also of the underlying philosophy and worldview that it not-so-coincidentally advocates. No matter how colorful and even intellectually impressive Scalia may appear to some, he is a twenty-first-century man who, unlike many of the eighteenth-century men whom he claims to model, bases himself entirely on ancient revelation, prophesy, miracles, the incarnation, the ascension, and the legitimacy of a particular church that claims exclusive authority over all of this religious mysticism. This is the true foundation upon which the Scalia philosophy is based, the true basis for the public policy that he promotes, and therefore there is nothing improper about questioning the validity of these truth claims and asking whether a pluralistic, modern democracy should be dictated by such notions.

Say what you will about the intent of the Founders—there can be no question that the ideals of the Enlightenment were the foundation upon which the American republic was founded. The Enlightenment, in turn, is notable as a major step away from traditional authoritarian theology and toward reason, the first point in Western history when open rejection of revelation-based religion was sometimes safe. Yet today we have a Supreme Court justice with a view of both theology and the world at large that in many ways would have seemed outdated even to the men who founded the United States of America almost a quarter of a millennia ago.

In this sense there is little about Scalia that suggests a true appreciation of the original values of the United States. Despite his capacity for congeniality that sometimes charms even his ideological opposites (Justice Ruth Bader Ginsburg is not just a professional colleague, but a close friend), Scalia’s values are those of the hard right: tradition, order, righteousness, discipline, and patriotism, peppered with a clear toleration of state violence.

Within this framework there is little reason to think that young Nino, had he been born in a different time and place, would not have found great success in virtually any authoritarian environment, from the ecclesiastical environment of the Inquisition to the nationalistic and militaristic atmosphere of early twentieth-century Europe. It just so happens that he was born in modern America which, though at times hostile to his worldview, has ultimately proved to suit him and his views fairly well. As such, the humanist might ask: What does that say about modern America?