Scalia in the wilderness

Dahlia Lithwick considers the question of why it’s taboo to discuss whether or not Supreme Court Justices’ rulings and views are shaped by their religions.

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.

That is both totally unreasonable, and dangerous. Scalia is a dogmatic Catholic, so why would that fact not influence his views on abortion? What is he, magic? If we can’t even discuss the issue, how can justices be confirmed or rejected on reasonable grounds?

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.”

So then there was the Hobby Lobby case, when nobody questioned the religious beliefs that were in play.

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?

So a new biography of Scalia by Bruce Allen Murphy is helpful because Murphy doesn’t shrink from probing that issue.

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.

Or just plain self-serving bullshit? That’s my suspicion anyway.

Scalia claims that his originalist methodology insulates him from letting his religion influence his rulings. It’s just the words on the page, folks. Murphy doesn’t buy it.

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.

He’s isolated himself on the Court as a result, becoming a Jeremiah “hollering alone in the wilderness.”

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.

Gruseome, isn’t it.


  1. Claire Ramsey says

    It is gruesome. And now, in addition to Scalia’s dogmatic cruel catholicism, we are contending with his growing dementia. He cannot exit too soon for my taste. He is a horrible horrible man.

  2. mesh says

    If it’s one thing I’m bored of it’s the antiquated, naive assumption that biases can simply be left at the door and therefore be safely ignored. We can’t just will ourselves to abandon our conception of reality through which all experience and information is filtered as though human subjectivity were mere laziness. But he swiftly brushes this aside with a false dichotomy: if he isn’t a clone of the pope then he must be a pure engine of impartial reasoning completely uninfluenced by his upbringing and education.

    The honest thing to do is to admit your biases and strive for fairness rather than pretend they don’t exist and feign objectivity while using your influence to punish any violators of the unspoken agreement that faith only exists in a vacuum.

  3. Pierce R. Butler says

    He’s isolated himself on the Court …

    A funny way to describe someone often described as “influential”, and who usually votes on the prevailing side in major cases.

  4. Crimson Clupeidae says

    Or just plain self-serving bullshit? That’s my suspicion anyway.

    No no. You totally don’t get it. Scalia has no problem separating religion from the law.

    …when it’s someone else’s religion.

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