For the second time in two months, Supreme Court Justice Antonin Scalia has pitted his formidable brain against the Catholic Church and its increasingly strong stand against the death penalty. Addressing students at Georgetown University last week, Scalia argued that Catholic judges who believe the church's teaching that capital punishment is wrong should not be on the bench, stating that "any Catholic jurists (with such concerns) ... would have to resign." The comment didn't win him many fans. Catholics objected to Scalia's public renunciation of the pope's teachings. Religious judges balked at the implication that they cannot separate their religious convictions from their judicial duties. And many of us came away with the uneasy sense that such personal revelations by Supreme Court justices about ideology and religion compromise judicial neutrality.
Scalia's comments, both last week and in a January speech he gave at a Pew Forum conference on religion and the death penalty, do more than raise questions about religion and the judiciary. They raise questions about Scalia and the judiciary: How can he call for the resignation of Catholics unable to reconcile the church's position on capital punishment with U.S. law without stepping down himself, over the disparity between the church's teachings and the current abortion law? How can he suggest that it's impossible for judges to reconcile religion with public office when he has been one of the staunchest proponents of braiding religion back into public life? Is Scalia—one of the most brilliant and nuanced thinkers on the court—arguing himself out of a job? Not a chance. He's simply offering the world's most clever argument for his favorite judicial philosophy: "Originalism."
Legal and moral philosophers have long struggled over the problem of judicial bias. Prejudice, chauvinism, and favoritism were not invented at last week's Olympic figure-skating pairs final. In fact, a whole school of legal thinking sprung up around the notion that much of what a judge decides on any given day depends on what she ate for breakfast. But something about religious bias troubles us more than other kinds. It seems somehow more biased, and it is this uneasiness Justice Scalia tapped into with his recent comments. The perception seems to be that judges can put aside financial, social, and political pressures while on the bench, yet they cannot resist the more profound pull of religious conviction. We hear a John Ashcroft or a Charles Pickering testify that they can oppose abortion while upholding Roe v. Wade, and we don't really believe them.
Why do we suspect that when push comes to shove, religious beliefs will trump a judge's professional obligations? And why would Justice Scalia go on record to seemingly endorse the idea? Is he arguing that as an admittedly religious man, there are some cases he cannot hear objectively? More than one litigant has attempted to remove a judge, not because the judge evinced any bias, but because that judge's religious values were seemingly in conflict with their cases.In Idaho v. Freeman, a litigant sought to remove a federal district judge because he was a Mormon and likely predisposed against the Equal Rights Amendment. In In re Disqualification of Fuerst, an Ohio case involving allegations of sexual abuse by a Catholic priest, the plaintiff attempted to disqualify the Catholic judge. In Feminist Women's Health Center v. Codispoti, an abortion clinic tried to bump Judge Noonan, of the 9th Circuit Court of appeals, because his "fervently-held religious beliefs would compromise [his] ability to apply the law."
Perhaps deeply religious judges make us nervous because we believe that—like they used to say in the ads for Hebrew National kosher hotdogs—these judges "answer to a higher authority." This would seem to be Justice Scalia's take on the matter—that judges attempting to accommodate both the pope and the U.S. Constitution must necessarily fail unless they either disregard the pope or reinvent the Constitution. The implication is that every Catholic judge in America who supports the church's teachings over the law of the land should quit, himself included. The further implication is that religious judges of any stripe are inherently biased. But Justice Scalia is not arguing any of these things. And he offers his judicial theory—originalism—as the way out for all these struggling Catholic judges.
Originalism (colloquially known also as "strict construction") requires interpreting the law based on the principle that the Constitution means only what it meant to the framers who adopted it. For Scalia, capital punishment was constitutional at the time of the framers, so it is constitutional today. Period. Since the framers had no intention of protecting the right to choose, he can oppose abortion as a constitutional matter while purporting to be morally neutral on the issue. As he said at the Pew conference: "[M]y difficulty with Roe v. Wade is a legal rather than moral one. I do not believe—and no one believed for 200 years—that the Constitution contains a right to abortion." By following the flame of originalism, Scalia can lead his flock of tortured Catholic judges out of the constitutional wilderness. Their personal morality and even the dictates of the church are immaterial. Their only judicial task is to follow the intent of the framers. This method of interpretation allows Scalia to look value-neutral, even when his own writings often belie that neutrality. As he told the Pew conference while defending the death penalty, "That is not to say that I favor the death penalty. I am judicially and judiciously neutral on that point."
The happy accident at the heart of Scalia's "neutrality," of course, is that the framers were, for the most part, deeply religious men. Scalia's fastidiously value-neutral method of interpretation ignores the fact that the nation was founded by men whose religious lives were deeply enmeshed with their public ones. As religious scholar Michael Novak has pointed out, almost every signatory to the Declaration of Independence believed Christian moral teaching would underpin the republic. Scalia can afford to be an originalist, only because he personally agrees with most of the moral and religious assumptions of the framers. This does not make Scalia's originalism disingenuous, by the way. It merely makes it convenient.
Even more convenient is Scalia's use of originalism to privilege his own belief that the death penalty is moral, over the pope's strong opposition. Discussing the matter in his Pew speech, Scalia hit the pope with some trademark Scalia originalism: Quoting from St. Paul, Scalia offered proof that just as the framers of the Constitution endorsed capital punishment, so, too, did the "framers" of the church. Arguing that the founders of the church completely supported the death penalty, Scalia effectively charged the pope with doing to church dogma what his intellectual enemies have done to the Constitution: loading it up with contemporary values and mores at the expense of the original intent.
You can't argue with his methodology. Or even with his razor-sharp logic. You can, however, wonder at his project. It was hard enough to live with a Justice Scalia who wants nothing more than to turn back the clock 200 years. It's terrifying to contemplate a Justice Scalia who'd be even happier setting it back 2,000.