“He was a man. Take him for all in all. [We] shall not look upon his like again.” Those words from Hamlet seem appropriate on the death of US Supreme Court Justice Antonin Scalia. He had a powerful effect on the Court and on the law more broadly. Scalia was the most eloquent and prominent proponent of the idea that the Constitution should be interpreted according to the “original meaning” of its words: the meaning they had at the time of their adoption. He argued, in his inimitable style, for a “dead Constitution”—whose meaning is fixed until changed by formal amendment—over a “living Constitution” that a judge can manipulate into whatever shape he wishes.
Moreover, except for Ruth Ginsburg, it is hard to imagine another justice becoming so visible in the broader culture. Many who hated Scalia’s rulings could not help but be entertained by his razor-sharp writing, which he used especially in his dissenting opinions to carve up the majority’s reasoning (my favorite is Planned Parenthood v. Casey, where among other things he referred to the majority’s “Nietzschean vision of us unelected, life-tenured judges—leading a Volk who will be ‘tested by following’” the Court’s rulings obediently). In a talk at my law school last November, he said that he wrote his dissents “mainly for you guys, for law students.” His eloquence inspired generations of lawyers and students convinced by his judicial philosophy.
It’s worth taking time to consider another aspect of Justice Scalia: his religious faith. He was a devout Christian, a traditional Catholic, who set forth his Christian beliefs as he did his views on virtually every other subject: with honesty, wit, and pungency. At a 1996 prayer breakfast, he exhorted attendees to wear the label “fools for Christ” in the face of scorn from the “worldly wise.” In a 2013 interview, he made clear that the Devil “is a real person” whose presence is less explicit today than in biblical stories only because “he’s gotten wilier.”
Worldly Jurisprudence
But this most publicly devout justice also made especially clear that his beliefs had nothing to do with his judicial role. Scalia denied that there was any such thing as a Catholic, or a Christian, judge. His job, he emphasized, was merely to ascertain the meaning of the legal text at of the time of enactment, using contemporaneous dictionaries and other evidence, and apply it without regard to policy considerations or moral values, including religious values. “I’m a worldly judge,” he said in a 1996 speech at a Catholic university in Rome. “I just do what the Constitution tells me to do.” The only one of the Ten Commandments relevant to the judge’s role, he said, was the command to tell the truth.
Even as he dissented vigorously from the constitutional right to abortion, he emphasized that he did not do so because he (or the Church) viewed abortion as immoral. It was simply that “[i]f the people . . . want abortion, the state should permit in a democracy. If the people do not want abortion, the state should be able to prohibit it as well.” Indeed, he was quoted as saying in an interview, “If I genuinely thought the Constitution guaranteed a woman’s right to abortion, I would be on the other [side].”
Scalia did not say whether, in that hypothetical situation of personal moral conflict—the Constitution requiring him to block a legislative effort to protect human life—he would stay on the bench and enforce the constitutional rule, or resign. (A similar conflict actually arose in the pre-Civil War years for anti-slavery judges, who were required by the Constitution to order fugitive slaves back to their masters.) But Scalia did say that if he agreed with the Catholic Church’s recent condemnations of capital punishment, he might have to resign, at least if he were a trial-court judge who actually had to impose a death sentence. (He never faced that conflict either, because he disagreed with the Church and thought the death penalty morally permissible.)
Scalia’s posture of judicial neutrality on abortion disappointed some pro-life advocates, who thought that he missed golden opportunities in his dissents to point out that abortion was not simply within the legislature’s authority but was fundamentally unjust. Their argument—one prominent in Catholic jurisprudence over the years—was that a democracy cannot be considered legitimate unless it respects human dignity and natural law (the basic principles of human flourishing), no matter what the legislative majority happens to think. But Scalia’s conception was entirely different: “The whole theory of democracy,” he said, “is that the majority rules. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection” through a constitution or a statute.
In recent years, Scalia and the other justices who reject constitutional abortion rights have been accused of voting that way because they are Catholics. According to one of the accusers, these justices “failed to respect the fundamental difference between religious belief and morality” and imposed their Catholic beliefs on the rest of the nation. The accusation is wrong, and scurrilous in trying to stir up religious-based resentment against justices who disagree with Roe. Their votes can be fully explained by the simple fact that the ruling in Roe cannot be justified based on text, original intent, or longstanding legal traditions.
Scalia pointed to many other cases where he vigorously enforced constitutional rights even though he disliked the results. He voted to protect protesters who burned the American flag, even though he said “I would send [them] to jail so fast if I were king.” Although he expressed a law-and-order streak in his personal views, he wrote opinions enforcing criminal defendants’ rights to keep their privacy, to confront the witnesses against them face to face, and to have every issue in their prosecution determined by a jury.
Justice Scalia’s strong separation of morality and the judge’s role is not the only posture that devout Christian judges have taken. In contrast, Justice Frank Murphy, a Catholic liberal during the New Deal, argued that rulings protecting workers’ rights and freedom of conscience were applications of Christian charity in the modern world. But Justice Scalia’s view of judging has its own moral foundations. For one thing, forcing judges to follow the direction of text and history tempers their tendency—the tendency of all those exercising power—to think that they know best (which Christians recognize as one manifestation of original sin). And majority rule can have the positive moral value of engaging citizens in a common endeavor to promote the good of society.
Religious Freedoms
Christians have a special interest in questions of religious liberty and church-state relations. There, Justice Scalia was a resolute defender of the idea that religious ideas and believers could participate fully and equally in public life. He upheld equal access for student religious groups to public school classrooms, equal access for religious schools and their students to tuition vouchers and other forms of educational aid, and the power of government to conduct prayers at public events such as graduation ceremonies and city council meetings. One can argue that the latter category—government-sponsored prayers—does not promote religious liberty but rather allows the government to promote some faiths over others. But for Scalia, the key was that such practices were common at the founding and continued in our traditions for decades afterward. He also stood firmly on the side of free exercise of religion in recent cases, such as the Hobby Lobby decision concerning the Obama administration’s mandate that employers cover contraception in employees’ health insurance.
On the other hand, he will be remembered for an important decision harming religious liberty: Employment Division v. Smith (1990), where his majority opinion cut back sharply on the free exercise of religion by refusing to declare constitutional exemptions to protect religious practices that conflict with “neutral laws of general applicability.” The opinion did not mention the original meaning or history of the Free Exercise Clause, a history that shows considerable evidence—the “more substantial” evidence, leading religious-freedom scholar Michael McConnell has concluded—“in favor of the broader exemptions position.” Instead Scalia’s opinion said that it would be too difficult for judges to balance religious freedom against state interests—a consideration that, although real, is overstated and, at any rate, does not appear in the constitutional text.
Scalia always emphasized that legislatures could protect religious freedom by enacting statutes, and he stood by that in Hobby Lobby, where the Court ruled for objecting employers under the 1993 Religious Freedom Restoration Act despite the firestorm of criticism from the left. But leaving religious freedom to legislative protection makes it vulnerable to political attacks, as we’ve seen in the recent intense efforts to torpedo religious-freedom laws in Indiana, Arizona, and other states. Scalia’s opinion in Smith forced religious believers to rely on vulnerable statutes, even though he enforced such statutes strongly once they existed.
Judgment Calls
Justice Scalia didn’t always succeed in separating moral claims from his judicial rulings. For example, he treated virtually all race-based affirmative action programs as a violation of the Fourteenth Amendment, despite evidence that the same Congress that passed that Amendment in 1868 also instituted preferential programs for newly freed African-Americans. Instead of grappling with what such evidence might show about the original meaning, Scalia’s opinions condemn affirmative action in broad moralistic terms, as “illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society”—the kind of language a “living Constitution” judge might use. He also maintained that racial segregation in schools violated the original meaning of the Amendment (and for that reason Brown v. Board of Education was correct), even though that same Congress oversaw racially segregated schools in the District of Columbia.
In other words, reliance on the original meaning of a constitutional provision does not free one from judicial judgment calls as much as Scalia claimed. He read the Fourteenth Amendment to state a broad principle against use of any racial classifications, even some that were accepted at the time of the Amendment. But although he was happy to go beyond the drafters’ specific understandings in that way, he criticized extending the provision further to prohibit government discrimination based on sex or sexual orientation—even though the text speaks of “equal protection” in general, not just racial equality.
Justice Scalia usually agreed that his approach still involved some judgment but answered, persuasively, that it constrained judges more than did the use of open-ended moral principles. Nevertheless, greater recognition of the role of judgment might have made Scalia a little less polemical, and a little more charitable, when he disagreed strongly with his colleagues’ opinions.
In end, however, Justice Scalia was a prophet, like many of the great dissenters in the Court’s history (he will rank with Oliver Wendell Holmes among the greatest). And prophecy involves ringing tones and stark terms; it is hard to combine those with qualifiers that charitably give the other side every benefit of the doubt. Justice Scalia lost many battles on the Court, and some of his positions will become even less popular over time. But many of his words will ring with prophetic power for generations to come.
Thomas Berg is a professor at the University of St. Thomas School of Law in Minneapolis.
