Antonin Scalia Viewed as a Liberal
by Gary Potter
April 1, 2016
When U.S. Supreme Court Associate Justice Antonin Scalia died last February 13, I was shocked, as one always is by the news of an acquaintance’s unexpected death, but not surprised. You had only to look at him and see that he had probably never met a bowl of pasta or piece of cake he didn’t love, and also that he had probably never seen the inside of the Supreme Court gym. On top of that he was, after all, 79, which is actually a bit beyond the average lifespan of men in the U.S. today.
For a number of years I used to see him every Sunday. This was at Mass said according to the extraordinary rite, and in the “smokers’ corner” in the church basement at coffee hour afterward, at the Church of St. Mary Mother of God in downtown Washington D.C., and before smoking was made illegal in most places in most states.
He was one of those smokers who like to pretend, even to themselves, that they’ve stopped because they no longer carry cigarettes of their own in their pocket or purse. They bum them from others instead. Justice Scalia did this with me more than once. I didn’t mind. If a Supreme Court Justice asks me for a cigarette, I’ll be happy to give him one. I give cigarettes to street people when they see me smoking at bus stops.
Justice Scalia was an amiable man with a dry, if caustic, sense of humor. I enjoyed the sarcasm. We also shared a love of music, though he was more of an opera buff than I am. However, there was never a possibility of our being friends. It wasn’t that he was a high and mighty Supreme Court Justice looking down at me, a lowly and obscure writer. He was not a social snob, though I suspect he felt some disdain for the many today who have no good excuse for speaking and writing illiterate English. Also, I don’t remember him ever checking a smartphone as the average person now does 221 times a day, or every 4.3 minutes, according to a recent study. Apparently he preferred life unmediated by a piece of advanced electronic gadgetry. We had that in common. Still, I lack the capacity for friendship with persons with whom I disagree on other fundamental things, like how society should be ordered and questions of morality settled. Should it be by the votes of a majority, either of a court or “the People,” or according to Christian standards?
I think Justice Scalia was the same. Proof of that would be his famous friendship with fellow Supreme Court Justice Ruth Bader Ginsburg. People were mystified that the pair could be friends, but there was no mystery to it.
They differed only on how the U.S. Constitution should be interpreted. He was an “originalist” who thought the document should be interpreted as its words were meant by the men who wrote them. She sees it as a “living document” to be interpreted in the light of changing circumstances and mores. The point is they both believed in the US. Constitution as the template according to which life in American society should be shaped. I believe it should be shaped as it once was everywhere in Christendom when it still existed: according to the teachings of Jesus Christ as recorded in Holy Scripture and those of the Church He founded.
In terms of politics — not electoral politics, but politics as simply the means by which the life of society is governed — Justice Scalia was on the right wing of our national liberalism called conservative. In those terms, political terms, he was not Catholic, though naturally enough he has been hailed as that by the very many in the U.S. today who are themselves more “conservative” than they are Catholic.
Not that they are really very many — not in relation to the overall Catholic population. It is not on the right wing of the national liberalism that the majority are located. When it comes to electoral politics they demonstrate this every four years. In recent elections the majority of voting Catholics have cast their ballots for Bill Clinton, Al Gore, and Barack Obama even as once upon a time they supported Franklin Roosevelt. We won’t even speak of John F. Kennedy. It’s easy to guess for whom they will vote next November.
U.S. Catholics are moral schizophrenics and always have been. They may profess the religion but, as when they vote, they live another way. If they practiced the Faith as well as professed it, they would do something like form a Catholic Non-Voters League with members pledged to vote for no political candidates except ones a Catholic can support with a clear conscience. Certainly they would demand to be able to swear to defend the country instead of the US. Constitution when inducted into the armed services as long as the Constitution is construed (by the Supreme Court) to enshrine a “right” to same-sex “marriage” and of a woman to kill her preborn children by abortion. As a member of the Supreme Court, Scalia (along with the five other Justices who profess Catholicism) epitomized the schizophrenia. He was one person when kneeling in St. Mary’s and became another when sitting on the bench. “He insisted,” said the Washington Post in its obituary of him, “there was no such thing as a ‘Catholic justice’.” Obviously there is not.
In its obituary the Post also explained Scalia’s originalism: “He often said that the Constitution doesn’t provide a right for a woman to have an abortion, but it also does not forbid states from making the procedure legal and accessible.” That is to say, in his legal thinking, even if it was not his religious conviction, abortion was on a par with smoking. If the people of California and New York want to ban public smoking and have legal abortion, but Texans would have one and not the other, that’s the way it should be.
Morally, that is wrong. States’ rights are important, but even if they still truly existed, which they don’t (and haven’t since 1865), they are trumped by the right to life.
Last year when the Court discovered that the Constitution forbids state laws that prohibit same-sex “marriage,” Justice Scalia himself wrote: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” He was correct, but neither is a government remotely Christian if it subordinates the will of God to the will of “the People.” Of course the Constitution itself prohibits the government from being Christian.
The truly Christian position was voiced by Bishop Bossuet in the seventeenth century: “Since the day a popular assembly condemned Jesus Christ to death the Church has known that the rule of the majority can lead to any crime.”
That was the seventeenth century and this is now? There has been “progress” since then? Now we have “freedom” (from the restraints of religion and a government with laws shaped by religious belief and principles)? If any reader believes this “progress” and this “freedom” are good things, so did Antonin Scalia or he would never have become a Supreme Court Justice. In a word, he was a liberal and so is the reader even if the Justice was, and the reader is, “conservative”.
In criticizing the deceased Justice’s politics, as I have, it is not my intention to “dance on his grave,” as the expression goes. I bear the man no ill will, and I hope he saved his immortal soul. But none of that baptizes his essentially liberal political theory.
R.I.P. Antonin Scalia.