Antonin Scalia: Our Next Chief Justice?
By John M. Swomley, Professor Emeritus of Christian Social Ethics
St. Paul School of Theology, St. Louis, MO
Justice Antonin Scalia joined the Supreme Court in 1986 as its most recent appointee. He soon made a reputation as the most far-right member of the Court. He is an outspoken leader of the very conservative Federalist Society and a devoted right-wing Catholic.
Alan Dershowitz, in his book Supreme Injustice (New York: Oxford University Press, 2001), wrote that Scalia’s “conservatisms, according to a professor who is an expert in these matters, are ‘of the Old World European sort, rooted in the authority of the Church and the military. It is more reminiscent of French, Italian and Spanish clerical conservatism than of American conservatism with its libertarian bent.’”
According to a Washington Post story, Antonin Scalia was sent to “an elite church-run military prep school in Manhattan where one of his classmates remembered him at age seventeen as ‘an arch-conservative Catholic [who] could have been a member of the Curia’” (Dershowitz, 168).
Scalia has generally followed the political program of the U. S. Catholic Bishops against abortion outlined in their 1974 Pastoral Letter. The Letter, which was directed to the Catholic Lawyers Association and among other groups such as the Knights of Columbus, had as its primary focus the influencing of judicial appointments so as “to reverse the decision that legalizes abortion.” Scalia has rarely if ever departed from the Bishops’ position opposing abortion and even uses the language of the Bishops in calling an embryo or fetus “an unborn child.”
Justice Scalia is always in attendance at the annual Red Mass in Washington, D.C. The Red Mass [see CET, April, 2002, 26] is a medieval institution that has been repackaged in the United States in the twentieth century to influence judges and other lawmakers as well as the culture of the states and nation. Although it has some religious significance, the event has been used by Catholic bishops and cardinals as an opportunity to advocate the political proposals of the Vatican such as opposition to abortion and separation of church and state, support of aid to parochial schools, and reinterpreting personhood as taking place at conception rather than at birth. There is an underlying assumption that law and morality began with the Roman Catholic Church and divine revelation.
Scalia not only attends Red Masses in national and state celebrations, but speaks on occasion to those who meet after the Mass. In other words, he is a papal loyalist who appears to hold the Pope’s authority to be above the authority of secular civil government. In a formal address to a Catholic audience in Fort Wayne, Indiana on October 14, 2001, following a Red Mass at the Cathedral of the Immaculate Conception, Scalia was reported by The National Catholic Register as saying, “We attorneys and intellectuals who don’t like to be regarded as unsophisticated can have no greater [role] model than St. Thomas More. Speaking of the beheaded advisor to King Henry VIII, the Reporter indicated that “the saint died because he refused to recognize a king’s authority as being higher than the Pope’s, and his conviction was rejected by society, friends and ‘even his wife,’ Scalia said. (NCR, November 4, 2001)
What actually happened in England during the reign of Henry VIII was an Act of Parliament in 1534, known as the Act of Succession, that forbade all payments by the government to the Pope and ruled that all bishops were to be elected rather than appointed by the Pope. The recognition of papal authority was done away. (Williston Walker, A History of the Christian Church, Charles Scribners, New York, 1943, 404)
Henry and each of his successors were declared “the only supreme head in earth of the Church of England.” This “was not understood by either the King or Parliament as conferring on the King spiritual leadership such as ordination, the administration of the sacraments and the like, but in all else it practically put the King in the place of the Pope. (Ibid.) The Lutheran Reformation had already taken place, and in 1535 John Calvin was safely in Protestant Basel. So it was not just England that rejected papal authority.
Although there were various Protestant revolts against the Papacy, the one in England was less a doctrinal revolt than a question of supremacy. Sir Thomas More was willing to accept the Act of Succession but unwilling to take the oath of supremacy to the King. He saw this as a matter of conscience. He was convicted of treason on the basis of perjured evidence and executed.
Scalia was correct in honoring St. Thomas More as a man of conscience, but not because of his rejecting of the authority of civil government.
What Scalia did not mention in his commendation of More is that England’s rejection of the papal authority was timely, because Pope Paul III in July, 1542, “reorganized the Inquisition largely on the Spanish model, on a universal scale, though of course its actual establishment took place only where it had the support of friendly civil authorities.” (Walker, 424) So England was spared.
Scalia, who led the Supreme Court majority in stopping the counting of the Florida vote in the Bush v Gore Presidential election and thus gave the election to Bush, is discussed in that context by Dershowitz. Among the possible hypotheses for such action is that one of the Justices “hopes to be promoted to Chief Justice when the incumbent retires, as he is expected to do if a candidate of his party becomes President.”
Another hypothetical reason is the belief that a certain candidate will ensure a solid majority on the Court to support “our views of the Constitution.” Other hypotheses are explored.
However, one of the chief values of Dershowitz’s book is its discussion of the “code of judicial conduct which “has prohibited judges with a significant material interest in the outcome of a case from participating in its deliberations or decisions.” Every “contemporary American judicial code expressly prohibits a judge from ‘taking part’ in any case in which his personal self-interest may be involved,” and “self-interest is broadly defined so as to avoid even the appearance of bias” or the “impression that any person can improperly influence him or unduly enjoy his favor, or that he is afflicted by kinship, rank, position, or influence by any party or other person.” (Dershowitz, 98)
What Supreme Injustice did not reveal is that Scalia’s son, Paul, is a member of a militant multi-million-dollar organization, Priests for Life. That organization’s leader, Father Frank Pavone, not only endorses clinic blockades and advertises in newspapers, TV, and on billboards, but also urges voters to vote for anti-abortion candidates. (The Village Voice, May 29, 2001, 51-52) Priests for Life was so important politically that in May, 2000 Presidential candidate George W. Bush met with Pavone (Conscience, Summer 2001, 5).
The American people may never know how close a relationship justice Scalia has with his son, and hence with Priests for Life.
That, of course, is only part of the Scalia story. Since Scalia has already indicated in his use of Sir Thomas More as his role model, evidently because More refused to accept a King’s authority (civil government) as higher than the Pope, it is essential to refer to the March 28, 1995 Encyclical of Pope John Paul, known as Evangelius Vitae. In that encyclical, the Pope specifically called abortion “contrary to the Law of God” and said “It is never licit to obey it or . . . vote for it.” Since there is no statement against abortion in the Bible, the “Law of God” is proclaimed by the Pope and therefore binding on those who place loyalty to the Pope ahead of secular law and democratic judgment. The Pope specifically wrote, “Democracy cannot be idolized to the point of making it a substitute for morality.” Although at least one lawyer admitted to practice before the Supreme Court called on Scalia to recuse himself in an abortion case, Scalia did not do so.
Justice Scalia also doesn’t easily accept criticism. An attorney in Independence, Missouri, who has practiced law for thirty years wrote him in October, 2000, questioning his “participation in the activities and agenda” of the Federalist Society, an organization of right-wing lawyers, judges, and legislators such as Orrin Hatch. Its significance is evident from the decision by George W. Bush to consult it rather than the American Bar Association in making judicial appointments. Attorney J. Martin Kerr wrote, “Your participation and speaking at meetings of the Federalist Society would have the appearance of impropriety in that you are engaging in political activities touching upon the very issues that come before you as a sitting judge of the United States Supreme Court” (October 12, 2000).
Scalia’s reply on October 27 denied that the Federalist Society is a “political organization” and added, “I confess never before to have received a letter—not even from a non-lawyer—accusing me of ethical improprieties on the Supreme Court bench. This suggests that, far from being (as you unctuously describe yourself) a ‘humble lawyer,’ you have an uncommon supply of cheek. That can sometimes be admired, but not when wedded to ignorance.”
One can only suspect that Scalia would be even more angry at Dershowitz, who not only accuses him of partisan political conduct in his decision in Bush v. Gore with respect to the Florida vote, but who also wrote, “Scalia was known more for his ideological extremes than for his scholarship. Few would have ranked him among the most distinguished theoreticians of constitutional law; but everyone would have ranked him as among the most ideological of right-wing theorists….It was his extremism, not his academic distinction, that brought him to the attention of the Reagan administration and ultimately got him his job on the high Court”(199).
