Black’s Unfounded Attack on Scalia

by Shannen W. Coffin

There are times when I read things on NRO that cause me to think that maybe I’m just not smart enough to get the author’s point. And perhaps Conrad Black’s stream of consciousness today should be viewed more like the final chapter of Joyce’s Ulysses (which I still don’t get — and I don’t wish to open up another discussion on post-modernism, so let’s just leave it at that) than a coherent analysis of Justice Scalia’s jurisprudence. But Mr. Black seems to be upset that Justice Scalia has time to comment on a silly lawsuit involving Catholic University’s single-sex dormitories, while at the same time not doing anything about abortion but violating Catholic doctrine on the death penalty. Did I get that right? 

Black accuses Scalia of holding his views on the legality of abortion “in pectore.” (I looked it up, and it apparently means that he hasn’t publicly revealed them.) Say what? In the Court’s most recent foray into abortion “jurisprudence,” Justice Scalia, to no one’s surprise, voted with the majority in Carhart v. Gonzales, which upheld the federal ban on partial-birth abortion. Scalia joined in Justice Thomas’s separate concurrence, which stated bluntly that “the Court’s abortion jurisprudence, including Casey and Roe v. Wade . . . has no basis in the Constitution.” So Scalia can hardly be faulted for taking his eye off of the ball or remaining silent in Carhart or any number of other opinions (like Casey) where he has laughed at the notion that the constitution protects the right of a person to abort an unborn child. That the Court hasn’t taken any more cases since Carhart simply speaks to the unchanging vote calculus at the Court, where Anthony M. Kennedy remains a Roe defender and deprives Scalia of a majority on the core question of the “fundamental right” to an abortion. If Black had a different point in castigating Scalia on abortion, I am simply not up on my Latin phrases enough to understand it.

Black, citing the stalwart Catholic theologian Maureen Dowd, then turns to the death penalty, and like Ms. Dowd and similar mainstream arbiters of Catholic doctrine, gets more caught up in the unofficial normative policy statements of bishops, Vatican press secretaries, and even popes than on the official teaching of the Church. To be clear, that teaching is that the death penalty is not inherently evil, like abortion. You simply cannot equate the two, as Black seeks to do here. (I’m aware that Black may be sensitive to penological issues from his current perch, so will cut him some slack.) 

We’ve been down this road a number of times before, but John Paul II’s encyclical Evangelium Vitae clearly contemplates the death penalty as a legitimate state response to “redress the disorder caused by” a violent offense. It may not be the preferred one in most circumstances, but it is legitimate. “Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.”

Should the death penalty be the first avenue for the redress of violent crime? Absolutely not, and Catholics (others as well — I’m just focusing on Catholic teaching, per Mr. Black) of good faith can certainly disagree on its applicability in any circumstances. The state “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.” Those cases “are very rare, if not practically non-existent.” John Paul returns to the Catechism: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.”

Now, my dear friend Kathryn Jean Lopez reads that and comes to the conclusion that the death penalty makes her darned uncomfortable, and she might even be wholly opposed to it. I see the legitimacy in that viewpoint, from a Catholic perspective. But to suggest, as Black seems to, that Scalia is somehow inconsistent in his jurisprudence, or even his theology as an individual Catholic, is a woefully uninformed view, not surprising of Maureen Dowd. But I expect something much better of the writers to be found here. 

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