Bench Memos

Bruce Allen Murphy’s Scalia: A Court of One—Part 3

See Parts 1 and 2

A dominant thesis of Bruce Allen Murphy’s forthcoming biography of Justice Scalia is the alleged perfect alignment between Scalia’s “traditional Catholic values” and his methodology of constitutional interpretation—and Scalia’s purported adoption of that methodology as a cloak for imposing those values. As Murphy sums up this thesis (p. 377),

pre-Vatican II Catholicism and legal originalism/textualism are so parallel in their approach that Scalia could not help but realize that by using his originalism theory he could accomplish as a judge all that his religion commanded without ever having to acknowledge using his faith in doing so.

Someone tempted to advance this thesis in a casual discussion (much less in a book) might have the good sense to reflect on it a bit first:

1. One glaring problem with Murphy’s thesis is that on the vast bulk of hot-button “culture war” issues—from abortion to marriage to obscenity—Scalia’s position is that the Constitution is, within very broad bounds, substantively neutral on these issues and instead leaves them to the democratic processes to be resolved one way or another. In other words, Scalia doesn’t read the Constitution to prohibit permissive abortion laws, to require that marriage be defined as the union of a man and a woman, or to bar obscenity. (For more on the abortion point, see this essay of mine.) In short, he doesn’t read the Constitution to impose the Catholic position on these important matters (or any other matters).

2. Adopting the “living Constitution” approach would most easily enable Scalia to impose Catholic values. On abortion, for example, a living constitutionalist of a conservative bent would have no difficulty recognizing unborn human beings as “persons” for purposes of the Due Process Clause of the 14th Amendment. The argument for this position would begin with the historical fact that, prior to Roe, the American tradition long provided broad legal protection for the lives of unborn human beings from the time that those lives were understood, in light of the biological knowledge of the age, to commence. It would build on the modern advances in embryology and genetics, which establish that the life of each individual member of the species Homo sapiens begins at conception.

3. Thus, if Murphy were correct that Scalia believes that “his religion command[s]” him to impose Catholic values, Murphy ought to be deeply puzzled that Scalia is an originalist rather than a living constitutionalist.

4. Of course, Scalia (rightly) doesn’t believe that his Catholic faith (not even the “pre-Vatican II Catholicism that Murphy ascribes to him) requires him to impose Catholic readings of the Constitution. Murphy quotes from a speech in which Scalia explains the “minimalist” effect that the Catholic faith ought to have on a judge: the judge should try to get every case right, shouldn’t lie about what legal texts and precedents mean, and might have to recuse himself in some instances. (Oddly, Murphy then presents entirely compatible statements from “some members of the Catholic Legal theory [sic] community” as though they were in conflict with Scalia’s.)

5. A lesser point: There is in fact nothing remarkably parallel about the approaches of “pre-Vatican II Catholicism and legal originalism/textualism.” Yes, both deal with texts, so there is some inevitable overlap, but the Bible is a very different type of text than the Constitution (and other purely legal texts). Murphy’s simplistic account of the supposed “literalism of the Catholic faith” (!) neglects the fact that, way back to the time of Augustine, Catholic biblical scholarship has taken account of figurative expressions. Further, on the fundamental divide between Scalia’s original-meaning approach and the original-intent school, Catholic biblical interpretation aims to discern God’s intent rather than, say, merely what the Jews who first read or heard Jeremiah’s prophecies understood them to mean. (Catholic scholars also tell me that the sharp break that Murphy posits between pre- and post-Vatican II approaches is false.)

*  *  *

In sum, Murphy’s dominant thesis about the effect of Scalia’s religious beliefs on his adoption of originalism cannot survive minimal scrutiny—scrutiny that Murphy himself shows no signs of offering.

(To be clear: I am not here disputing the very different proposition that Scalia’s religious beliefs might affect his judging, for every judge is, to one degree or another, vulnerable to the temptation to indulge his beliefs and values. Originalism operates as a check—imperfect, to be sure—against indulging that temptation, while living constitutionalism offers an invitation to indulge.)  

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