Bench Memos

Dahlia Lithwick on Bruce Murphy’s Scalia Biography

Given how conspicuously incompetent Bruce Allen Murphy’s forthcoming biography of Justice Scalia is (see my series of posts: Parts 12345, 6, and 7), I was wondering how anyone might find a way to speak favorably of it. Well, Dahlia Lithwick has managed the trick, if only through her own series of gaffes and confusions.

In a review for the Atlantic, Lithwick praises Murphy as an “unintimidated biographer” who “refuses to be daunted by the silence that surrounds most discussions about religion and the Court,” who “painstakingly reviews the evidence,” and who “does not shrink” from concluding that the “pristine border between [Scalia’s] faith and [his] jurisprudence is largely myth and aspiration.” Ah, what courage Murphy displays—​accompanied by remarkably sloppy analysis.

In my Part 3 post, I explained that 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.” The same assessment applies to Lithwicks embrace of Murphy’s​ thesis. Let’s consider some of the errors in her review:

1. Lithwick contends that Scalia’s “clear[] support[]” for the religious objectors in the pending Hobby Lobby case marked “a dramatic about-face from his 1990 position” (in Employment Division v. Smith). Lithwick suggests that the solution to the puzzle is that peyote—the ceremonial drug at issue in Employment Division v. Smith—“didn’t sway him” but that “his own brand of piety” does.

Oddly, Lithwick makes no mention of an important legal development that took place in the interim: the 1993 enactment of the federal Religious Freedom Restoration Act, which statutorily restored (and in some respects arguably expanded) the protections of religious liberty that the Scalia majority opinion in Employment Division v. Smith determined were no longer available under the Free Exercise Clause of the First Amendment. RFRA means that there was no “about-face” (“dramatic” or otherwise) in Scalia’s position. In 1990, he was interpreting the Free Exercise Clause. In Hobby Lobby, he is applying RFRA. Mystery solved.

Indeed, in 2006 Scalia joined the ruling in Gonzales v. O Centro Espirita that held that RFRA provides an exemption from the federal drug laws to religious users of a sacramental tea that contained a hallucinogen (hoasca). So it’s been clear for eight years that Scalia recognizes the obvious reality that RFRA calls for a different test, and yields different results, than his 1990 reading of the Free Exercise Clause would provide, even in cases where Lithwick presumes Scalia’s sympathies would run in the other direction.

(By the way, I like Lithwick’s wordplay with peyote and piety. Too bad it’s not in service of an intelligent point.)

2. Lithwick calls the pending Hobby Lobby case “a revealing capstone in Scalia’s jurisprudential career.” How bizarre. The Hobby Lobby case and other challenges to the HHS mandate have been viable only because Congress enacted RFRA to override Scalia’s decision in Employment Division v. Smith, and it’s that 1990 decision that, if not “a … capstone” (how many capstones can a career have?), ranks very high on Scalia’s list of landmark rulings.

3. Lithwick complains that the Court “has opted not to probe the intensity or validity of a plaintiff’s religious conviction, in part thanks to Scalia’s reasoning.” (It has instead limited itself to inquiring whether the alleged conviction is sincerely held.)

But the Supreme Court has never adopted the bizarre notion that it might have authority to assess the “validity” of a plaintiff’s religious belief. In 1981, for example—five years before Scalia became a justice—the Court explained in Thomas v. Review Board that “it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.”

As for not probing “intensity”: RFRA itself defines “religious belief” to “include[] any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 

4. Lithwick endorses Murphy’s view that Scalia “is channeling a fundamentalist reading of the Bible—Leviticus in particular” (Lithwick’s phrase) when Scalia concludes that the death penalty is constitutionally permissible. Never mind that multiple provisions of the Constitution presuppose the death penalty and that Scalia’s originalism could not plausibly yield a different position.

5. As evidence that “frank discussion” of the “justices’ religions” is “taboo,” Lithwick cites the controversy resulting from law professor Geoffrey Stone’s “2007 blog post suggesting that the Supreme Court’s five conservatives likely derived their abortion views from Catholic doctrine.” (By “abortion views,” she means their views on legal questions relating to abortion, not their personal moral views.) I did a series of posts at the time (some collected here) pointing out the multiple respects in which Stone’s post was just plain stupid. (Among other things, he gave no evidence that he had actually read the majority opinion he was complaining about—the ruling in Gonzales v. Carhart holding that the federal ban on partial-birth abortion was facially constitutional.) I’ll repeat here only my first point:

The five justices in the majority were not imposing their own religious beliefs.  They were deferring to the entirely reasonable moral judgments of the American people, manifested through bipartisan majorities in Congress. Justice Kennedy’s majority opinion explains that the law serves the proper governmental objective of expressing respect for the dignity of human life and of protecting the integrity of the medical profession. Stone may well disagree with those objectives, and he may well disagree that the law serves them, but it is absurd for him to contend that the five justices are imposing their own religious views when they let the democratically enacted law take effect.

In short, it was the patent idiocy and offensiveness of Stone’s comments that elicited the strong reaction to them.

6. Like Murphy, Lithwick doesn’t acknowledge, much less confront, the fact 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 and leaves those issues 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. In short, he doesn’t read the Constitution to impose the Catholic position on these important matters (or any other matters).

She also doesn’t recognize that if Scalia wanted to impose Catholic values as a justice, the puzzle would be why he isn’t a living constitutionalist. (See points 2 and 3 of my Part 3 post.)

7. While I’m at it, here are some errors not directly related to Murphy’s book:

(a) Lithwick faults Scalia for “blurt[ing] out [at oral argument] what sounded like agreement with the plaintiffs’ claims that [the objected-to drugs and devices] were abortifacients.” But the Obama administration itself acknowledged that the drugs and devices might operate to prevent implantation of a human embryo. (Brief at 9-10 n. 4; see also this post of mine.)

(b) Lithwick asserts that Hobby Lobby and other objectors are seeking the “right to deny contraception to their workers.” But what they are fighting against is being dragooned to be the vehicle for provision of drugs and devices they object to. They aren’t seeking to prevent their employees from obtaining those drugs and devices through other means; indeed, part of their argument is that the government has ample alternative means by which it could provide such coverage.

Update: A reader calls to my attention this fine post by law professor Paul Horwitz criticizing the Lithwick review. One passage: “It’s ironic that Lithwick cites, with apparent approval, a blog post by Geoffrey Stone as an example of someone venturing bravely into this ‘radioactive’ subject [influence of religious beliefs on a judge’s decisionmaking], because when Stone writes about these issues he generally does so quite badly.”

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