Bench Memos

Theater of the Absurd

So maybe it was the “other” gesture after all. Or maybe not. Now comes the Boston Herald’s freelance photographer to claim that Justice Scalia didn’t make the gesture he claims he did, but quite another one—uttering an Italian expletive thrown in for good measure that the photographer claims to have heard but the reporter won’t corroborate.

It’s like some bad script for a Saturday Night Live sketch, in which the jurisprudence of textualism (which gesture, and what did it say and mean?) meets original understanding (what do people understand when they see the gesture?) meets subjective original “intent” (what did Scalia mean to convey in making the gesture?).

Lost amid the claims and counterclaims is that this all began with a reporter asking a really awful question—stupidly gratuitous and gratuitously stupid—about Justice Scalia’s somehow controversial habit of being visibly Catholic.

For a pretty good take on what this Scalia-stalking is all about, see Ronald Cass today at RealClearPolitics. It’s not the last word, but it’ll do for now.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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