Introduction | The Letters | Discussion
Interpreting God's Justice
Laurence Tribe v. Sean Wilentz on Justice Antonin Scalia
Professor Sean Wilentz
As someone who often disagrees with Justice Antonin Scalia both on substantive constitutional matters - like his conclusion that capital punishment, about whose constitutionality I have no firm view, is immune from challenge under the Eighth Amendment’s cruel and unusual punishment clause because it was “clearly permitted when the Eighth Amendment was adopted,” Antonin Scalia, God’s Justice and Ours, First Things 17 (May 2002) (hereinafter, “FT”) - and on matters of interpretive methodology - as with his simplistic equation of the “living Constitution” school with the “the-Constitution-means-what-we-right-thinking-(or, rather, left-thinking)-people-think-it-ought-to-mean” school - I was initially more intrigued than put off by the account in your op-ed, From Justice Scalia, a Chilling Vision of Religion’s Authority in America, in The New York Times this July 8.
I thought it rather improbable, frankly, that Justice Scalia had actually said quite the things you attributed to him in the interpolations among the few directly quoted passages in your piece. Inasmuch as the Times gave the piece pride of place on its op-ed page and devoted an unusual amount of space to it (1366 words is more than I think they’ve ever given me!), I nevertheless imagined that perhaps the sharp-tongued jurist had finally allowed his considerable intellect and his undoubted rhetorical skills to get the better of his judgment. I accordingly decided to read for myself what Justice Scalia actually had to say.
Having read and reread Scalia’s piece in FT and having concluded that you grievously misrepresented the Justice’s views, I would ordinarily have written a letter to the editor of the Times in hopes that, especially coming from a constitutional scholar and a sometimes harsh critic of Justice Scalia, my words might help offset what I regard as the extreme, if conscientiously based and well intended, misunderstanding that yours are likely to engender. Particularly given my high regard for some of what you have written in the past, however, I was a bit reluctant to attempt a rebuttal within the cramped word limits of the Times’ Letters to the Editor section. I therefore decided to write this message in the form of a letter directed, in the first instance at least, to you alone.
As I hope the following observations will elucidate, what Justice Scalia wrote in FT - in remarks that, when read in full and understood in the context in which he wrote them, leave an impression very different from that conveyed by the excerpts you quoted and by the statements you paraphrased - in no sense amounts to the blast at secular democracy and the proclamation of a divinely inspired anticonstitutionalism that, if truly characterizing the Justice’s philosophy of adjudication, would appear to call for his resignation, if not for his impeachment and removal from office. The blunt truth is that nothing in the Scalia essay warranted your apocalyptic conclusion that Justice Scalia “seeks to . . . impose views about government and divinity that no previous justice . . . has ever embraced.” One could reach that conclusion only by twisting the views Scalia in fact expressed.
To judge from your op-ed, one would’ve imagined that Scalia has it in for secular democracy, which you quote him as charging with the crime of upsetting the “Christian . . . consensus” that the state, if lawfully constituted, is the instrument of a just retribution that no mere individual can purport to administer (and hence that the death penalty may be just though murder is not). Indeed, you describe Scalia as “alarmingly . . . wish[ing] to rally the devout against democracy’s errors.” But in the passages you selectively quote and paraphrase, Scalia says almost precisely the opposite. He describes “the consensus of Western thought until very recent times” - “[n]ot just of Christian or religious thought, but of secular thought regarding the powers of the state” - as a consensus that “lawfully constituted authority, or [at least] lawfully constituted authority that rules justly,” even when entrusted to the hands of “the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will,” can have a moral right “to avenge - to vindicate the ‘public order’“ that is “greater than our own” when we act individually. Far from holding democracy’s emergence responsible for what he laments as the breakdown of that consensus, Justice Scalia affixes blame squarely on an “equation of private morality with government morality” that he says is “a predictable (though I believe erroneous and regrettable) reaction to modern self-government.” FT at 18.
The major thrust of Justice Scalia’s argument in FT, then, is to elaborate his deep disagreement with what he calls “[t]he mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals,” a “tendency” that he argues “has adverse effects in other areas as well,” including “foster[ing] civil disobedience” in circumstances Scalia clearly deems inappropriate. FT at 19. Nor is it fair to describe Scalia’s mission as the injection of Catholic theology into constitutional interpretation or even the infusion of “a religious sense,” to quote your accusation, into the Constitution. What Justice Scalia says he would have to do if he regarded capital punishment as “immoral,” whether as a matter of papal teaching, a matter of religious reflection - a process of reflection in which he engages freely, disagreeing conspicuously with the Pope at several points in his FT essay - or as a matter of secular reasoning, is, after all, to resign his seat on the Court, not to impose his religious and/or moral convictions on the nation as a Justice. This is hardly “opportunism,” let alone an endorsement of “papist mind control,” and I fail to see how “it threatens democracy.”
To be sure, there is much in Justice Scalia’s essay with which I take issue. Most importantly, perhaps, I dispute his argument that, as a judge sitting on the Court that ultimately decides which death sentences may be carried out, he “could not take part in that process if [he] believed what was being done to be immoral,” whereas he, as “a judge, . . . bears no moral guilt for the laws society has failed to enact ….” FT at 18. Justice Scalia concludes from this distinction that, for example, “if a state were to permit abortion on demand, [he] would - and could in good conscience - vote against an attempt to invalidate that law for the same reason that [he] vote[s] against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence [him]) no power over the matter.” FT at 18.
Entirely apart from the question whether the Constitution - construed with a sensitivity to its structure and spirit resembling that which Justice Scalia himself displays when, as in Printz v. United States, 521 U.S. 898 (1997), he extracts, from the document as a whole, limits on the national government and correlative states rights that he concedes cannot be grounded in its text or even in specific historical understandings - should be deemed to be as silent as the Justice seems to believe it is on questions of reproductive liberty, I nevertheless take issue with the dichotomy he draws between that matter and capital punishment. His analysis is straightforward but, in my view, deeply flawed: “With the death penalty,” he writes, he sees himself as “part of the criminal-law machinery that imposes death - which extends from the indictment, to the jury conviction, to rejection of the last appeal.” FT at 18. His further explication of the suggested dichotomy, in terms of “the ethical principle that one can give ‘material cooperation’ to the immoral act of another when the evil that would attend failure to cooperate is even greater ...,” is subtle but, in my view, both flawed in itself and difficult to square with his similarly subtle analysis in his concurring opinion in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). There, Justice Scalia argues that the act-omission dichotomy, while perhaps sufficiently rational to be upheld when invoked by legislators to justify permitting some forms of mercy-killing (as by disconnecting a respirator) while outlawing others (as with so-called “physician-assisted suicide”), is, in the end, morally bankrupt and an insufficient guide for an exercise in line-drawing that aspires to something more than minimal rationality.
The distinction is a crucial one in Justice Scalia’s overall position because he must explain how (a) his willingness - notwithstanding Church teachings about the right to life that he regards as both morally correct and of enduring Catholic pedigree - to remain part of a Court, and indeed to vote with the majority of a Court (in this respect), that permits lawmakers simultaneously to punish the killing of infants but not to punish the killing of the unborn at all, can coexist with (b) his belief that, but for his disagreement with the encyclical Evangelium Vitae and the Catholic catechism, “according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong,” FT at 20, he could not remain part of a Court that permits the execution of some death row petitioners and thereby make himself “part [of a] process” that Justice Blackmun once described as “the machinery of death.” Justice Scalia rejects what he sees as the facile attempt of others to read “the very latest version of the Catholic catechism” simply “as an affirmation of two millennia of Christian teaching that retribution is a proper purpose (indeed, the principal purpose) of criminal punishment, [and] … merely adding the ‘prudential judgment’ that in modern circumstances condign retribution ‘rarely if ever’ justifies death,” FT at 20. His rejection demonstrates instead, in a powerful display of argument against self-interest, that the logic underlying that rationalization of Evangelium Vitae’s position on capital punishment is untenable. Justice Scalia thus positions himself simultaneously to: accept as morally correct the binding Church teaching that abortion is always wrong; remain on a Court that permits abortion and sanctifies it as a right; vote with a Court that routinely permits legislatures to take a permissive posture toward abortion while banning infanticide; and reject (as theologically misguided and morally obtuse) the teaching that capital punishment is always wrong while saying he could not remain on a Court that permitted capital punishment if that teaching were binding. It’s an interesting position, but one that, as I’ve said, I think cannot successfully endure, particularly given what Justice Scalia termed, in Cruzan, to be “the irrelevance of the action-inaction distinction.” Cruzan, 497 U.S. at 296 (Scalia, J., concurring).
It is apparent, then, that one could take Justice Scalia to task in a serious and substantive way for making so much of his argument in FT turn on an act/omission dichotomy that he has himself trashed in another analogous context. It’s hardly my point, then, that his excerpted remarks are beyond telling criticism. Nor is it my point that Justice Scalia is an unfair target because he is disabled, by some canon of judicial responsibility or some higher obligation to remain silent apart from his official judicial pronouncements, from coming to his own defense. On the contrary, Justice Scalia is hardly in need of defenders from the academy even against pieces like yours that take him to task for arguments that he has never made and for attitudes that he has never displayed. For Justice Scalia has manifestly been willing to write and speak publicly about his judicial philosophy, as evidenced by the very piece you attacked. Indeed, he even authored the Supreme Court’s recent opinion in Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002), upholding the First Amendment right of a candidate for state judicial office to announce his or her views on controversial issues likely to come before that candidate if elected, and striking a state rule forbidding those who express their views in this manner to serve as judges. Justice Scalia is thus perfectly capable of rebutting your mischaracterizations himself.
But getting down and dirty in a back-and-forth debate with you or with anyone else even in the august pages of The New York Times would plainly be unseemly. As Justice Scalia no doubt believes - given his insistence during his confirmation hearings that he should not discuss with the Senate Judiciary Committee his views on questions likely to come before him as a sitting Justice (a defense for which the dissenters in Republican Party of Minnesota tweaked him, perhaps a bit unfairly) - his right to state his views on such questions in a public forum outside the Court hardly translates either into a duty to do so or even into the propriety, let alone the wisdom, of doing so. In short, I doubt that the Justice would feel free to exercise his prerogative to parry your criticisms in a responsive editorial. I regret, then, that constraints of time prevent me from writing a more complete refutation.
I troubled to write you this message nonetheless, in the hope that it might lead you frankly to reconsider your reading of the Justice’s words -- so that perhaps you might correct, to the degree a subsequent retraction can ever catch up with the initial misimpression, the false picture you have painted in so public a place.