Justice Scalia spoke at Villanova University yesterday and declared that, despite being Catholic, he is not, nor is there any such thing as, a Catholic Judge. I wasn’t at the event, so I have to rely on the local news coverage of it for my impressions of it, but I’m left with one striking observation (certainly not original, but definitely raised by what he talked about yesterday): why is it then that the outcomes he reaches on contested social issues that the Church cares about just happen to correspond with the Church’s position?
First, a couple of excerpts from the article about the speech:
“Just as there is no ‘Catholic’ way to cook a hamburger,” he said to a murmur of laughter, “I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.”
He concluded that Americans should disabuse themselves of the notion that “everything you care about personally is in the Constitution.”
“Well, it’s not,” he said. “What it says, it says. What it does not say, it does not say.
This final quote leads to my observation here. Is Scalia then just lucky that the Constitution just happens to, in his analysis, correspond with his personal (Catholic) views on social issues? Catholicism doesn’t like abortion, gay rights, and the right to die; well, according to Scalia’s jurisprudence, neither does the Constitution. That’s not because he’s Catholic, but rather because he just happens to hold views personally that correspond with the Constitution? Lucky him!
What about the death penalty though? Catholicism is widely connected with anti-death penalty views, but Scalia’s jurisprudence, to put it mildly, is not. Well, this is where the article made his argument that his faith does not affect his judging appear like a fake. When questioned about the death penalty at the speech yesterday, Scalia could have easily said that Catholicism looks askance at the death penalty but the Constitution allows it, and that’s all that matters. But, instead, he took pains to mesh his view of Catholicism and his view of the Constitution:
Scalia’s assertion that he was comfortable with capital punishment – despite the Catholic Church’s strong discouragement of its use – did provoke a challenge.
“You defend a right of conscientious doubt [regarding Catholic teaching] on the death penalty,” a woman in the audience asked during the question period. “That sounds liberal.”
“I have a basis for dissent,” Scalia replied: “Several millennia of Catholic practice.”
He said that – unlike on abortion – the Catholic Church had never issued an infallible judgment that capital punishment was universally wrong.
“The church has always set forth a philosophy of punishment that an evil act sets forth disorder, and must be punished,” he said.
Despite Pope John Paul II’s 1995 encyclical Evangelium Vitae decrying capital punishment and other forms of violence, Scalia said, “I don’t think Catholic dogma has changed on this.”
If his Catholic views are irrelevant to his judging on the death penalty (and abortion and sexual orientation and the right to die and other issues), isn’t his answer to this question irrelevant based on what he previously said matters? He certainly could have just been engaging the questioner, but I suspect instead that he was giving a bit of insight into how he really feels his understanding of his faith affects his constitutional interpretation.
– David S. Cohen