Scalia: The Law’s Good Servant, But God’s First
US Supreme Court Justice Antonin Scalia, a strict Constitutionalist known for opposition to “legislating from the bench” and the “Constitution as a living document” philosophy,” died Friday at age 79. The following tribute by attorney Ken Craycraft ran in the Cincinnati Enquirer as “Scalia was faithful servant of law, God,” on Sunday, Feb. 14th.
The life and career of Antonin Scalia bring to mind comparisons with perhaps the greatest Catholic jurist, St. Thomas More, who dissented against 16th-century attacks on the rule of law. Like More, U.S. Supreme Court Justice Scalia’s jurisprudence was richly informed by his Catholic faith, which, again like More, gave Scalia a great devotion to the law and its institutions.
In this context, to say that Scalia’s jurisprudence was informed by his Catholic faith is not to say that the content of his opinions necessarily reflected Catholic theology, though, of course they did. (And nothing is wrong with that; every judge’s opinions are influenced by his or religious opinions, whatever they are.) Rather, like More, Scalia’s faith taught him about the form and structure of law, and it taught him that a jurist must observe and apply that law without regard to one’s personal stake in the outcome.
As a devoted Catholic, Scalia’s life was shaped by a received tradition, codified in writing, and subject to interpretation and development over time. This tradition was (and is) founded in, and subject to, strenuous debate, both as to its meaning and application. This tradition is the product of great intellectual struggle; and the foundation of great intellectual development. And Scalia learned that this codified tradition must be respected and sustained.
In Robert Bolt’s famous play about More, “A Man for All Seasons,” More confronts his son-in-law, William Roper, who wants a bad man arrested, even though the man has broken no laws. More said that he would not arrest the Devil, if he didn’t break any law:
Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down … d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
Like More, Scalia was steadfastly committed to applying the law to the facts of the case before him, without regard to how the outcome might offend or affect him personally. And Scalia famously had no patience for jurists – the William Ropers of his world – who would disregard the law for the purpose of achieving some preferred end.
Scalia was at his best when he complained in his famous dissents not about the outcome of a particular case, but rather that the court was even considering a case that it had no business hearing. For Scalia, the Constitution gave the court a defined, limited role, leaving most important social and moral issues to the states. To act outside that role and strike down state laws that the Constitution did not address was, well, lawlessness.
Scalia’s dissent from the last term in Obergefell v. Hodges, which cut down state laws proscribing same-sex marriage, illustrates this. The “States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment,’” he explained. It did not matter to him whether states sanctioned same-sex marriage. “It is of overwhelming importance, however, who it is that rules me,” he wrote. “Today’s decree says that my Ruler … is a majority of the nine lawyers on the Supreme Court. [And it] robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Like More before him, these are theological positions, firmly rooted in Scalia’s strong Catholic faith, without reference to any particular Catholic doctrine. Just before his death, Thomas More said, “I die the King’s faithful servant; but God’s first.” In the U.S., we have law instead of a king. Justice Antonin Scalia died the law’s good servant, but God’s first. May he rest in peace.
Kenneth R. Craycraft, Jr., is a resident of Milford and an attorney with the Shade Law Group, LLC, Mason. A former professor of Moral Theology at St. Mary’s University in San Antonio, he is the author of The American Myth of Religious Freedom.
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