Antonin Scalia: Not a Catholic (Judge)

On October 16, Antonin Scalia gave the keynote address at Villanova Law School’s second annual Scarpa Conference on Catholic Legal Studies. Speaking on "The Role of Catholic Faith in the Work of a Judge," Justice Scalia reached a conclusion many readers of First Things may find surprising: "There is no such thing as a ‘Catholic judge,’ he declared. "The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge . . . . Just as there is no ‘Catholic’ way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic."

Nothing he does as a judge , Scalia insists, is in any significant way determined by his being a Catholic. The argument is straightforward. With limited exceptions, federal judges decide only cases involving laws that are enacted texts¯statutes enacted by Congress or the constitutional text enacted indirectly by the American people through their state legislatures. Since Scalia is a textualist and an originalist, he thinks a judge should simply give effect to the text of the law¯to the values the text enunciates, not the values the judge himself might hold.

Scalia didn’t put it this way, but just as a Catholic historian of philosophy will not, insofar as he is a Catholic, hold peculiar interpretations of, say, Spinoza’s Ethics , so too a Catholic federal judge will not, insofar as he is a Catholic, hold peculiar interpretations of, say, the Securities Act of 1933 or the Equal Protection Clause.

And just as people who disagree with Spinoza and with one another about morals can agree more or less on what Spinoza said in the Ethics and even about what he would have said on moral issues that he never actually addressed, so too federal judges, regardless of their particular moral or religious beliefs, can agree more or less on what a legislative or constitutional text means in a given case. (Legal theorists who deny this routinely prove themselves wrong when they predict correctly what textualists and originalists will say about particular cases.)

Hence Scalia’s conclusion: A person’s moral values are generally irrelevant to the interpretation of legal texts¯even when those values are Catholic values.

If he were not a textualist and an originalist, if he thought he ought to rely on substantive moral notions not found in the text, then, Scalia said, his Catholic faith would make a large difference in how he judges cases. Similarly, if he had to judge common-law cases¯cases that do not involve texts enacted by a legislature but only judge-made law, cases of the kind that sometimes come before state courts but rarely come before federal courts¯things would likewise be different. In making common-law decisions, a judge has to make normative judgments about which laws are best, and so the judge’s values are properly in play. So, too, in the voting booth. Indeed, when the question switches from which laws we actually have to which laws we ought to have, then a person properly relies on moral values, whether they be Catholic or anything else.

Many Catholics, even ones who are fans of Scalia, might find this surprising, even unacceptable. In my view, however, it’s perfectly correct, and I would remind such Catholics of the political cartoon that Tony Auth published back in April when all five Catholic justices on the court voted in Gonzales v. Carhart to uphold the Partial Birth Abortion Ban Act of 2003.

The cartoon (which I wrote about at the time) showed the five Catholic justices wearing bishops’ miters, and its point was that their decision was illegitimate because it sprang from their Catholic religious convictions rather than from legitimate legal argument. At the time, many Catholics found the cartoon outrageous and bigoted, and I think they were right to do so.

But if we reject Scalia’s view that the Catholic faith is irrelevant to how Catholic judges should decide cases, then it’s hard to see what’s wrong with the Auth cartoon. After all, if being Catholic really does make a difference to how judges decide cases, then Auth was perfectly right to point out the connection. It’s precisely because Justice Scalia is correct about the irrelevance of his Catholic faith to how he decides cases that Auth was wrong. We can’t say both that the Catholic faith makes a difference to how judges decide cases and that Catholic judges aren’t doing something specifically Catholic on the bench. Indeed, the very rule of law¯that there should be one law for everyone, administered impartially, by whoever sits on the bench¯requires that Scalia’s view, or something very much like it, be right.

Over at the Mirror of Justice blog , my friend Rick Garnett agrees with Scalia’s main point but thinks that he is still a "Catholic judge" whether he likes it or not. Garnett writes: "To be a Catholic judge . . . is to be a judge in the way a Catholic, like everyone else, should be a judge: To take seriously one’s obligation to decide impartially, to submit to the rule of law, rather than one’s own preferences, and to have an appropriate humility about the task one is charged to perform. Obviously, this is not a distinctively Catholic way of judging, . . . but it is, I think, the way a Catholic should judge. It’s also the way Justice Scalia thinks he should judge and, I’m confident, he thinks this way (at least in part) because he is a Catholic."

I think this is correct except for the conclusion that Scalia is thus still a Catholic judge. We can take any profession and point out that Catholics who engage in that profession have special reasons, based in Catholic teaching, to do their jobs well in accordance with the standards applicable to all who do such jobs. Nevertheless, we do not speak of "Catholic physicists" and much less of "Catholic third-basemen" or "Catholic real-estate agents" or "Catholic short-order cooks."

And with good reason. A man may be a Catholic and a physicist, but this doesn’t make him a Catholic physicist. Some adjectives, when put into attributive position ("a heavy drinker"), combine with a substantive to yield a peculiar meaning ("some one who drinks a lot") different from the mere conjunction of meanings of the adjective and the substantive ("heavy and a drinker").

So it is, commonly, with the adjective Catholic . A Catholic theologian is not merely a Catholic who is also a theologian but a theologian who studies Catholic theology; and a Catholic writer is not merely a Catholic who is a writer but a writer who writes on Catholic themes. By parity of reasoning, a Catholic judge is not merely a Catholic who is a judge but someone who judges in a way different from other judges precisely because he is Catholic¯and this is exactly what Scalia denies he does.

There is no peculiarly Catholic way of judging. And thus Justice Scalia is right when he says, “There is no such thing as a Catholic judge.”

Robert T. Miller is an assistant professor at the Villanova University School of Law.