Antonin Scalia Viewed as a Liberal

When U.S. Supreme Court Associate Justice Antonin Scalia died last February 13, I was shocked, as one always is by the news of an acquaintance’s unexpected death, but not surprised. You had only to look at him and see that he had probably never met a bowl of pasta or piece of cake he didn’t love, and also that he had probably never seen the inside of the Supreme Court gym. On top of that he was, after all, 79, which is actually a bit beyond the average lifespan of men in the U.S. today.

For a number of years I used to see him every Sunday. This was at Mass said according to the extraordinary rite, and in the “smokers’ corner” in the church basement at coffee hour afterward, at the Church of St. Mary Mother of God in downtown Washington D.C., and before smoking was made illegal in most places in most states.

He was one of those smokers who like to pretend, even to themselves, that they’ve stopped because they no longer carry cigarettes of their own in their pocket or purse. They bum them from others instead. Justice Scalia did this with me more than once. I didn’t mind. If a Supreme Court Justice asks me for a cigarette, I’ll be happy to give him one. I give cigarettes to street people when they see me smoking at bus stops.

Justice Scalia was an amiable man with a dry, if caustic, sense of humor. I enjoyed the sarcasm. We also shared a love of music, though he was more of an opera buff than I am. However, there was never a possibility of our being friends. It wasn’t that he was a high and mighty Supreme Court Justice looking down at me, a lowly and obscure writer. He was not a social snob, though I suspect he felt some disdain for the many today who have no good excuse for speaking and writing illiterate English. Also, I don’t remember him ever checking a smartphone as the average person now does 221 times a day, or every 4.3 minutes, according to a recent study. Apparently he preferred life unmediated by a piece of advanced electronic gadgetry. We had that in common. Still, I lack the capacity for friendship with persons with whom I disagree on other fundamental things, like how society should be ordered and questions of morality settled. Should it be by the votes of a majority, either of a court or “the People,” or according to Christian standards?

I think Justice Scalia was the same. Proof of that would be his famous friendship with fellow Supreme Court Justice Ruth Bader Ginsburg. People were mystified that the pair could be friends, but there was no mystery to it.

They differed only on how the U.S. Constitution should be interpreted. He was an “originalist” who thought the document should be interpreted as its words were meant by the men who wrote them. She sees it as a “living document” to be interpreted in the light of changing circumstances and mores. The point is they both believed in the US. Constitution as the template according to which life in American society should be shaped. I believe it should be shaped as it once was everywhere in Christendom when it still existed: according to the teachings of Jesus Christ as recorded in Holy Scripture and those of the Church He founded.

In terms of politics — not electoral politics, but politics as simply the means by which the life of society is governed — Justice Scalia was on the right wing of our national liberalism called conservative. In those terms, political terms, he was not Catholic, though naturally enough he has been hailed as that by the very many in the U.S. today who are themselves more “conservative” than they are Catholic.

Not that they are really very many — not in relation to the overall Catholic population. It is not on the right wing of the national liberalism that the majority are located. When it comes to electoral politics they demonstrate this every four years. In recent elections the majority of voting Catholics have cast their ballots for Bill Clinton, Al Gore, and Barack Obama even as once upon a time they supported Franklin Roosevelt. We won’t even speak of John F. Kennedy. It’s easy to guess for whom they will vote next November.

U.S. Catholics are moral schizophrenics and always have been. They may profess the religion but, as when they vote, they live another way. If they practiced the Faith as well as professed it, they would do something like form a Catholic Non-Voters League with members pledged to vote for no political candidates except ones a Catholic can support with a clear conscience. Certainly they would demand to be able to swear to defend the country instead of the US. Constitution when inducted into the armed services as long as the Constitution is construed (by the Supreme Court) to enshrine a “right” to same-sex “marriage” and of a woman to kill her preborn children by abortion. As a member of the Supreme Court, Scalia (along with the five other Justices who profess Catholicism) epitomized the schizophrenia. He was one person when kneeling in St. Mary’s and became another when sitting on the bench. “He insisted,” said the Washington Post in its obituary of him, “there was no such thing as a ‘Catholic justice’.” Obviously there is not.

In its obituary the Post also explained Scalia’s originalism: “He often said that the Constitution doesn’t provide a right for a woman to have an abortion, but it also does not forbid states from making the procedure legal and accessible.” That is to say, in his legal thinking, even if it was not his religious conviction, abortion was on a par with smoking. If the people of California and New York want to ban public smoking and have legal abortion, but Texans would have one and not the other, that’s the way it should be.

Morally, that is wrong. States’ rights are important, but even if they still truly existed, which they don’t (and haven’t since 1865), they are trumped by the right to life.

Last year when the Court discovered that the Constitution forbids state laws that prohibit same-sex “marriage,” Justice Scalia himself wrote: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” He was correct, but neither is a government remotely Christian if it subordinates the will of God to the will of “the People.” Of course the Constitution itself prohibits the government from being Christian.

The truly Christian position was voiced by Bishop Bossuet in the seventeenth century: “Since the day a popular assembly condemned Jesus Christ to death the Church has known that the rule of the majority can lead to any crime.”

That was the seventeenth century and this is now? There has been “progress” since then? Now we have “freedom” (from the restraints of religion and a government with laws shaped by religious belief and principles)? If any reader believes this “progress” and this “freedom” are good things, so did Antonin Scalia or he would never have become a Supreme Court Justice. In a word, he was a liberal and so is the reader even if the Justice was, and the reader is, “conservative”.

In criticizing the deceased Justice’s politics, as I have, it is not my intention to “dance on his grave,” as the expression goes. I bear the man no ill will, and I hope he saved his immortal soul. But none of that baptizes his essentially liberal political theory.

R.I.P. Antonin Scalia.

  • Paula

    And the Superior Justice Potter has spoken.

  • Hateful Troll

    Would you care to back up that comment with factual assertions or rational arguments?

  • TheWhiteLilyBlog

    What a wasp’s nest this article wakes! It is barely comprehensible to most people now, and yet it is correct in all the essentials. Scalia is a liberal. So is the Republican party. Virtually every party and government around the world now is liberal, excepting three, two genuinely conservative and one fascist, or so says a recent Marxist analysis of our situation (and his purpose was to trash liberalism, as marxism has always done–Lenin called it ‘Left Wing Communism,’ and ‘infantile.’). The two conservative governments are Hungary and now, new-born, Poland.

    But Scalia is in every respect now, moot. The real question has also been framed by marxism, in Lenin’s “What Is To Be Done?” What exactly is to be done?

    Secularism is flawed, it has been ever since it was hatched some six hundred years ago. But it has taken this long for it to roll downhill and reach the roots, the irreconcilables. Those are usury, abortion, contraception, homosexuality, weak marriage. Let me name the irreconcilable extremes: usury vs economic restraints on profits; abortion vs homicide law; contraception/homosexuality/weak marriage vs. fertility. There are other irreconcilable issues in our nightmare, but these named are big ones. There is no middle ground on any of them. Dead is dead. A falling birth rate is as good as dead. “Free Market” doesn’t parse any smaller, it either is or it isn’t, and thus, with any intervention, is manipulated and thus distorted and the opposite of Free. You can check my thesis at Acton Institute. They could have seen any of these coming five hundred years ago when unrestrained democracy became the world’s politic, but we still had the remnants of control, of Christianity, of order, of stable morality, of stable anything, and so we thought secularism was possible. Scalia did. Flannery O’Connor did. Both our liberals and our conservatives do, that’s why they’re both liberal. What American does not? It is horribly painful to consider what our country stands for, freedom from God, that’s the bottom line, and what it is now because of it. And you know what it is now. The most polite thing one can say is two-faced. False. Says “freedom freedom freedom” but kills and incarcerates its citizens to the greatest rate in the world, if you count abortion, and by damn, you look at those little faces and try to deny they are human and there I give you the proof of my thesis: you are a two-faced liar. Just look at their humanity, if you dare.

    But–what IS to be done?

    It’s simple, really. Reverse it. Begin as Hungary has done. We have to put God back at the center, without Him democracy is lost. We must amend our constitution, put the Christian God in, with tolerance (of course!) for minority religions, unless they prove to be deleterious to the common good. We are not Hungary, we had not the great Catholic kings to stir our hearts and our souls, but we did have Christianity, that pitiful mutant created by the protestant rebellion, and we Catholics and evangelicals and others who have not fallen into the homosexual pit could work out the wording. As Catholics, we must always aim toward the true Catholic state, and to do that peacefully as we must, we simply must face the fact that we have to evangelize and win souls to the Church instead of pretending that every path, even atheism, leads to heaven, so we can sit on our keisters and play on the internet. We can’t.

    Then we must do also as Hungary has done and as Poland is beginning: amend the constitution to forbid abortion, and homosexual marriage and adoption of children. That is not the same at all as to say homosexuality is illegal. There needn’t be punishment or pogroms. Simply a formal position that favors fertility, not sodomy. And last, we must begin to build toward an economy that is widely distributed, not concentrated. That can be done over generations, through taxation on concentration and through a range of programs that aim to getting people the means to support themselves and then encouraging them to do it. South Korea has an amazingly successful arable land distribution program–10,000 applicants last year, I have not kept up with the numbers this year. They gave the land and tools and technical assistance, and it appears to be thriving. There are other options–cooperatives, real assistance to small businesses, an adjustment of our education and health care systems in a variety of ways that would be a book by itself but is do-able, if our fertility begins to rebound and our Faith produces those vocations to religious life that made free university and free health care a real right in the 13th century but only a distant memory now. Jonathan Last’s book What To Expect When No One’s Expecting is a brilliant compilation of ways to build real, productive families (the exact opposite of what we are doing now, destroying them). We could built a party platform with them. The crown jewel could be oversight of Wall Street, which has not happened even after our crash.

    We could build a third party like Fidesz in Hungary. Faith-based and rational. We too could use the rosary as a political tool. Jesus rejected the kingdom of the Sadducees and the Pharisees. His kingdom was different. Clearly it was one based on virtue. Over and over he called for repentance, to participate in God’s life, to resist temptation. Pius XI told us, if you do not do justice to God in your nation by naming him the darling of it, no other justice is possible. And see how true it is! “No justice, no peace.” That is what they chant at demonstrations, but they do not know it begins with honor to God. If someone taught them, they would do that. They would–I know them!

    The only way we will get a truly conservative supreme court justice is if we build a truly conservative country. Why don’t we try that? Would our experienced Catholic men, the men with the chops in politics and theology, please stop playing around on twitter and get to work?

    I have written a science fiction novel set in the very near future on Earth’s first space colony. The new World Government announces the creation of a new religion to match the new government. It will be made up of all the world’s many religions, and membership will be mandatory. Because that’s what secularism rolls down to. They can’t live without religion. They keep saying it. Obama says it again and again, with frustration. Eventually they will act. In my novel, the Catholics come into possession of a long-distance space ship, and they make a new society. I don’t want us to Run–that is the name of the novel, google Malapert Press to check it out. But we better act. We’re illegal now, we just haven’t quite processed it yet.

  • GeneDe

    Mr. Potter’s analyses of Justice Scalia is correct.

  • douglas kraeger

    I agree that Justice Scalia was a liberal (in conservative disguise). If he were a real conservative, I believe he would have explicitly said that any supreme court decision that implicitly or explicitly contradicted the clear evidence of the original intent of the Founders in writing the Constitution , any such decision would be unconstitutional, null and void. The same going for acts of Congress or presidential executive orders that also contradict the clear evidence of the Founders original intent as properly amended.
    I believe the reason we have slid down the slippery slope to the point that almost all people would see him as a conservative is that people have accepted for themselves the words spoken by Pontius Pilate, “what is truth” with no desire to know the answer because that would require a lifelong commitment to work to know THE ANSWER on their parts.
    I believe we must not castigate the Constitution as being faulty, just because the implementation by liberals is faulty and not in accordance with the original intent of the Founders.

    I believe what is needed is a program to make it as easy as possible for parents to be better teachers of their children, a program that makes it as easy as possible for the parents to offer to their children the best sequences of questions possible that God wants to give HIS answer to so that the Spirit of God will lead them to the ONE FAITH God wants all to know and accept by His grace and mercy, and a program that makes it as difficult as possible for the parents to not do as they should already be doing, but, alas, in this day and age, many, many times are not.

    I have an idea for such a program on my blog eternalvisionfarmer.blogspot.com entitled A Poster and slip of paper idea to help all parents, of all faiths, be better parents ”

    I welcome any constructive comments. Thank you.

  • pucciotony

    Gary, In one of your talks you said, the Irish tell stories… we would call them lies. You didn’t dance on Justice Scalia’s grave you performed River Dance ! In your “Catholic” world Justice Scalia should have passed on the Supreme Court nomination because the Constitution is not a Catholic document. How dare Scalia profess to be a Catholic and rule on Constitutional issues. If you haven’t figured it out by now we are Catholics living in a country with a Constitution based on God given inalienable rights. It is not as Father Fahey would say a Catholic Monarchy as the best form of Government. If you read Scalia’s decisions and oppositions you will find nothing that goes against his strong Catholic faith. You say that you bear the man no “ill will”. REALLY? Read the comments below and tell me if you see any “ill will”. He was one of the Greats.

  • ZB01

    “However, there was never a possibility of our being friends.”
    Gee, Gary, I’m sure the Supreme Court Justice lost much sleep because he didn’t have the company of your friendship. Good grief, man, the hubris..

  • Joanie

    Dear ZB01, I think that you misunderstand Gary. If you had the pleasure of knowing this good man, you would understand that he is totally and completely honest in his commitments and his true friendships (as opposed to mere acquaintance). I personally had great respect for the departed Justice, but could never understand his vaunted “friendship” with Ginsburg whom I always considered the personification of evil. I don’t care for even a mere passing acquaintance with evil. Just me, though.

  • ZB01

    I’ve met him before. Statement still stands.

  • Z.M.

    I’m sure Mr. Potter will find it hard to go on, once he knows that he is persona non grata to such an exalted personage as yourself ha ha ha!

  • Roman Hopewell

    Just for the sake of simplistic curiosity. What happens if someone does “go there”?

  • ZB01

    One’s comments gets deleted….not challenged…deleted.
    That’s what happens.

  • Then don’t make obnoxious comments, Baron!

  • ZB01

    I stand by my words, every single one of them, firmly, without apology, and completely. And I note, by the way, that “obnoxious” is not untrue, per se. Thank you!

  • Z.M.

    You certainly think quite a lot of yourself old boy, you had better not go near any lakes or ponds any time soon, as you might fall in as a result of having become too absorbed in admiring your own reflection. I can just picture you standing in front of a mirror repeating phrases from a recording “I am powerful! I am great! I’m wonderful, splendid, magnificent, superb, marvellous a veritable giant among pygmies!!!” Well, I’ll leave you to it, carry on ha ha.

  • Tom McKenna

    Assinine. Scalia as a Supreme Court justice did not have the *authority* simply to declare abortion immoral and therefore illegal. Potter misapprehends the role of the court and of justices, not surprisingly, since we have been formed to believe these lawyers sit as some kind of oligarchic super-legislature. It is not liberal, but profoundly conservative, for a justice like Scalia to have been offered the “one ring” of power and intentionally to decline it, because he understood that under the Constitution, SCOTUS justices do not get to impose their moral views. Had he declared, contrary to the text and original understanding of the constitution, that abortion is immoral and therefore unconstitutional, he would have been just as much as a criminal as Harry Blackmun. Potter’s complaint must lie elsewhere, it’s not up the Supremes to resolve social issues, but only to look at the constitution and decide cases based on that document’s originally understood public meaning.

  • GeneDe

    So, in other words, to Hades with the natural law, right? So, as a Catholic, Scalia should have been thrown off the court, or resigned if he said that abortion is murder and is alien to the Life, Liberty and pursuit of Happiness as declared in the Dec. of Indep. But instead he said (to paraphrase him) that abortion should be left up to the states! Really? And how do you find that to declare abortion immoral (murder) is contrary to the text and original understanding of the Constitution?

  • Charles A. Coulombe

    Great, as always.