The sudden death of Justice Antonin Scalia on Feb. 13 inspired an outpouring of eulogies and appreciations for a man recognized, even by his critics, for his unmistakable integrity, keen intelligence and powerful personal charm. Jesuit-trained and the father of a priest, he was a favorite of many Catholics and conservatives for his strongly held views and clear decisions.
It is important, however, in the wave of sentiment and consternation surrounding the loss of this significant Catholic figure—a civil servant who stood in the center of so much controversy in contemporary American public life, and who stood so often and so vocally on the right but losing side—not to confuse esteem for the man with a celebration of his legal thinking.
What exactly was Justice Scalia’s philosophy of jurisprudence? On Jan. 7, little more than one month before his death, the justice gave a public lecture in Washington, D.C., to celebrate the 800th jubilee of the Dominican Order. He took the occasion—the feast of St. Raymond of Penyafort, the patron saint of canon lawyers—to contrast his theory of legal interpretation with that of the great Dominican theologian, St. Thomas Aquinas.
Justice Scalia began by noting that in the Summa Theologica (II-II, q. 60 a. 5), Aquinas argues that a judge ought to render justice according to what stands in the written law. Here the justice beamed in manifest agreement. In answering objections to this position, however, Aquinas adds—and here the justice immediately became uncomfortable—that a judge can for the sake of “the equity which the lawgiver had in view” disregard a poorly written law to uphold some natural right. For Justice Scalia, this concession of the Angelic Doctor was wittily bemoaned as a horror “worthy of the Warren Court!” What precisely is at issue in this disagreement?
As It Is Written
Justice Scalia was known above all for his principled, articulate resistance to every whiff of judicial activism. In the former law professor’s sharply “textualist” or “originalist” philosophy of judicial interpretation, the law should be respected exactly as it stands written. And what is not written is not legislated, to quote the ancient adage.
The textualist perspective must first of all be distinguished from so-called strict constructionism, which Justice Scalia called “a degraded form of textualism that brings the whole philosophy into disrepute.” The essential difference for the textualist is that “common sense” can intervene in interpreting the text of the law in question. The strict constructionist, by contrast, is cast as a simple-minded legal literalist who, for instance, would understand “the use of a gun” in a crime to mean not merely its employment with violent intent but even its bartered use in exchange for drugs—obviously not the intent of the words of the law.
Textualism might be compared with the hermeneutic of Reformation theologians, who appealed to the “plain sense” of Scripture. This confidence in the perspicuous insight of common sense may indeed allow for more sophistication than various fundamentalist follies, but it is hardly an adequate approach. And it is not only Catholic exegetes who appreciate this. It is a mark of our age, chastened perhaps by the experience of thousands of denominations disagreeing on the “plain sense,” that we appreciate with new clarity the need for controls (like tradition) to guide scriptural exegesis and hermeneutics.
As one professionally occupied with the job of interpreting texts (albeit sacred ones), I do not hesitate, despite my lack of schooling in law, to register an instinctive discomfort with the idea of textualism as a legal theory. The impulse behind it, of course, is another thing.
At base, Justice Scalia’s textualism represents his reaction to what he saw as the deplorable state of legal interpretation in U.S. courts, where, as he wrote, there is “no intelligible, generally accepted and consistently applied, theory of statutory interpretation.” It was his aim to supply this missing theory. However attentive his theory is to a reasonable, contextual construal of the written law, his position, nevertheless, is rather clearly an expression of legal positivism.
Law, in this positivist view, gains its force from contingent social factors, not from its moral merits or participation in right reason. The role of the judge is, accordingly, not to improve bad laws but to take the text as the settled law, for good or ill, whether it be liberal or conservative, whether this proceeds from good counsel and cooperation or through crooked compromise. Textualism is an overemphasis upon the text, plain and simple: an overreaction to the real problem of judges insufficiently bound to what stands written.
Returning to the Summa, Justice Scalia allowed that Aquinas knew infinitely more about theology. But he himself, the justice insisted, knew a great deal more about judges and judging. And he was certainly correct to desire some safeguard against manifest distortions like Roe v. Wade, in which justices discover gross injustices as “rights” where no compelling textual foundation can be provided. A crack in the door, like the case of Church of the Holy Trinity v. United States—which allowed that the “spirit” of the law might prevail over the “letter”—is open to abuses too evident to bear enumerating.
And yet, two things make the medieval theologian a much deeper juridical thinker than the judge.
First, Justice Scalia’s legal theory has no ultimate framework for holding the government accountable before God. He was unable, for instance, when questioned after the lecture, to defend an administration of justice such as the Nuremberg Trials. The trials, of course, famously appealed to the natural law to convict men who had simply enforced the promulgated, positive law of Nazi Germany. When pressed on the issue, the justice steadfastly disavowed any such appeal to a higher unwritten law. To justify the war trials, he instead simply maintained that, as he saw it, winners in a war have a right to punish the losers. “Might makes right” is the classic formula for this barbaric doctrine.
In charity, one may assume the justice did not wish to accept all that this implies, but it is worth commenting on the consequences all the same. In a word, praise God the United States won the war; for one shudders to imagine the work of the “courts” had the Nazis been victorious. The Soviets, too, were winners in the Second World War—and they simply drove the German “losers” to the gulags. Is that also the proper work of justice? Were these trials as humane and upright as Nuremberg with its appeals to a higher law?
Textualism in Justice Scalia’s inflection has no analogical understanding of law. God’s own unwritten commands are, thus, allowed no entry into public, legal discourse. (Justice Clarence Thomas, it might be noted, would differ here from Justice Scalia. Though less a theorist than his colleague on the bench, Justice Thomas broadly acknowledges the force of the natural law. He further points out that the framers wrote the Constitution under the same conviction—a different spin on “originalism.”)
A second deficiency in the viewpoint of Justice Scalia, less severe in its ultimate import but more revealing of challenges proper to the American system of law, is his anachronistic reading of Aquinas. Specifically, the saint was working with a very different, much more biblical, conception of the “judge.” In particular, the separation of powers, which Americans take as axiomatic, a system which siphons off judges entirely from the work of making laws—or at least attempts to—is in fact a queer novelty in the history of jurisprudence.
Functionally, of course, the familiar system of checks and balances ensures protection against particular abuses. But the three branches of government also scatter the integral elements of law in some fundamentally problematic ways. It is very important that Americans be honest and enlightened on this point. For all its certain advantages, the administration of justice is, on account of separated powers, an unusually disjointed operation in our society, susceptible to its own abuses and tragic breakdowns.
For Aquinas, the judge was also the legislator—a plenipotentiary, like a king—not simply the hand-bound interpreter of some legislature’s promulgated text. The modern issue of “judicial activism” is, accordingly, tied up with a very different set of historical and legal assumptions, specific to the American context. There is something to be learned, however, from the older viewpoint. In the scriptural worldview, shared by the Christian Middle Ages, judgment was an act that could compensate when the written statutes fell short of the perfection intended. Indeed, judgment was exactly this: the place where injustice was corrected.
The question we must put to our own ministers of justice (not only judges) is this: Where is this mechanism of judgment in our system? Who will undo the injustice, which at times we inflict by law upon ourselves? Increasingly we are becoming a nation lacking judgment. Who will decide aright for this land’s afflicted?
Our constitution is a wondrous prodigy of statecraft. But can judges really be divorced from all lawmaking behavior? Should they be? We object to the alternative, perhaps, because in a blush of democratic idealism we wish the law to be promulgated only “by the people”—not by “unelected officials,” as we often derisively name our judges. But, in the machinery of this republic, is the court not also representative in its own special way? And is it, in fact, so clear that the court has really served this country more poorly than the Congress or many we have duly elected as our commanders in chief?
In our common law system, precedent itself is a form of legislation. This means that judges are indeed effectively lawmakers. It is true, the court is not the right instrument for deciding every issue; but it will not serve the common good if Catholics in this country concerned about crucial issues like abortion and same-sex marriage rally around the illusion that judges have no share in legislating.
If the significance of Nuremberg failed to register adequately with Justice Scalia, as a believing Catholic and honest steward of the common good, he understood well the urgent need for an escape clause in the event—ever more real in our nation—that civil servants must face some proximate cooperation with evil. Recusal was Mr. Scalia’s answer for judges. Judges might thus save their skin and their conscience—but not the country. Aquinas’s appeal to a higher law grounded in divine authority is obviously another, stronger option, for it provides a corrective to the disordered situation, not simply a way out for the judge.
For Justice Scalia, however, “natural law” was just rhetorical cover for the preferred moral agenda of any given judge. Such skepticism is profoundly disappointing. If in times and places, such as our own, the natural law can erode in a people’s perception—even to the point that its dictates are no longer widely grasped, a circumstance Aquinas himself allows—then the answer should not be a frightened moratorium on appeals to God’s eternal law. (This is not to say, however, that the natural law should always be positively legislated, as both Thomas Aquinas and Justice Thomas would agree.)
Justice Scalia has now gone to meet the one who judges justly, and I am confident that his public witness and career of service will find its just reward. As the country now solemnly seeks to fill his chair on the Supreme Court, we may hope judges like this good man may still be found. Though burdened with a problematic theory, Justice Scalia was nevertheless blessed through the gift of faith with a moral insight often lacking in the secularism that surrounds us. It would serve our nation well if more judges let such knowledge inform their administration of justice. Otherwise, it is certain that those bound neither to the text nor to God’s unwritten law will continue to “legislate from the bench,” advancing the same injustices that make us cry, “Lord…judge your people in justice!” (Ps 72:1).