Once he had helped secure the White House for George W. Bush, Scalia had reason to believe that if the chief justice retired in the next year or two, he would surely be a top candidate.1 But he soon learned otherwise.
The irony was that his success in Bush v. Gore soon became an obstacle in any quest for the center chair. With the public backlash about the case, both Chief Justice Rehnquist and Sandra Day O’Connor realized that they could not retire during Bush’s first term as president. The appearance that they had chosen the president who would be filling their seat would have once again put the Court in the crossfire of public outrage. Scalia had to bide his time, wait for Bush’s hoped-for second term, and expand on the conservative, originalism dogma that had made him so admired by the new president.
• • •
More and more religion began to take center stage in Scalia’s professional life. By this time, he was a member of the St. Catherine of Siena Church, a traditionalist congregation named for the patron saint of unborn children and located in Great Falls, Virginia, a comfortable suburb of Washington. With about four thousand parishioners, this church, established in 1979, offered a Solemn High Latin Mass on Sundays.2 Performing this Latin Mass, known as the Tridentine Mass, required that the parish receive special permission from its bishop, called an indult. For a time, the only indult churches in the Diocese of Arlington, Virginia, to be granted such a privilege were St. Catherine’s and St. Andrew’s, located in Clifton, where Justice Clarence Thomas was a parishioner.
The various religious activities and clubs organized by St. Catherine of Siena offer clear evidence of the conservatism of the parish. The church choir sings classical Masses, Gregorian chants, and ancient anthems and motets.3 The church also openly acknowledges supporting a conservative evangelical religious group called Opus Dei, a devout, secret Catholic religious organization founded in 1928 by Josemaria Escriva, and described by some as the “elite guard of God.”4
Followers of Opus Dei describe its mission as “spread[ing] through every sector of society a deep awareness of the universal call to sanctity and apostolate, and more specifically of the sanctifying value of ordinary work.”5 One church scholar, John L. Allen, the Vatican correspondent for the National Catholic, who has written the definitive book on the organization, argues that “Opus Dei members do frequently seem ‘traditional’ by contemporary standards, if only in the sense that they have clung to older prayers, practices, and disciplines in a time when many of those traditions were being understood in new ways or abandoned.”6 According to one critic, the organization’s “main tenets are that God is an authoritarian and, therefore, Opus Dei adherents support dictatorial societies; that women stand behind men in life; that mass should be in Latin; and that God created a natural order of life in which the rich are rich and the poor are poor—and the divine order of inequality shouldn’t be disrupted.”7
Some churches do not advertise the presence of Opus Dei in their midst, listing meetings simply as “evenings of recollection.” St. Catherine’s, however, clearly lists the different Opus Dei meeting times for men and women.8
More evidence of Scalia’s preference for the traditional Tridentine Latin Mass was his occasional workday attendance at the conservative Saint Mary Mother of God, known as “Old St. Mary’s.” Located on Fifth Street in a poor Chinese and African American, Washington, D.C., community, this magnificent church offered a “standing room only” Latin Mass at which legal notables including Scalia and Justice Clarence Thomas were described as “regular attendees.”9 While one should avoid reading too much into the views of an individual simply because of his or her association with a particular church, Scalia’s public statements on religion, and publicly expressed views on various social issues, together with his associations with the traditional St. Catherine’s and St. Mary’s churches, confirmed his conservative religious philosophy.
Over the years, Scalia’s ultra-conservative religious beliefs led some of his detractors to accuse him of being a member of Opus Dei.10 They argued that if that were true, it would impair his “impartiality and even-handedness” because he would be a “Radical on the High Court,” using his official position to do what he perceived to be the “work of God.”11 None of these sources offered convincing proof of such membership. Rather, the best authority on this question, John L. Allen Jr., who relied on his extensive Vatican contacts to uncover the worldwide lists of Opus Dei members, was unable to link Scalia to the organization’s membership.12
Whether Scalia was a member of Opus Dei or not is beside the question, for his conservative religious views, his textualism and originalism legal theories, together with his judicial decisions and his public speeches, were all perfectly in harmony with it.
• • •
By worshipping and acting on his own in such a traditional way, Scalia demonstrated repeatedly on many subjects just how different his traditional Catholic views were from post–Vatican II views. One area in which he diverged was on the issue of the death penalty. In March 1995, Pope John Paul II, after surveying several hundred Catholic bishops around the world on the morality of abortion, murder, the death penalty, and the “right to die,” issued his Evangelium Vitae, or “Gospel of Life,” encyclical. While the pre–Vatican II Church had supported capital punishment as a method for protecting society, the pope signaled that he would now be following a more liberal interpretation of the sanctity of life, including a change in the Church’s stance on the death penalty.
Seeking to explain the Church’s position on the sanctity of human life, the pope declared that “there is evidence of a growing public opposition to the death penalty, even when such a penalty is seen as a kind of ‘legitimate defence’ on the part of society. Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.”13 For the pope, the chance of rehabilitating the defendant, even in the face of a judicial system’s efforts to avenge even the most horrific crimes, took precedence: “The nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”14 In September 1997 the Catechism of the Catholic Church was changed to read, “the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically non-existent.’ ”15
Scalia, however, did not agree. These pronouncements by Pope John Paul II became the catalyst for him to begin moving beyond his originalism theory to layer on top of it a social conservatism based in pre–Vatican II theology. Never one to avoid controversy, and knowing that there was strong support for the death penalty among conservatives in the United States, Scalia chose to indicate his continued support for this form of punishment. On January 25, 2002, on a panel titled “Religion, Politics, and the Death Penalty,” at the Pew Forum hosted by the University of Chicago Divinity School, Scalia sharply disagreed with the Supreme Court’s growing pattern of restrictions on the use of the death penalty, relying on the “evolving standards of decency that mark the progress of a maturing society.” Opposing that living, evolving Constitution philosophy, Scalia said that he relied on what he called his adherence to the “enduring,” or what other people called “dead” Constitution, in the form of his version of originalism. Scalia’s metaphorical description of the “Founders’ intent” for the Eighth Amendment soon became a familiar refrain: “For me . . . the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted—not merely for murder, by the way, but for all felonies, including, for example, horse thieving, as anyone can verify by watching a western movie. And so it is clearly permitted today as far as the Constitution is concerned.”16
Explaining that he was following the “traditional system” of justice dating back to Chief Justice John Marshall’s era, Scalia disagreed with his former colleague Justice Harry Blackmun’s announcement near the end of his career that he would “no longer tinker with the machinery of death,” meaning that he opposed the death penalty. For Scalia, “the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty. He has, after all, taken an oath to apply those laws, and has been given no power to supplant them with rules of his own.”
With that, Scalia unapologetically addressed the challenge of dealing with the issue of the death penalty as a justice with particular religious views:
Being a Roman Catholic and being unable to jump out of my skin, I cannot discuss that issue without reference to Christian tradition and the church’s magisterium. . . . This is not the Old Testament, I emphasize, but St. Paul. . . . The core of his message is that government, however you want to limit that concept, derives its moral authority from God. It is the minister of God with powers to revenge, to execute wrath, including even wrath by the sword, which is unmistakably a reference to the death penalty. Paul, of course, did not believe that the individual possessed any such powers. . . . He said, “Dearly beloved, avenge not yourselves, but rather give place unto wrath, for it is written vengeance is mine, said the Lord.” And in this world, Paul’s world, the Lord repaid, did justice through his minister, the state. These passages from Romans [favoring the death penalty] represent, I think, the consensus of Western thought until quite recent times—not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset . . . by the emergence of democracy.17
Scalia then proceeded to deliver nothing short of a sermon on what he viewed as the mistaken international democratic view opposing the use of the death penalty:
It is easy to see the hand of almighty God behind rulers whose forebears, deep in the mists of history, were mythically anointed by God or who at least obtained their thrones in awful and unpredictable battle whose outcome was determined by the Lord of Hosts; that is, the Lord of Armies. It is much more difficult to see the hand of God or of any higher moral authority behind the fools and rogues—as the losers would have it—whom we ourselves elect to do our own will. How can their power to avenge, to vindicate the public order be any greater than our own? So it is no accident, I think, that the modern view that the death penalty is immoral has centered in the West.
Scalia then addressed the difference between his views and those of his Church:
You will gather from what I have said that I do not agree with Evangelium Vitae and the new Catholic catechism—or the very latest version of the new Catholic catechism—that the death penalty can only be imposed to protect rather than avenge, and that since it is, in most modern societies, not necessary for the former purpose, it is wrong. . . . It seems to me that the encyclical either ignores or rejects the longstanding church teaching that retribution is a valid purpose; indeed, the principal purpose of government punishment.
Had he agreed with the modern, reform Catholic Church on the death penalty, Scalia explained, it would have affected his job. As he explained, “I do not find the death penalty immoral.”
Earlier popes, Scalia reasoned, had supported the death penalty, and he now chose to follow those religious leaders rather than the current pope. As he expounded:
So I am happy to learn from . . . other canonical experts—that the statement contained in Evangelium Vitae—assuming it means the worst—does not represent ex cathedra [infallible] teaching; that is, it need not be accepted by practicing Catholics, although they must give it thoughtful and respectful consideration. Indeed, it would be remarkable to think that it was an ex cathedra pronouncement, that a couple of paragraphs contained in an encyclical principally devoted not to capital punishment, but to abortion and euthanasia, were intended authoritatively to sweep aside two millennia of Christian teaching. . . . In any case, I have given this new position—if it is indeed that—thoughtful and respectful consideration, and have rejected it.
However, Scalia added, “That is not to say that I favor the death penalty. I am judicially and judiciously neutral on that point. It is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion because I like my job and would rather not resign.”
Years later, Sam Harris, an advocate for a scientifically based and secular society, in his book The End of Faith, would quote at length from Scalia’s remarks to warn “just how close we are to living in a theocracy.”18 Harris explained, “Scalia has found legal reasons to insist that the Supreme Court not leaven the religious dogmatism of the states, but he leaves little doubt that he looks to Saint Paul, and perhaps to the barbarous author of Leviticus, for guidance on these matters.”19
To give his Pew Forum comments a wider audience, Scalia published a revised version of his remarks in the Catholic magazine First Things under the title “God’s Justice and Ours.”20 As he did in his speech, he began his piece by trying to construct a verbal firewall between his role as a Catholic, his Catholic beliefs, and his role as a justice on this issue:
Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a “living document”—that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean. . . . But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all.21
The fact that as a textualist/originalist he had voted in a manner consistent with his traditionalist religious views might lead people to believe otherwise. Content to be part of the state’s “machinery of death,” Scalia argued that he was more true to the Constitution than his liberal colleagues:
This dilemma, of course, need not be confronted by a proponent of the “living Constitution,” who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the “living Constitution” has such attraction for us judges.)22
But what would happen if one day, as a Catholic on the Court, he was instructed by the pope and his Church to observe the new teachings opposing the death penalty? Scalia was glad he did not face that quandary:
And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for Governor had to promise commutation of all death sentences (most of them would never reach the Governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.23
Sister Helen Prejean, the Catholic nun who wrote Dead Man Walking about her advocacy against the death penalty, later argued in a follow-up book, The Death of Innocents, that Scalia’s interpretation of Chapter 13 of the Epistle of St. Paul to the Romans, upon which he based part of his Chicago remarks, “is indistinguishable from that of fundamentalist preachers, who use this passage to argue that ‘God’s wrath on evildoers’ not only justifies the death penalty, it demands it.”24 She was referring here to an addition that Scalia had made to his First Things article that was not in his Chicago remarks: “All this, as I say, is most un-European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as ‘the minister of God,’ to ‘execute wrath’ upon the evildoer.”25 Accusing Scalia of using a process called “proof-texting” to selectively choose Bible passages and interpret them to prove one’s point, Sister Prejean pointed out that the biblical term “wrath of the sword,” relied upon by Scalia, does not refer to the state power to execute for crimes, but more likely, after careful analysis of ancient history and linguistic interpretation, to the Roman policy of “keep[ing] the peace” in times of “rebellion” and “riots.”26 For her, Scalia’s “interpretation of Romans 13, driven by his polemical bent, provides a hint of what we can expect when he interprets constitutional text.”27 Of this interpretation of the Bible, Sister Prejean concludes:
Forgive me, but I’m flabbergasted at the arrogance of a man who says “death is no big deal” when it’s not his child who’s being put to death or his father, or his wife, or himself—personal catastrophes that he can’t imagine. I cannot recognize Scalia’s God, much less worship such a God. Who can kneel in awe before the “Lord of Armies,” a military God whose divine authority is recognizable not in democratic leaders, but in kings, of all people, so many of whom were venal, arrogant men who sacrificed thousands of lives in their petty wars?28
• • •
A month after the publication of his First Things article favoring the death penalty, Scalia got a chance to show how “his God,” as Sister Prejean put it, directed him to act as a government agent of “the machinery of death.” By using his originalism and textualism, he found a way to craft a very restricted interpretation of the meaning of the Eighth Amendment’s “cruel and unusual punishment” clause. The case, Atkins v. Virginia, involved Daryl Renard Atkins, who had been convicted of kidnapping, armed robbery, and murder, and sentenced to death despite the fact that he was mentally challenged with an estimated IQ of 59. Relying on the “evolving standards of decency that mark the progress of a maturing society,” Justice John Paul Stevens wrote for a six-person majority that putting mentally challenged defendants, who might not understand either the nature of their crime, the nature of the judicial proceedings, or the nature of their punishment, to death, had come to be seen in the United States as “cruel and unusual punishment.”29 In making this ruling the Court was reversing its holding in the Penry v. Lynaugh case just thirteen years earlier.30 Citing the increasing number of state laws banning the practice, as well as national and worldwide public opinion opposing it, Stevens now declared “the execution of mentally retarded criminal[s]” to be a violation of the Eighth Amendment because it did not “measurably advance the deterrent or the retributive purpose of the death penalty.”31 Based on these factors, argued Stevens, the death penalty for mentally challenged defendants was an “excessive” penalty.
Scalia, however, wrote that he was limited by his pro–death penalty reading of the Eighth Amendment to what the people in the United States understood it to mean, as it applied to various felonies at the time, when it was being ratified in the states. This was an interpretation that squared perfectly with his traditional Catholic values. Using that standard, he argued that putting mildly mentally challenged defendants to death had not been seen in the Founding Era as either “cruel” or “unusual.” In Scalia’s words, “Only the severely or profoundly mentally retarded, commonly known as ‘idiots,’ enjoyed any special status under the law at that time. They, like lunatics, suffered a ‘deficiency in will’ rendering them unable to tell right from wrong. . . . Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them from ‘going loose, to the terror of the king’s subjects.’ ”32
While Stevens had argued that the trend in states was to abolish this form of punishment for this kind of offender, Scalia pointed out that only eighteen states, well below half of their number in the country, had actually done so. As for Stevens’s reliance on “world opinion” and professional organizations to justify the Court’s decision, Scalia, offering his form of American exceptionalism, had no patience for it:
But the Prize for the Court’s Most Feeble Effort to fabricate “national consensus” must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called “world community,” and respondents to opinion polls. . . . The views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people. Where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.33
Following his highly visible disagreement with the pope and debate with his Court colleagues, Scalia became a much more public Catholic in his appearances off the Court. He revised and expanded his originalism speech to delve into more religious topics. But the results of the increasingly religious nature of three of these speeches caused controversy.
On January 12, 2003, he spoke before about 250 people at the annual outdoor Religious Freedom Day held by the Knights of Columbus, a Roman Catholic service organization, in Fredericksburg, Virginia. Scalia placed a wreath at a statue honoring Virginia’s Statute for Religious Freedom, a religion protection law written by Thomas Jefferson that was the forerunner of the First Amendment’s religious protection clauses. He also participated in a group prayer and sang “God Bless America” with the rest of the attendees. The “cold as blazes” day, as Mayor Bill Beck described it, was then warmed considerably by the fiery comments of the justice in opposition to the Court’s living, evolving Constitution theories of his liberal colleagues. Scalia charged, “It is a Constitution that morphs while you look at it, like Plasticman.” Instead, he argued for more accommodation between church and state, saying, “The Establishment Clause was once well-understood not to exclude God from the public forum and from public life,” drawing examples from the symbolic religious phrases “In God We Trust” on our coins and the phrase beginning every Supreme Court session, “God save the United States and this honorable court.”34 In contrast, Scalia argued: “The new constitutional philosophy says if those who decide the law think it would be a good idea to get religion out of the public forum, then it will be exterminated from the public forum through judicial fiat.”35
While delivering these pro-religious accommodation remarks, Scalia noticed two protest signs in the back of the audience reading, “Get Religion out of government,” and “Freedom is measured by the distance between government and religion.” Referring to those signs, he said, “I have no problem with the philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate ‘under God’ from the Pledge of Allegiance. That could be democratically done.”36 “From what he said,” Mayor Beck recalled, “it was clear that he thought anyone who did not want school children to say the Pledge of Allegiance with the words ‘under God’ in it deserved a spanking.”37
The problem here was that Scalia had seemed to foreshadow how he would vote in a case then being appealed from the Ninth Circuit Court of Appeals by atheist Michael Newdow challenging the requirement that his daughter and other public school students be forced to say the words “Under God” in the Pledge of Allegiance. The appeals court had ruled that the use of the phrase was an unconstitutional violation of the First Amendment’s Establishment of Religion Clause. When the government appealed, Newdow argued his own case before the Court, and filed a petition the following September requesting that Scalia recuse himself, stepping aside from the case under 28 U.S.C., Section 455(a), arguing that because of his statement in Fredericksburg, Scalia’s “impartiality might reasonably be questioned.” Even Scalia, who is loath to step aside because of his extrajudicial comments, was forced to agree.
This was a pivotal action, removing a certain religiously accommodationist vote by Scalia in favor of the conservative wing’s goal of restoring the “Under God” language. So, instead of finding against Newdow, the Court ruled by a tie 4–4 vote that he lacked standing to bring suit, because as a divorced father who did not have custody over his daughter, he had no right to sue on her behalf. The tie vote left standing the Ninth Circuit Court of Appeals holding that the phrase “under God” in the pledge was unconstitutional, meaning that Newdow’s victory remained in force for that region. But in 2010 the Ninth Circuit Court of Appeals, in another lawsuit brought by Newdow, upheld the “Under God” provision.38
The controversy about Scalia’s extrajudicial appearances continued two months later when he was invited to appear on March 18, 2003, at the City Club of Cleveland, a city where he had once practiced law, to receive its annual Citadel of Free Speech award. The award is presented to “a distinguished American” who has made a significant contribution to “the preservation of the First Amendment.” It was being awarded at the behest of attorney Richard Pogue, one of the partners in Scalia’s old Jones Day law firm, because of the justice’s pro–free speech support of flag burning in the Texas v. Johnson case in 1989. Scalia celebrated the First Amendment freedom award by insisting that all television and radio reporters be evicted from the luncheon.39 He was unapologetic, wanting his speech on originalism to remain “fresh for those who have not seen it on TV.”40
Scalia’s renewed penchant for extrajudicial controversy continued on May 20, when he spoke to the Philadelphia Urban Family Council, an anti–gay rights group that was then challenging a Philadelphia city ordinance providing legal rights for gay partners. Scalia had been asked to give the keynote address at a $150 per plate fundraising dinner honoring anti–gay rights Catholic bishop Anthony Bevilacqua.41 However, the Court was then considering the case of John Geddes Lawrence, who had been arrested in Texas for engaging in intimate behavior with another man and was charged with violating that state’s anti-sodomy law.42 Once more, questions arose as to whether Scalia’s public appearance compromised his neutrality in deciding that case.43
By this point Scalia’s extrajudicial speeches and conduct had ventured far beyond those of any other justice, including Abe Fortas, who was forced to resign from the Court, and William O. Douglas, who was threatened with impeachment four times. Unlike Fortas and Douglas, whose ethical questions also involved allegations of financial improprieties, Scalia’s inflammatory comments and speeches involved cases pending before the Court, issues yet to come before the Court, and direct personal attacks on his judicial colleagues. And, unlike Fortas and Douglas, Scalia’s controversial comments were made in the age of 24/7 partisan news shows and internet blogs. By taking these actions Scalia was politicizing the Supreme Court, making it fodder for partisan attack, and inflaming as well as fueling the opponents of the institution and its conservative majority.
• • •
In a matter of weeks Scalia’s opponents on the Court would succeed in reversing the 1987 case of Bowers v. Hardwick. Justice Kennedy, who led the movement in favor of gay rights on the Court in the 1996 Romer v. Evans case, now wrote for a six-justice majority in Lawrence v. Texas. He began with a broad reading of personal autonomy privacy rights:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.44
Using an expanded version of the rational basis test, by which the state can justify a law if a rational person would agree with its purpose, Kennedy instead argued that the state had no right to justify its laws by enforcing its own view of morality, as against gays, through its laws: “For centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. . . . These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. ‘Our obligation is to define the liberty of all, not to mandate our own moral code.’ ”45 That being the case, Kennedy found that basing such a restrictive law in morality, as was done in Bowers v. Hardwick, is a violation of equal protection: “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.”46
For Kennedy, the Bowers case, and thus this law, should be reversed because the state of Texas had no power to impose its view of morality in violation of the personal right to privacy: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. . . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”47
Scalia was so angry about the Court’s decision that he took the unusual step of reading his dissent from the bench.48 He first mocked the overturning of a seventeen-year-old precedent in light of the plurality’s (of which Kennedy was one member) failure to overturn the nineteen-year-old Roe abortion ruling in the 1992 Casey case based on the concept of stare decisis: “ ‘Liberty finds no refuge in a jurisprudence of doubt.’ . . . That was the Court’s sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade. The Court’s response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, is very different. The need for stability and certainty presents no barrier.”49 Scalia could not figure out Kennedy’s apparent use of the higher level of judicial scrutiny in deciding to strike down the Texas statute even though he professed to be using only the lower-level rational basis standard:
Though there is discussion of “fundamental propositions” . . . and “fundamental decisions” . . . nowhere does the Court’s opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.” . . . Instead the Court simply describes petitioners’ conduct as “an exercise of their liberty”—which it undoubtedly is—and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case.50
At this point, Scalia picked up on the immorality and criminality arguments that Byron White made against gay rights in his 1987 Bowers v. Hardwick plurality opinion in asking what had changed:
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable” . . . the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. . . . This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.51
For Scalia, as he had argued in the 1996 Colorado anti–gay rights constitutional amendment, Romer v. Evans, this new ruling once again represented nothing more than what he viewed as the current pro–gay rights culture of the legal community: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”52
In concluding, Scalia played judicial psychic by pointing out that if everything that Kennedy said about the states not being able to regulate gay rights based on morality was true, then his argument also supported gay marriage:
At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence—the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” . . . Do not believe it. . . . Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. . . . What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution.” . . . This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.53
Later events would prove Scalia’s prediction to be correct.
• • •
Kennedy’s decision in the Lawrence case worked on Scalia all summer long. In late October, apparently concerned that his dissent had failed to have the desired effect, Scalia increased the distance between them by delivering a caustic speech undermining Justice Kennedy’s opinion in the Lawrence case to the Intercollegiate Studies Institute, a conservative educational organization. After reading from Kennedy’s decision using what was described by one journalist as “a mocking tone,” Scalia argued that the case “held to be a constitutional right what had been a criminal offense at the time of the founding and for nearly 200 years thereafter.” Scalia made clear that this notion of the living, evolving Constitution offered by Kennedy and others had no boundaries: “Most of today’s experts on the Constitution think the document written in Philadelphia in 1787 was simply an early attempt at the construction of what is called a liberal political order. . . . All that the person interpreting or applying that document has to do is to read up on the latest academic understanding of liberal political theory and interpolate these constitutional understandings into the constitutional text.”54 But it was clear that Anthony Kennedy was not, and would never be, in agreement.
While Scalia believed he was consistent with his earlier views, many saw in his work an increasing conservatism that baffled even his earlier law clerks. “When I worked for him, he had a set of principles, and those principles led to principled results, which were sometimes conservative and sometimes liberal,” explained Lawrence Lessig, a Scalia clerk from 1990 to 1991. “I don’t understand anymore how his jurisprudence follows from his principles.”55
Scalia’s new attack on Justice Kennedy and the Court in the gay rights area drew the wrath of Slate reporter Dahlia Lithwick, in a widely noticed column titled “Scaliapalooza.”56 Referring to his Intercollegiate Studies Institute speech, Lithwick asked of Scalia:
Is this brilliant jurist losing his mind? Is he so frustrated by 17 years of failure to sway an allegedly conservative court to his side on social issues that he no longer cares who he offends or how biased he may appear? Has he become so swept up by the Coulter/Limbaugh/O’Reilly game of court-bashing that he cannot see how damaging it is when played by a justice? Or is he running for elected office? What possesses Justice Scalia to eschew the reclusive public life of many justices, or at least the blandly apolitical public lives of most, to play the role of benighted public intellectual and knight gallant in the culture wars?
Placing this new public attack in the context of Scalia’s earlier talks, Lithwick charged that “the body of his speeches and addresses makes it clear that he appears anything but ‘impartial’ as is seemingly required by the law. One can predict his vote on most cases with great confidence.” In examining all of these statements, Lithwick argued that these pronouncements sprang from Scalia’s “feeling besieged and marginalized by the constitutional wall that’s been erected between church and state—a wall that keeps the devout from practicing and proselytizing in the public square.” And so, for her, Scalia’s latest public “speaking tour” had a very clear goal. “Merely by virtue of his public role he is actually tearing down the wall between church and state every time he opens his mouth. Which is precisely what he wants.”
Echoing Lithwick’s critique of Scalia’s extrajudicial behavior, Stephen Gillers, a New York University law professor with an expertise in judicial ethics, who said, “Since World War II, I think it’s fair to say, the extrajudicial conduct of only three justices have [sic] become newsworthy in a harmful way: Fortas, Douglas, Scalia. . . . Scalia is calling undue attention to himself, by mixing it up publicly in a way we associate with players, not referees, which is what a judge is supposed to be.”57
Ironically, in seeking to shape public opinion in favor of his view of religion through his opposition to his own church on the death penalty, incorporating his religious beliefs into his extrajudicial pronouncements, and making clear in court in case after case his devotion to traditional Catholic principles, Scalia had aroused public opposition and criticism of his behavior. But with Chief Justice William Rehnquist suffering the effects of age and thyroid cancer, Scalia was surely most concerned about the opinion of the person who would appoint the chief’s successor.