In Evaluating Justice Scalia, Where is an Option for the Poor?

Scalia talks with Archbishop of Washington Wuerl at conclusion of annual Red Mass held at Cathedral of St. Matthew Apostle in Washington

Justice Scalia with Washington’s Cardinal Donald Wuerl

There are, already, too many Catholics eulogizing Justice Antonin Scalia and analyzing the impact his absence on the U.S. Supreme Court may have. But I am compelled to write one more because even with post after post being published since Saturday evening, something in these evaluations is missing: an option for the poor.

Let me pause to state first that, in what follows, I am not evaluating Justice Scalia’s moral character nor speculating about where he is now (though, as someone enamored by universal salvation, I prefer to think he resides in God’s loving embrace). What I am evaluating is how we evaluate, as the faithful, Catholics in public life who hold power and influence.

I have read a dozen or more commentaries on Justice Scalia, ranging ideological, political, and ecclesiastical spectra. I know more sit untouched (if someone has brought up similar points to mine, please add links in the comments below). Having attended a conservative Catholic college, the praise being heaped upon Scalia from my friends on Facebook was expected. What prompted me to write this post was a piece in Crux from Christopher Hale, executive director of Catholics in Alliance for the Common Good, which is a moderately liberal Catholic advocacy group.

Hale compares Scalia to Pope Francis and, despite political differences Hale hastily excuses, claims there is much common ground. They are Jesuit educated. They believe in the Devil. They are born to Italian immigrants. They care for the sick (if you believe the Acton Institute anecdote about Scalia provided by Hale). If faith is proved by “their deeds rather [sic] their words,” Hale concludes, than both Justice Scalia and Pope Francis “pass with flying colors.” Having evaluated the former justice in this way, Hale concludes that Scalia died “a loyal patriot, a devout Catholic, and a good man.”

This is why a preferential option for the poor is so crucial. And why our church in the U.S., despite Pope Francis’ deepest yearnings for us, is not yet a “poor church for the poor.” If even liberal Catholic voices are extolling Justice Scalia then our hermeneutic is not about what this Catholic in public life has done for those God loves most. It is about something else entirely.

Justice Scalia may have been a good man. By all accounts, he practiced his Catholic faith devoutly, seeking out Mass in the Extraordinary Form and being personally charitable (though he did skip Pope Francis’ address to Congress last fall). He seemed personally kind and even enjoyable company as evidenced by his close friendship with liberal colleague, Justice Ruth Bader Ginsberg. But Vatican II (which the former justice admittedly disliked) zealously reoriented the Catholic Church to being a faith that does justice. We know in a new way the Gospel’s old truth that keeping the laws and being charitable are not enough. And on promoting the common good, Justice Scalia’s record is deeply problematic. Let me highlight a few items.

Justice Scalia was an unapologetic advocate for the death penalty, even as the last three popes have essentially shifted Catholic teaching to bar it in the modern world and evidence mounts that its application punishes people of color and/or less economic means at highly disproportionate rates. He wrote in a majority opinion for Herrera v. Collins that, “Mere factual innocence is no reason to carry out a death sentence properly reached.” Context dulls that comment’s barb slightly, but the Catholic justice basically remained unconcerned with the more than likely reality that we execute innocent people in the U.S. His vote could have saved lives.

Racism is an intrinsic evil in Catholic teaching, but that did not stop Justice Scalia from protecting white supremacy while on the Court. During oral arguments last December in Fisher v. University of Texas, Scalia suggested that black students should attend a “less-advanced school, a slower-track school where they do well” and that maybe the University of Texas “ought to have fewer” students of color. He called the Voting Rights Act a “racial entitlement” kept in place because “normal political processes” (i.e., the U.S. Congress which kept renewing the Act’s provisions) did not work and thus a court needed to strike it down as unconstitutional to end it. His votes certainly did not advance racial justice.

On homosexuality, Justice Scalia’s record is acerbic. He defended criminalizing non-heterosexual sexual identities, as with Lawrence v. Texas where he wrote a dissenting opinion that claimed U.S. residents understand such laws as protective of them and their families “from a lifestyle that they believe to be immoral and destructive.” Scalia approved, too, of discrimination based on a person’s sexual orientation. In a dissenting opinion for Romer v. Evans, he compared same-gender relationships to murder. And Scalia’s views did not shift since the mid-1990s, unlike many other people. Last November while speaking at Georgetown University, he said pederasts and child abusers could be considered “deserving minorities” as well if lesbian, gay, bisexual, queer people could be so considered for the purpose of discrimination protections.

Then there are Scalia’s votes in Citizens United, in Bush v. Gore, and in Wal-Mart v. Dukes to name a few. I could continue illuminating the manifold and pervasive ways in which Justice Scalia’s position on the U.S. Supreme Court hurt marginalized persons and diminished social justice for three decades. Where has this record  and an option for the poor played into the countless evaluations by Catholics, include those from more liberal voices like Hale’s?

The short answer is: it has not. I will leave the “why” of this to readers’ speculation. But even as we pray that Justice Scalia now resides in God’s embrace, an honest evaluation finds him woefully deficient as a model for Catholics in public life. Given so many Catholic evaluations missed the mark, we, as the faithful, must question this Lent if we are really seeing with God’s eyes.



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