« Teaching vs. Scholarship vs. Influence | Main | Report from ALI Annual Meeting--and What Justice Ginsberg is Reading »

Friday, May 23, 2014

Lithwick on Scalia (and God)

Let me get the sincere if rote caveats out of the way first. I think there is lots to admire about Dahlia Lithwick: she's a great writer, funny, and I think it's very impressive that she essentially created a niche for herself in Supreme Court journalism that did not previously exist, through talent and hard work. I also like her personally, if Facebook acquaintance is any indicator. She has a new piece on Justice Scalia in the Atlantic, reviewing a new biography of Scalia by Bruce Allen Murphy. It is, as usual, well-written. But I have a substantial number of disagreements with the piece. The gist of the piece can be summarized as follows: discussing the influence of religion on decision-making is "taboo" when it comes to Supreme Court justices; we ought to do more of it. I have little problem with the second half of that statement, serious questions about the truth and application of the first half, and plenty of large and small criticisms of the specifics of her attempt. Many of them are particular to her piece, a few have more general import, and there is perhaps a larger point to my criticism, which is that there is a quality mostly missing from her piece and entirely absent from a couple of the other examples she cites. Somewhat ironically, given the recent vocabulary of liberal discussions of judging, that quality is empathy.

Lithwick's piece begins like this:

March was a hugely important month for religion and the Supreme Court, and a pivotal moment for Justice Antonin Scalia, the subject of a fat new biography. Too bad we couldn’t talk plainly about what was, and is, at stake. In a country historically averse to political debates about competing faiths, nowhere is frank discussion of religion more taboo than at the U.S. Supreme Court. “Religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company,” as Jeff Shesol, the author of a book about the New Deal Court, put it. He was speaking with NPR’s Nina Totenberg in 2010, when John Paul Stevens was looking at retirement and, for the first time in American history, there was the prospect of six Catholics, three Jews, and no Protestants on the highest court in the land—a watershed almost too “radioactive,” Totenberg remarked, even to note. And beware of venturing any further than that, as the University of Chicago Law School’s Geoffrey Stone did in a controversial 2007 blog post suggesting that the Supreme Court’s five conservatives likely derived their abortion views from Catholic doctrine: Scalia—a devout Catholic, and the current Court’s longest-serving conservative—announced a boycott of the school until Stone leaves the faculty.

 

I have written often before that I don't think religion ought to be a taboo subject in public discussion, in general terms or with regard to specific individuals. Like many law and religion scholars, I think religion can be a valid subject of discussion in politics and with respect to judges. I do not think legislators are precluded from considering and talking about religion in their decision-making, although I think they are limited in the outputs of their deliberation. I think a reasonable corollary of all this is that religion should be a permissible subject of discussion--and criticism--in public discourse. It is no more untoward to suggest that a judge's religion might influence his or her decision-making than to suggest that he or she is influenced by being a liberal, or a feminist, or a Republican, or a member of the affluent, well-credentialed elite. If there's a difference, it's one of degree, not of kind: criticism of that sort can be done rather poorly, and criticisms and assumptions based on religion can be done very poorly. It's ironic that Lithwick cites, with apparent approval, a blog post by Geoffrey Stone as an example of someone venturing bravely into this "radioactive" subject, because when Stone writes about these issues he generally does so quite badly. (More specifically, in my view, while there is some nuance in what he writes in the "middle" of those pieces, his introductions and conclusions are often cruder and more inflammatory than those middle sections can justify.)

To do it right does not mean avoiding direct criticism of religious beliefs: if they can permissibly serve as a basis for (non-judicial, at least) decision making, they can certainly be proper subjects for criticism. But it does require a good deal of nuance, care, self-examination, and, for lack of a better word, empathy: an attempt to appreciate the perspective of the religious individual from within and not just from without.

I think some failures along these lines are apparent in Lithwick's piece, in various ways. Some of them have to do with how the piece is framed. Framing the subject in terms of its being so "radioactive" that no one ever ventures there tends to lend to the author an air of intrepidity, inviting the reader to respond by praising the author for doing what no one else will and braving the consequences, and perhaps encouraging the reader to forgive any imperfections in the piece; after all, it's extraordinary that the dog is walking on its hind legs at all. But although the subject is controversial, it's hardly as unusual as all that. I have seen no shortage of blog posts, commentary in "news" outlets, and even law review articles discussing the subject. (Or, at least, discussing it when it comes to Catholicism; there are many fewer articles, if any, discussing how the Judaism of three members of the current Court affects or afflicts their judicial decision-making, although people have written about it in the context of long-dead Justices. Would they be applauded quite as loudly?)

Moreover, current writers are eager to point out that American Catholics' beliefs are not monolithic when it comes to things like contraception. It is unfortunate, then, that little evidence of the myriad ways in which the current Catholic Justices might differ--in their views of Catholicism, of the judicial task, and of the relation between the two--shows up in this piece or elsewhere. There's nothing wrong, again, with asking how a justice's religion influences his or her decision-making, But it will often be the case that a modest examination will answer the question "not proved." Yet the conclusions critics draw in this area are rarely so modest and, literally, unassuming. She writes, following Murphy, that "Scalia's religious self-certainty" has isolated Scalia on the Court and made him less effective at bringing together his fellow justices. A more modest examination might well conclude that Scalia has indeed isolated himself; I find his dissents of late often terribly ineffective and unnecessarily alienating. But would it require us to blame that on his "religious self-certainty," as opposed to his unquestionable self-certainty in general? Does the word "religious" add much to this conclusion?   

Lithwick continues by trying to draw a connection between the general topic of Scalia and the majority's Catholicism and broader doctrinal themes: "The problem of engaging religion openly at the high court extends beyond the unspoken agreement not to talk about the justices’ religions. The Court itself has opted not to probe the intensity or validity of a plaintiff’s religious conviction, in part thanks to Scalia’s reasoning." Of course, the discussion comes around swiftly to the Hobby Lobby case:

Fast-forward to March 2014, when the Court heard arguments in another case about religious dissenters from general laws: Sebelius v. Hobby Lobby Stores, Inc.—probably the most important case of the term, and a revealing capstone in Scalia’s jurisprudential career. Nobody that day dreamed of questioning the religious beliefs of the arts-and-crafts chain’s Christian owners, who were seeking exemption from the Affordable Care Act mandate to provide insurance coverage for birth control. Certainly the justices on the left wing of the Court and the Obama administration didn’t: whatever science, medical consensus, or neutral law may say on the subject of abortion-causing drugs and devices, the government wasn’t about to challenge Hobby Lobby’s belief that particular forms of birth control cause abortions (or to note that the business, even if inadvertently, once covered the same contraceptive methods its owners abhor). Nor was Scalia, who this time—in a dramatic about-face from his 1990 position—clearly supported the religious objectors. In fact, in the course of grilling the lawyers, he blurted out what sounded like agreement with the plaintiffs’ claims that these items were abortifacients. The spectacle was enough to make one wonder, quietly: Peyote didn’t sway him, but what about his own brand of piety?

This all seems rather questionable to me. Is this really about Scalia's faith, or any other justice's? It has long been a settled part of Free Exercise jurisprudence, since well before any of the current justices served on the Court, that judges should not inquire into the validity or intensity of religious beliefs, although the sincerity of those beliefs is still open for examination. Whether it's the right approach or not, there are many reasons for it. To the extent that Lithwick is concerned about Scalia being influenced by his Catholicism, she should if anything be reassured by this rule, which prevents him from diving skeptically and clumsily into the "validity" of religious convictions held by members of minority faiths. This approach not just required by the caselaw, but by Congress as well, in cases involving RFRA or RLUIPA.

One may be skeptical about the suggestion that the government or the left wing of the Court was entirely supine on some of these questions; certainly those carrying the administration's water in public arguments over the Hobby Lobby have not been. (And, to meet a parenthetical with one of my own, if prior subsidy of contraceptive methods was inadvertent, how relevant should it be?) Nor, despite his gyrations in the field of Free Exercise, is it fair to say that Scalia showed a dramatic about-face from his 1990 position: here he is facing a statute that was specifically intended to give the Court a different set of marching orders from those he set out in 1990, and even under that case the question would remain whether existing exemptions from the contraceptive mandate rules create problems of neutrality and general applicability.

"Peyote didn't sway him, but what about his own brand of piety?" is a great sentence, but neither clause is especially warranted in the circumstances. Although I think Scalia was wrong in Smith, he didn't question the intensity or validity of those worshippers' beliefs or practices; and in the current case, we have plenty of reason to conclude that RFRA requires an exemption without inquiring uncertainly into his own Catholic piety. (And plenty of reason to conclude that any Jewish or liberal dissenting justices read RFRA and its application differently without drawing conclusions about whether, in rejecting an exemption claim on the part of Christian groups, they are moved by their own brand of Jewish or secularist or feminist piety.)

Perhaps a note on Lithwick's conclusion is warranted as well. She describes the Court as currently hearing "passionate challenges to a secular society from religious dissenters." For those of us who still disfavor the Court's decision in Smith, there is some irony here too, because for many of us the problem with Scalia's opinion in Smith is that it was, if not secularist, then certainly highly statist. More broadly, though, that description relies on a set of assumptions about ours being a "secular society" and what, exactly, that means. I would have thought, or hoped, that it was more accurate to call ours a pluralistic society, and in some official and unofficial areas an agnostic one. Even if it is a secular society, it is at best an open question whether that requires us to be inhospitable to religious accommodation, which is capable of secular as well as religious justification. That's doubly true when the accommodations regime is ordered by Congress, not the courts. We should not accept this framing too uncritically.  

 

Posted by Paul Horwitz on May 23, 2014 at 09:55 AM in Paul Horwitz | Permalink

Comments

I won't deal with the specifics here but Dahlia Lithwick has an unfortunate tendency to be too knee-jerk in her analysis tossing in "spicy" comments along the way. This is coming from someone who generally is of the same ideological sentiments.

Emily Bazelon's writings on bullying is something I would compare her with -- her writings there seem much more balanced.

Posted by: Joe | May 23, 2014 11:11:56 AM

One thing that has always struck me about the Jewish/Catholic divide is that I don't get the sense that Ginsburg, Kagan, or (certainly) Breyer is as observant in their Jewishness as some of the Catholic justices, notably Scalia and Thomas, are in their Catholicism. As far as I know (and please correct me if I am) none of the three go to Synagogue on a regular basis. They always have struck me as more cultural/ethnically Jewish. Which may well affect their respective jurisprudence, but it is less bound up in the word of God. So the simple "6 Catholics and 3 Jews" has always struck me as too facile.

Posted by: Howard Wasserman | May 23, 2014 10:33:39 PM

Yes. Breyer's daughter btw is a Christian minister.

Also, the six Catholics are of different breeds too. Sotomayor appears to be a cultural Catholic. Kennedy's anti-abortion beliefs (if apparently not absolutist) aside, he also has some liberal Catholic views, particularly on gay issues. Thomas is a convert to Catholicism, isn't he? He perhaps is best seen as an evangelical, perhaps.

The 6/3 divide to me is stereotypical. Brennan was a Catholic.

Posted by: Joe | May 24, 2014 12:21:51 PM

The comments to this entry are closed.