Friday, July 26, 2013

Is Justice Scalia Imposing Catholic Morality on The Nation ? - Response to An Atheist

Justice Scalia seems have been in the news a good bit this week. this is partly because of comments he made the Nazi Government and the Courts which were very much taken out of context. See via here and here on that .

This seemed to be a jumping off point or at least a reason to discuss Justice Scalia again for many and not in a positive way.

The Friendly Atheist had a guest post up yesterday on Scalia. See How Justice Antonin Scalia Is Imposing Catholic Morality in the Supreme Court… and Getting Away With It .

Is he ?

 I can recall a speech at a Catholic event recently where Justice Scalia said he had someone thank him for all he was doing for the pro life movement on the Court. Scalia response basically was if I was working for the Pro life community I would not be doing my job. My Job as Judge is uphold the Constitution .

The article goes off the rails pretty quick. The writer seems to think that Justice Scalia is applying some sort   " natural law " in his opinions. Which to many people is some plot for Catholic Theocracy !

Regardless this is pretty funny since Scalia thinks natural law reasoning  is pretty darn unworkable in a a Judge's role on the bench. This has been a matter of some back and forth between him and natural law legal advocates In fact Justice Scalia 's viewpoint on this was a matter of some humor by the Archbishop Foley  in his homily  at a Red Mass .

Foley told an interesting anecdote about a visit he had from Justice Scalia and his wife in Rome several years ago. Recalling his doctoral dissertation on natural law, Foley said he offered examples to Scalia of cases in which the Warren Court had "transcended mere positive law" to reach its results. In both Brown v. Board of Education and Gideon v. Wainwright, Foley said, the Court resorted to principles of equality that went beyond written law. Foley said Scalia disagreed with him until his wife Maureen interjected, "Oh admit it, Nino, the archbishop was right." As the audience laughed, Foley added that Mrs. Scalia is "a woman of exceptional taste and discernment."

As with anything Scalia it generate a ton of comments and my two comments I left on this piece are in there somewhere.

In one of those comments I made note of an concurrence written by Thomas and joined by Scalia as to the Federal Partial Birth abortion law. They voted to uphold the law but basically saying no one brought up a Commerce Clause argument and if Congress had exceeded their powers here.

So basically two of the most Devout Catholics on the Court might have entertained an argument that Congress went beyond their powers here under the Commerce Clause if someone had just brought it up. If they had indeed joined some Federalism Coalition that would have struck down the Partial Birth abortion Act on these grounds no doubt pro lifers would be very upset. But this is an example where the Justices are looking at the legal principles and not imposing some " Catholic morality ". Again we don't know how they would have ruled if that objection was brought up. I am also not saying if that claim would be valid. However the concurrence is notable and important for this discussion as an example

Curiously this same issue is coming up today as to proposed ban on late term abortions which is being led by Senator Rubio. See Republicans Dispute Federal Power to Regulate Abortion .

Getting back to the issue at hand the article does not do a very good job of making the argument that Justice Scalia is imposing some Catholic morality on the nation. It is a hard argument to make since there is little evidence he is doing that.

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