Supreme Court Justice Antonin Scalia has never passed up the opportunity in abortion cases to remind his colleagues that the 1973 Roe v. Wade
decision continues to divide America. In a 2000 dissenting opinion, he chided such centrist conservatives as Sandra Day O'Connor and Anthony Kennedy for earlier predicting a truce of sorts in the abortion wars.
"While I am in an I-told-you-so-mood," he wrote in Stenberg v. Carhart
, "I must recall my bemusement ... at the ... expressed belief that Roe v. Wade
had 'called the contending sides of the national controversy to end their national division' ... and that the decision in [the 1992 Planned Parenthood of Southeastern Pennsylvania v.
would ratify that happy truce."
For more than two decades, Scalia has stood out among even his most conservative colleagues in angry opposition to abortion rights. As the abortion debate now clouds negotiations over federal health care legislation, it is plain that – irrespective of how far to the right Scalia has been on the substance of the abortion dilemma – he has been dead right about the enduring controversy.
Further, with the U.S. Conference of Catholic Bishops' pressing for a ban on any abortion financing in the health care legislation, Scalia, a Roman Catholic, brings to the fore the salient question of how religion influences one's view of abortion.
At the Supreme Court, where there are now six Catholic justices, that question is increasingly in the air, yet has swirled most around Scalia. When he joined the Supreme Court in 1986, six Roman Catholic justices already had served over the years, beginning with Chief Justice Roger Taney in 1836. The Catholic William Brennan was still on the bench when Scalia was named, and several other Catholics have served since. The Catholics with Scalia among the current nine are Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor.
Yet, more than any of them, Scalia, who was raised in a strict Catholic home, then attended a Jesuit high school and the Jesuit Georgetown University, has been identified as a Catholic justice. Scalia publicly presents himself this way, and the news media have reinforced the importance of Catholicism to his life and his sense of himself. During an interview last year on CBS' "60 Minutes," Scalia was asked about the fact that he and his wife have nine children. "We didn't set out to have nine children," Scalia said. "We're just old-fashioned Catholics, playing what used to be known as 'Vatican roulette.'" In a more serious vein, Scalia has spoken publicly about the importance of fidelity to the Church's traditional values, such as saying the Rosary and observance of all holy days.
What makes all this relevant in the abortion debate is that as Scalia is passionate about his religion, he is also passionately against the notion that the Constitution contains a right to abortion. From everything he says these are separate, parallel passions. "I am always reading a text and trying to give it the fairest interpretation possible. That's all I do," he says. "I have religious views on the subject. But they have nothing whatsoever to do with my job."
While Scalia rejects the notion that his Catholicism directs his rulings, he does acknowledge that, like his religion, his insistence on the wrongness of Roe stirs his deepest emotions. "Roe v. Wade was a lie," he says. "It still tears society apart and becomes a national political issue." Scalia insists that because the right to abortion was delivered up by appointed justices of the Supreme Court, rather than elected officials in the legislative process, it will never be considered publicly legitimate. (That assertion is undercut by the fact that a majority of people polled have long said women should have a right to abortion under at least some circumstances.)
There is no ignoring that Scalia's strongly stated religious views are in sync with his opposition to abortion. And the connection between these two emphases has long preoccupied Court observers and become part of the political debate. Some lawyers express discomfort at the suggestion that either Scalia is disingenuous about how his beliefs influence him on abortion or that serious Catholics could not think nonreligiously about legal matters. Yet other lawyers, pointing up the magnitude of the abortion question in American life, speak bluntly about Scalia's views.
One such critic is University of Chicago law professor Geoffrey Stone, who says he believes Scalia's Catholicism affects his anti-abortion-rights vote. Stone found it significant that the five justices, including Scalia, who voted in 2007 to uphold a federal ban on the abortion procedure known by critics as "partial birth," happened to be Catholics.
"Scalia is, of course, right that his general view about abortion is consistent with his larger judicial philosophy. Roe v. Wade is not defensible from the standpoint of an originalist," Stone told me in an interview, referring to Scalia's philosophy that the Constitution should be interpreted according to the understandings of its original Eighteenth century drafters. "But what made the [2007 Gonzales v.] Carhart case noteworthy was that the governing precedent was so clear. What caught my interest was that in a situation in which any open-minded and responsible judge would simply have gritted his teeth and followed the precedent, these five justices simply couldn't bring themselves to do so. Instead, they felt impelled to write a patently disingenuous opinion to avoid following a recent and clearly controlling decision. [Stone was referring to the 2000 Stenberg v. Carhart decision striking down state "partial birth" bans.] This wasn't the product of a conservative judicial philosophy. It was the product of something more powerful. The only plausible explanation for their behavior was that they had a deep moral revulsion to following the law in this case."
Testing the religious, political or other non-judicial inclinations of a judge is not easy. The nature of the process dictates that a justice's reasons for a vote are explained through law, through precedent, through reference to statutes and the Constitution.
It is true that irrespective of Scalia's Catholicism, his conservative approach to the Constitution would likely dictate his opposition to abortion rights. Yet it is also true, as Scalia has told me, that one of the lasting lessons he has carried from his years of Catholic education is, "Do not ... separate your religious life from your intellectual life. They're not separate."
Joan Biskupic is the author of American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, published this month by Sarah Crichton Books/ Farrar, Straus and Giroux, and from which parts of this essay were adapted.