Without even allowing grass to grow over the grave of the great Catholic Supreme Court justice Antonin Scalia, who died on February 13, the Jesuit flagship America Magazine has devoted a front-page article to trashing the justice’s legal theory in an effort to legitimize judicial activism.
The blunt instrument chosen by the magazine to do its dirty work was conveniently not a Jesuit but a Dominican friar named Anthony Giambrone, who contrasts Scalia’s legal theory with that of the medieval scholar and saint, Thomas Aquinas.
Giambrone claims that Scalia’s originalist approach to Constitutional law—which insisted on respecting the original and manifest intent of the writers of the Constitution rather than what modern interpreters think they should have said—stands in sharp contrast to Aquinas’ theory of law, which left room for disregarding “poorly written laws” in favor of natural law principles.
Scalia would have agreed that to be an originalist one must believe in the basic integrity and goodness of the law in question, and the justice did indeed believe in the U.S. Constitution as a document worthy of defense and, indeed, veneration. Above all, he advocated judicial restraint, a specific application of the Christian virtue of humility so often lacking among those commissioned to judge according to the law.
Americans have a legislature entrusted with the enactment of law, Scalia often reminded his hearers, and a judiciary commended with the task of interpreting the laws as they apply to particular circumstances. For a political system to function where the powers of government are thus divided, this division must be respected.
Whatever the author’s intent, his rambling essay, titled “Scalia v. Aquinas,” plays into a thinly veiled attempt to somehow legitimate the judicial activism that has been at the core of the worst decisions ever handed down by the United States Supreme Court, from Roe v. Wade to Obergefell v. Hodges.
While this dovetails nicely with the project of the Jesuits at America Magazine, it should deeply concern conservative Americans who care about the future of the Court.
Along with the utter crassness of trying to undermine the legacy of a great Catholic jurist while people are still mourning his passing, the essay proposes the worst possible formula for enabling the Court to accomplish the purpose for which it is constituted.
It is moreover ridiculous in the extreme to enlist the testimony of Thomas Aquinas to propose that U.S. justices should impose their own vision of social organization on the country’s most foundational document and its application to real-world situations and laws, a proposal that the angelic doctor would have found appalling.
With an unworthy and backhanded compliment, Giambrone expresses his hope that another “good man” like Scalia may be found to fill his chair on the Supreme Court, as long as he is unburdened with Scalia’s “problematic theory.”
For if you take away Scalia’s deep reverence for the Constitution as it was written and intended, and his respect for the critical but limited role that justices are called to play, all you are left with is another judicial activist legislating according to his best lights without a mandate to do so.
Follow Thomas D. Williams on Twitter Follow @tdwilliamsrome