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Little Moral Gems
From Antonin Scalia


Jerome Doolittle

Supreme Court Justice Antonin Scalia is of the opinion that any Catholic federal judge should resign if he agrees with the Pope that the death penalty is immoral.

The Catholic justice handed down his opinion at a forum in Chicago, and repeated it later in Washington. His Chicago explication was the more complete of the two:

“...the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.”

Mr. Scalia was editor of the Harvard Law Review and served in President Nixon’s Justice Department. No doubt we could all do worse than to take moral instruction from him.

But let’s try anyway.

I take the justice to mean that any official who is torn between his religion and his secular duties should resign from those secular duties unless he feels, as Justice Scalia himself does in the matter of the death penalty, that the Pope happens to be full of it on this particular point. Then the official should follow the devices and desires of his own heart.

President Nixon, for example, used to be attacked for betraying the pacifist tenets of his Quaker faith by dragging out the Vietnam War until he could be reelected. Playing under Scalia rules he should have resigned instead, turning the whole mess over to Spiro Agnew. Or should he?

White House tapes that have since become available show clearly that Mr. Nixon believed William Penn to have been totally out to lunch on the whole pacifist thing. Knowing this, we can now see that Mr. Nixon was in fact taking the moral high road. The easy thing to do would have been to end the war right away, which is what he had promised to do in his 1968 campaign. But it wouldn’t have been right. Besides, he never actually came right out and said which election.

Now it is true that Mr. Nixon was merely a president, and Justice Scalia addressed his moral instruction to federal judges. But presidents, prosecutors, and even attorneys are also judges in their humble way.

John Ashcroft, for instance, is just as much a servant of the great corpus of the law as Justice Scalia is. After all, what is prosecutorial discretion but an exercise of judgment? And so Mr. Ashcroft, too, falls within the purview of the Scalia dictum.

At first glance this would appear to be bad news for the attorney general. Let us pick just one from the many moral issues on which he disagrees with the body of law he swore to uphold. Let us pick abortion.

The Pentecostal Church and Mr. Ashcroft agree that abortion is an abomination in the eyes of the Lord, and yet it remains inconveniently legal. We would hardly want Mr. Ashcroft to slither around sabotaging the law like some bleeding-heart Catholic judge who opposes the death penalty. Just as that judge should resign as a matter of personal and public morality, so too should Mr. Ashcroft. Justice Scalia is very strict on that point.

But fortunately there is an exception to the harsh Scalia doctrine which will spare both the attorney general’s moral sensibilities and his job.

Justice Scalia has not spelled out that exception clearly in public fora, as he has done with the death penalty. He has instead presented it to us in parable form, a parable not told in words but acted out before our eyes. Here it is:

Article 1 of our Enduring Constitution, as Justice Scalia enjoys referring to the Grand Old Document, requires that “the Times, Places and Manner of holding Elections...shall be prescribed in each State by the Legislature thereof.”

Not long ago an election was held in Florida, a state. The U.S. Supreme Court came to hear of this election, and to perceive that the application of state law to it might very well send a Democrat to the White House.

What Would the Justice Do? Resign from the court? Or would it be better just this once simply to ignore his beloved Constitution and sabotage states’ rights? Well, after all, why not? A foolish consistency is the hobgoblin of little minds, not of Harvard Law Review editors.

Mr. Scalia turned his moral nature loose from its customary close confinement and forced himself to do what was merely right, no matter if it was unconstitutional. Reluctantly, nobly, he voted Republican.

John Ashcroft himself could hardly do less. Nor has he.

March, 2002


Copyright © 2004 by Jerome Doolittle