“ There is no such thing as a Catholic Judge… The bottom line is that the Catholic faith (has)… little effect on my work as a judge .” — Justice Antonin Scalia at the Villanova Law School conference, 2007.
The passing away last Saturday of U.S. Supreme Court Judge Antonin Scalia, at 79, has left the world of jurisprudence poorer. It has lost a unique personality who combined the qualities of hard work and phenomenal erudition with a remarkable understanding of the harsh realities of the practical world. He was a conservative to the core, a worshipper at the altar of Alexander Hamilton, a leading staff member of George Washington, and, perhaps, one of the most incisive interpreters of the U.S. Constitution.
Ironically, Scalia was both unconventional and occasionally flippant in his interactions with colleagues and those who looked at him in awe and admiration. He refused to be bogged down by the sensitivities of a high office that he held with great distinction for nearly three decades. His appointment to the highest court of the land by U.S. President Ronald Reagan was logical, considering his Harvard background, and the kind of succour that he gave to White House during the last tense moments of the Nixon Presidency, something which won him many friends at the Oval Office. After a stint as Chairman of the Administrative Conference of the U.S. (which researched and recommended administrative procedures), Scalia was appointed Assistant Attorney General in the wake of Watergate. It was at this time that he got the President out of trouble, when the latter was subpoenaed to produce all his papers and secret tapes. Scalia gave the controversial opinion that these articles were the President’s personal property and were not negotiable. This may not have endeared him to the Democrats, but it certainly came to the rescue of a beleaguered President. Abandoning private practice and a prestigious professorship at the University of Virginia, Scalia was in a way assiduously playing for high stakes.
After he was appointed federal judge in the Court of Appeals in 1982, his nomination to the highest court by President Reagan in 1986 did not come as a surprise. No one disputed his eminence, but a few eyebrows were raised over his strong Catholic beliefs. Right through his career he maintained that there was no conflict between his duties and what was ordained by his upbringing in an ambience soaked in Catholicism.
A different Court The U.S. Supreme Court is a peculiar institution that is always critically scrutinised for its internal divisions and intrigues. The most common break-up of the nine judges on its Bench is on the lines of their perceived belief in conservatism and its antithesis of liberalism. Until Scalia’s unexpected passing away, Chief Justice John Roberts headed the five-member conservative faction. Scalia was the leading light of the group. Labelled the “Originalist”, he stood for the text and words of the Constitution in terms of what they meant when they were written and not as we interpret them today to suit our own beliefs and predilections. At the same time he displayed a refreshingly positive approach to government and federalism. He would nevertheless not endorse same-sex marriages and the right to abortion except under extremely special circumstances. The pro-gun lobby was ecstatic when he interpreted the Second Amendment as a vindication of the individual’s right to own a gun. He was also an uncompromising supporter of the death penalty. “I do not find the death penalty immoral. I am happy to have reached that conclusion,” he said. What was most heartening to human rights activists was his categorical stand that criminal law should not spring surprises on the offender. If they did, the benefit would go to the defendant. He was against unreasonable searches of homes and restrictions on the defendant’s right to cross-examine witnesses.
However, his voice did not always prevail. As a compromise his frequent dissent received ample public notice. This was what he wanted as it satisfied his undisputed ego. To this purpose he spoke extensively during court hearings, almost as much as an attorney did. His humour during such sessions was exhilarating, winning him friends even in the opposite camp. He was passed over for the chief justiceship when President George W. Bush nominated John Roberts Jr. to succeed William Rehnquist. This transformed a peeved Justice Scalia into a more visible public figure through his extensive lectures across the nation, sometimes at the most inconsequential centres.
My friend Louis J. Freeh, former Federal Bureau of Investigation (FBI) Director, refers to Justice Scalia as “a devoted legal scholar, gifted writer and a proud Italian-American”. Mr. Freeh adds that Scalia believed strongly that an individual’s human rights trumped the government’s attempt to “unfairly constrain” them. According to another friend, Chief Judge Eugene Sullivan, formerly of a Federal Court of Appeals, who worked under Scalia, he was a man of many parts, with his focus on work and principles, as well as the Catholic faith.
Original thinking
Justice Scalia will long be remembered for his original thinking on many a criminal justice issue. He made a conscious effort to ensure that his conservatism did not become synonymous with an archaic faith in everything that had stood the test of time. He was willing to adapt, provided there was no distortion of the original script that governed the dispensation of justice. He sometimes spoke vehemently and often harshly. In all that there was no malice or pride. His was an example of how one could fuse taxing professionalism and a concern for family values.
(R.K. Raghavan, a former Director of the CBI, is a graduate in criminal justice from Temple University, Philadelphia, and a former Visiting Library Fellow at Harvard Law School.)
