October 7, 2013 | 8:27 am
Posted by Brad A. Greenberg
Maybe it's because my twitter feed is filled with religion writers, law geeks and policy wonks, but it's seems like everyone this morning is talking about Justice Antonin Scalia's interview with Jennifer Senior of New York magazine. Responses have been varied and have focused on different aspects of the long and wideranging interview (from TV shows he enjoys to his judicial legacy).
Senior's intro labels Scalia "either a demigod on stilts or a menace to democracy, depending on which side of the aisle they sit." That seems like serious hyperbole, but Scalia definitely is iconic and polarizing. Indeed, even sitting down for this Q&A was quite unusual for a sitting Supreme Court justice.
His dissenting opinions have become increasingly critical of the majority in recent terms and, as Senior notes, he was probably the first justice to ever use the phrase "argle-bargle" in dissent. To be sure, though, Scalia's opinions never lack for penetrating prose. He may even be mainstreaming argle-bargle, which had never appeared in a published opinion from a federal judge (let alone justice) but has appeared in two since Scalia's used the phrase. (U.S. Commodity Futures Trading Com'n v. Reisinger (N.D. Ill. July 18, 2013); Foshan Nanhai Jiujiang Quan Li Spring Hardware Factory v. United States (U.S. Ct. Int'l Trade July 1, 2013)).
Here's an exemplary part of their conversation:
What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.
A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”
If there’s a reasonable basis for not letting women do something—like going into combat or whatnot ...
Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.
But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.
There is a lot of great stuff in that back and forth alone. But what I want to focus on is a theme that runs across Senior's conversation with Scalia. It's something I spent two years writing about when I contributed to GetReligion: The media has a very poor understanding of religion.
An example for the Scalia interview:
You believe in heaven and hell?
Oh, of course I do. Don’t you believe in heaven and hell?
Does that mean I’m not going?
[Laughing.] Unfortunately not!
Wait, to heaven or hell?
It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.
But you don’t have to be a Catholic to get into heaven? Or believe in it?
Of course not!
Oh. So you don’t know where I’m going. Thank God.
I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?
Can we talk about your drafting process—
[Leans in, stage-whispers.] I even believe in the Devil.
Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.
Now, no reporter can be an expert on every religion. I wouldn't even expect an ace writer on the religion beat (to the extent it still exists, which is sort of myth) to know the name of every religion. But if you're going to interview one of the better-known American Catholics, and especially if you plan on asking questions about how his religious beliefs inform his jurisprudence, you should bone up on the basics.
And that's all this is. The basics. There is no tricky question of dogma in Scalia's statements on heaven and hell and the devil. We could break the misconceptions here down line by line, but I don't want to insult you, good reader.
Even Scalia's statements on Pope Francis ("He's the Vicar of Christ. I don't run down the pope.") and the pontiff's statements that the Catholic Church should focus less on homosexuality and abortion and more on evangelism is solid Catholic doctrine. What made it surprising, and what evinced the liberal leanings of this pope, was that Pope Francis said it at all. The only real unusual thing about the pope's statement was that he questioned "Who am I to judge?"--the same thing Scalia said to Senior about who's getting into heaven and hell.
Don't get me wrong. This is a fascinating interview with tons of valuable nuggets on Scalia's entertainment interests, on his judicial philosophy, on his relationship with his clerks, on his style on the bench, on his suspicion that he has some gay friends. But the nexus between religion and jurisprudence comes up terribly thing--breezy, even--because the conversation gets bogged down on the basics of Catholicism.
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