Antonin Scalia

Remembering Scalia's Sense of Humor—And When the Court Was WASPy To the Max

Abortion, not religion per se, is the thing people care about most when it comes to the religious views of justices.

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Orange County Register columnist Ron Hart recalls a side of Justice Antonin Scalia that is often overlooked: The guy had a sense of humor.

I was fortunate to meet Scalia on a few occasions. Once I brought a parking ticket and asked if he could look into for me. He said he would have, but he had jury duty that day. No one laughed harder and took himself less seriously. Scalia was likable, authentic, approachable, brilliant and intellectually honest.

Hart also notes two other things regarding Scalia.

First:

Scalia, the justice most hated by the Left, was nominated by President Ronald Reagan and confirmed 98-0 by the Senate in 1986. Can you imagine that today?

And second, the Court is no longer WASPy to the extreme:

When Justice John Paul Stevens left the court at age 89 (he was so old they had to keep reminding him to close his robe), we no longer had a Protestant on the Supreme Court. As a minority, we WASPs will soon be getting into Harvard with 950 SAT scores and qualifying for casino licenses.

More here.

The remaining justices are all either Catholic or Jewish, which is not simply a sea change from generations past but a real stumbling block for folks that believe the Court should reflect the theological diversity of the country. About 50 percent of the country is some form of Protestant Christianity, 20 percent Roman Catholic, and 6 percent everything else. Atheists pull about 3 percent and agnostics another 4 percent (totals don't add up to 100 due to non-responses, says Pew Research).

Even as late as the 1970s, the idea of evangelical protestants and Catholics getting along was a stretch, with fundamentalists opposing figures such as Billy Graham and Jerry Fawell for promiscuous ecumenicism. Many evangelical protestants even held their tongues when Roe v. Wade was issued in 1973. Being anti-abortion was such a bedrock principle of Catholicism, after all, how wrong could it be if you believed protestant theology? As Randall Balmer has written in a must-read story about the "real origins of the Religious Right":

Although a few evangelical voices, including Christianity Today magazine, mildly criticized the ruling, the overwhelming response was silence, even approval. Baptists, in particular, applauded the decision as an appropriate articulation of the division between church and state, between personal morality and state regulation of individual behavior. "Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision," wrote W. Barry Garrett of Baptist Press.

http://www.catholicity.com/commentary/longenecker/04977.html

In fact, says Balmer,

It wasn't until 1979—a full six years after Roe—that evangelical leaders, at the behest of conservative activist Paul Weyrich, seized on abortion not for moral reasons, but as a rallying-cry to deny President Jimmy Carter a second term. 

It's also worth noting that in the immediate passage of Roe v. Wade, abortion was also not clearly a liberal/conservative or Democratic/Republican issue. High-profile Republicans such as Barry Goldwater, Nelson Rockefeller, and Bob Packwood were for it. In 1967, Ronald Reagan legalized "therapeutic abortion" in California, saying it "was a subject I'd never given much thought to." The increase in abortions in California disturbed him and he eventually became firmly anti-abortion, though as Balmer writes, Reagan didn't always foreground that position, even when talking to evangelicals. Raised a Baptist, Jimmy Carter has always been personally opposed to abortion and has even called for the Democratic Party to become more "pro-life." As governor of Georgia and later as president, he says he tried to minimize its incidence while respecting the legality of the procedure post-Roe. Balmer argues that one of the reasons Carter fell out of favor with evangelicals was "his refusal to seek a constitutional amendment outlawing it. That failure "was viewed by politically conservative evangelicals as an unpardonable sin."

Over the past 30 or 40 years, the biggest shift in terms of religion in American life is that the new divide is not among followers of different faiths; it's between religious people and non-religious or secular types. In an American political context—and certainly when it comes to the Supreme Court—that issue reduces down almost completely to abortion and, with the passage of Obamacare's various mandates, arguments over mandates for birth control coverage (should Catholic orders be forced to offer this against their faith?) and types of birth control (Hobby Lobby objected not to birth control per se but to types its owners considered abortifacients).

Since the Religious Right is now firmly anti-abortion, questions about the specific religious beliefs of justices are secondary at best. Both the right and the left, Republicans and Democrats, know the real question is less about whether the Pope is the vicar of Christ on Earth or a covenant of grace not works. It's whether abortion is legally permissible.

Related: "What's The Libertarian Position on Abortion?" Great discussion featuring Reason's Ron Bailey, Katherine Mangu-Ward, and me, plus The Federalist's Mollie Hemingway. Watch below, more details here.

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  1. folks that believe the Court should reflect the theological diversity of the country

    I will take a raving theologian who’s leans Originalist over a full blown Atheist who believes the constitution means whatever they want it to depending on the issue ANY day of the week.

  2. Obama should nominate an anti-abortion Muslim to the Supreme Court. The resulting wave of apoplexy would put a real strain on emergency services for a while, but it would have longer-term benefits to traffic volumes and housing prices.

    1. I would guarantee you that if appointing a Muslim Justice meant overturning Roe v. Wade, the evangelicals would be very happy. Many of them really are single issue voters in that regard.

      There would be a whole lot of apoplexy over such an appointment that is for sure. I would however be Prog feminists having to punch down to save their sacred abortion rights.

      1. “I would guarantee you that if appointing a Muslim Justice meant overturning Roe v. Wade, the evangelicals would be very happy. Many of them really are single issue voters in that regard.”

        LOL, very doubtful. A lot of Evangelicals really, really hate Muslims and they’d be too busy freaking out over a Muslim on the Supreme Court (especially after they were sworn in on the Koran) to even pay attention to what the Muslim actually believes.

        Christian right-wingers were freaking out over some random district judge getting sworn in on the Koran. No way they wouldn’t flip over a Muslim Supreme Court justice.

    2. an anti-abortion Muslim

      If he’s pro-life, then he’s not a very pious Muslim, as sharia is clear in that abortion is allowed until the 4th month, as Islam asserts personhood begins in the 4th month of gestation

      1. Fascinating. Thanks.

        So, muslims are ahead of many christians on this, at least on paper.

        1. I’m not sure if “ahead” is the proper term as they are just sticking to the traditional Abrahamic view (Jewish law says the same thing on the subject as Islamic law). On the other hand, it’s worth noting that the Dharmic religions were anti-Abortion centuries before Yeshua ben Yosef was a twinkle in Mariam bat Chana’s eye.

          Just further evidence that Jesus was actually a Buddhist monk.

          1. Slightly OT (but if Nick can be forgiven for his rambling in this article than what the hell…..)
            It always struck me that part of Muhammed’s schtick was to take Jewish law and put it on steroids.

            –Jews don’t eat “unclean” animals (i.e. treyf), well we can’t even be near them.
            –Jews pray 3 times a day? We do 5 times
            –Jews generally shouldn’t get too drunk (except for Purim, and maybe Simchat Torah), we can’t even drink alcohol AT ALL!
            –Jews face Jerusalem? We face Mecca

            The one exception seems to be over the Sabbath. They don’t seem to have any restrictions on “work” like Judaism does. I am not sure if they even think of Friday as the Sabbath in the same way as Jews do (or even some Christians treat Sunday).

            1. It always struck me that part of Muhammed’s schtick was to take Jewish law and put it on steroids.

              I agree. Especially in the early days of the religion when he was focused on converting Arabian Jews. When most of them told him to go screw, he seemed to focus more on spiritualizing the ‘warrior’s code”, but not in the good Bushido way.

      2. If he’s pro-life, then he’s not a very pious Muslim, as sharia is clear in that abortion is allowed until the 4th month, as Islam asserts personhood begins in the 4th month of gestation

        What’s the current NARAL position on abortion after the 4th month?

  3. Scalia, the justice most hated by the Left, was nominated by President Ronald Reagan and confirmed 98-0 by the Senate in 1986. Can you imagine that today?

    Justice Thomas dissents

    1. As much as the Left hated Scalia, they never subjected him to the kind of demeaning racism that they have subjected Thomas to. They called Scalia evil but they never called him stupid. The left has for years called Thomas stupid, an uncle Tom and made him endure things that no person of any color should have to endure. The things they have said about Thomas for the crime of being conservative and having black skin are truly disgraceful.

  4. Carter personally is anti-abortion.

    Yeh? But to the left hate him for it?

    1. That just means he wouldn’t have an abortion himself. The left is for the moment okay with men saying they wouldn’t have an abortion themselves.

    2. These days you can’t get elected town dogcatcher as a Democrat without stating your life-long commitment to abortion rights.

      1. Abortion on demand at any point during the pregnancy and if necessary funded by the government. A commitment to anything short of that means you are out of the hive. But its the Republicans who are single issue fanatics on the subject.

    3. It’s actually a fairly common position. Personally against it, wouldn’t do it, but not going to stop anyone else from doing it.

      So no. They don’t hate him for it. Because it’s a personal choice, and the government shouldn’t be meddling.

    4. It’s actually a fairly common position. Personally against it, wouldn’t do it, but not going to stop anyone else from doing it.

      So no. They don’t hate him for it. Because it’s a personal choice, and the government shouldn’t be meddling.

      1. Can you give me an example of someone who wants slavery to be legal but is “personally opposed” to it?

        1. “Stop telling me what to do with my property—err, I mean, my body!!”

  5. Speaking of Scalia, Linda Greenhouse has a piece at the NYT which is possibly the most completely unselfaware thing I have ever read.

    Don’t forget to check out the comments. I am now convinced Scalia committed suicide because an international tribunal was closing in on him for his crimes against humanity.

    1. Linda Greenhouse is one of the most incompetent writers at NYT. Stupid and arrogant.

  6. “The remaining justices are all either Catholic or Jewish, which is not simply a sea change from generations past but a real stumbling block for folks that believe the Court should reflect the theological diversity of the country.”

    Why would this be in any way relevant?

    “It wasn’t until 1979?a full six years after Roe?that evangelical leaders, at the behest of conservative activist Paul Weyrich, seized on abortion not for moral reasons, but as a rallying-cry to deny President Jimmy Carter a second term. ”

    There is no way you could possibly know that the reason Evangelicals turned against abortion was to attack Carter, rather than because of moral objections. I’m reading the Politico article, and strangely enough the writer does not provide a single quote from any Evangelical leader substantiating this allegation. He just says it, but offers no actual evidence that it’s true – almost like he’s just writing a hit piece and doesn’t much care to provide any evidence of his assertions.

    How can he possibly know that the Evangelicals criticizing abortion in 1979 weren’t sincere when they’re a completely different group of Evangelicals than the ones who were okay with the decision in 1973? All this proves is that there was a difference of opinion among Evangelicals at the time, not that the critics of the decision were doing it purely as a political calculation.

    1. Also, how could you seize on abortion to deny Carter a second term unless there were already Evangelicals morally opposed to abortion? If Evangelicals weren’t against abortion already, then how could you possibly attack Carter for being pro-abortion and expect that to matter to people who aren’t even pro-life?

      I’m skeptical of the history I’m getting from this guy.

      1. I like the ‘a full six years after Roe’. Like 5 minutes after Roe the entire Evangelical community was supposed to have a committed and organized opposition to abortion with a clear plan moving forward.

  7. He just says it, but offers no actual evidence that it’s true

    Don’t be such a niggler.

  8. Has Nick been reading James Joyce again? The stream of consciousness in this article is something to behold. Scalia has a sense of humor, to no protestants on SCOTUS, to the entire history of the American Religious Right to abortion is the only thing evangelicals care about.

    Jane, get me off this crazy thing!!

  9. Scalia, the justice most hated by the Left, was nominated by President Ronald Reagan and confirmed 98-0 by the Senate in 1986. Can you imagine that today?

    Nope. I don’t want to get all ‘this is when America worked’ on everyone, but they tended to look at a judges legalistic bona fides an a slightly more dispassionate way back then. There’s no question that Scalia was a towering intellect with a serious legal mind, therefore fit for the court.

    1. The reason they gave Scalia a pass is they’d just gotten through a bruising confirmation hearing for Rehnquist for CJ.

      Then there was Bork.

      1. Bork is what changed everything. Hell, I remember a guy on NPR lamenting “We started it with Bork” in response to the whining that was going on with a Clinton appointee.

        1. It started with John Rutledge:

          “By the time of his formal nomination to the Court on December 10, 1795, Rutledge’s reputation was in tatters and support for his nomination had faded. Rumors of mental illness and alcohol abuse swirled around him, concocted largely by the Federalist press. His words and actions in response to the Jay Treaty were used as evidence of his continued mental decline. The Senate rejected his appointment on December 15, 1795 by a vote of 14?10. This was the first time that the Senate had rejected a presidential recess appointment. Of the 15 recess appointments to the Supreme Court, it remains the only one to be rejected…”

          1. Meh. As a regular practice, Bork. That’s why it’s now referred to as “Borking”.

            Rumors of mental illness and alcohol abuse swirled around him, concocted largely by the Federalist press.

            Funny, as I’ve pointed out before, this country was run by high-functioning drunks in 1795.

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