Scalia’s Faith-Based Judging

Scalia’s Faith-Based Judging November 9, 2011

Daniel Fincke has an interesting post at Camels With Hammers about Justice Scalia and his use of faith-based arguments in favor of the death penalty — all the more interesting given his recent statements about the death penalty and the Catholic Church. This is from an opinion written in 2002 by Scalia in a death penalty case:

“So it is no accident, I think, that the modern view that the death penalty is immoral has centered in the West. That has little to do with the fact that the West has a Christian tradition and everything to do with the fact that the West is the domain of democracy. Indeed, it seems to me that the more Christian a country is, the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe and has least support in the church-going United States. I attribute that to the fact that for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal, a grave sin which causes one to lose his soul, but losing this physical life in exchange for the next – the Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cramner asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to him.”

For the non-believer, on the other hand, to deprive a man of his life is to end his existence – what a horrible act. And besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will, the ability of man to resist temptations to evil is central to the Christian doctrine of salvation and damnation, heaven and hell. The post-Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.”

And Fincke reacts to it:

While I think there are rational reasons that could be marshaled for and against the death penalty, I find it really disturbing that a Supreme Court Justice who favors the death penalty is essentially implying that he only does so because of his baseless religious belief in an afterlife. This is a clear and consequential case of a powerful man admitting that he thinks human life can be taken and it is essentially no big deal in the grand scheme of things because we are actually immortal. Of course we are not allowed to kill the innocent—but, heck, even if we screw up and kill some of them by accident, what’s the big deal here really?

To be clear, this is a religious metaphysics (which says we are immortal) that flies in the face of what our eyes tell us (that we are mortal) determining the law of the land, insofar as Scalia’s views of the death penalty (and who knows who else’s—Thomas’s? Alito’s? Roberts’s?) are based on a faith belief that has no independent, secularly defensible evidence.

A few weeks ago, you may recall, Scalia declared that he would resign as a judge if he thought the death penalty was inconsistent with Catholic doctrine — which it is, of course. So not only does Scalia rely on religious arguments to support his judicial opinions, he also conveniently ignores them when necessary, even while pretending not to do so.

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