How Scalia’s Faith Reshaped the Supreme Court

When Associate Justice Antonin Scalia died in Texas on Saturday, Catholic Father Mike Alcuin in nearby Presidio was summoned to administer last rites.

A devout Italian Catholic and a Ronald Reagan appointee, Scalia was one of the most conservative members of the bench, and he was known not just for his legal mind, but for his Catholic core. Scalia grew up with a devout mother, attended the Jesuit high school Xavier in New York City, was valedictorian at the Jesuit Georgetown University and featured a portrait of St. Thomas More, the martyr and patron saint of lawyers, in his Supreme Court office. One of his nine children, Paul Scalia, is a Catholic priest in the Arlington diocese of northern Virginia.

Scalia’s appointment in 1986 was a turning point in America’s history of Catholic justices. It marked a rare moment in American history when two Catholics would serve on the bench at the same time, since President Andrew Jackson appointed the first Catholic justice, Roger Taney, in 1836. Richard Garnett, a professor of law at Notre Dame, recalls that Scalia was appointed during a time when Catholic justices were so rare that people still talked about there being a designated “Catholic seat” on the bench.

During Scalia’s three-decade tenure, that number has tripled—Catholics are now the bench’s majority. Five others are also Catholic: Justices John Roberts, Samuel Alito, Anthony Kennedy, Sonia Sotomayor and Clarence Thomas. It’s a reality that would have been unthinkable for much of America’s history, especially as the Catholic justices span a range of religious and judicial views. Most memorably this past September, Scalia, along with Thomas and Alito, did not attend Pope Francis’ historic address to Congress, a move that sparked conversation and criticism from many Catholics.

Scalia was no stranger to debate over how he lived as a Catholic and ruled as a justice, especially on matters like abortion and marriage, when his positions aligned with Catholic social doctrine and on the death penalty, where his views diverged. Scalia often made a point of publicly distinguishing between the two parts of his life.

In 2002, Scalia analyzed the morality of the death penalty in an article written for First Things, a journal for religion and public life. Whether the death penalty is morally acceptable is “a matter of great consequence to me,” he wrote. “The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual,” he explained. “I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign.”

Critics at times have argued that Justice Scalia’s Catholicism at times dictated his jurisprudence. “Nothing could be further from the truth,” says Vincent Phillip Muñoz, professor of political science and law at the University of Notre Dame. “His most significant church-state decision, Oregon v. Smith (1990), limited the reach of the First Amendment’s Free Exercise Clause. When criticized by religious conservatives for overturning precedent and narrowing protections for religious freedom, Justice Scalia responded by writing another opinion [in City of Boerne (1997)] supporting his original decision with even more evidence from the founders to support his decision.”

“A big part of his legacy will be how navigated the relationship between one’s deeply held faith commitments and one’s role as a judge,” Garnett, of Notre Dame, says. “For him, the way to navigate that relationship, it was not to compromise one’s religious faith or water it down, it was to distinguish between the legal questions the judge has the power to answer and the religious commitments that a judge has the right to hold, just like all of us do.”

That meant he often earned respect of Catholics, and other religious leaders, even if they did not share his beliefs. “Justice Scalia was a brilliant man, a hardworking jurist, a passionate advocate for this ideals, a distinguished product of Jesuit education and, most importantly, a faithful Catholic,” says Fr. James Martin, SJ, editor at large of America Magazine. “I seldom agreed with his decisions and opinions, but respected his intellect and industry, and pray that he rests in peace.”

“From his stalwart support of religious belief and practice to his fiery dissent from LGBT equality cases, Justice Scalia did more to define the contours of religious freedom in the United States than perhaps any other leader in recent memory,” Rabbi Jack Moline, executive director of Interfaith Alliance, said in a statement. “While we may not have always shared his vision of the First Amendment, we honor and commemorate his contribution to the work to safeguard our first freedom.”