The following comes from a Sept. 8 review in the New Republic of the biography, Scalia: A Court of One by Bruce Allen Murphy published by Simon and Shuster.
On no topic, however, is Murphy’s treatment more objectionable than his fixation on Scalia’s Catholicism. Early in his book Murphy asserts that, alongside enjoying a good argument, Scalia’s central trait—one “that defined him at every stage in his life”—is “his unwaver ing adherence to the traditional Roman Catholic faith he had learned from his Italian American parents during his childhood.” Murphy then proceeds to advance this argument with fanatical, one might even say religious, fervor. Indeed, relying only on this biography, readers might be forgiven for concluding that Scalia is primarily a religious figure who manages to squeeze in a little legal studying on the side.
Murphy’s religious preoccupations are most apparent in his salacious treatment of Scalia’s relationship with Opus Dei, a small institution dedicated to observing a devout form of Catholicism. In the popular imagination, that institution is best known for its depiction in The Da Vinci Code as a bizarre group of conspirators. Murphy blithely repeats rumors asserting Scalia belongs to Opus Dei, whose membership ranks are not public, and then portrays the organization in extremely negative terms. Murphy quotes a writer he identifies as a “critic” of Opus Dei contending that among the organization’s “main tenets are that God is an authoritarian and, therefore, Opus Dei adherents support dictatorial societies … and that God created a natural order of life in which the rich are rich and the poor are poor—and the divine order of inequality shouldn’t be disrupted.” After echoing these criticisms, Murphy does not do readers the service of informing them whether the critic’s claims are accurate….
So the question becomes: how extensive is Justice Scalia’s association with Opus Dei? Evidently, according to Murphy’s own sources, there is no association at all. Not that Murphy himself is quite so unequivocal on the point. He writes that, although Scalia’s detractors have asserted that he belongs to Opus Dei, the strongest source on this subject could not establish such a linkage: “The best authority on this question, John L. Allen, Jr., who relied on his extensive Vatican contacts to uncover the worldwide lists of Opus Dei members, was unable to link Scalia to the organization’s membership.”
But Allen, who has written what Murphy labels “the definitive book” on Opus Dei, went much further on this question than Murphy allows. Allen did not merely indicate that he failed to discover Scalia’s membership in the institution; instead Allen affirmatively indicates he discovered that Scalia did not belong to the institution. “While Opus Dei spokespersons will not comment on the record about whether a given individual is a member, they are often willing to do so off the record, especially when it’s a high-profile person,” Allen wrote. “For example, I had no trouble establishing that, media reports to the contrary, neither former FBI director Louis Freeh nor U.S. Supreme Court Justice Antonin Scalia is a member of Opus Dei.” Allen made that determination nine years ago, and Murphy produces no evidence to suggest anything has changed. Ultimately, Murphy declares that determining whether Scalia is technically a member of Opus Dei is immaterial to his argument: “Whether Scalia was a member of Opus Dei or not is beside the question, for his conservative religious views, his textualism and originalism legal theories, together with his judicial decisions and his public speeches, were all perfectly in harmony with it.” This tactic’s impudence is enough to make practitioners of guilt by association blush with embarrassment.
Incredibly, Murphy proceeds to contend not merely that Scalia’s judicial opinions are compatible with the principles of Opus Dei, but that his preferred interpretative techniques can be viewed as devices for transforming his religious doctrine into legal doctrine. Murphy sets the stage for this claim by drawing parallels between “religious leaders and originalist judges,” both of whom offer interpretations by “adopting a similar authoritarian relationship to the parishioners and lawyers before them, wrapped in their own sense of certainty.” And, then, in a truly astonishing passage, Murphy writes: “In sum, pre–Vatican II Catholicism and legal originalism/textualism are so parallel in their analytical approach that by using his originalism theory Scalia could accomplish as a judge all that his religion commanded without ever having to acknowledge using his faith in doing so.” Suggesting that Justice Scalia is using his seat on the Supreme Court to promote Catholic teachings is an unusually aggressive move. Regrettably for Murphy, the claim does not withstand much scrutiny even in the highly inflammatory context in which he lodges it.
In a chapter called “Opus Scotus,” Murphy suggests that Scalia answers to Catholicism’s command in his discussion of Gonzales v. Carhart, where in 2007 Scalia joined a bare five-justice majority in upholding the Partial-Birth Abortion Ban Act. Carhart dramatically undermined a Court precedent that had recently invalidated a similar statute. That all five justices in the majority were Catholic, and that the four dissenting justices were either Jewish or Protestant, may make it seem inescapable that Scalia’s vote in Carhart simply implemented the Vatican’s dictate.
But such a reading appears misguided. In order to understand why this is so, it is necessary to juxtapose Justice Scalia’s constitutional view on abortion with the view of a hypothetical justice dedicated to ensuring that constitutional law reflected Catholic doctrine as closely as possible. Although Scalia has consistently called for Roe v. Wade to be overturned, he does not contend that the Constitution prohibits legislators from enacting measures protecting women’s reproductive autonomy. Instead Scalia maintains that the Constitution says nothing about abortion whatsoever. “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so,” Scalia wrote in Planned Parenthood of SoutheasternPennsylvania v. Casey in 1992. “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” In another opinion, Scalia wrote that the Court had no business “volunteering a judicial answer to the nonjusticiable question of when human life begins.”
….These deficiencies in Murphy’s approach may seem glaringly obvious, but his book has received a surprisingly warm reception in some estimable quarters. At least one reviewer has even showered praise on Murphy for his brave, penetrating insights into Scalia’s religion. Writing in The Atlantic, Dahlia Lithwick commended Murphy as “a timely and unintimidated biographer” who “refuses to be daunted by the silence that surrounds most discussions about religion and the Court.” In Lithwick’s view, “Murphy’s conclusion—at once obvious and subversive—is that Justice Scalia is very much a product of his deeply held Catholic faith.” Failure to acknowledge the ample flaws in Murphy’s treatment of religion is a dereliction. But celebrating the biography for its bold willingness to speak truth to power is perverse….
To read the entire review, click here.