Wednesday, November 10, 2010

Justice Scalia Is No Sir Thomas More

The St. Thomas More Society of Maryland awarded Supreme Court Justice with its "Man for All Seasons Award", which is "given to members of the legal profession who embody the ideals of St. Thomas More." I can think of few members of the legal profession whose legal philosophy is more opposed to the principles for which More stood.

St. Thomas More resigned when it became clear that his position as Chancellor under King Henry would require him to affirm the jurisdictional authority of the state without the limitation of the Church's own authority. Justice Scalia, on the other hand, said in an interview with the Catholic Reporter, "
I don’t think there’s any such thing as a Catholic judge.... If I genuinely thought the Constitution guaranteed a woman’s right to abortion, I would be on the other way. It would do nothing with my religion. It has to do with my being a lawyer."

When faced with his own career aspirations, St. Thomas More refused to relegate his faith to the private sphere of his life, rejecting the idea that he could be anything but a Catholic chancellor. Justice Scalia, on the other hand, separates his faith from his role as a judge to the point that he would be willing to perpetuate what his faith regards as a manifest injustice (a moral issue that makes King Henry's divorce look small by comparison). Whether or not Justice Scalia's view is correct, he certainly is no Thomas More.


KyCobb said...

Thank goodness he's not a Thomas More. Scalia's job is to be a Justice of the Supreme Court, not a theocrat.

Guy Murdoch said...

It seems to me that Thomas More saw Henry's usurpation of Church authority as much as a disruption of the balance of authority as a moral issue.

If I understand Antonin Scalia correctly, he is simply stating his opposition to the disruption of the balance of authority that occurs when justices usurp the power of the legislature.

Both are standing on a principle that governments need a balance of authority based on established rules and that to subvert that balance or those rules is wrong.

Unless the Church has a teaching on Constitutional interpretation that opposes originalism or you believe that the American system has slipped so far into injustice that extralegal measures are necessary to reform it, I don't see why Scalia deserves your scorn.

Thomas M. Cothran said...

"Balance of authority" is far too vague. Balance of authority between the Church and the State in matters of public governance would be far more accurate. St. Thomas More objected to Henry's attempt to end the Pope's authority over public matters in England. Antonin Scalia refuses -- in his capacity as a judge -- to recognize any authority other than the secular state in public affairs.

Further, Scalia's justification of his secular jurisprudence adopts a form of role-morality: that a person in his public role can be complicit in acts that his religious or moral convictions (relegated to one's "private life") categorically oppose. More, as I pointed out, refused to do this. St. Thomas More refused to separate his "role" as a Catholic in private life with his role as a public official. (Role morality is mostly code for lawyer's justification for acting in ways that are repugnant to their own moral convictions in order to further their careers.)

Scalia's jurisprudence is founded on the rejections of the principles stand that St. Thomas More stood for, and it was his stand on these principles that resulted in his canonization.

Guy said...

So, in regards to role-morality, does Catholic teaching say that a lawyer cannot enter a not guilty plea for someone he knows is guilty without becoming complicit in that person's crime?

Thomas M. Cothran said...

Lawyers don't decide to enter pleas, clients do. If you're asking whether a Catholic lawyer could tell a court that his client is innocent when the client is guilty, the answer is no. But lawyers in general aren't allowed to do that; it violates the ethical codes to make a misrepresentation to a court or fail to correct a misrepresentation that has been made. A lawyer can even get in trouble in most states if he allows his client to testify, the client lies on the stand, and the lawyer fails to take remedial measures.

Guy said...

Wow. So it is a sin for Catholic lawyers to defend people they know are guilty? I find that hard to believe.

Thomas M. Cothran said...


You have failed to understand the comment. Read it again. You seem to be operating under a misunderstanding of the ethical rules governing lawyers.

Lawyers in general are not allowed to make false statements to tribunals (ABA model rule 3.3(a)(1)). If a lawyer knows that his client or a witness on behalf of his client has testified falsely, that lawyer is required to take remedial measures, including, if necessary, telling the court that the client or witness lied (ABA model rule 3.3(a)(1)). Lawyers may, however, require that all the elements of a crime may be established by the prosecution, so long as they don't do things like try to cover up evidence, suborn perjury, etc.

Your view of what Catholics are allowed to do seems to be more permissive than what lawyers have allowed themselves to do. I would hope that Roman Catholics hold their parishioners to a higher standard than the American Bar Association holds lawyers.