Conrad Black’s Messy Attack on Scalia

Conrad Black has written one of the most rambling and fairly incoherent things I’ve ever seen in quite some time.  I’m not quite sure what his overall point is, but he ends up attacking Antonin Scalia  of all people.

But some are, including Justice Antonin Scalia, who, as Maureen Dowd wrote in the New York Times on October 2, has attacked the complainant in a civil suit to stop the banning of co-ed dormitories at the Catholic University of America in Washington, D.C. As Ms. Dowd pointed out, Justice Scalia has not hesitated prior to this to volunteer publicly either his solidarity with his Church militant, or his dissent from it. But in the case of the Roman Catholic Church’s long-held and oft-expressed (by four recent popes) hostility to the death penalty, Justice Scalia recently told Duquesne University in Pittsburgh that if he thought “that Catholic doctrine held the death penalty to be immoral, I would resign.” Since he could not possibly be unaware of the views of the Holy See over the past 50 years (John Paul I was the only pope in that time who did not reign long enough to opine on the subject), nor of the authority of the pope to speak on such matters for the whole Church, it is not clear why he is not delivering his letter of resignation to the president instead of sticking his nose into the dormitory rules in one of the national capital’s universities.

To move the inquiry that Ms. Dowd usefully started to entirely secular matters, there could be searching questions about why the Supreme Court has sat like a great suet pudding for decades while the Bill of Rights has been raped by the prosecution service with the connivance of the legislators, a tri-branch travesty against the civil rights of the whole population, but I will spare readers another dilation on that subject. However, Justice Scalia’s preoccupation with the dormitories of the Catholic University of America (a matter that is now, to the Justice’s chagrin, sub judice), is, in the circumstances and to say the least, bizarre.

Leaving that aside, the report card on the co-equal branches is not uplifting: The legislators and the executive wimped out on abortion and immigration. The beehive of conscientious jurists on the Supreme Court applied a completely amoral test to get to a defensible conclusion on abortion when it was dumped by default on them to determine. And its most vocal current Roman Catholic member, swaddling himself in his faith, upholds the death penalty in contradiction to the popes, holds in pectore his views on abortion (which is not now before the high court, though not for absence of petitions), and thunders fire and brimstone about coeducational university dormitories, which is not, I think, a subject that the See of Peter has addressed.

This is just bizarre.  From relying on Maureen Dowd as a source of criticism of Scalia’s Catholicism, to his complete non sequiter about Scalia’s involvement in the CUA suit, to Black completely misconstruing Church teaching on the death penalty; this turned into an unholy mess of an article that already has no clear thesis.

I was all set to write a response, but Shannen Coffin has already done so masterfully.   I’d be violating fair use to copy and paste the whole thing, but you must read the whole thing.  But here are the key passages:

Black accuses Scalia of holding his views on the legality of abortion “in pectore.” (I looked it up, and it apparently means that he hasn’t publicly revealed them.) Say what? In the Court’s most recent foray into abortion “jurisprudence,” Justice Scalia, to no one’s surprise, voted with the majority in Carhart v. Gonzales, which upheld the federal ban on partial-birth abortion. Scalia joined in Justice Thomas’s separate concurrence, which stated bluntly that ”the Court’s abortion jurisprudence, including Casey and Roe v. Wade . . . has no basis in the Constitution.” So Scalia can hardly be faulted for taking his eye off of the ball or remaining silent in Carhart or any number of other opinions (like Casey) where he has laughed at the notion that the constitution protects the right of a person to abort an unborn child. That the Court hasn’t taken any more cases sinch Carhart simply speaks to the unchanging vote calculus at the Court, where Anthony M. Kennedy remains a Roe defender and deprives Scalia of a majority on the core question of the “fundamental right” to an abortion. If Black had a different point in castigating Scalia on abortion, I am simply not up on my Latin phrases enough to understand it.

Black, citing the stalwart Catholic theologian Maureen Dowd, then turns to the death penalty, and like Ms. Dowd and similar mainstream arbiters of Catholic doctrine, gets more caught up in the unofficial normative policy statements of bishops, Vatican press secretaries, and even popes than on the official teaching of the Church. To be clear, that teaching is that the death penalty is not inherently evil, like abortion. You simply cannot equate the two, as Black seeks to do here. (I’m aware that Black may be sensitive to penological issues from his current perch, so will cut him some slack.)

We’ve been down this road a number of times before, but John Paul II’s encyclical Evangelium Vitae clearly contemplates the death penalty as a legitimate state response to “redress the disorder caused by” a violent offense. It may not be the preferred one in most circumstances, but it is legitimate. “Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.”

Indeed.