Man Bites Dog:
It's not every day that a Supreme Court Justice writes a review of a law professor's work. Given that, check out Justice Scalia's book review of Steven Smith's new book Law's Quandary. Its conclusion:
As one reaches the end of the book, after reading Vining’s just-short-of-theological imaginings followed by Smith’s acknowledgment of "richer realities and greater powers in the universe,” he (she?) is sorely tempted to leap up and cry out, “Say it, man! Say it! Say the G-word! G-G-G-G-God!" Surely even academics can accept, as a hypothetical author, a hypothetical God! Textualists, being content with a "modest" judicial role, do not have to call in the Almighty to eliminate their philosophical confusion. But Smith may be right that a more ambitious judicial approach demands what might be called a deus ex hypothesi.Thanks to Howard (who else?) for the link.
Put differently, if I were writing a fake "Scalia blog" like the "Miers blog," my "parody" probably would involve Scalia having a hissy fit, and somehow invoking an out-of-place reference to "textualists," whenever others didn't cite God enough.
http://en.wikipedia.org/wiki/Sharia
Justin Heminger
Lead Articles Editor
Catholic University Law Review
"Finding God in Work and Daily Life"
Scalia is at risk of crossing the line from zealously defending the right to mention God in public into different territory -- actually seeming offended when people don't see an obligation to mention God as much as Scalia himself would.
and
I wonder what Scalia thinks about Sharia?
Actually, if you read the article, or even the excerpt above, you'll see that he doesn't believe that there is a role for trying to divine the thoughts of God in jurisprudence: "Textualists, being content with a “modest” judicial role, do not have to call in the Almighty to eliminate their philosophical confusion." So I assume that Justin Kee was noting that Justice Scalia would obviously oppose Sharia, and specifically speaks against systems of law that try to divine the thoughts of God.
It seems that he's reveling in the irony of the situation-- Justice Scalia believes in the God, but also strongly believes that it is not his place to rule based on what God would think, but only to interpret the already existing laws of men. You may think it strange, or not believe that a God-fearing man could possibly rule in such a way without his beliefs affecting his rulings. But he argues that it's certainly less strange than someone who doesn't believe in God and yet wants rulings to be based on an informing spirit... beyond individual legislators and an acknowledgement that there are richer realities and greater powers in the universe than our meager modern philosophies have dreamed of. It doesn't have to be the Christian God, but I have to agree with Justice Scalia that it does sound like some sort of invoking of religion. So a judge is apparently supposed to divine the mind of a God whose existence is inadmissible. Odd.
Yes, that's what Justice Scalia is opposing and criticizing. He's complaining that he opposes Theocracy, yet the author of the book seems to be arguing for Theocracy (albeit a Theocracy whose god's existence is somehow "inadmissible.")
I hope that some of these quick comments are not as snide as I'm assuming that they are. If so, forgive me. For it seems that people are completely misreading Justice Scalia, and accusing him of precisely what he is criticizing, perhaps based on their assumptions of what he would say.
Thank you. It seems pretty clear to me that the anti-Scalia commenters on this thread had simply not read the article.
Scalia's thesis is that the thesis of Law's Quandry - that we all say that religion is not allowable in a discussion of the law, but we all act as if the law exists as something separate from judges - is, in fact, not a quandry at all. If a judge restricts his role to interpreting the actual texts of statutes and constititions, then he does not need to believe or act like he believes that the there is some such thing as the law floating around out there. We only have a quandry - we need this disembodied law floating around but don't want to admit it's there - if we have an expansive view of the role of a judge.
So the idea that Scalia is calling for theocracy or becoming a parody of himself simply shows the commenter was too lazy to actually read the article.
If Scalia were to answer the question "Why do McDonalds hamburgers taste so bland?" with "because the Supreme Court has veered from textualism" then I would agree he has become a caricature of himself. Whether his stock answer actually makes sense and whether he can come up with a good argument for it resolves whether or not he is simply a one-trick pony. It matters whether he actually can, as you say, "defend (textualism) against all charges of contradictions" or merely pathetically attempt to. I have yet to see Scalia inappropriately apply his "because the Supreme Court has veered from textualism" mantra.
less strange than someone who doesn't believe in God and yet wants rulings to be based on an "informing spirit"
Someone like, say, Thomas Jefferson? Scalia vs. the Deists! (Except they're all on the same side.)
Dustin:
Yeah, cause God in a book is so theocratic, except um, well, it is if you are ruled by libraries or something.
How dare you mock our librocracy!
One of the many reason why Scalia is such a strong proponent of "tradition" as it provides a handy backdoor for his religious beliefs.