Deacon Keith Fournier: My Tribute to Justice Antonin Scalia, Originalist Judge and Faithful Catholic

The media has been filled with tributes to the late Justice Antonin Scalia, and rightly so. I add my own.

Justice Scalia saw the role of a judge as limited by constitutional design. He abhorred any approach to jurisprudence which veered from that design. His judicial philosophy is often referred to as originalism or textualism. It limited the judicial role to considering only what the text of the Constitution or the actual law stated - and then strictly applying it to the cause or controversy before the bench.

CHESAPEAKE, VA (Catholic Online) - On Saturday February 20, 2016, a funeral Mass was offered at the Basilica of the National Shrine of the Immaculate Conception for Supreme Court Justice Antonin Scalia. His son, Father Paul Scalia, presided. That beautiful Catholic Liturgy was broadcast on most major networks in the United States and telecast throughout the whole world.

The response of the pundits, no matter what their political leanings, was profound. This loss held a significance few can deny. The response of the Nation to the loss of this great American public servant was profound. The moving funeral Mass continues to bear fruit, opening the eyes of many to the truth and beauty of Christian faith and family. It also underscores the significance of the selection process for the next Justice of the U.S. Supreme Court to fill this vacancy.

Fr Paul Scalia presided at the funeral Mass of his own father with reverence and dignity. His homily was exquisite, reflecting his genuine faith, pastoral understanding and theological insight, as well as his love for his father. It revealed his priestly soul and a deep understanding of the purpose of funerals. The finest article I have read on this homily was written by Michael Pakulak and entitled "The Beauty of Fr. Scalia's Funeral Homily."  

The media has been filled with tributes to the late Justice Antonin Scalia, and rightly so. He was an outstanding Justice of the United States Supreme Court and an historic figure. I had limited personal and professional experiences with him, but those experiences have deepened my mourning over his loss and fueled a serious concern over his replacement. I would like to now share them with my readers.

In the late 1990's, while studying for a graduate degree in sacred theology at the John Paul II Institute in Washington DC, I received clerical faculties to serve as a deacon in the Diocese of Arlington, Virginia. I was assigned to St Catherine of Sienna in Great Falls under Franklyn M. McAfee, a holy priest who was the pastor. Justice Scalia and his wife Maureen, devout Catholics, were faithful parishioners and a mainstay of the parish. 

My service at that parish came before the release of Pope Benedict XVI's apostolic letter, Summorum Pontificum, which expanded the availability of the traditional Latin Mass to the entire Church and not just to selected parishes. Justice Scalia, though he favored the traditional Mass, would regularly attend the 11 A.M. High Mass at St. Catherine's, his family parish. It was not a traditional Latin Mass - but what is still referred to as the New Order (Novus Ordo) Mass, the liturgy which came into prominence after the Second Vatican Council.

Fr McAfee offered the Mass facing East (ad orientum in Latin) and much of the canon, the primary prayers of the priest, was said in Latin. So too were many responses of the faithful. Just to clarify, the ancient practice of facing East had nothing to do with the priest "turning his back to the people" as still sadly said by some. Rather, the priest was leading the people in facing the East, because that was where we are supposed to look for the final return of Jesus Christ. (Matt. 24:27) 

For Catholics who prefer this liturgical practice, it also demonstrates that the focus of the Mass is not on the priest, but on the One in whom he serves, the High Priest, Jesus Christ. In addition, a full choir would lead the faithful who attended that magnificent Mass in traditional hymns. Incense would fill the sanctuary, representing the prayers of the faithful ascending to the Lord. (Rev. 8:3,4) It was, as some of my high church leaning friends would say, filled with "smells and bells".

During those years, Justice Scalia's love for his Catholic faith was evident in his faithful attendance. So too were his feelings about the particular homily or sermon every Sunday, he would freely express them if asked after the service. In greeting the Justice upon leaving the Church, his wit, big personality and engaging smile always pulled you into a departing conversation. Often, he would share a joke, which he seemed to relish. Though not very tall, he was larger than life; a natural leader, whose carriage and presence reflected a love of life and enthusiasm for living it to the full.  
 
My professional experience of Justice Scalia came from my having served as co-counsel to famed constitutional lawyer, Jay Sekulow, when he argued several important cases before the U.S. Supreme Court as lead counsel. Justice Scalia's unique participation in the give and take of oral arguments, along with his sometimes caustic, yet always brilliant questions, forged a lasting memory for me as a lawyer.

More importantly, his brilliantly written judicial opinions revealed his scholarship, consistent legal philosophy and approach to the law in general, and Constitutional law, in particular. They have provided me with much assistance in my own work as a Constitutional lawyer over the years. He was a brilliant Supreme Court Justice, who clearly understood the significance of his position on that Court in these turbulent times. 

Justice Scalia saw the role of the Supreme Court as severely limited by the Separation of Powers doctrine, by which governance of the United States was supposed to be vested in three co-equal branches, the executive, legislative and judicial. This was meant to prevent the concentration of power in any one branch and protect against the kinds of abuses of power the founding fathers knew well, having fled tyranny.

It was also intended to provide a system of checks and balances.  The idea was a noble one. The legislative branch would enact the laws and appropriate the money needed. The executive branch would implement the law and public policy. The judicial branch would interpret the constitution and laws when presented with a case or controversy. 

Justice Scalia saw the role of a judge as limited by constitutional design. He abhorred any approach to jurisprudence which veered from that design. His judicial philosophy is often referred to as originalism or textualism. It limited the judicial role to considering only what the text of the Constitution or the actual law stated - and then strictly applying it to the cause or controversy before the bench.

If there was a need for further interpretation as to the meaning of the constitutional issue or meaning of a piece of legislation, the Court was to look solely to the words as the framers of the Constitution understood them, or the legal text as the legislature wrote it. The Court is not a lawmaker, or an executive; nor were courts to be misused as vehicles for making legislation or promoting activism aimed at bringing about legal, social or cultural change.

Of course, that sort of judicial approach set him in conflict with other members of the Supreme Court who have adopted various forms of judicial activism and, in some instances, rejected the very notion of a limited judicial role in governance. All of those activist judicial approaches can be coalesced under the term, legal positivism. That term refers to the notion that the law is essentially what the Court says it is, rendering the law a malleable social construct which can be wielded by the Court like clay. Or, wrongfully used by judges as an instrument by which courts can change the cultural, legal, economic or social landscape. 

During his service on the Court, Justice Scalia spoke out against this approach, in all of its iterations, with stinging criticism, courage and bold clarity. His argumentation was as consistent as it was clear. In his view, if the issue before the Court was not addressed in the Constitution, a Judge should never use the Constitution to further other agendas. The way to change the law was through legislation and not through litigation or judicial commandeering from the bench.

For example, he was adamantly opposed to the misuse of a so called implied "right to privacy" as discovered by the Court in the opinion of Griswold v. Connecticut, 381 U.S. 479 (1964). That concept led to the obscure reference to a "penumbra" around the fourteenth amendment which was used by the Court in Roe v. Wade, 410 U.S. 113 (1973), in order to manufacture a new "right" to abortion. Reaching into the first home of the whole human race, the mother's womb, and taking the life of a child by procured abortion, was no longer punished by law but hailed as some protected "right"! Justice Scalia insisted that no such "right" existsin the Constitution. Of course, he was correct. 

The net result of the opinions in Roe v Wade and the companion case of Doe v Bolton was much more than the overturning of the laws outlawing procured abortion at both State and Federal levels which had once protected the Right to Life of the child. Those opinions set the Supreme Court up as a new super legislature capable of overturning the expressed will of the people as evidenced through their legislatures and disregarding the language of the Constitution. Justice Scalia deplored such an abuse of the separation of powers doctrine and rejected this approach to jurisprudence.

He was also an ardent defender of religious freedom. He wholly endorsed an interpretation of the First Amendment's Establishment and Free exercise clauses consistent with the words and the intent of the founders of the American experiment. In short, that the Establishment Clause of the First Amendment to the Bill of Rights is best understood as an anti-establishment clause. It was intended to prohibit the "establishment" of one particular religion - in the sense of a Federal or State sponsored Church which mandated adherence to doctrine from unwilling citizens.

The American founders fled coercive approaches to religion which compelled adherence to a particular sect by any unjust ruler. Yet, they were most certainly not anti-religious. They viewed the role of religious faith and religious institutions as a vital asset and intended to protect religious liberty in a way which was nearly unparalleled in history. They also viewed religious speech as valuable to the morals of a Nation and the real common good.

In the light of all of this, and in an age of political speak, Justice Scalia is often called a "conservative" jurist. That term is then used to set him in contrast with those who are called "liberal" or "progressive" jurists. This is one of the numerous places where the politicized labels break down and cloud a true assessment of his contributions. He worked very hard at not letting political leanings affect the discharge of his judicial office.He saw himself as an originalist, or strict constructionist. He was not interested in using his position on the Bench to further his political positions but to serve as a Judge.

For example, he made it very clear that his opposition to a so called "right" to commit an abortion was rooted in the fact that it was not in the Constitution. As a faithful Catholic Christian and an intelligent and moral man, he was certainly opposed to legalized procured abortion. He knew that it is the taking of innocent human life and always and everywhere immoral. In addition, he was a wonderful example of a faithful Christian husband, father and grandfather and an ardent defender of marriage as solely possible between one man and one woman, open to life and intended for life.

However, as a Justice of the Supreme Court, and clearly in his opinions, his opposition to abortion and his defense of marriage were both grounded in his judicial philosophy and not his political or religious views. He insisted that abortion is not mentioned in the constitution. The idea that any other relationship other than a lifelong commitment between one man and one woman would be called a marriage was certainly not in the constitution. Legalizing procured abortion by Judicial fiat or redefining marriage was assuredly not in the power or prerogative of judges.

On January 21, 2013, Barrack Obama was sworn into his second term as the President of the United States of America. I remember the hat which was worn by Justice Scalia at the Inauguration. It stood out in its uniqueness and reminded me of the portrait of my hero, Thomas More, which has hung in office since I began the practice of Law in 1980. I later came to find out that the hat was given to him by the St. Thomas More Society of Richmond, Virginia.

When the news broke that Justice Scalia had passed from this life to the next, I went to my home office from which I do most of my work these days. There, on my wall was that portrait of Thomas More. I opened my laptop computer, went to my pictures file and typed in Justice Antonin Scalia. I found that old photo from the inauguration ceremony. He wore that hat with integrity - and made a vital statement in doing so.

Justice Scalia's originalism is not the only approach to jurisprudence or legal philosophy which a faithful Catholic or other Christian can hold. Another legal philosophy, and the one to which I am drawn, is the classical Natural Law legal philosophy. Another hero of mine, the late, great constitutional lawyer, William Bentley Ball, was one of its finest practitioners in his own constitutional practice.

My readers can find out much more about the life and accomplishments of William Bentley "Bill" Ball by visiting the William Bentley Ball Memorial Archive.  I am honored to be a part of securing his contributions and I sincerely hope to be a part of continuing to honor him by building a living legacy to carry on his work. 

However, Justice Scalia, just like William Bentley Ball, understood that faithful Catholic Christians who participate in the legal system must do so with moral coherence and integrity. Along with Attorney William Bentley Ball, Justice Antonin Scalia will be sorely missed.We need a new generation to carry forward their vital work in an age which has lost its way. 

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Deacon Keith A. Fournier is the Founder and Chairman of Common Good Foundation and Common Good Alliance. A Catholic Deacon of the Diocese of Richmond, Virginia, he and his wife Laurine have five grown children and seven grandchildren, He is a human rights lawyer and public policy advocate who has long been active at the intersection of faith and culture.He served as the first and founding Executive Director of the American Center for Law and Justice in the nineteen nineties and is now Special Counsel to Liberty Counsel and Chief Counsel to the Common Good Legal Defense Fund. He is the Editor in Chief of Catholic Online, a senior writer for THE STREAM and a featured columnist for the Catholic News Agency.

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