Ed Whelan:
Given how conspicuously incompetent Bruce Allen Murphy’s forthcomingbiography of Justice Scalia is (see my series of posts: Parts 1, 2, 3, 4, 5, 6, and 7), I was wondering how anyone might find a way to speak favorably of it. Well, DahliaLithwick has managed the trick, if only through her own series of gaffes and confusions.
In a review for the Atlantic, Lithwick praises Murphy as an “unintimidatedbiographer” who “refuses to be daunted by the silence that surrounds most discussions about religion and the Court,” who “painstakingly reviews the evidence,” and who “does not shrink” from concluding that the “pristine border between [Scalia’s] faith and [his] jurisprudence is largely myth and aspiration.” Ah, what courage Murphy displays—accompanied by remarkably sloppy analysis.
In my Part 3 post, I explained that Murphy’s “dominant thesis about the effect of Scalia’s religious beliefs on his adoption of originalism cannot survive minimal scrutiny—scrutiny that Murphy himself shows no signs of offering.” The same assessment applies to Lithwick’s embrace of Murphy’s thesis. Let’s consider some of the errors in her review:
1. Lithwick contends that Scalia’s “clear[] support[]” for the religious objectors in the pending Hobby Lobby case marked “a dramatic about-face from his 1990 position” (in Employment Division v. Smith). Lithwick suggests that the solution to the puzzle is that peyote—the ceremonial drug at issue in Employment Division v. Smith—“didn’t sway him” but that “his own brand of piety” does.
Oddly, Lithwick makes no mention of an important legal development that took place in the interim: the 1993 enactment of the federal Religious Freedom Restoration Act, which statutorily restored (and in some respects arguably expanded) the protections of religious liberty that the Scalia majority opinion inEmployment Division v. Smith determined were no longer available under the Free Exercise Clause of the First Amendment. RFRA means that there was no “about-face” (“dramatic” or otherwise) in Scalia’s position. In 1990, he was interpreting the Free Exercise Clause. In Hobby Lobby, he is applying RFRA. Mystery solved.
Indeed, in 2006 Scalia joined the ruling in Gonzales v. O Centro Espirita that held that RFRA provides an exemption from the federal drug laws to religious users of a sacramental tea that contained a hallucinogen (hoasca). So it’s been clear for eight years that Scalia recognizes the obvious reality that RFRA calls for a different test, and yields different results, than his 1990 reading of the Free Exercise Clause would provide, even in cases where Lithwick presumes Scalia’s sympathies would run in the other direction.
(By the way, I like Lithwick’s wordplay with peyote and piety. Too bad it’s not in service of an intelligent point.)
2. Lithwick calls the pending Hobby Lobby case “a revealing capstone in Scalia’s jurisprudential career.” How bizarre. The Hobby Lobby case and other challenges to the HHS mandate have been viable only because Congress enacted RFRA to override Scalia’s decision in Employment Division v. Smith, and it’s that 1990 decision that, if not “a … capstone” (how many capstones can a career have?), ranks very high on Scalia’s list of landmark rulings.
3. Lithwick complains that the Court “has opted not to probe the intensity or validity of a plaintiff’s religious conviction, in part thanks to Scalia’s reasoning.” (It has instead limited itself to inquiring whether the alleged conviction is sincerely held.)
But the Supreme Court has never adopted the bizarre notion that it might have authority to assess the “validity” of a plaintiff’s religious belief. In 1981, for example—five years before Scalia became a justice—the Court explained inThomas v. Review Board that “it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.”
As for not probing “intensity”: RFRA itself defines “religious belief” to “include[] any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
Does that mean the Climate Change Cult can continue to seize control of our government to forcibly convert the rest of to their system of belief?