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05/22/2014

Dahlia Lithwick on Scalia vs. Scalia
Michael Ramsey

In The Atlantic, Dahlia Lithwick: Scalia vs. Scalia -- Does his faith influence his decisionmaking? (reviewing Bruce Allen Murphy, Scalia: A Court of One).

From the conclusion:

Murphy anoints [Scalia] “a Court of One,” estranged from potential allies, a man of undisputed brilliance and vision who has done little to shape the larger life of the law. Whereas some might salute the Kennedy Court or the Roberts Court, Murphy writes, no one will ever invoke the Scalia Court.

Yet perhaps Murphy misses the moral of his own story. Scalia is in fact leaving a very powerful mark, as precisely the lone, uncompromising figure his latest biographer portrays so astutely. The Hobby Lobby case serves as a reminder of a profound shift on the Court over the 24 years since Scalia [in Employment Division v. Smith] evoked the specter of the religious objector as “a law unto himself.” That may have been his nightmare in 1990, but in so many ways it is Scalia’s legacy in 2014. Scalia represents the living embodiment of the besieged religious dissenter, the “Christian as cretin,” in his parlance, the man who believes that the only remaining front in the American war for civil rights is the battle to defend religion. Two decades ago, nobody could have imagined that five members of the Court would align themselves with that posture.

But in the years since Samuel Alito joined the Court in 2006, replacing the centrist Sandra Day O’Connor, the five conservatives on the bench have ... shown growing and seemingly boundless patience for religious objectors. The Court is currently hearing, and will continue to hear, passionate challenges to a secular society from religious dissenters seeking not just the right to deny contraception to their workers, but the right to pray at town-council meetings and—somewhere down the line, it seems likely—the right to deny services to same-sex couples. Murphy may be correct that Scalia is a court of one. But in the religious-rights revival now in progress in America, one is perhaps all that is needed.

(Via How Appealing)

Of course there's an obvious difference between Employment Division v. Smith and Hobby Lobby, in that the former involved the free exercise clause and the latter involves the Religious Freedom Restoration Act, passed (as the title implies) to overrule Smith.  So there's no contradiction in someone thinking (for example) that Smith was correctly decided and thinking the plaintiffs should prevail in Hobby Lobby.

And yet I do wonder if Justice Scalia has come to regret, or at least to doubt, his conclusion in Smith.  Unlike Lithwick, I wouldn't see that as chance to sneer, but only to appreciate that we can all change our minds.