This is an ironic day in American political life, a day in which lots of labels are being tossed around by journalists -- in some cases, once again, with little thought given to whether those labels are still relevant or accurate.
That thunderclap you just heard was, of course, the news that Justice Antonin Scalia had died. The timing is stunning, to say the least, with a White House race unfolding and a U.S. Supreme court schedule packed with major cases linked to the First Amendment and church-state issues.
There is too much coverage, already, to try to take a look at it all. But let me make a few suggestions for some guidelines for readers as they dig into the coverage.
Look for coverage that quotes Scalia's friends as well as his enemies. You will know that you're in good company, in terms of journalism, when you hit features that note that some of his fiercest opponents, when it came time to argue law, were also among his closest friends.
Scalia was a conservative in several senses of that word, especially when it came to law and to faith. Yet, like the word "liberal," that is a word that is often of little use when discussing matters of law and now politics. Right now, an old-school First Amendment liberal, or literalist, increasingly looks like a cultural conservative.
So look for stories that refuse to pin simplistic labels on Scalia.
Also note that the written work of this justice -- famous and infamous for his use of wit and sarcasm -- is reduced to one of those shallow verbs that journalists use when, basically, they want to call someone simplistic or even dumb:
For decades Scalia railed against the Supreme Court's rulings on abortion, affirmative action, gay rights and religion. ... He was a fundamentalist in both his faith and his constitutional interpretation, according to former Solicitor General Paul Clement, a onetime clerk to Scalia.
"I think that he looks for bright lines in the Constitution wherever he can. I think he thinks that his faith provides him clear answers," Clement said, "and I think that's sufficient unto him in most areas."
Scalia did, of course, believe -- as a loyal Catholic -- in the existence of transcendent, eternal truths. Did this make him a "fundamentalist" who "railed" against modernity? Only if this f-word also applies to, well, Saint Pope John Paul II, soon to be saint Mother Teresa, Pope Benedict XVI, Pope Francis and others of their ilk.
In fact, as you read the Scalia obits, it is useful to search the text for the word "Catholic" and then look to see how the editors handled that part of this man's life.
The Washington Post obit at least took his faith quite seriously, as opposed to the first feature in The New York Times.
I thought that this Post passage might be the limit to the serious faith content, but I was wrong.
In 1953, he graduated first in his class at St. Francis Xavier, a military prep school in Manhattan, and won a naval ROTC scholarship but was turned down by his first choice of college, Princeton.
A devout Catholic, he attended his second choice, Georgetown University, where he was the valedictorian of the class of 1957. In his graduation speech, he exhorted his fellow students: “If we will not be leaders of a real, a true, a Catholic intellectual life, no one will!”
Justice Scalia then entered Harvard Law School, where he was editor of the law review and graduated magna cum laude in 1960. That same year, he married Maureen McCarthy, a Radcliffe student he’d met on a blind date.
She, too, came from a small family, but they made up for it, with five sons and four daughters and literally dozens of grandchildren.
“We didn’t set out to have nine children,” Justice Scalia told Lesley Stahl on the CBS show “60 Minutes.” “We’re just old-fashioned Catholics, playing what used to be known as ‘Vatican Roulette.’ ”
He added that the other four sons were relieved when their brother Paul decided to “take one for the team” and become a priest.
Of course, Scalia's legal legacy is closely linked with words such as "textualism" and "originalism." Like I said, he was a conservative who was not fond of evolving truths. I would, however, have liked to have seen someone talk to Catholic scholars about the degree to which "natural law" did or did not influence Scalia.
The Post offered a solid example of how Scalia's "stick with the intent of the authors" approach would affect a major issue.
Liberals, he said, should like such an approach, because it constrained conservatives such as him from turning their personal opinions into public policy. To illustrate, he often said that the Constitution doesn’t provide a right for a woman to have an abortion, but it also does not forbid states from making the procedure legal and accessible.
Later, the Post offered some more material on Scalia's faith and its impact. My problem with this section -- the church-state reference in particular -- is the use of the "omniscient anonymous" voice to describe topics that would cause fierce debate among Scalia critics and defenders.
Justice Scalia once wrote in a law review article that legal views are “inevitably affected by moral and theological perceptions.”
After donning his black robe, he would insist that his religious faith and personal views did not determine the outcome of cases because his textualist, originalist approach insulated him from bias. He believed that judges should defer to elected officials on matters of social policy.
But Justice Scalia’s faith was integral to his identity. He objected to Vatican II and drove out of his way to find churches that celebrated Mass in Latin. He was the court’s most outspoken member on the subject of religion. He urged fellow intellectuals to proudly be “fools for Christ” and used an interview in 2013 to underscore his belief in the existence of the Devil, whose latest maneuver, he said, was “getting people not to believe in him or in God.”
Justice Scalia wanted to lower the wall of separation between church and state, endorsing school prayer, nativity displays on public property and public money for religious schools.
But he insisted that there was no such thing as a “Catholic justice,” and said his views were shaped by an understanding of the Constitution and a belief that a judge’s role is limited.
So what did the founders mean when they protected the "free exercise of religion," while pledging that the state would not officially support any particular religious institution or point of view and its doctrines? This question is stunningly relevant, at this moment in history. You know Scalia was poised to plunge into the debate.
So what about the New York Times? This contrast says it all -- but with no debate. Scalia:
... often made clear that he had little use for faculty-lounge orthodoxies. In 2003, for instance, dissenting from a decision striking down a Texas law that made gay sex a crime, Justice Scalia bemoaned the influence of elite culture on the law.
“Today’s opinion,” he wrote, “is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
He predicted, too, that the decision, Lawrence v. Texas, had laid the foundation for the recognition of a constitutional right to same-sex marriage.
Justice Scalia insisted that his religious beliefs played no role in his jurisprudence, and he was deeply offended by contrary suggestions.
And then there was the man himself. We will let Ross Douthat have the last word there:
That's the final word for now, at least.
Right now, the Crux team is following Pope Francis in Mexico and has little free time to ponder the faith and intellect of a man who was clearly a legal giant, even according to those who most opposed his work (take it away Joe Biden). But I would look for a serious Catholic-hook feature at Crux soon.
In our comments pages, please leave URLs for mainstream news coverage -- good or bad -- that deserves attention.