By Fr. Raymond J. de Souza

Justice Antonin Scalia – who died ten years ago, February 13, 2016 – lived an expansive life that was an occasion of pride for many Catholics. His love for the faith, his large family, his friends (not determined by politics), language (English and Latin), the law, opera – was an inspiring model of the life well-lived. He was normal, but in an excellent sort of way, something too rare in the models available to young men today.

His funeral at the National Shrine in Washington was one of the great Catholic events of recent years, marked by the grandeur of the setting and the preaching of his son, Father Paul Scalia, well-known here at The Catholic Thing. It fell during the Jubilee Year of Mercy. And so, his casket was taken through the Holy Door. There was something fitting about that. The title is "Mr. Justice", not "Mr. Mercy," but our consolation in going to our judgment is that we will encounter Divine Mercy. Faith provides more than the limits of law.

Scalia did not consider himself a Catholic justice, meaning a judge who seeks to advance a distinctively Catholic vision of the common good. He understood the judge's role to apply the law as written – "originalism" regarding the Constitution, "textualism" regarding statutes. He vehemently opposed judges reading into the law what they thought should be there, even if marked by wisdom and goodwill.

He opposed Roe v. Wade as an illegitimate invention of a right that did not appear in the Constitution, and at the same time said that finding a "right to life" there would also be impermissible judicial usurpation. States had the capacity to regulate abortion as they saw fit, even if that meant abortion-on-demand. On many cases, from abortion to the death penalty to flag-burning to criminal justice, the law required of him, as a judge, a ruling that he may not prefer as a citizen – or a Catholic.

What if the text of the law permits, or even commands, the morally impermissible? What then is a judge to do? Should he substitute his own just judgment? Scalia was clear enough about that over his long career. No, the judge must read the law, not read into it. And if the law requires him to be complicit in an injustice, then he must resign.

The question of judicial fidelity to unjust statutes was most painfully posed by the greatest legal wickedness of Scalia's lifetime, the exquisitely legal Nazi apparatus of death. Even at Auschwitz, just steps away from the wall where summary executions were carried out, a few minutes were devoted to "trials."

Scalia recalled visiting Dachau and Auschwitz in a 1987 address on Holocaust remembrance in the U.S. Capitol Rotunda. He quoted St. John Henry Newman:

Knowledge is one thing, virtue is another; good sense is not conscience, refinement is not humility. Liberal Education makes the gentleman. It is well to be a gentleman, it is well to have a cultivated intellect, a delicate taste, a candid, equitable, dispassionate mind, a noble and courteous bearing in the conduct of life. These are the natural qualities of a large knowledge, they are the objects of a university. But they are no guarantee for sanctity of even for conscientiousness; they may attach to the man of the world, to the profligate, to the heartless.

One might substitute "law" for "knowledge" and arrive at the heart of the matter. Laws, duly passed and properly interpreted, can serve the heartless, including the lethally heartless.

Scalia's remedy was a return to the "absolute and uncompromisable standards of human conduct. . .found in the Decalogue." The Ten Commandments – the natural law given expression by God – is what should inform a constitution or statutory law. But once written, that constitution, that statute is to be applied by judges without external considerations – such as the natural law revealed by God. In case of conflict, the faithful Christian judge must resign.

Scalia's hero, it should be remembered, was Thomas More, the lawyer, the judge, ...