After Justice Scalia

The death of Justice Antonin Scalia on February 13 – unexpected and, for many reasons, tragic – draws a curtain on the life and public service of one of the most important Catholic figures in America over the past half-century. Justice Scalia was regarded, by admirers and detractors alike, as the most consequential jurist of his time. He brought a remarkable intellect, a clear concept of judging, a distinguished literary style, and a biting wit to his work on the U.S. Supreme Court. His utter demolition of the majority opinion in Obergefell vs. Hodges, the decision that invented a constitutional right for people of the same sex to “marry,” is a masterpiece of devastation – as was Scalia’s dissent from Chief Justice John Roberts’ opinion saving Obamacare by reinventing it as a kind-of-tax.

But it would be a grave mistake to think of Justice Scalia’s jurisprudence as essentially negative. Rather, his judging was based on convictions about who should make the laws and how judges should function in a system of judicial review. In a democracy, he believed, legislators, chosen by the people, are free to craft laws within the bounds set by the Constitution. The judge’s task is to interpret both Constitution and statutes according to their text, and according to the text’s meaning as that meaning was understood when the text was adopted. Any other method of judging, he thought, inevitably turned the Supreme Court into a Super-Congress, in which nine unelected lawyers who were not subject to periodic elections ruled the country. That seemed to him a very bad idea. More to the point, it was not the idea of governance inscribed in the Constitution.

Justice Scalia was not only a distinguished jurist; he was a wonderful man, full of vitality and humor. He made no secret of his intense Catholicism, bred in him in his youth. (Nor did he hesitate to express his concerns when the Church seemed to him to be coming unmoored from the Great Tradition on which it was grounded.) He was a devoted husband and father, and his friendships extended far beyond the range of those who agreed with his jurisprudence. A man of honor and a dedicated public servant, he was, with Henry Hyde, one of the two most influential Catholics in national affairs during his years in Washington. He will be sorely missed, not only by those of us privileged to know him, but by anyone who cares about intelligence and integrity in public life.

There will be an enormous political struggle over filling his seat on the Court. It is far too early to know how that struggle will resolve itself. But it’s not too early to do Justice Scalia one last honor and ask the question, why is that struggle so crucial? Why has the Supreme Court become such a Leviathan in our national public life?

Something is wrong here. Last June, one man, Justice Anthony Kennedy, decided on behalf of 322 million Americans that the Constitution included a “right” for people of the same sex to “marry” each other. Put aside the fact that his reasoning was so specious (indeed vacuous) that the keener proponents of “same-sex marriage” were dismayed by it, and are trying to find another case that would put their “right” on firmer constitutional ground. Put aside the fact, previously noted, that after Justice Scalia’s dissent from Kennedy’s opinion, the dental records were needed to identify the remains. The real question was, is, and ought to be this: Why was one man deciding this for the entire country? Why was a deeply controverted issue being removed from the deliberation of the people and their legislators and decided by unelected and unaccountable judges? (Yes, I know, Supreme Court justices can be impeached; but if you believe that a remedy for Obergefell – or in just about any other imaginable instance – I have a nice bridge in Brooklyn to sell you.)

America would honor the memory of the great Antonin Scalia if the 2016 presidential campaign, which will now, inevitably and bitterly, engage the question of his successor, would seriously debate the prior questions: Why have these Supreme Court nominations become so important, and what can be done to restore balance to the American constitutional order?

COMING UP: Moral courage and the many cultures of death

Sign up for a digital subscription to Denver Catholic!

CRACOW. Thanks to the pandemic, it’s been two years since I was last in Cracow, where for three decades I’ve done extensive research and taught great students while forming friendships with many remarkable people. It was wonderful to be back in one of the world’s greatest cities, and soon after I arrived in late June, I took a long walk to see what had changed. The first major difference I noticed was that the plaza in front of the central railway station (named for my late friend Jan Nowak-Jeziorański, a World War II courier for the Polish Home Army and the man from whom the future John Paul II got real news via Radio Free Europe’s Polish service) has a new, strikingly modern memorial, dedicated to the memory of Colonel Ryszard Kukliński.

That name is not well-known throughout a western world that has largely forgotten the meaning and lessons of the Cold War. But if Jan Nowak-Jeziorański was right when he spoke about the Polish colonel in the mid-1990s, Ryszard Kuklinski was a genuine hero of the long, twilight struggle against communist totalitarianism — the man who helped prevent a bloody Soviet invasion of Poland to crush the nascent Solidarity movement.

An accomplished officer in the communist-era Polish Army, Ryszard Kukliński began to doubt the truth of what he had been told about the West when, as a member of an international commission, he met American military men in Vietnam in the mid-1960s. His doubts about communism and its purposes intensified by orders of magnitude in 1968, when the brutal Warsaw Pact invasion of Czechoslovakia ground the Prague Spring to dust under the treads of Soviet tanks, and in 1970, when the Polish army shot Polish workers during labor strife. Privy to some of the Warsaw Pact’s most confidential strategic plans, he became convinced that, if the Cold War turned hot and the east bloc attacked the West, the Soviets would sacrifice Poland as retaliatory western tactical nuclear strikes hit the second wave of Warsaw Pact troops pushing west. So, in 1972, Kukliński, risking his life and his family’s safety, offered his services to the United States and for the next nine years was the West’s most important intelligence asset behind the iron curtain.

His greatest service to Poland and the cause of freedom came in the later months of 1980. Thanks to his efforts, the United States knew the entire order-of-battle the Soviet Union had organized to stamp out Solidarity, which had held its first formal congress in September 1980. With that information, and working in concert with the incoming Reagan administration, outgoing national security adviser Zbigniew Brzeziński, with the help of the AFL-CIO’s Lane Kirkland, was able to organize a comprehensive western response to a potential Soviet invasion of Poland: an international economic blockade that would have severely damaged the already-staggering Soviet economy. Faced with economic ruin, the Soviet leadership backed down and the Warsaw Pact divisions that had surrounded Poland withdrew.

Colonel Kukliński and his family were exfiltrated to the West; two of his sons later died under dubious circumstances that may have involved Russian retribution, and Kukliński lived out his life under an assumed name in the United States, dying in 2004. There was public controversy when he returned to his native Poland for a 1998 visit, with some charging that he had violated his officer’s oath by working for American intelligence for a decade. John Paul II, through various intermediaries, quietly passed the word that Kukliński was to be regarded in Poland as a national hero. Zbigniew Brzeziński, who held the exact same view, put it brilliantly, in a comment that appears on the Kukliński Memorial in Cracow: Colonel Kukliński was “the first Polish officer in NATO.” 

Communism was a distinctive form of the culture of death, for the effort to create “Homo Sovieticus” was a lethal assault on souls. Colonel Ryszard Kukliński took a courageous stand against that particular culture of death, knowing as he did that freedom is never cost-free: freedom lived nobly always requires sacrifice. His example should be pondered by Catholic citizens and Catholic public officials throughout the West today, who are called to resist, with similar moral courage and effect, that form of the culture of death that masquerades as the ideology of “choice.” May we and our elected officials be as principled and brave as the Polish officer who took what John Paul II described at the United Nations in 1995 as the “the risk of freedom.”