Bruce Allen Murphy - Scalia: A Court of One

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For my world

Carol, Emily, Geoff, and Adam

and

In memory of

Patricia Gebhard Wright

and

John T. McCartney

Anyway, thats my view. And it happens to be correct.

Justice Antonin Scalia

2008

It was a bitterly cold day in Washington, D.C., on Monday, January 21, 2013, as roughly a million people gathered on the National Mall in front of the United States Capitol to celebrate the second inaugural of President Barack Hussein Obama. One man, though, was not in such a celebratory mood. A stocky, balding, distinguished-looking gentleman in a black judicial gown trudged slowly behind Chief Justice John Roberts to his prime seat in the front of the platform, immediately to the left of where Obama would swear his oath of office.

Surrounding the man on the inaugural platform was a veritable whos who of current and past American politics, including members of the cabinet, senators, members of Congress, former presidents, and other dignitaries. Usually on occasions such as this, except for the president being sworn into office, everyone else is just a face in the crowd. But, as he usually did on such occasions, this man in a judicial gown found a way to make himself the center of attention.

United States Supreme Court Associate Justice Antonin Gregory Scalia, then less than two months shy of his seventy-seventh birthday, had become the most recognizable and most controversial member of the Court. He had become famous for his originalism theory for deciding cases, believing that the Constitution and its amendments should be interpreted according to the meaning of the words as people understood them at the time they were written. But he was just as famous for his provocative speeches and public statements, as well as the controversies that always seemed to swirl around him.

Today Scalia turned heads with his strange headwear, which appeared to be a billowing, puffy, black velvet hat with peaked corners, which the New York Daily News would later describe as a beret on steroids.#Scaliaweirdhat, initially created by Democratic senator Claire McCaskill of Missouri, when she tweeted her photo of the justice wearing his hat.

How 16th Century German/Northern Italian of him! read one of the earliest tweets.

He thinks hes at the Trial of Emile Zola, tweeted snarky liberal television commentator Keith Olbermann.

Looking like the antagonist from a Dan Brown novel, tweeted someone whose twitter handle was The Opportunity.

Scalia in that hat: the mad medieval monk, fresh from illuminating a biblical manuscript and torturing heretics, tweeted another.

Soon, Scalias headwear was getting so much attention in the Twitter-verse that he was, in the parlance of the technology, trending.

In time, various Internet news sites contributed to the exchange, e-blasting the photo through the rest of the press corps. Whats the deal with Justice Scalias weird hat? posted Microsofts MSN News in the Whats Trending column of its website. It makes him look like a grumpy cardinal from a thousand years ago.

If youre looking for truly weird, once-every-four-years head gear, look no further than the justices of the Supreme Court, wrote Russell Goldman of ABC News.

Whether or not Scalia had intended for his choice of headwear to cause such a sensation, or whether he just wore it because it was a cold day and he really liked the hat, he could not have been unhappy with the result. On such occasions, he was usually most pleased if the focus was on him. And it often was. Nearly everyone in the press and public had an opinion about himeither positive or negative. The new army of legal bloggers on the Internet had long ago made him and his views one of their main topics of conversation. As a result, on a Court comprised of nine members, he was always the most visible and most discussed. Surely, at Obamas second inaugural, having everyone discussing him must have been the way Antonin Scalia liked it.

After much discussion in cyberspace about Scalias haberdashery, former Scalia law clerk Kevin Walsh, a professor of law at the University of Richmond Law School, posted on his blog site, Walshslaw : The twitterverse is alive with tweets about Justice Scalias headgear for todays inauguration. At the risk of putting all the fun speculation to an end.... The hat is a custom-made replica of the hat depicted in [the younger Hans] Holbeins famous portrait of St. Thomas More. It was a gift from the St. Thomas More Society [a nonprofit, socially conservative public interest law center] of Richmond,

Far from ending the speculation, though, this news only fueled it. Scalia had repeatedly commented over the years on his reverence for St. Thomas More, the patron saint of lawyers. More was the devout lord chancellor for King Henry VIII of England. In his early career, he had sentenced heretics and religious dissenters to death. Later, when the king asked for Mores acquiescence to remove the English church from the authority of Pope Clement VII, and to the annulment of his marriage to Catherine of Aragon in order to marry Anne Boleyn, More refused. Standing on his principles led to Mores beheading for high treason, making him a religious martyr. Some Catholic analysts on the internet wondered whether Scalia saw himself in a similar battle over principles on the Supreme Court and with the Democratic president.

On January 23, The Christian Post put on its internet blog, CP Politics, a column bearing the headline, Was Scalias Inauguration Hat a Birth Control Mandate Protest? The piece speculated about a reference by the justice to a recent political battle over whether Obamas new national health care law could require companies and organizations with religious affiliations to fund birth control, even if they had a religious objection to it. The piece argued: Some observers speculate that the hat symbolized religious conscience protections and was worn to protest efforts by the Obama administration to enforce a birth control mandate on religious groups.

The chatter over Scalias presumed reaction to Barack Obamas second term continued when three weeks later, on Tuesday, February 12, two hours before President Obama was to deliver the State of the Union address, Scalia attracted attention by not attending a presidential affair. Instead of attending the State of the Union address, Scalia explained to National Public Radios

Sensing an opening to raise the larger issue of objections to the Obama administration, Totenberg asked the justice to explain his decision to wear a replica of St. Thomas Mores hat to the presidents second inaugural. As he frequently did when faced with an uncomfortable question, Scalia went for a laugh while shifting the direction of the question, explaining that it was a replica of the hat that you see Thomas More wearing in the famous Holbein portrait.... I would have thought it would have been recognized immediately, but apparently the press is... ignorant of both art and religion.

Unwilling to be derailed, Totenberg pressed, using the language from the First Things blog to ask whether he had worn the cap of a statesman who defended liberty of church and integrity of Christian conscience to the inauguration of a president whose policies have imperiled both?