By Mike Dorf
By now numerous commentators have weighed in on the recent interview of Justice Scalia in New York Magazine. If you haven't read it yet, I urge you to do so. Among the revelations that have gotten the most attention: (1) The Justice says he doesn't hate gay people and has friends who, he suspects, are gay, although none have come out to him; (2) He finds the tendency of people to share the details of their personal lives on Facebook peculiar and narcissistic; (3) He thinks sex in films is okay if it advances the plot but not if it's gratuitous; and (4) He believes in the Devil--not in some metaphorical sense of an urge to do bad present in each of us but in a literal sense, as, in Justice Scalia's words, "a real person." Here I'll focus on the Devil.
Is there something problematic about a Justice of the Supreme Court believing in the Devil? In a legal sense, no, of course not. In fact, it would violate three separate provisions of the Constitution--the prohibition on religious tests for public office in Article VI, the establishment clause of the First Amendment, and the free exercise clause of the First Amendment--to say that belief in the Devil (which Justice Scalia holds as part of his Catholic faith) is disqualifying. In the interview, Justice Scalia might be thought to be invoking these protections for religious belief when he notes that the Devil "is a large part of" Catholic dogma.
But that is not Justice Scalia's primary move in response to what he takes to be the interviewer's incredulity upon learning of his belief in the Devil as "a real person." Instead, he turns the tables on the interviewer, accusing her of being "out of touch with most of America, most of which believes in the Devil." That turns out to be true: According to a recent survey, most Americans do believe in the Devil. Although there are demographic variations, even among northeasterners, even among Democrats, and even among people with postgraduate education, more people believe than disbelieve in the Devil.
Yet Justice Scalia also says that he has long been puzzled about the fact that there is so little contemporary evidence of the Devil working openly in the way that he worked openly in the New Testament. Where did the Devil go?, Justice Scalia wonders. He concludes that the Devil, in his cleverness, has shifted tactics. Instead of acting openly by "making pigs run off cliffs, possessing people and whatnot," as in Biblical times, now the Devil "is getting people not to believe in him or in God. He's much more successful that way."
Did you catch the apparent contradiction? The Devil succeeds by fostering disbelief in himself and in God, but most people still believe in the Devil, so how has the Devil succeeded?
Is that really a contradiction? Perhaps not. Maybe thousands of years ago just about everybody believed in the devil as "a real person," whereas today, a substantial minority of people do not. And those people--wittingly or unwittingly--are doing the Devil's work.
So there you have it. Justice Scalia says he is offended by the fact that the interviewer is surprised at his belief in the devil (even as she denies that she meant to express contempt), but sees no problem in asserting that disbelief in the Devil and in God among the liberal intelligentsia, while not necessarily the work of the Devil, "certainly favors the Devil's desires."