Justice Scalia, law, morality, and judging (again)

At Commonweal, David Gibson shares some thoughts about a recent speech by Justice Scalia in which the latter said, among other things, that "there's no such thing as a Catholic judge."  Gibson also writes:

Scalia’s near-indifferentism to the morality of the law is striking to me as well, in that it sounds like he’d be championing abortion rights if he thought they were in the Constitution. (And I believe he has said he has no problem with states passing right to choose laws.) So does morality have a place in the law?

In my view, it's probably a mistake to move from Justice Scalia's remarks to the conclusion that he is in the grips of "near-indifferentism to the morality of the law," or that "he'd be championing abortion rights if he thought they were in the Constitution."  With respect to the latter point, his vote in the flag-burning case is instructive; it's clear he thinks there are things that people have a *legal* right to do (in the sense that our government lacks the power to prevent them from doing those things) that are nonetheless immoral to do.  With respect to the former, it is not the case that Justice Scalia thinks the law has no moral content or purpose.  His is a more limited claim about the judicial role and, especially, about the power that is given (or not) to federal judges by Article III of the Constitution.  He is, again, not one of those who think that laws do not, or should not, have moral content or purpose.  His claim, though, is that (for the most part) the moral content of the (positive) law should be supplied by politically accountable actors.

Of course, our own Patrick Brennan might disagree with me . . .