More Questions about Catholic Judges and the Rule of Law

My St. Thomas Law colleague Elizabeth Brown raises the following interesting and important questions in the light of the discussion about Roberts, Catholic judges, and the rule of law.  Thanks, Elizabeth.  Comments from co-bloggers and readers are encouraged. -- Tom B.

In reading Rob's post on "Non-judges and the Rule of Law", I began musing over the following questions:

Various posts on the Mirror of Justice blog have dealt with Communion and pro-choice Catholic politicians while others have dealt with whether a Catholic judge can apply Roe or Casey.  I, however, have not seen anything addressing the possibility of the bishops extending the same policy (denying Communion) to judges who follow or maintain the holdings in Roe and Casey.  It does seem at least possible to me that some bishop may threaten to deny Communion to judges, particularly Catholic Supreme Court justices, who follow or maintain the holdings in Roe and Casey.  In addition, the draft statement on Communion for the upcoming bishops' synod states disapprovingly: "Some receive Communion while denying the teachings of the Church or publicly supporting immoral choices in life, such as abortion, without thinking that they are committing an act of grave personal dishonesty and causing scandal."  In the last presidential election, some bishops said that they would deny Communion to Catholic politicians who acted in that way.  The precedent cited for the bishops' denial of Communion to pro-choice politicians is the excommunication of three segregationists who opposed the integration of Catholic schools in New Orleans in 1962 by Archbishop Rummel.  One of those segregationists was Louisiana Judge Leander Perez.  So this precedent would seem to indicate that the bishops could move in the direction of applying the same policy regarding denial of Communion to judges. 

Would the bishops who want to deny Communion to Catholic pro-choice politicians in fact be hypocrites if they did not impose the same punishment on judges or justices who follow or maintain Roe?  Afterall wouldn't a Supreme Court Justice who was given the opportunity to overturn Roe and failed to do so, be "publicly supporting immoral choices"?  By that standard, shouldn't Communion be denied to Justice Kennedy for his vote on Casey?  If Roberts believes in the value of stare decisis, can he vote to uphold Roe and still receive Communion?  Or does he and every other Catholic judge have a duty to subvert the law - Roe - which certainly could be argued is as irredeemably corrupt as the Nazi genocide since it allows 1.3 million abortions to be performed annually in the US? 

What kind of anti-Catholic backlash would result if a bishop threatened to deny Communion to Kennedy or Roberts if they refused to vote to overturn Roe when deciding an abortion case?  Could a Justice be impeached if he voted to overturn Roe due to a threat of being denied Communion, given that such a threat would be viewed by many non-Catholics (and possibly some Catholics) as religious blackmail?  If bishops refuse to apply the Communion policy to judges because it would do more harm than good, why would the same calculus not apply to politicians?   

I would be curious to read the thoughts of the Mirror of Justice bloggers and readers regarding any of the above questions.