There is at least one loose end that remains to be tied up from our discussion of the Catholic judge. A few days ago I indicated that a Catholic judge called to implement an immoral law faced four options: apply the law as given, resign, recuse, or engage in civil disobedience. One reader called the prospect of civil disobedience for a judge "absurd," and he may be right. But I won't concede the point without a bit more exploration.
Let's suppose that a Catholic judge hears a motion from a minor seeking permission to obtain an abortion without parental consent. The judge finds that there is not sufficient cause to grant permission, and denies the motion. The appellate panel -- comprised of judges who consistently seek to maximize reproductive rights -- rules that the lower court abused its discretion and remands for further proceedings. If the lower court now has no viable legal or factual basis on which to deny the motion, would Catholic legal theory deem it permissible for the judge to issue the following ruling?
Under state law as interpreted by the court of appeals in this case, this 15 year-old child is entitled to terminate the life of her unborn child without even notifying her parents, making a tragic situation even more tragic. Such an outcome is not acceptable in a legal system that purports to value both family and life. Here, the law acts to eviscerate both. I cannot facilitate such an outcome. The motion is denied.
The judge undoubtedly would be subject to sanction, and the appellate court would step in and grant the motion. The system remains intact, but a strong message of dissent has been registered. Recusal, by contrast, simply suggests that the judge has a personal hang-up or bias toward the case -- i.e., it's the judge's problem, not society's. At a minimum, such an act of civil disobedience by a judge seems more consistent with the rule of law than a judge's instrumentalist manipulation of law to pursue her own moral or religious ends. The former challenges the law overtly and can be addressed through established legal procedures, the latter subverts law covertly and corrodes the rule of law from the inside out.
I admit, scenarios justifying such acts are exceedingly rare (the Jim Crow South is another potential context), and depending on our view of Catholic legal theory, possibly non-existent. It's fairly easy to see that deference to the rule of law is not an absolute value for Catholic legal theory in a place like Nazi Germany, where the rule had been thoroughly and irredeemably corrupted. But in contexts where the rule of law, in broad terms, is still viable, are there any specific instances where the threat of injustice is so great that a judge would be justified in temporarily stepping out of her role as an agent of the law to become a (vocal) dissenter from the law?
Note that I'm not asking whether Catholic legal theory would ever require such a stance (I don't think it would), but whether such a stance is among the permissible options. In other words, does Catholic legal theory's embrace of the rule of law forbid civil disobedience by a judge?
Rob
UPDATE: My friend and former colleague Michael Simons reminds me that in 1997, Judge Sprizzo (S.D.N.Y.) acquitted two abortion protestors in a self-confessed act of "judicial nullification." Here's the story, along with Michael McConnell's perspective on the case.
And Greg Kalscheur, S.J. recommends Robert Cover's Justice Accused: Antislavery and the Judicial Process (1975), in which Cover considers different judicial approaches to enforcing the Fugitive Slave Act.
I have been following with great interest the discussion of recusal by Catholic judges. I weighed in over at my personal blog on some of these questions. My post Stare Decisis and Roe v. Wade discusses the question of whether Justice Roberts (assuming he is confirmed) would be bound by Roe. Obviously, the answer is no, but I observe in the post that some on the left are suddenly taking the concept of stare decisis far too seriously. In my post A Religious Test?, I argue it is appropriate (but politically stupid) for Democrat senators to inquire into the role Roberts' faith might play in his judicial decision making.
Tuesday, July 26, 2005
First Things has made available this essay, "Christians and the Death Penalty," by Joseph Bottum (the magazine's new editor), from the latest issue. It's powerful, and provocative, and has more in it than I can capture here. Here is the conclusion:
To leave the argument against the death penalty in the hands of those who no longer much believe this Christian story is dangerous. The people who think there is no such thing as a blood-debt are always surprised to see crowds outside penitentiaries where executions are about to take place, chanting for the execution. But those crowds appear at executions in the United States for a reason—because blood really does cry out from the ground. “He didn’t suffer as much” as his victims, one bereaved parent objected at Michael Ross’ death. Without the Christian revelation to restrain it, the sense of a blood-debt that must be paid will only grow.
When the jury brought in a sentence of execution for the man in Texas who had dragged to death a black man tied to his truck with a chain, one spokesman for the local African-American community announced that he was normally against the death penalty, but in this case it was justified repayment in blood for two hundred years of lynching. Horrible as that crime was, this is a fright ening thing to hear. The distinction between torts and crimes, between harms done to individuals and evils done to society, is breaking down across America.
You can see it in the recent emergence of civil suits for damages from murders, and the congressional orders for changes in trial procedures to accommodate the victims’ families during the Oklahoma City bombing trials, and the provisions of every new bill for victims’ rights, and the kind of testimony increasingly allowed during sentencing hearings. You can see it, perhaps most of all, in the thought, expressed by nearly everyone at Michael Ross’ execution, that the state’s criminal-justice system was paying something back to the families of his victims. Even Michael Ross came to believe it—came, in fact, to demand it, fighting every attempt to save him—and it is a primitive and pre-Christian understanding of justice.
The divine right of kings was a short-lived political theory, swept under by rival theories in early modern times. A new understanding of the limited sovereignty of government emerged, and one of the primary causes was the gradually developing awareness that Christianity had thoroughly demythologized the state. But that is not, by itself, a stable condition. Without constant pressure from the New Testament’s revelation of Christ’s death and resurrection, the state always threatens to rise back up as an idol. And one sign of a government’s overreaching is its claim of power to balance the books of the universe—to repay blood with blood.
Rick
In today's Boston Globe, Massachusetts Governor Mitt Romney explains why he vetoed a bill that would have expanded access to emergency contraception. Essentially, he argues that the bill would have altered abortion law, which he pledged during the campaign not to change. Here is his justification for that stance:
I understand that my views on laws governing abortion set me in the minority in our Commonwealth. I am prolife. I believe that abortion is the wrong choice except in cases of incest, rape, and to save the life of the mother. I wish the people of America agreed, and that the laws of our nation could reflect that view. But while the nation remains so divided over abortion, I believe that the states, through the democratic process, should determine their own abortion laws and not have them dictated by judicial mandate.
Because Massachusetts is decidedly prochoice, I have respected the state's democratically held view. I have not attempted to impose my own views on the prochoice majority.
I appreciate this deference to democracy, but if he truly wishes that the laws could reflect his prolife views and is legitimately positioned as governor to shape those laws, can deliberate inaction be justified by surveys showing that a majority of voters support the status quo? I suppose that without such a pledge, he would not have been elected in Massachusetts and not positioned to do whatever good he is doing. Still, his reasoning strikes me as a bit curious.
Rob
More than fifteen years ago, Stephen Carter anticipated many of the questions that are being raised today about the legitimacy of religoiusly-devout judges drawing upon their religiously-based visions in making judicial decisions. Although he argued that a religiously-devout judge is as entitled to draw upon his religious faith as is another judge to draw upon moral principles, he concluded by asking whether it might not be preferable to return to the aspirational ideal of objective judging so that personal views, whether religious or otherwise, would not be the basis for judicial edicts. Below I set forth some of the concluding words in Stephen Carter, The Religiously Devout Judge, 64 Notre Dame L. Rev. 932 (1989):
"Now, of course, we ought to be uncomfortable with the idea that the religiously devout judge will proceed at once to her religious values—but only for the same reasons that we ought to be uncomfortable with the idea that any judge will proceed at once to her own values. * * *
I expect this proposal to make liberals uncomfortable, because the liberal uneasiness with religion is not readily overcome by brief, scholarly analysis. And yet, even if I have not convinced you that the religiously devout judge ought to be free to rest her moral knowledge on her religious faith, I hope that I have at least offered a plausible case for the proposition that there is no apparent reason to treat her religious faith differently from moral faiths of other kinds. The implication of this insight for the “do-the-right-thing” type of judicial review should be plain—either all judges should be free to rely on their moral knowledge as they make decisions, or no judges should.
The ideal of the objective judge was slain by the legal realists long before the critical legal studies movement resurrected it in order to kill it again. But the ghost of the objective judge refuses to go away. I doubt that the objective judge will die quietly, as long as liberals continue to think that letting a judge rest her decisions on a moral understanding is a good idea. Because once a judge’s moral understanding is permitted to play a role, the liberal argument cannot distinguish religiously based knowledge from other moral knowledge, or at least, cannot do so without arguments that require a bit too much cognitive dissonance. The aspirational model of the objective judge might offer the only path to sanity. And if we continue to pursue distinctions as crazy as this one, a path to sanity will be a useful thing to have."
Greg Sisk
The folks at Prawsblawg, a "group of young legal turkeys offering their thoughts on law and the things that really matter in life," have invited me to "guest blog" for a few days. So, check out the conversation. (For some interesting posts on Judge Roberts, religion, and recusal, go here and here and here).
Rick
