I would like to thank Rick and Rob for their recent postings on the topics of Catholic members of the judiciary and the rule of law. It strikes me that these topics and their treatment also invite reflection on the current circumstances of one and possibly two vacancies on the United States Supreme Court. I am confident that many of us—be we readers or contributors of MOJ—will be addressing these and related matters in the coming weeks. It’s also clear that all of us (law teachers, lawyers, citizens) can spend a life time thinking about and discussing or debating these interrelated issues. With that caveat, I would like to offer a few thoughts at this stage.
Any judge is called to uphold the rule of law. Of course, other office holders, lawyers, and citizens share in this fundamental responsibility. I cannot do justice to explaining my view of the rule of law in an American context in this posting, but I hope to offer some basic insight into my understanding of the judge’s role in exercising and protecting the rule of law. The judge works with cases that contain the facts, the legal texts (both public and private), and past judicial decisions that have some bearing on the case. This is the basic legal framework in which the facts are evaluated and judgments are made.
Many of us are teachers, and we spend hours explaining to ourselves and our students how the judge is often called to tackle the case in the context of the law’s ambiguity. But sometimes the law that seems to apply doesn’t simply have ambiguity, it probably does not address the issue at hand. It may not even apply, but there is the urge to do something to resolve the case and administer “justice.” So, what does the judge do? Some are tempted to fill in the gap by taking over the role of the legislator (which could include Constitutional amendments). Others may say that the matter is one that belongs not in the courts but before a coordinate branch of the government, i.e., it is a political question rather than a case or controversy.
When the temptation to be substitute for the coordinate branch prevails, I believe the rule of law suffers on several fronts. It suffers because someone or somebody (a judge or judges) is doing the work of someone else. Those of us on the sidelines begin to wonder if this is simply zeal to decide a case or to usurp the authority which properly belongs to someone else. In the context of the matter of “privacy,” I think a judge acts properly if the case involves a search of a person’s home or property. The Constitution addresses this sort of thing in the Fourth Amendment. The same text should also apply to a case in which the State invades the body of the person. This does not mean that the State must lose and the person must win. It does mean that there is a text that exists and this is what guides the judge, the citizen, and the enforcer alike.
But does the text say anything about “privacy” as Roe discusses the matter? I do not think so. This is an illustration of how the rule of law suffers and continues to do so. Volumes could be inserted here, but I’ll refrain from this temptation now!
But let me make a suggestion about what should the Catholic judge do? If the text is clear but presents grave moral questions, the Catholic judge might be able to recuse himself or herself from the case. The judge can also resign to protect his or her conscience. There are still other alternatives. A Catholic judge, like any other, is called to be a virtuous person and official. Some of us have already talked a bit about virtues and judicial office. I’ll suggest once more that they are crucial to the manner in which any judge conducts the exercise of judicial office.
But there remains some guidance from a Catholic perspective that can contribute to what the Catholic judge does in those cases involving matters like abortion, marriage, and emerging cases involving biomedical and biotechnology. One source is John Paul II’s encyclical Evangelium Vitae Here. Another two are the complementary texts issued by the CDF on "Considerations regarding proposals to give legal recognition to unions between homosexual persons" (July 31, 2003) Here and the "Doctrinal Note on some questions regarding the participation of Catholics in political life" (January 16, 2003) Here . They all provide the Catholic citizen and public office holder (including judges) vital guidance on some of the major contemporary issues of the day. And, from the perspective of the Catholic faith, they contribute to the proper exercise of the rule of law. If I may borrow from St. Augustine, “Take and read!” RJA sj
As Rick notes, over at Wired Catholic, the premise of my inquiry on Gonzales is not finding a particularly warm embrace. An excerpt:
Maybe Prof. Vischer is just being provocative, but I doubt it. I think he probably has no clue what Natural Law is or what legitimate Catholic legal theory should be. This is fairly ironic given that Natual Law was pretty much developed by St. Thomas Aquinas, the namesake of Prof. Vischer's university. . . .Vischer's statement reveals he has done little to intellectually understand and embrace a Catholic theory of law - that man's law is no law at all when it rebels against the Author of Life.
I'm not sure how this translates into a workable approach to judging, but I'll give Wired Catholic and like-minded others a chance to explain it. It's one thing to recognize that a U.S. Supreme Court ruling conflicts with the Natural Law; it's quite another thing to insist that a state court judge articulate and invoke the Natural Law as a basis for rejecting a precedent that he is bound to follow in interpreting the U.S. Constitution. We're not just talking about stare decisis, remember. Gonzales was a justice on the Texas Supreme Court. Assume that the Texas legislature passed a law prohibiting all abortions except for cases of rape and incest. Putting the resignation/recusal option to the side for a moment, on what grounds and with what language should a Catholic Texas state court judge uphold such a statute in light of Roe and its progeny? Are you suggesting that Catholic judges employ a version of jury nullification, effectively thumbing their noses at the injustices of the governing legal regime? (Jury nullification serves the intended result, of course, as the jury's acquittal is the final word; judicial nullification would last only as long as appellate review took to run its course.)
Rob
