Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, July 13, 2005

What is a Catholic Judge Supposed to Do?

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

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