Thanks to Tom, Michael, Patrick, and Rob who have, in a variety of thoughtful ways, raised interesting and important questions about Catholic judges and their role regarding the difficult issues of the day. I have been working on a modest project concerning the Catholic in public life. This includes the person who is: citizen, practitioner of the law, legislator, judge, administrator, or some combination (meaning, most likely, citizen and one of the other categories presented). Download law_and_politics_as_vocation.docAs you will see, I have also introduced the role of the pastor (i.e., the bishop) into the mix.
So, what should Catholics in public life, including judges, do regarding the hot issues of the day? Well, the answer is found in another question: what should any Catholic do? The answer to the question: how does one exercises his or her discipleship in public life begins with the need to understand the position which the person holds and how he or she can respond. But, when all is said, the issue is the same regardless of the status of the individual who asserts that he or she is a Catholic.
With regard to all the statuses I have mentioned, the question begins in the same way: what does this person know about what the Church teaches on a particular issue? It is too easy to condemn another Catholic when that individual does something with which we disagree, but the condemnation is probably based on the assumption that the individual knows the duties that he or she has as a Catholic but is defying them. What if the person does not? What then? I try to develop a response to this vital question as well. I also give some thoughts on what should happen when the individual is aware of the obligations of being a Catholic.
I hope that I provide some helpful insight for Tom’s colleague who raised the issue about Catholic judges. The fact that a person is a judge does not make that individual any different from another member of the community of saints who is a part of the branches on the vine of Jesus. How that person grows and exercises his or her duties may vary because of that individual’s position on the branches, but the responsibilities and accountability to God remain the same. Thanks for hearing me out, and I would be grateful for any comments on the paper which has been submitted for consideration in an upcoming symposium on these and related issues.RJA sj
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.
Our discussion of the role of a Supreme Court Justice might profitably consider two principles proposed by Catholic sources. First, there is the idea from St. Thomas that no one has an office ("officium") directly from the natural law; offices, relevantly, are the creation of an authoritative political regime. Second, however, the Compendium of the Social Doctrine of the Church (2004) says this (par. 409; ital. in original): "In their specific areas (drafting laws, governing, setting up systems of checks and balances), elected officials must strive to seek and attain that which will contribute to making civil life proceed well in its overall course. [citation to par. 2236 CCC] Those who govern have the obligation to answer to those governed, but this does not in the least imply that representatives are merely passive agents of the electors. The control exercised by the citizens does not in fact exclude the freedom that elected officials must enjoy in order to fulfil their mandate with respect to the objectives to be pursued."
Justices of the Supreme Court are not, of course, "elected officials," nor are they, in any straigthforward sense, "representatives." But they are among "those who govern," and I wouldn't want to say that there is a Platonic Form of what their governing "office" is. That office is better approached, I think, in these terms provided by Paul Bator: "The judicial power is neither a platonic essence nor a pre-existing empirical classification. It is a purposive institutional concept, whose content is a product of history and custom distilled in the light of experience and expediency." There is much more to be said, I think, about how we discern the criteria for "developing" the judicial office. But I think that among them is, in those words of the Compendium, the freedom "to fulfil their mandate with respect to the objectives to be pursued. These do not depend exclusively on special interests, but in a much greater part on the function of synthesis and mediation that serve the common good . . . . "
According to today's New York Times, Roberts' appellate-confirmation statement about Roe and Casey as precedent "made [him] somewhat suspect in the eyes of some social conservatives." In general, though, pro-life groups (like other issue groups) don't care about whether Roberts has a consistent theory about the rule of law or conscientious objection. They want to know whether he's likely to vote overrule or limit Roe and Casey as a justice (which is, of course, a different matter from whether he vowed to follow them while on the court of appeals -- so it wouldn't be disingenuous for him to vote to overrule Roe as a justice). And it appears that most pro-life groups have confidence that he will vote to overrule them -- much more confidence than with Gonzales. Roberts is more tied into the conservative movement generally by having served in the Reagan and Bush I Justice Departments and the Reagan White House and by other means. Perhaps pro-life groups also find it reassuring that Roberts' wife Jane was a vice president of Feminists for Life. By contrast, I think a lot of social conservatives feared that Gonzales would rise to the top of Bush's list not because of conservative principles but because of his personal friendship with Bush.
But before being too sure about Roberts' ultimate vote on the basic abortion right, conservatives should -- like liberals -- ask him lots of questions about his view of stare decisis (the importance of even the justices following precedent). As Linda Greenhouse wrote in the Times, Roberts' career as well as his words last night bespeak not just a conservative, but also "someone someone deeply anchored in the trajectory of modern constitutional law, not of someone who felt himself on the sidelines throwing brickbats, nor of someone who felt called to a mission to change the status quo."
Tom B.
UPDATE: Andrew Sullivan collects examples of "disgruntlement" about Roberts on "the grumpy right."
Reader Stephen Carney asks the following excellent questions:
How do/should Catholic legal scholars compare the role of a judge with the role of other state actors, such as police or prison guards? A lone cop can't just go arrest an abortionist for murder, because the larger system tells him, "no, for now that's a legal act." A prison guard can't unilaterally release someone that he thinks is innocent, can he? What about on death row?
And if we can accept that cops and prison guards can have limits on their roles -- albeit limits that may give way in extreme situations (orders to round up the Jews, etc.) -- then why can we not accept analogous, though different, limits on judges? Thus, a Catholic judge perhaps should oppose Roe, leaving it to States, but should not declare the death penalty unconstitutional (unless the case can truly be made for that on constitutional terms), as that's not his job, any more than it's the prison guard's job to sneak prisoners out.
I tentatively agree that a Catholic judge faces similar professional obligations as others. If she can't perform the tasks called for, she must either work to change the legal regime through the established procedures, engage in a form of civil disobedience (open disobedience and a willingness to suffer the consequences), recuse herself if called to perform intolerable tasks (leaving to the side what those might be), or resign. The prison guard can seek to alleviate unjust conditions through a partial remedy (e.g., treating the prisoners humanely), engage in civil disobedience (e.g., a sit-down strike), work to change the system from within, or resign. Subject perhaps to certain extreme cases where the legal order is irredeemably corrupted (Nazi Germany comes to mind), the guard cannot "do justice" by subverting the legal order. Do other readers/co-bloggers have a different perspective?
A quick follow-up question to Michael Scaperlanda's post on the Roe/Casey distinction: can a Catholic judge "fully and faithfully" apply Casey given that its holding allows legalized abortion to persist? A state law outlawing abortion under all circumstances, for example, would clearly constitute an undue burden. Under such circumstances, assuming that a Catholic judge's application of Roe is morally problematic (and I'm not certain that it is), isn't the application of Casey similarly problematic?
I am not sure that I agree with Rob that Roberts' full quote regarding Roe forecloses my nuanced reading. Fully and faithfully applying Casey (unlike Carhart), gives a judge a lot of latitude in determining what is or is not an undue burden on the so-called right to an abortion, as we see in the disagreement between Kennedy on the one hand and Souter and O'Connor on the other over the partial birth abortion question. Given the fact that laws coming before the circuit court will likely be limitations (not prohibitions) on abortion, raising the issue of whether the limitation or restriction is an undue burden, couldn't a judge who disagreed with Roe fully and faithfully apply Casey and reach the conclusion that very few laws create an undue burden?
Michael Scaperlanda wonders whether Judge Roberts was parsing his words carefully and cleverly on the question of Roe during his earlier confirmation hearing. Here is the full quote, which seems to foreclose Michael's nuanced take:
Senator Durbin. . . . I am asking you today what is your position on Roe v. Wade?
Mr. Roberts. I don't--Roe v. Wade is the settled law of the land. It is not--it's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey.
Rob offers three possibilities as to why pro-life groups are lining up behind Roberts when they had reservations about Gonzales given Roberts' confirmation testimony: "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." I'd like to tease out the third possibility and ask my fellow bloggers and readers a question. Rob's third possibility was "Do pro-lifers assume that Roberts was being disingenuous during his confirmation hearing?" Is it disingenuous to answer in the way Judge Roberts answered given the fact that Roe's issue (defined as can a state or DC outlaw abortion) will not come before the DC Circuit as long as Roe is on the books? If the issue is what restrictions can be placed on abortion, Roe is not the settled law having been supeceded in large measure by Casey (which allows a judge opposed to the consitutional abortion license leeway) and Carhart. Could it be the Judge Roberts, in answering the question before the judiciary committee, was following in the footsteps of St. Thomas More? In "A Man for All Seasons," More's daughter Margaret informs More of the oath, and she is surprised when More responds that he will take it if he is able. He wanted to look at the words, suggesting that words matter, and if he can escape imprisonment and martyrdom by signing the oath, he will. What do you think? Is it possible that Roberts was following More's lawyering footsteps and parsing his words carefully but not disingenuously?
During the confirmation hearing on his nomination to the D.C. Circuit Court of Appeals, Judge Roberts stated that "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
Judge Roberts seems like he would make a very capable Supreme Court Justice, but I would like to note that his statement suggests the ultimate embrace of the rule of law (as opposed to the instrumentalist conception of law now dominant on both sides of the culture war divide). Given that Judge Roberts is Catholic, is there a problem in the manner with which he pronounces his "personal views" to be no obstacle to his full and faithful application of Roe? After all, even a rule of law judge may have to wrestle with the prospect of recusal, a possibility not suggested by his stated position. Given our discussions last week regarding the possible nomination of Alberto Gonzales (here, here, here, here, and here), I would expect pro-life groups to issue statements opposing the confirmation of Roberts. Instead, they appear to be lining up in support, focusing on anti-Roe positions that Roberts staked out as a government lawyer.
So what's going on here? Three possibilities: 1) Has the pro-life lobby embraced an inflated vision of the rule of law (where deference to the law trumps everything, even the need for conscientious objection)? 2) Was opposition to Gonzales grounded in his wishy-washy conservatism on non-abortion issues? or 3) Do pro-lifers assume that Roberts was being disingenuous during his confirmation hearing?
