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.
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.
My colleague Elizabeth Brown adds some legal insight to our recusal discussion:
Robert Araujo raises the issue of what are the standards for recusal for Supreme Court Justices. Ed Harnett has addressed this in his post, but it might be useful to provide the relevant language from 28 USC Section 455:
§455.Disqualification of justice, judge, or magistrate [magistrate judge]
(a) Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
. . . .
Roberts has represented a large number of corporations while at Hogan & Hartson but he could still hear cases in which these corporations are parties unless he worked on the matters before the Supreme Court for the corporations while he was at Hogan & Hartson or another lawyer at Hogan & Hartson was working on the matters while Roberts was with the firm. 28 USC §455 (b)(2). Just because he was a partner at Hogan & Hartson, however, does not mean that he must recuse himself from every case involving Hogan & Hartson that may come before the Supreme Court. So Fr. Araujo's example of Justice Ginsburg and the ACLU would be similar to this later situation, i.e., unless Justice Ginsburg had worked on the matter that the ACLU was bringing before the Supreme Court she would not have been required to recuse herself under §455. While paragraph (a) of §455 and paragraph (b)(1) require a Justice recuse himself in situations where his impartiality could reasonably be questioned or where he has a personal bias, this generally has not been extended to cover situations in which former clients of the Justice when he was in practice come before the Supreme Court on matters that he did not work on for them when he was in practice. As Ed Harnett has already noted in his posting, paragraphs (a) and (b)(1) of §455 would be the standard that would be applied to a situation in which a Justice's religious beliefs required that he decide a case in only one way. In this case, he would not be impartial and should recuse himself. For Supreme Court justices, they are their own arbiters of when they need to recuse themselves. So for example, it would solely up to Roberts to determine if the Church's teaching on abortion precluded him from deciding an abortion case on the legal merits but forced him to decide the case in only one way. To date, none of the other Catholic justices have felt compelled to recuse themselves when hearing abortion cases.
Seton Hall law prof Ed Hartnett has emailed me his own thoughtful take on our conversation. It's well worth reading and pondering:
Cardinal Dulles has emphasized that judges’ “primary task is to apply the existing law, not to decide cases according to their personal convictions about what the law ought to be.” Avery Cardinal Dulles, Catholic Social Teaching and American Legal Practice, 30 Fordham Urban L. J. 277, 287 (2002). So, too, John Garvey, has written, “Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.” John H. Garvey & Amy V. Coney, Catholic Judges in Capital Cases, 81 Marq, L. Rev. 303, 343 (1998). Of course, a legal regime may be so corrupt that a judge should undermine that regime by deciding cases contrary to the law. “But it is hardly possible to make that claim about our own legal system.” While it “has flaws,” viewed as a whole, “it is a decent and just institution that judges should take care to preserve.” Id. at 343. Similarly, if “the existing law is truly contrary to the conscientious convictions of the judge, the judge may have to recuse herself rather than cooperate in a morally evil action.” Cardinal Dulles, 30 Fordham Urban L. J. at 288.
Dean Garvey has undertaken a detailed analysis of the recusal question in the context of capital punishment, concluding that faithful Catholic judges may not sentence individuals to death, but may preside over the guilt phase of a capital trial, affirm a death sentence on appeal, and refuse to disturb a death sentence on collateral review. Garvey & Coney, 81 Marq. L. Rev. at 306, 329. Garvey explains that an appellate judge, unlike the sentencing judge, can rightly say that “he does not intentionally direct or promote the defendant’s execution,” but instead simply that “the trial court did its job,” and that the “responsibility for life and death lies somewhere else.” Id. at 327-28. He adds that it “would be unwise from the point of view of death row inmates to leave the interpretation of the constitution to death-qualified judges.” Id. at 330. Whatever the meris of the particular line drawn by Dean Garvey, it is important to realize that all judicial acts are not the same. Simply because a faithful Catholic judge may not order that an abortion take place does not mean that a faithful Catholic judge may not determine to whom the law allocates the responsibility for making decisions regarding abortion. This is perhaps easiest to see in the context of a the legal decision regarding the scope of national power: Surely a faithful Catholic judge could decide whether the constitution empowers the national government, as opposed to the states, to regulate abortion. May a faithful Catholic judge ever decide that the law allocates the responsibility for making decisions regarding abortion to the mother? I think that the answer has to be yes. Suppose Roe and Casey were overruled, and a particular state legislature decided not to limit in any way certain early abortions. If a case were nonetheless brought seeking to block such an abortion, surely a faithful Catholic judge could decide that there was no law authorizing the bringing of such a legal claim. As Justice Scalia has noted, “States may, if they wish, permit abortion-on-demand.” Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Scalia, J., dissenting).
The public in general, and litigants in particular, are entitled to have judges who will decide cases in accordance with the law rather than in accordance with their own moral or religious convictions. The law requires disqualification if a judge “has a personal bias” or if “his impartiality might reasonably be questioned.” 28 U.S.C. § 455. If a judge knows that his religious convictions permit him to reach only one possible result in the case, he should disqualify himself. If, regardless of the law, a judge’s moral convictions require that he can only decide a case one way, he cannot decide the case at all. See Garvey & Coney, 81 Marq, L. Rev. at 334 (stating that a judge who cannot give the judgment which the law requires must recuse); id. at 339 (stating that a judge who cannot consider the possibility of imposing a death sentence should recuse from conducting a sentencing hearing in a capital case).
An abortion clinic once unsuccessfully sought the disqualification of Judge Noonan from a case, contending that his “fervently-held religious beliefs would compromise [his] ability to apply the law.” Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995). He denied the motion, evidently confident that he could decide the case in accordance with the law. For if his religious convictions had precluded him from deciding the case in accordance with the law, he would have been obligated to disqualify himself. We can be sure that if the Church takes the position that a faithful Catholic judge must either decide a case in accordance with his religious convictions or recuse himself, there will be many more recusal motions targeted at Catholic judges. The unfortunate result could be the stilling of judicial voices such as that of Judge Noonan, who wrote eloquently about the constitutionality of a law prohibiting the promotion of suicide. Compassion in Dying v. State of Washington, 49 F.3d 586 (9th Cir. 1995). And I do not think that it will do (although some might find it tempting) for a judge to decide the legal merits of the case and then recuse only if, in his view, the law calls for a decision at variance with his religious convictions, but stay in the case if his legal view coincides with his religious convictions: The point of disqualification is to prevent improper influences on the legal decision in the first place. Indeed, Judge Noonan closed his opinion by emphasizing that the ”compass of a federal judge . . . is the Constitution of the United States.” 49 F.3d at 594.
For faithful Catholic judges (particularly inferior federal judges who believe that Roe was wrongly decided), it must be extraordinarily painful to decide a case involving abortion. Indeed, recusal might well be a personal relief. But abandoning the field to those without religious objections to abortion is hardly well calculated to make the law more sensitive to the sanctity of life. And if it is never morally permissible for a faithful Catholic judge to decide cases in accordance with Roe and Casey, then faithful Catholic judges may well have no role in deciding the constitutional status of abortion. If Justice Kennedy is required to recuse himself in abortion cases, it seems to me that Justices Scalia and Thomas are too. Put bluntly, if as a matter of Catholic morality, faithful Catholic judges can never decide cases in accordance with Roe and Casey, then, as a matter of law, I don't think that they can participate in cases that limit or overrule Roe and Casey either.
I would be happy to receive comments, corrections, criticisms, and suggested readings -- including general works to help me understand better the workings of the distinction between formal and material cooperation.
Reader Albert J. Brooks wonders whether Jonathan Turley is correct in asserting that Roberts' stated need to recuse himself in a certain class of cases makes him an inappropriate nominee:
The Constitution and federal law provide for a Supreme Court composed of nine justices. Obviously there will always be unforeseen situations (illness, etc) when one or more Justices can't sit in decision on a case. And there are other cases that could not have been foreseen when the Justice was appointed in which he or she cannot sit due to a conflict of interest.
But when a Justice, for whatever reason and with respect to whatever issue, states ahead of time that he will recuse himself on that issue, is it appropriate or even permissible for the President to nominate and the Senate to confirm the Justice; essentially committing to a Supreme Court of 8 Justices on that particular issue?
Are we entitled to Justices who'll interpet and apply the Constitution and the laws of the United States? And is a Justice who'll commit to doing so, either in light of or without regard to his or her morality, preferable to a Justice who will simply "sit out" some tough cases?
It looks like the focus of our discussion on MoJ may soon find a wider audience thanks to an exchange between Judge Roberts and Senator Durbin. GW law prof Jonathan Turley, in an op-ed for the LA Times, reports:
The exchange occurred during one of Roberts' informal discussions with senators last week. According to two people who attended the meeting, Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).
Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.
It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer. In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States. A judge's personal religious views should have no role in the interpretation of the laws.
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?
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.
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?
