Justices and Religion:

Professor Bainbridge has a thoughtful post on Justices' religious faith and their legal decisions.

frankcross (mail):
Very good job. That's the first really good analysis of the "elephant in the room" excommunication argument that I've seen. Though I don't think Bainbridge's conclusion about legitimate questions follows from his analysis. It seems fair to get his understanding of the sorts of actions that might constitute impermissible "formal cooperation."
8.3.2005 3:12pm
david giacalone (www):
I've posted a lenghty reply to Prof. B's piece, which focused on my original post "What If John Roberts is a 'Serious' Catholic?".

My conclusion:

I can't endorse Prof. Bainbridge's questions for Senators to ask Judge Roberts. They are incomplete, focusing on whether "formal cooperation with evil" would require recusal, but without giving or asking for a definition of the terms; asking how Judge Roberts would decide what constitutes absolute or intrinsic "evil", nor asking what Roberts thinks his obligations would be as a Catholic if recusal were not required in a case involving such evil.

I believe a "serious Catholic" would feel obligated to actively oppose laws and decisions that his Church declares to be "intrinsically unjust." Sitting on the Supreme court would increase the duty. That would mean participating in the case and voting in a manner that would support eliminating or greatly limiting such evil. So, I ask again,"is John Roberts a Serious Catholic," and what are the ramifications if he is?
8.3.2005 6:06pm
Justin Kee (mail):
I think the relevant issue boils down to how would Roberts vote on quality of life issues such as abortion and euthanasia. Would he side with his moral concience as guided by the teachings of the Catholic Church or would he strictly interpret the Constitution or somewhere in-between?

Catholic Church: No abortion, no euthanasia, no death penalty

Constitution: No Federal( Constitutional) issue regarding abortion, euthanasia but up to the states. Judge Roberts would not validate or invalidate a state law.

So if we attribute a 50/50 moral teaching(s)/strict interpretation balance to a typical decision by Judge Roberts on the matter of abortion, I would estimate a probability of (0 * 0.5) + (0.5*0.5) = 0.25 for a pro-choice vote e.g. in a matter of state legislation. I would estimate a similar probabilty on euthansia, upholding the death penalty and other issues at the intersection of morality and biology. Of course this simplistic view is barring precedent, specific facts and other material issues, but it does strike me as a reasonable heuristic in predicting his decisions.

Now substitute the teachings of Buddha for the Catholic orthodoxy and see what we get.....
8.3.2005 6:37pm
david giacalone (www):
Justin, The Catholic Church has no official position against the death penalty. See this discussion., which concludes:

You can be a good Catholic and think that the death penalty should be done away with entirely, and you can be a good Catholic and think that it should be applied more often than "rarely."

You are not bound in conscience to adopt one position over the other. You are free to make your own prudential determination--but you are not free to say that someone whose prudential determination differs from yours is therefore a "bad Catholic."

The Church does not mandate opposition to the death penalty, nor does she mandate support for it. This means that capital punishment cannot be listed as a "non-negotiable" moral issue, and that is why it is not mentioned in our "Voter's Guide for Serious Catholics."
8.3.2005 7:20pm
Justin Kee (mail):

Thanks for the clarification. I find it interesting that you quote Mr. Keating, a singular example, for the Church's position regarding the death penalty. Regardless, how Judge Roberts would rule upon the death penalty is not the issue. The issue I raised in my post was that of how Judge Roberts would rule in re biological v. moral questions. Specifically, how Judge Roberts would balance between "evil" and the Consitution when applied to questions of biological liberty v. traditional morality. How the decision is expressed by Judge Roberts vis-a-vis death penalty, abortion, whatever the instant case may be that the "traditional" morality upholds as opposed to the modern view, that is the issue.
8.4.2005 3:26am
Alexandra v. Maltzan (mail) (www):
I find David's post on his site regarding the issue, to reflect the most accurate reality facing Roberts. The five issues that David elaborates on at length are indeed non-negotiable in the Catholic Church, abortion being on top of the list, and quoting Keating does not diminish the accuracy of the exclusion of the death penalty, the CC is explicit enough on that subject. A devout Catholic does not have a choice on these non-negotiable issues and therefore Prof. Bainbridge's view that Roberts can even deliberate whether a particular act is intrinsically evil and further whether his participation would constitute formal co-operation with that evil or not is believing in Peter Pan. If you are a devout Catholic the non-negotiable rules are indeed what they say they are: non-negotiable.The evaluation of moral norms whether they belong to the modern or traditional view that Prof. Bainbridge is referring to is a very slippery slope down to the "Constitution being a living document" (text that either court or society interpret according to what they think it ought to mean)". However coming back to the point I make in my own post dated 27th July 'Judge Roberts, governed by Faith or Oath?', the mere thought of it being perfectly acceptable for a Supreme Court Justice to recuse himself (although I agree with David, Pope Benedict will not feel that this is good enough) albeit as the Professor B puts it "only occasionally", is unnaceptable. What defines occasional in any event? If he is a devout Catholic he will constantly recuse himself, or even worse let his personal religious views affect his vote in order to limit or undo any non-negotiable evil. I feel that Justice Scalia sums up the reality of the decision that ought to be facing Roberts, when he refers to his own inability to serve on the bench if he thought the death penalty were immoral :
"... While my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all."
8.4.2005 11:43am
Abe Delnore (mail):
I think it is more accurate to say that there is substantial debate within Catholic circles on exactly what the teaching on the death penalty is. Michael Perry had an interesting post on this on the Mirror of Justice blog.

To sum up:

On the one hand, the Catholic Church has historically held that the state may have resort to capital punishment in the case of vicious crime. There is a presumption in favor of life but this may be mitigated when the life is that of a criminal. It is ultimately a matter of prudential judgment whether capital punishment is justified in a particular circumstance. Most modern authorities would say that it is not justified in modern developed nations, but on the other hand the civil authorities who use their prudential judgment to determine that it is may do so.

On the other hand, John Paul II's teachings on the subject seem to indicate that intentionally killing a human being when not constrained to do so is incompatible with human dignity and is always wrong. This would preclude application of the death penalty no matter how salutary its effects on the crime rate, public safety, etc. In effect, capital punishment would stand alongside abortion, euthanasia, and torture: no matter what good may come of these practices they must not be implemented. There is no room for prudential judgment and the prohibition is absolute and unconditional.

I doubt that Roberts holds the unconditionalist opinion; few Catholics in public life, particularly those on the conservative side of the aisle, do. Frank Keating and Antonin Scalia have expressed scorn for the unconditionalist opinion as being contrary to the authentic teachings of the Church.

By the way, I would certainly not take Karl Keating as the last word on this or any other subject of moral theology. However well-intentioned or intelligent he may be, he is a self-appointed lay apologist running a business with no formal training, expertise, or teaching authority.

--Abe Delnore
8.4.2005 1:28pm
Alexandra von Maltzan (mail) (www):
I don't understand the point of saying that "it is more accurate to say that there is substantial debate within Catholic circles on exactly what the teaching on the death penalty is". How can that be more accurate than to state what the official position of the Catholic Church is on the death penalty? The death penalty is not on the non-negotiable list of the Catholic Church PERIOD. Whether John Paul II's position on the subject differed or not, and we are all aware it did, and whether this debate goes on within the Catholic circles or not, whilst interesting, is not a valid correction of the fact that the CC's official stand is absolute, whether challenged or not. John Paul II may have wished the death penalty to stand next to abortion and the other non-negotiables but the fact is it did not and it still does not.

Secondly, you doubt whether Roberts holds the unconditionalist opinion, well be that as it may I still refer you to my above mentioned post >'Judge Roberts, governed by Faith or Oath?' where it is made clear that during an informal exchange with senators a couple of weeks ago, and according to two people who attended the meeting, Roberts was asked by Sen.Richard Durbin(D-III) what he would do if the law required a ruling that the church considers immoral. Roberts, renowned for his unflappable syle in oral argument, appeared nonplused and, according to sources in the meeting, answered that he would probably have to recuse himself. Whilst he may insist that he was merely discussing the subject theoretically in an informal setting, and that he doesn't anticipate recusing himself on a regular basis, it is not a subject that can be ignored. However in the final analysis he will not remain out of the closet and will as a good Catholic in public life steer away from voicing such personal opinions. He would not be doing justice to his carefully scripted nomination if he did, nor to the Catholic cause which is famous for working from within.
8.4.2005 5:24pm