TCS Daily

Judging Faith

By Stephen Bainbridge - August 9, 2005 12:00 AM

Questions are being raised in some quarters about Supreme Court Nominee John Roberts' apparently devout Catholic faith. Christopher Hitchens, for example, tackles the issue with his usual sensitivity and couth:

The Roman Catholic Church claims the right to legislate on morals for all its members and to excommunicate them if they don't conform. The church is also a foreign state, which has diplomatic relations with Washington. In the very recent past, this church and this state gave asylum to Cardinal Bernard Law, who should have been indicted for his role in the systematic rape and torture of thousands of American children. (Not that child abuse is condemned in the Ten Commandments, any more than slavery or genocide or rape.)


Yes, once again Hitchens demonstrates that anti-Catholicism is the last form of bigotry respectable amongst the elite. (On which subject, BTW, see Kenneth Woodward's outstanding article The Last Respectable Prejudice.) Various writers and bloggers, including Ramesh Ponnuru, Rick Garnett, and Steve Dillard, have spanked Hitchens, and appropriately so.


Others, however, are raising the question in a more temperate way. Cathy Young writes in Reason, for example, that:


A candidate's or nominee's ideology should be fair game whether it's religious or secular in nature, whether it's rooted in conservative Catholicism or liberal feminism.


I think this is a legitimate point deserving a fair response.


Let's start with first principles. It seems clear to me that a judge may consider moral norms in making judicial decisions. As I explained in my article Social Propositions and Common Law Adjudication, however, judges may not look to their own moral values:


Any complex society needs an institution before which claims based on existing societal standards can be heard. In our society, that institution is the courts: If the courts resolved disputes by reasoning from those moral norms and policies they think best, there would be no institution to which a member of the society could go to vindicate a claim of right based on existing standards. Second, since the judicial system is a peculiarly undemocratic institution, the legitimacy of the adjudicative process requires courts to look to existing legal and social standards rather than those standards the court thinks best. Finally, prohibiting the courts from employing their personal standards makes legal reasoning fairer and more easily replicable by the profession. (Page 6)


Instead, judges may consider only those moral norms having substantial support in the relevant community. (See pages 7-10 of my article.)


Although my article focused on common law adjudication, I believe the same holds true with respect to constitutional and statutory interpretation. Of course, some would argue that a judge should be an originalist and a strict constructionist with respect to the latter forms of adjudication, which would obviate the relevance of personal or social moral norms. As Justice Scalia once put it:


Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a living document -- that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.


I have substantial sympathy for that point of view, but I'm assuming herein that evaluation of moral norms is relevant to at least some aspects of what a Supreme Court justice does.

I'm also inclined to believe that the Senate's advise and consent function goes beyond a nominee's bare qualifications to include evaluation of the nominee's judicial philosophy. Certainly, if I were a senator, I would want some assurance that the nominee is an originalist and strict constructionist.


As Hitchens so ineloquently put it, the Roman Catholic Church does instruct its members on their role in the public square. The relevant document is the Vatican's Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life, which is the most recent authoritative Church statement on these issues. It states in pertinent part:


When political activity comes up against moral principles that do not admit of exception, compromise or derogation, the Catholic commitment becomes more evident and laden with responsibility. In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person.


Note the emphasized phrase -- political activity. This is a significant qualification, as well see, because of the differences between political and judicial activity.


In both spheres of activity, of course, the Church distinguishes between formal and material cooperation with evil. Here's as good an explanation of the distinction as any:


Formal cooperation is when a person (the cooperator) first of all gives consent to the evil action of another (the actor). Here the cooperator shares the same intention as the actor. The cooperator also joins in the actual performance of the evil action or supplies the actor with the means of performing it. Essentially, he consents to and helps enact the sin. For example, using the example of abortion, a nurse who assists a doctor in performing an abortion and shares the same intention is formally cooperating with evil. A legislator who actively promotes abortion legislation enabling innocent human beings to perish is guilty of formal cooperation with evil. Formal cooperation with evil is always wrong, and the cooperator shares in the guilt of the sin of the actor.


Material cooperation is when the cooperator performs an action that itself is not evil, but in so doing helps the actor perform another evil action. The moral quality of material cooperation depends upon how close the act of the cooperator is to the evil action, and whether there is a proportionate reason for performing the action.


In 2004, then-Cardinal Ratzinger (Now Pope Benedict XVI), elaborated on the Note in his statement Worthiness to Receive Holy Communion: General Principles:


Regarding the grave sin of abortion or euthanasia, when a persons formal cooperation becomes manifest (understood, in the case of a Catholic politician, as his consistently campaigning and voting for permissive abortion and euthanasia laws), his Pastor should meet with him, instructing him about the Churchs teaching, informing him that he is not to present himself for Holy Communion until he brings to an end the objective situation of sin, and warning him that he will otherwise be denied the Eucharist. ...


A Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion, if he were to deliberately vote for a candidate precisely because of the candidates permissive stand on abortion and/or euthanasia. When a Catholic does not share a candidates stand in favour of abortion and/or euthanasia, but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons.


In other words, even in the sphere of political activity, the difference between formal and material cooperation with evil can lead to differing results. A Catholic who has good reason to support a pro-"choice" candidate despite the candidate's views on abortion thus does not commit formal cooperation with evil and, accordingly, is free to do so without violating any moral precept of the Church.


I have elaborated on this distinction at some length, because it is crucial to understand that judicial decision making, even with respect to issues like abortion and euthanasia that raise moral questions under Church teaching, does not per se constitute formal cooperation with evil. This is important because it is only in those limited class of cases in which one's activity constitutes formal cooperation with evil that a judge who is a serious Catholic would be religiously obligated per se to put his faith-based beliefs ahead of, say, his views of precedent or socially accepted moral norms. (As we have seen, whether material cooperation requires one to do so depends on one's intent. The doctrine of double effect can be helpful in resolving such cases.)


Given that Catholic participation in civic life generally is barred only where one commits formal cooperation with evil, it should be clear that his apparently devout Catholicism would only pose concerns for Judge Roberts in a very small number of cases. And, in at least some of those cases, the teachings of the Church will coincide with moral norms sufficiently widely shared throughout the community and/or nation to satisfy the social support criterion required of moral norms proposed to be drawn upon in adjudication; in which case, the analysis above of the use of social norms in adjudication suggests there would be no objection to Judge Roberts basing his ruling on both the teachings of his faith and secular social norms widely held throughout society.


Of course, some will argue that the remaining cases where the teachings of the faith cannot be reconciled with the prevailing moral norms of society are the ones that really matter, which is a fair point. In my judgment, however, the possibility that such cases might arise does not disqualify Judge Roberts from serving on the Supreme Court. Instead, the appropriate way of handling such situations is on a case-by-case basis using well-established principles of judicial recusal.


An excellent analysis of this question was offered in the context of the death penalty by John Garvey and Amy Coney in their article Catholic Judges in Capital Cases, 81, Marquette Law Review. 303, 343 (1998). I haven't been able to find it on line, unfortunately, but here's their bottom line:


Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving. There are parts of capital cases in which we think orthodox Catholic judges may participate -- these include trial on the issue of guilt and collateral review of capital convictions. The moral impossibility of enforcing capital punishment in the first two or three cases (sentencing, enforcing jury recommendations, affirming) is a sufficient reason for recusal under federal law. But mere identification of a judge as Catholic is not a sufficient reason. Indeed, it is constitutionally insufficient.


In other words, they argue that "sentenc[ing] criminals to death" and enforcing "jury recommendations of death" constitute formal cooperation with evil. In contrast, collateral review of capital convictions at most constitutes remote material cooperation with evil. In my view, much the same analysis would apply to hot button issues like abortion and euthanasia, although I acknowledge that Justice Scalia takes a different view:


... a judge, I think, bears no moral guilt for the laws society has failed to enact. Thus, my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe (and, for two hundred years, no one believed) that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would -- and could in good conscience -- vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.


Garvey and Coney's conclusions are somewhat controversial, of course. Indeed, Justice Scalia has suggested that he thinks he could not 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.


In the end, however, I come down with Garvey and Coney -- where a Catholic judge believes his participation in a particular case would constitute formal cooperation with evil, the judge should recuse himself. The possibility that a judge (or justice) might have to recuse himself in occasional cases, however, does not strike me as a legitimate reason to deny the judge a seat on the bench.

If I were a senator, I would therefore confine my questions to Judge Roberts about his faith to the following:


  1. Do you believe that a judge should recuse himself if his participation in a particular case would constitute formal cooperation with evil?
  2. Would you recuse yourself under such circumstances?


I'm inclined to think that one should not ask Judge Roberts whether he believes reviewing death penalty, abortion or euthanasia cases would constitute formal cooperation with evil. Even hot button constitutional issues are often highly fact specific. It would be unfair and unworkable to ask a judge to prejudge every possible variant of every issue that might come up in a long career. Indeed, given Judge Roberts youth and the ever-evolving complexity of society, he is likely to face moral issues during his tenure on the court that are not on anybodys radar screen today. What matters is the general principle.




We'll see.

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