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Thursday, August 20, 2009
What's a Catholic judge to do?
Prof. Alan Dershowitz accuses Justice Scalia of an "outrage against his church" for observing, earlier this week, that the Court "has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent." "[S]urely it is among the worst sins," Prof. Dershowitz insists, "under Catholic teaching [RG: not just "under Catholic teaching", one hopes!], to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?"
It would, obviously, be a repulsively immoral exercise of public authority to execute an actually innocent person and it is just as sure that Justice Scalia thinks so. I'm confused, though: Weren't we supposed to worry about Catholic justices "imposing" their morality through their decisions or incorporating "Catholic teachings" into the Court's doctrines?
Posted by Rick Garnett on August 20, 2009 at 01:26 PM in Constitutional thoughts | Permalink
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Comments
Umm, that's supposed to be "capital punishment," not "Catholic punishment," in para. 5. Am now concerned about the psychological implications of that slip . . .
Posted by: Anonymous Catholic | Aug 26, 2009 12:58:06 PM
Whenever I think about potential conflicts between Catholic moral duties and the roles assigned to judges, governors, legislators, and such under our legal system, I start with the Catholic prison guard and work my way up.
I'm a guard, and I have the key, and I have a window of opportunity to release a prisoner facing execution in the morning. Should I? Should I if I think he's innocent? (Assume that capital punishment is per se wrong as applied to modern America, but I recognize the debate over the prudential application of the broader Catholic doctrine to specific contexts.)
Suppose my response to my bishop and Pope is "yes, I would exercise lawful discretion in his favor if I were vested with such discretion, i.e., if I were the Governor, but that's not my job. I cannot break the law and go outside my role merely because I think I can get away with it." After all, are non-jailers obliged to organize a jailbreak if they have a good shot at pulling it off and/or getting away with it?
If the jailer's argument is right, that seems to have differing implications for Catholic legislators, trial judges, appellate judge, jurors, and so on. Each one's duty would turn on the separate question of what that individual's legitimate discretion is, before applying the Catholic doctrine.
For example, setting aside Catholic doctrine, one view of the legislator's role is solely to be the agent of his district's views, while others say (as Burke famously said) that the legislator owes his independent judgment, even if it means defeat in the next election. Thus, a Catholic legislator with the Burkean view might be duty-bound to vote for abolition, while a Catholic legislator who sincerely believes in the mechanical-agent approach might not be so bound. Assuming that Catholic doctrine does not independently weigh in on the Burke/agent debate, it seems to me unsound to suggest that the Catholic view on Catholic punishment (or whatever issue) is such that it requires the legislator to adopt the discretion-friendlier view, if he were not otherwise inclined, as a means to then apply that discretion in the pro-Catholic-view way.
Likewise, as we all know, Catholics and non-Catholics alike disagree on the scope of a judge's discretion generally, and of course Scalia has staked out a position on that. Arguendo, I take his commitment to his limited role as genuine and preceding Catholic doctrine, and here, I note that it involves not only his generic view of judging, but specifically his reading of federal habeas law in reviewing state convictions.
If that is all true, then it seems to me that we ought not oblige him to go beyond the role assigned to him by the secular Constitution and statutes in order to stop a "wrong" by Catholic lights, any more than we ask the jailer to break his oath, or than we oblige us citizens to organize a jailbreak. (Yes, civil disobedience may be morally obliged at some points, e.g., hiding Jews in the attic, but if the Church has not supported extreme measures in shutting down abortion clinics, I don't think the American death penalty triggers that point.)
But a trial judge might be different, if the law of her state openly grants her a discretionary role in sentencing. Similarly, if the law grants discretion to judges on direct appeal to independently assess mitigating and aggravating factors, etc., that secular grant of discretion might oblige a Catholic application of that discretion. The Governor, in most states, is the easiest case.
The best argument against the above chain of reasoning, and the distinction between the jailer and Scalia, would be these two inflection points: (1) the idea that the jailer's role is so settled there's no debate over whether he has discretion, as contrasted with a fair debate over the judge's role, coupled with (2) the idea that Scalia should not fully resolve his view of his role BEFORE bringing Catholic doctrine into it, but that Catholic doctrine on capital punishment should inform his not-so-prior commitment to self-shackle his hands. In other words, Scalia should take a broader view of his discretion, SO THAT he can then use that discretion to do Catholic good and avoid Catholic evil, and if he won't do THAT, he should resign now.
I am interested in revisiting those last two points when time permits, but I am fairly confident that that is where the action is.
Posted by: Anonymous Catholic | Aug 26, 2009 12:53:34 PM
I just read Scalia's dissent in its entirety, and it seems his point to me is entirely procedural. Particularly in the final paragraph, he notes that there are other remedies available that do not require him to constitutionalize the unconstitutional.
Posted by: Eric Giunta | Aug 24, 2009 7:23:52 PM
Another cite for Rick's last sentence: http://stuartbuck.blogspot.com/2007/02/is-catholic-majority-on-court.html
Posted by: Stuart Buck | Aug 21, 2009 3:31:22 PM
Alice, that's a good point -- which I overlooked -- about the passive, "what was being done." On the question of "taking part in [the] process," my colleague Cathy Kaveny has a post up, at Commonweal magazine, on an interesting, relevant passage from the Summa: http://mirrorofjustice.blogs.com/mirrorofjustice/2009/08/kaveny-joins-the-dershowitz-scalia-debate.html
Posted by: Rick Garnett | Aug 21, 2009 10:00:39 AM
Interesting discussion. Rick, aren't you altering Scalia's claim slightly? I think Joe makes this point above, but let me put it slightly differently. Scalia didn't say a judge should resign if "serving in that position required him to act immorally" (your words). He said of the execution process, "I could not take part in that process if I believed what was being done to be immoral." He doesn't make his resignation contingent on a direct constitutional mandate that he himself act immorally. Instead he refers to a "process" and "what was being done" -- note the passive voice. That language makes it hard to rely on distinctions between actions and omissions, or between judicial orders and judicial inaction. The question is whether the execution process is immoral if an actually innocent person is knowingly executed, and whether Scalia is taking part in that process.
Posted by: Alice Ristroph | Aug 21, 2009 9:44:04 AM
I read your argument as being somewhat broader than Dershowitz's point. After all, your point seems to be that there is a distinction between concluding that a federal court lacks power to prevent something (e.g. an execution of an innocent person) is not a sin, and (I think this is a fair implication) ought not prompt a judge to resign. My response is that a judge may well be bothered not only in a "as a concerned and well-informed citizen I find this awfully terrible" kind of way, but rather as bearing some degree of personal responsibility. It is this personal responsibility for the result--whether it is executing an innocent person, sending a fugitive slave back to his master, or executing any person at all--that the "the Constitution compels me to reach this result" mentality seeks to dodge.
Posted by: anon | Aug 20, 2009 10:51:56 PM
Anon: I guess I don't see the "dodge." What is it, exactly, that is being dodged, and how? I am not suggesting, after all, that a judge who concludes that "the Constitution does not necessarily authorize . . . " etc., etc., should be unbothered by that fact (if she thinks it is a fact), and I didn't think I was "dodg[ing]" the possibility of "tension between judicial duty and moral belief." I only meant to question the force of Dershowitz's "gotcha!" argument.
Posted by: Rick Garnett | Aug 20, 2009 10:31:21 PM
Rick, you can make that distinction, but it seems like an escape device. A juror can conclude that the law does not authorize an individual juror to stop the state from executing a man who is innocent. That would be grotesquely wrong, but it is not a "sin." The governor can conclude that he is without power to pardon. That would again be grotesquely wrong, but not a sin. Presumably your reply would be that no reasonable or even mildly intelligent juror or governor would believe those things, whereas Justice Scalia's belief in his limited power is both sincere and reasonable. But under this "sincere and reasonable" standard, anything that a judge does cannot conflict with Catholic doctrine. A judge can always sincerely and reasonably conclude he is without power to do something in any case. It seems to me that the question of tension between judicial duty and moral belief cannot be so easily dodged. Otherwise we would not have had judges who were so troubled by the burden of the Fugitive Slave Act on their conscience.
Posted by: anon | Aug 20, 2009 9:36:55 PM
Joe, with respect to the passage you quoted, Prof. Dershowitz's use of the word "unlike" confirms, in my view, that he is confused. Justice Scalia's stated view -- i.e., that he should resign his position if serving in that position would require him to act immorally -- is *not* one that puts his commitment to the Church over his commitment to the Constitution.
That said, you are right to point out that Dersh is having fun with the (for him, delicious) prospect of putting Justice Scalia in the position of having to make good on his promise. He neglects, though, it seems to me, a distinction between "killing an innocent person" -- something that, obviously, Justice Scalia should resign before doing -- and "concluding that the Constitution does not necessarily authorize a federal court to stop a state from executing a man who, despite otherwise fair process, plausibly claims to be factually innocent." It is not a "sin" -- even if it is a mistake -- to so conclude.
Posted by: Rick Garnett | Aug 20, 2009 4:19:58 PM
I don't know about you but I take comfort in that. It's good knowin' he's out there-- The Dersh-- policing judicial morality for all us sinners.
Posted by: Paul Washington | Aug 20, 2009 2:57:46 PM
Rick, I think you're misrepresenting Dershowitz's article. Scalia imposing his faith on the country/Constitution as a Catholic justice isn't on the table:
Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.” He put his point in “blunt terms”: “I could not take part in that process [of authorizing an execution] if I believed what was being done to be immoral.”
Thus, according to Scalia (according to Dershowitz), if as a Catholic he is obligated not to authorize the execution of a factually innocent person, then he will (must) resign from the Supreme Court -- not constitutionalize this belief.
Posted by: Joe (A.B.) | Aug 20, 2009 2:55:24 PM
Wasn't the argument that just the *existence* of a majority of Catholic S. Ct. justices might threaten the rule of law, whatever their views may be?
I could be wrong, but I have a foggy recollection of something like that. :)
Posted by: Marc DeGirolami | Aug 20, 2009 2:08:24 PM
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