In “Roberts’ Catholicism” (Aug. 2, 2005) Professor Bainbridge has offered a thoughtful piece
responding to many of the issues raised in our prior post “What if John Roberts is a ‘Serious’
Catholic.” Click here for my reply, which summarizes Steve’s points and addresses them at
some length. It concludes:
I can’t endorse Prof. Bainbridge’s two questions for Senators to ask Judge
Roberts. They are incomplete — focusing on whether “formal cooperation with
evil” would require recusal, but not asking how John Roberts defines the terms
or how he would decide what constitutes absolute or intrinsic “evil.” Crucially,
Prof. Bainbridge doesn’t ask what Roberts thinks his obligations as a Catholic
justice would be 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?
reprise from Prof. George Swede:
during discussion
on the meaning of life the crunch
of a student’s apple
the son who
argues everything
I study his face in a puddle
score tied
both team jerseys look the same
in the August twilight
stepping on
sidewalk ants the boy
everyone bullies
George Swede from Almost Unseen (Brooks Books, 2000)
Interesting, but I disagree. The Vatican’s Doctrinal Note referenced talks about those “who are directly involved in lawmaking bodies”. A justice doesn’t make law, which I think is a critical distinction. Most of the logic centers around political activity and the court is, in theory at least, apolitical. It doesn’t create law, merely defines it and resolves conflicts. There is a massive difference between promoting/opposing an act as a lawmaker versus determining whether such law violates a superceding principle like the Constitution as a justice. One is advocacy; the other is merely objective evaluation. Advocating rape for instance, is a far cry from defining what it is. Even when you factor in the reference to the obligation to oppose “judicial decisions or civil laws that authorise or promote abortion or euthanasia” that seems like it would be read from a non-judicial standpoint; after all, a judge neither oppose nor defend laws. Nor do they vote for the law, they merely rule whether or not it is valid or applicable. Therefore arguably while a Catholic could not in good conscience advocate such a position as say a US or state’s attorney, merely ruling on whether or not a law already passed by the legislature or the electorate is in fact valid within the context of existing law as a justice would seem to be something else entirely.
Comment by junyo — August 3, 2005 @ 7:27 pm
Interesting, but I disagree. The Vatican’s Doctrinal Note referenced talks about those “who are directly involved in lawmaking bodies”. A justice doesn’t make law, which I think is a critical distinction. Most of the logic centers around political activity and the court is, in theory at least, apolitical. It doesn’t create law, merely defines it and resolves conflicts. There is a massive difference between promoting/opposing an act as a lawmaker versus determining whether such law violates a superceding principle like the Constitution as a justice. One is advocacy; the other is merely objective evaluation. Advocating rape for instance, is a far cry from defining what it is. Even when you factor in the reference to the obligation to oppose “judicial decisions or civil laws that authorise or promote abortion or euthanasia” that seems like it would be read from a non-judicial standpoint; after all, a judge neither oppose nor defend laws. Nor do they vote for the law, they merely rule whether or not it is valid or applicable. Therefore arguably while a Catholic could not in good conscience advocate such a position as say a US or state’s attorney, merely ruling on whether or not a law already passed by the legislature or the electorate is in fact valid within the context of existing law as a justice would seem to be something else entirely.
Comment by junyo — August 3, 2005 @ 7:27 pm
Thanks for giving your thoughts, Junyo. It’s nice that I have Prof. Bainbridge on my side on this one.
The Doctrinal Note is about activity in the public sphere — not a narrow view of what the word “political means.” Do you think that the principles wouldn’t apply to a President? It’s clear that a Supreme Court justice has the opportunity and power to mold, craft, revoke a law — it is that authority that creates the responsibility to follow Church doctrine when dealing with “intrinsically evil” laws.
This goes back to my opening sentences in the initial post on John Roberts — when something isn’t on all fours with prior precendent, lawyers need to know how to apply legal reasoning, deciding what is similar and relevant in the new and old situations. I don’t see how a Catholic justice could duck the responsibilities, since he or she has far more ability to fight the evil than does any legislator or citizen — from attempting to persuade other justices to voting on the case.
Comment by David Giacalone — August 3, 2005 @ 7:46 pm
Thanks for giving your thoughts, Junyo. It’s nice that I have Prof. Bainbridge on my side on this one.
The Doctrinal Note is about activity in the public sphere — not a narrow view of what the word “political means.” Do you think that the principles wouldn’t apply to a President? It’s clear that a Supreme Court justice has the opportunity and power to mold, craft, revoke a law — it is that authority that creates the responsibility to follow Church doctrine when dealing with “intrinsically evil” laws.
This goes back to my opening sentences in the initial post on John Roberts — when something isn’t on all fours with prior precendent, lawyers need to know how to apply legal reasoning, deciding what is similar and relevant in the new and old situations. I don’t see how a Catholic justice could duck the responsibilities, since he or she has far more ability to fight the evil than does any legislator or citizen — from attempting to persuade other justices to voting on the case.
Comment by David Giacalone — August 3, 2005 @ 7:46 pm
I see your point, but again, i think that judges are unique. Judges are in the public sphere, but in theory isolated from the common cares of the other areas. They’re specifically not supposed to be advocates of any particular viewpoint other than the objectively correct one. A presidents would be bound by his beliefs, but then again voters actively expect a president to be an advocate of their views which is why they voted for him in the first place. Attorneys are essentially advocates for hire, that defend the cause of their current client. But again, the common thread is the specific advocacy of a concept which is at odds with ones beliefs. Judges have no such conflict. A judge, at least a good one, is basing his decisions, his modifications or revocations of law, not on the concept itself nor the passion of his beliefs, but on whether or not the issue before them is valid or invalid within the objective standard of law. The actual underlying concept of the issue is completely abstracted and irrelevant to the actual decision.
As to not seeing how a Catholic judge couldn’t ‘duck their responsibilities’, that’s a bit like not understanding why any Catholic wouldn’t kill an abortion doctor. Undoubtedly some would; unless they’re a felon they can with relative ease obtain the means to easily and directly fight what they believe to be evil. But assuming a rational actor, simply having the power isn’t sufficient – one must anticipate that the excercise of that power will produce a favorable result. Killing an abortion doctor would be personally disasterous and detremental to the Church, and the causes they believe in, so one could reasonably argue that regardless of the depth of one’s belief that abortion doctors are murderers, and that it is one’s obligation to oppose such murders, that specific method isn’t useful. Accordingly, one could argue that even if Robert’s beliefs made him incapable of truly objective decisions, the combination of his beliefs and the forseeable consequences of the specific method of biased rulings – the reflection cast would make all Catholic suspect and therefore diminish their ability to fight evil thoughout the public sphere as a whole – would make him strive for as much objectivity as he was capable of.
Further we’re talking about the affect that his Catholicism would have on his vote, plus his ability to persuade other (presumably objective) justices to a faith base decision, specifically in cases that don’t have enough prior precedent to make them a simple matter of law. That just seems like a minimal risk to me.
Comment by junyo — August 3, 2005 @ 8:43 pm
I see your point, but again, i think that judges are unique. Judges are in the public sphere, but in theory isolated from the common cares of the other areas. They’re specifically not supposed to be advocates of any particular viewpoint other than the objectively correct one. A presidents would be bound by his beliefs, but then again voters actively expect a president to be an advocate of their views which is why they voted for him in the first place. Attorneys are essentially advocates for hire, that defend the cause of their current client. But again, the common thread is the specific advocacy of a concept which is at odds with ones beliefs. Judges have no such conflict. A judge, at least a good one, is basing his decisions, his modifications or revocations of law, not on the concept itself nor the passion of his beliefs, but on whether or not the issue before them is valid or invalid within the objective standard of law. The actual underlying concept of the issue is completely abstracted and irrelevant to the actual decision.
As to not seeing how a Catholic judge couldn’t ‘duck their responsibilities’, that’s a bit like not understanding why any Catholic wouldn’t kill an abortion doctor. Undoubtedly some would; unless they’re a felon they can with relative ease obtain the means to easily and directly fight what they believe to be evil. But assuming a rational actor, simply having the power isn’t sufficient – one must anticipate that the excercise of that power will produce a favorable result. Killing an abortion doctor would be personally disasterous and detremental to the Church, and the causes they believe in, so one could reasonably argue that regardless of the depth of one’s belief that abortion doctors are murderers, and that it is one’s obligation to oppose such murders, that specific method isn’t useful. Accordingly, one could argue that even if Robert’s beliefs made him incapable of truly objective decisions, the combination of his beliefs and the forseeable consequences of the specific method of biased rulings – the reflection cast would make all Catholic suspect and therefore diminish their ability to fight evil thoughout the public sphere as a whole – would make him strive for as much objectivity as he was capable of.
Further we’re talking about the affect that his Catholicism would have on his vote, plus his ability to persuade other (presumably objective) justices to a faith base decision, specifically in cases that don’t have enough prior precedent to make them a simple matter of law. That just seems like a minimal risk to me.
Comment by junyo — August 3, 2005 @ 8:43 pm