Getty Images
Judge John G. Roberts Jr. has been called the stealth nominee for the Supreme Court — a nominee specifically selected because he has few public positions on controversial issues such as abortion. However, in a meeting last week, Roberts briefly lifted the carefully maintained curtain over his personal views. In so doing, he raised a question that could not only undermine the White House strategy for confirmation but could raise a question of his fitness to serve as the 109th Supreme Court justice.
Getty Images
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. (To his credit, Roberts did not say that his faith would control in such a case).
Roberts 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. But it's not a subject that can be ignored; if he were to recuse himself on such issues as abortion and the death penalty, it would raise the specter of an evenly split Supreme Court on some of the nation's most important cases.
Roberts could now face difficult questions of fitness raised not only by the Senate but by his possible colleague, Justice Antonin Scalia, one of the most conservative members of the court (and a devout Catholic). Last year, Scalia chastised Catholic judges who balk at imposing the death penalty — another immoral act according to the church: "The choice for a judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty."
Getty Images
Roberts is known to be an honest and straightforward person. His answer seems to be a frank effort to deal with a deep-seated conflict of faith and public duties. As a government attorney, he was a coauthor of a brief that argued that Roe v. Wade (the 1973 Supreme Court ruling on abortion and privacy rights) should be overturned. Yet later, in his appellate court confirmation hearings, Roberts was asked specifically whether he could apply Roe vs. Wade and he stated that he could. Now, as he moves toward a job in which he could ultimately be the deciding vote to narrow, preserve or overturn the doctrine, it could be a materially different moral choice for a devout jurist.
Unless Roberts denies the statement or somehow neutralizes it, it could seriously undermine the strategy of the White House for the confirmation hearings. For years, Roberts has been carefully groomed for greater things, one of a new generation of post-Bork nominees, young conservatives who have been virtually raised on a hydroponic farm for flawless conservative fruit. They learned to confine their advocacy to legal briefs so that their true views are only known to the White House and to God.
Now, however, Roberts may have opened the door to the very questions that the White House sought to avoid with his nomination. If he would have to recuse himself before ruling contrary to his faith, the Senate is entitled to ask specifically how he would handle obvious conflicts on issues such as abortion and the death penalty.
With the Roberts statement, the masterful "un-hearings" that the Bush administration hoped to have, in which nominees are not required to answer specific questions about their judicial views, would become particularly awkward.
This is not a question driven by ideology. I favor some of the conservative changes that Roberts is expected to bring in doctrine, and I believe that he has excellent qualifications for the position. I also believe that the President is entitled to such a conservative nominee.
Getty Images
The question of recusal raised with Durbin reflects a serious and important debate occurring within the Catholic community, in which many of my close friends have been raised. It is the classic Sir Thomas More conflict of trying to serve both God and King. However, these are questions not just for a nominee to ponder but for senators, and the ultimate burden may have shifted to the White House to fully answer this question. Unless staunch Catholic views become the law, I don't see how anyone sitting on the Supreme Court Bench can justify recusing himself on fundamental issues such as life and death. Whilst us lesser mortals can strive to merge our faith with our public duties, a Supreme Court Judge holding the highest judicial office in the land cannot be afforded the same privileges. That is the nature of the beast, and if this is indeed the case, Roberts should not have accepted the nomination. But I have all the faith in the President to find his way around that little obstacle...
Getty Images
None of this means that Judge Roberts is unfit to serve, but the question is who, his faith or his oath?
I leave you to ponder on a hunky photo of Roberts from his Harvard days, looking very much like a young JFK, which will certainly be a marked improvement on the almost retired and rather dowdy looking Justice Sandra Day O'Connor...
The news has just come in that the Democrats' favorite mascot, Hillary Clinton has said she will come out in favor of Roberts.This means that Roberts should now have an almost unimpeachable credibility with all but the extreme left. It makes me think of Shaw's famous line: "Some men see things as they are and ask 'Why?'. I dream of things that never were and ask 'Why not?' "
Update: Check out Professor Bainbridge's site 'Mirror of Justice" and his post 'Strang on Originalism and Precedent' with this article, by Ave Maria's Prof. Lee Strang. It should be of interest to those like myself, who have been following the discussion about Catholic judges, stare decisis, and cooperation with evil. Here is the abstract from "An Originalist Theory of Precedent":
"There is substantial scholarly disagreement on whether and in what manner prior decisions of the United States Supreme Court interpreting the Constitution bind it later in time. This is despite the consensus of American legal practice that prior constitutional decisions do bind later courts. At the heart of the debate surrounding precedent is the tension between our written Constitution, which is the supreme law of the land, and the role of the unelected Supreme Court in exercising constitutional judicial review. Further, the existence of numerous and important nonoriginalist precedents is used by critics of originalism as an (in their view, often decisive) argument against originalism.
In this Article I will offer a theory of constitutional precedent within an originalist framework. I will argue that a limited respect is due some nonoriginalist constitutional precedent because of the larger societal goal of effectively pursuing the common good.
I will initially describe the problem that precedent has posed for scholars and courts in the area of constitutional adjudication. First, I will explain what I mean by a theory of precedent. Second, I will briefly discuss the debate over the proper interpretative methodology of the Constitution. Third, I will show how, for any plausible theory of constitutional interpretation, there will be precedents that, under the methodology, are mistakes. Lastly, I will review attempts by originalist scholars to elucidate a theory of precedent in constitutional adjudication.
I will then lay out my theory of originalist precedent. First, I will describe the originalist interpretative methodology I am assuming for purposes of this Article. Central to the originalist methodology that I describe are the concepts of the common good and authority, and the process of making natural law effective in society. Then, I will argue that courts should not overrule nonoriginalist constitutional precedent only when overruling the precedent would gravely harm society's pursuit of the common good.
Originalism requires judges to adhere to the meaning of the text of the Constitution as it was understood when ratified. In constitutional adjudication, therefore, judges may only apply the positive law of the Constitution and may not, generally, directly apply natural law norms. By contrast, when determining whether to overrule or limit nonoriginalist precedent judges will be relatively unconstrained and will have to make those determinations by looking to what the common good of society requires. As a result, I will briefly discuss a theory of judicial virtue to account for how judges should exercise this discretion."
Hm, very interested to discover that several other people have been making this point, albeit I think mostly in connection with Alito. Professor Bainbridge led me to Ramesh Ponnuru and to Fr. Neuhas, but best of all the Professor gave me a nice link to the Pope's own take, which uses technical casuistic phrases like "formal cooperation in evil" and "remote material cooperation." But the Pope helpfully provides examples of what he means:
"Remote material cooperation" is the precisely correct technical term for what a judge does in saying truthfully that a particular law allows great evil to be committed. The distinction between formal cooperation and material cooperation is to be found in the will: a general who bombs a military target knowing that some civilians are present and will die, does not commit at all the same moral act as does the terrorist who chooses a target precisely with the intention of killing civilians. The moral general must still take into account the balance of consequences likely to ensue from ordering such a bombing (this is the bit about "proportionate reasons"), and if the negative consequences of the unintended deaths of civilians outweight the positive consequences that can be expected to flow from the bombing, then it is immoral for him to order the bombing. But that is a judgment call on his part, and if the bombing is immoral in any particular case, it will be accidentally immoral, not formally immoral. If I may put it this way, evil choices preclude participation in the Eucharist; stupid choices do not. (I mean, of course, evil choices without subsequent repentance.)
Posted by: Kenny Pierce | Thursday, November 10, 2005 at 12:13 AM
Oops, I misspoke and very much confused my own point. I said:
I might add that Scalia is an expert on American Constitutional law, not on Catholic casuistry.
What I meant was:
I might add that Roberts is an expert on American Constitutional law, not on Catholic casuistry.
That is to say, Roberts didn't know the right answer (as you can tell from his own confusion and hesitancy). Hmm, I wonder what that "Preview" button is for...maybe I should take it out for a spin.
At any rate, I'll betcha one thing: I betcha Roberts went home that very night and looked that answer up. He didn't know the answer when the question got popped, but I'll betcha a bunch he knows it now.
Hm, also, the fact that you couldn't tell that I consider Catholic casuistry to be so much a specialty that even Roberts isn't familiar with its rules, probably makes the "you guys aren't good casuists" come off as more insulting. It really, really, wasn't meant in any belittling way, merely in an, "Ah, I see the source of the confusion" sort of way. I apologize for my airheaded social clumsiness there.
Posted by: Kenny Pierce | Tuesday, November 08, 2005 at 11:45 PM
You know, I don't think you guys are very good casuists, which is not at all meant as an insult because casuistry is very much a specialty of its own. Catholic ethics are a very complex and nuanced sort of thing. If you haven't studied it then you need not to leap to the conclusion that you know what it is that the Church obliges Catholics to do, even -- in fact I would say especially -- if you grew up Catholic. I might add that Scalia is an expert on American Constitutional law, not on Catholic casuistry.
To take a Thomistic approach: a judge who is called upon to state the truth of what the law says, does not choose to support abortion on demand when he says truthfully that the law allows it. This is true even if he is absolutely convinced that more children will die if he says truthfully that the law allows abortion on demand than if he says falsely that the law forbids it. In such a case, he does not will the "unnecessary" abortions, even though he foresees them. He wills the speaking of the truth, which is his moral duty as a judge; the abortions are an undesired and unwilled, albeit foreseen, consequence. The truly immoral thing would be to lie, which would involve willing consent to sin.
Furthermore, there is nothing immoral about stating the truth about the law, and therefore nothing immoral about being a judge. This is true even if the law itself is evil. (But note that, to a person from the political left accustomed to believing that the judge's duty is to require us to behave as we ought rather than to state faithfully what it is that the law requires, this whole attitude seems immoral. In my experience liberals tend to expect Catholic judges to enforce the opinions of the Pope rather than the law, because liberals are delighted when liberal judges enforce liberal views of justice rather than the law. You can usually learn a very great deal about what a person would do if given power, by looking at what he expects other people to do if they get power.)
However, a legislator or a member of the executive is in an entirely different situation. A legislator who attempts to keep an evil law in place is in a radically different situation from a judge who states the truth about what an evil law says. For the legislator cannot fight to keep an evil law in place without willing the existence of the evil law. And while it is arguable that a member of the executive can defensibly obey, under protest, an evil law that forbids him to act, he must not under any circumstances obey an evil law that requires him to behave evilly. For example, the President may morally refrain from throwing abortionists into prison if the laws say that abortionists are to be allowed to practice their trade without government interference. But if laws are passed that require the government to throw women into prison if they do not submit to abortions when the government has not given them permission to get pregnant, then the orthodox Catholic executive must either refuse to enforce the law or else resign his office.
Now, if the system of law were to become so utterly corrupt that the very system of law itself were evil -- if, in other words, the vast majority of American laws were to become evil and the Constitution itself was predominantly an instrument of repression on injustice -- then a judge might well be morally required to step down rather than to participate in the system. But if a generally good legal system has an occasional corrupt spot here and there, then a judge may tell the truth about the law (even in the corrupt spots) with a clear Catholic conscience.
In short, a precedent-following John Roberts would have little to fear from the Pope; but a pro-choice John Kerry is pretty deeply at odds with the Catholic Church.
Posted by: Kenny Pierce | Tuesday, November 08, 2005 at 11:35 PM
Sometimes I truly believe that this country is going to hell in a handbasket, meticulously crafted and made overseas by someone who is not only grateful to make a dollar a week, but who also hopes to one day partake in that myth of all myths -- the American Dream. Whatever happened to separation of Church & State? Why is religion even factoring into politics? Hey John Roberts, how about recusing yourself from the Supreme Court? Become the Pope instead. If your personal beliefs prevent you from doing what's best for the country, stand down. We'll understand.
Posted by: Taryn A. Robinson | Friday, August 05, 2005 at 10:54 AM
Look, it's a difficult enough debate for most of us, and although we are all painfully opinionated on the subject, compared to Roberts we are still privileged to even be able to merge it into our work ethic, but as you say for the position of a Supreme Court justice whose vote can swing a verdict, it's unacceptable. His role is to be the impartial guardian of the rule of law. Justice Scalia summs it up when refering 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."
Posted by: Alexandra von Maltzan | Saturday, July 30, 2005 at 03:54 AM
This isn't really a debate: Nine Justices are there to prevent a split vote - the new nomination is going to be the swing-vote. The mere thought, at night, in private, in the confessional chamber if you will, of contemplating a conflict of faith and professional duty and in the end not arriving at an absolute absence of such conflict is without doubt an immediate knock-out. The fact, that after careful consideration of the question he proposes to recuse himself is absolutely final. There is no way out - thank you for being honest, but no thank you for serving as the 109th Supreme Court justice.
Posted by: Victor | Saturday, July 30, 2005 at 03:30 AM
Unless the U.S government merges with the Church every Judge has to uphold the law. His personal views are irrelevant. The problem is that the U.S. allows political views to interfere with the decisions within the Supreme Court, so why not carry it further to the Judges' own Religious beliefs? Personally I find both unnaceptable.
Posted by: lilly | Friday, July 29, 2005 at 04:50 PM