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Is There Such a Thing as a “Catholic Judge”

Robert Miller comments on SCOTUS Justic Anton Scalia’s recent denial that he is a Catholic judge:

A Catholic theologian is not merely a Catholic who is also a theologian but a theologian who studies Catholic theology; and a Catholic writer is not merely a Catholic who is a writer but a writer who writes on Catholic themes. By parity of reasoning, a Catholic judge is not merely a Catholic who is a judge but someone who judges in a way different from other judges precisely because he is Catholic—and this is exactly what Scalia denies he does.

There is no peculiarly Catholic way of judging. And thus Justice Scalia is right when he says, “There is no such thing as a Catholic judge.”

I once heard Harvard law professor William Stuntz comment on the related question of whether there is such a thing as Christian legal scholarship. Stuntz asked whether the tables Jesus made as a carpenter were Christian tables, which I thought was a nice way of making the point. Miller seems to be on to the same point:

Scalia didn’t put it this way, but just as a Catholic historian of philosophy will not, insofar as he is a Catholic, hold peculiar interpretations of, say, Spinoza’s Ethics, so too a Catholic federal judge will not, insofar as he is a Catholic, hold peculiar interpretations of, say, the Securities Act of 1933 or the Equal Protection Clause.

Yet, it seems to Miller and Scalia are both missing something here. As Catholics, we have a moral obligation to avoid formal cooperation with evil. As I explained in a Beliefnet column:

… we see that there are cases--albeit only in those limited class of cases in which a judge’s decision constitutes formal cooperation with evil--in which a Catholic jurist is religiously obligated to put his faith-based beliefs ahead of, say, his views of precedent. Conversely, however, it seems clear that judicial decisionmaking--even with respect to issues, like abortion, that raise very profound questions--under Church teaching does not per se constitute formal cooperation with evil.

The article Catholic Judges in Capital Cases (1998) offers an excellent analysis of this question in the context of the death penalty. Catholic legal scholars John Garvey and Amy Coney say:

“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.”

Much the same analysis would apply to hot-button issues like abortion and euthanasia.

Accordingly, where a Catholic judge believes his participation in a particular case would constitute formal cooperation with evil, the judge should recuse himself--as often happens. 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.

As someone who is both a Catholic and a judge, Scalia is subject to those rules, even if he is otherwise correct that there is no such thing as a “Catholic judge.”

Update: Robert Miller emails:

If there is an action that, if taken by a judge, would amount to formal cooperation with evil, then *anyone* who sits on the bench, not just Catholics, should refrain from that action. To take the examples you mention, if abortion and the death penalty are immoral, then they are so because they are contrary to the natural law (by which I mean in this context the moral norms knowable by human reason), and so anyone, whether he be a Catholic or otherwise, ought to refrain from such actions and so from cooperating in such actions. So there is still nothing to distinguish the Catholic judge from any other judge.

The only case that would be different, as far as I can see, would concern moral norms that (a) are not part of the natural law, but (b) are applicable to Catholics because they belong to the divine positive law. That there are such norms is clear: Catholics-but not other people-have an obligation to attend mass, baptize their children, preach the Gospel of Jesus Christ, support the Church financially, and so on. I find it very hard to concoct a case, however, in which such a norm could be relevant such that a judge acting in accordance with the natural law and a judge acting in accordance both with the natural law and the divine positive law might judge differently. I don’t say absolutely this couldn’t happen, but only to the extent that it could would a “Catholic judge” be any different from any other judge who acts in accordance with the moral norms knowable by human reason. Or, at least, that’s how I see it.