Catholic Judges Don't Take Long To Be Inconsistent

While the "Catholic bloc" stood together on the partial birth abortion case, it did not take long for this alliance to be pulled asunder. As noted by Eduardo Penalver, all but Kennedy voted the wrong way in a sequence of three death penalty-related cases. Of course, as some also argued in the context of the Hamden case (pertaining to the applicability of the Geneva Conventions), the voting was purely based on a procedural point of law. This is the position adopted by Rick Garnett, Panalver's Mirror of Justice colleague, who notes that there is no "authoritative church teaching involved in what amounts to a "question whether a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's ... claim is required to vote to reverse that denial".

But as I noted before, Church teaching pertaining to the death penalty is not mere "prudential judgment" that can be blithely dismissed. While the Church does not teach that the death penalty is always and everywhere wrong (like abortion), its moral licitness depends on the intent and circumstance. In other words, we are talking about principles governing circumstances rather than judgements about particular circumstantial facts. Here, the Church does carve out conditions under the death penalty may and may not be immoral, namely, that there must be no other way to defend society.

How does this relate to the judiciary? Penalver makes the following point:

"Given the immorality of the death penalty in all but exceptional cases (what I take to be the authoritative teaching of the Church) and given an American death penalty that goes substantially beyond what the Church would allow, it seems to me that Catholic Justices are under at least some moral obligations with respect to the death penalty."

That sounds about right. Frankly, I fail to understand how the kind of legal "originalism" so favored by conservative judges can be compatible with a Catholic approach to the law. Its focus on text rather than the natural law is surely inspired by Protestantism. For Catholics, the natural law must transcend all positive law. I am not encouraged when I hear judges speaking out against Roe v. Wade simply because it created a far broader right to "privacy" than was ever intended. This is undoubtedly true, but not relevant. They should oppose abortion because it is wrong, and no positive law can make it right. What if the original constitution had included a specific right to abortion? It would still be wrong, despite the original intent. The same holds true for the death penalty. In cases pertaining to the God-given human rights and dignity of the person, appealing to legal procedural niceties simply will not cut it. There are moral issues involved, at least as important (if not moreso) than the vote of a legislator.

And, as we have seen with the recent death penalty cases, the Catholic justices did not take long before they started deciding as non-Catholics...