Michael Perry over at Mirror of Justice notes that a recent Supreme Court decision made it easier for prosecutors to exclude people who express reservations about the death penalty from capital juries. The appeals court judge (whose decision was overthrown) granted a new trial on the grounds that a certain juror was excluded simply because "he did not perhaps show the kind of bloodthirsty eagerness" to impose the death penalty. The five Catholic justices had no problem with this. The four non-Catholics dissented. According to the New York Times, legal experts claim that this decision "will make the panels whiter and more conviction-prone."
This is just the latest in a series of judgments whereby the five Catholic justices joined together to remove any potential hurdles to the greater application of the death penalty in American courts. Last month, a case revolved around whether or not a prisoner who would not let his defense attorney present mitigating evidence during his original trial could change his mind and get a new hearing. No way, said Justices Thomas, Scalia, Kennedy, Roberts, and Alito. As Stevens noted in his dissent, the man had a "serious organic brain disorder", and his lawyer did not uncover this fact during the trial. And before this, all but Kennedy voted the wrong way in a sequence of three death penalty-related cases.
Now, there are those who will undoubtedly defend the actions on the majority on legal technical grounds. There are those who will argue that there is no authoritative Church teaching directing how to vote on these kinds of procedural grounds. But this is surely misguided. While the Church does not claim that the death penalty is always and everywhere wrong (like abortion), it 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. Note that this teaching is not merely a prudential judgment but a moral principle governing particular circumstances, and requires religious assent. The prudential judgment in this case is that no death penalty in the United States meets this strict condition. But this can hardly be disputed! Given this situation, should Catholic Supreme Court justices not try to "err on the side of life" as much as they can within the law? And why are they not doing so?
In fact, the Catholic majority on the Court has actually made things worse. As Patti Waldmeir in the Financial Times wrote last month:
"The recent addition of Chief Justice John Roberts and Justice Samuel Alito, the Bush appointees, might have substantially shifted the balance of power on the court on death penalty issues, experts said. Before their appointment, the court had done much to chip away at the edifice of the death penalty by insisting on improvements in legal representation for capital defendants and ruling unconstitutional the application of capital punishment to juveniles and the mentally retarded."I will leave you all with some food for thought. Many Catholics believe the appointment of Roberts and Alito to the Supreme Court was of signature importance, justifying sticking with the Republicans in spite of everything else. But what if their appointment has zero impact on abortion, but a substantial negative effect on other aspects of the culture of life?