Judge John Roberts and the Catholic Question

Christopher Hitchens points to a rather odd promise made by Supreme Court nominee John Roberts to Dick Durbin: That he would recuse himself in cases where Catholic teaching and American law were in contradiction.

Catholic Justice – Quit tiptoeing around John Roberts’ faith (Slate)

Everybody seems to have agreed to tiptoe around the report that Judge John G. Roberts said he would recuse himself in a case where the law required a ruling that the Catholic Church might consider immoral. According to Jonathan Turley, a professor of law at George Washington University, the judge gave this answer in a private meeting with Sen. Richard J. Durbin, D-Ill., who is the Senate minority whip. Durbin told Turley that when asked the question, Roberts looked taken aback and paused for a long time before giving his reply.

Attempts have been made to challenge Turley’s version, and Sen. Durbin (who was himself unfairly misquoted recently as having made a direct comparison between Guantanamo, Hitler, and Stalin when he had only mentioned them in the same breath) probably doesn’t need any more grief. But how probable is it that the story is wrong? A clever conservative friend writes to me that obviously Roberts, who is famed for his unflappability, cannot have committed such a bêtise. For one thing, he was being faced with a question that he must have known he would be asked. Yes, but that’s exactly what gives the report its ring of truth. If Roberts had simply said that the law and the Constitution would control in all cases (the only possible answer), then there would have been no smoke. If he had said that the Vatican would decide, there would have been a great deal of smoke. But who could have invented the long pause and the evasive answer? I think there is a gleam of fire here. At the very least, Roberts should be asked the same question again, under oath, at his confirmation.

It is already being insinuated, by those who want this thorny question de-thorned, that there is an element of discrimination involved. Why should this question be asked only of Catholics? Well, that’s easy. The Roman Catholic Church claims the right to legislate on morals for all its members and to excommunicate them if they don’t conform. The church is also a foreign state, which has diplomatic relations with Washington. In the very recent past, this church and this state gave asylum to Cardinal Bernard Law, who should have been indicted for his role in the systematic rape and torture of thousands of American children. (Not that child abuse is condemned in the Ten Commandments, any more than slavery or genocide or rape.) More recently still, the newly installed Pope Benedict XVI (who will always be Ratzinger to me) has ruled that Catholic politicians who endorse the right to abortion should be denied the sacraments: no light matter for believers of the sincerity that Judge Roberts and his wife are said to exhibit. And just last month, one of Ratzinger’s closest allies, Cardinal Schonborn of Vienna, wrote an essay in which he announced that evolution was “ideology, not science.”

Thus, quite apart from the scandalous obstruction of American justice in which the church took part in the matter of Cardinal Law, we have increasingly firm papal dogmas on two issues that are bound to come before the court: abortion and the teaching of Darwin in schools. So, please do not accuse me of suggesting a “dual loyalty” among American Catholics. It is their own church, and its conduct and its teachings, that raise this question.

One presumes the Senate will get to the bottom of this. Given all that I’ve read of Roberts’ brilliant legal mind, I am dubious that we can take this at face value.

But Hitchens is right as far as it goes: A judge, let alone a Supreme Court Justice, can have fealty to only one law in the course of his duties: The Constitution of the United States and such legislation, regulations, and treaties which are lawfully executed under it. To act otherwise is to dishonor the Oath of Office.

(As an aside, I’m by no means a Biblical scholar, but a fair reading of the Ten Commandments, especially under the Golden Rule penumbra, would seem to preclude slavery and rape. Even a literal reading enjoins genocide, which is merely a multiple violation of the 6th Commandment against murder. )

Ramesh Ponnuru and Feddie accuse Hitchens of “anti-Catholic bigotry.” But this is nonsense. It’s true that Hitchens is an anti-theist and thus anti-Catholic. It is nonetheless true that the Roman Catholic hierarchy has firm positions on some of the most contentious issues before the Court. Papal bulls should have no more place in a judge’s deliberations than international law or his own policy preferences.

Update (8-3): Ponnuru responds at length, making some fair points. My response to his response is here.

FILED UNDER: Congress, Law and the Courts, Religion
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Fred says:

    I thought this was all settled years ago with the election of a Catholic President, John F. Kennedy.

  2. Chrees says:

    I thought this was shown to be a blatant lie planted by Durbin? Maybe I’m getting everything confused now… I’ll gladly stand corrected if I’m wrong.

  3. RiverRat says:

    A Planted Story Gone Bad

    Another Durbin lie gone bad. The link gives you the backgroud. Apparently Hitchens doesn’t read at much as he should.

  4. Kent says:

    Certainly a judge’s first duty, as a judge, is to the body of law he is sworn to uphold. To that there is a grain of truth in what Hitchens says. But his article still comes across, to this non-Catholic, as anti-Catholic bigotry.

  5. Silly statement o’ the day

    Silly statement o’ the day, courtesy of James Joyner over at OTB:

  6. John Thacker says:

    I believe that Professor Althouse gave a very good discussion of this issue. The question was, apparently, what he would do if “if the law required a ruling that his church considers immoral.” This point has been addressed before by Catholic scholars, and was the focus of a speech by Justice Scalia. I suggest you read her post, as it summarizes the arguments better than I would.

    For a brief summary, there is a clear difference between a judge failing to prevent others from engaging in an immoral act because he lacks the power to do so, and a judge engaging in an actual act of committing an immoral act. Justice Scalia’s speech argued that, while he believes that abortion is an immoral act, he also does not believe that the Constitution speaks to the issue one way or the other. Therefore, he does not believe that he is morally bound to rule that fetuses are “persons” under the Fifth and Fourteenth Amendment, and thus possess the right to life and due process rights, and thus rule to outlaw abortion. Morality does not require that he exceed his lawful bounds in order to restrain the immoral actions of private actors.

    However, Justice Scalia goes on to argue that when a judge, e.g., acts as part of sentencing in a trial, she engages in an act of commission by being part of the essential machinery enforcing the act, rather than simply declining to stop it. Therefore, a judge who believes consistently that, e.g., the death penalty is immoral would be unable to sentence someone to death without committing a perceived immoral act, and should thus recuse herself. Similarly, if a legislature passed a law mandating forced sterilization or forced abortions of the mentally disabled, a Catholic judge would also be forced to recuse himself rather than be issue a ruling forcing that punishment.

    Justice Scalia argued that a sense of judicial restraint allows a judge to rule in most cases (outside of sentencing) without conflict with morality, by denying to judges the power to rule arbitrarily according to their moral preferences. Without such a sense, he argues that judges will rule according to their moral preferences, whether Catholic, religious, or secular. Indeed, quite a bit of the general public, though luckily not most judges, consider rulings based on whether the ruling’s outcome accords with their sense of morality, rather than judicial doctrine.

  7. It is already being insinuated, by those who want this thorny question de-thorned, that there is an element of discrimination involved. Why should this question be asked only of Catholics? Well, that’s easy. The Roman Catholic Church claims the right to legislate on morals for all its members and to excommunicate them if they don’t conform.

    Uh, this is different from most churches how? All churches have moral codes and can throw out members if they’re flouted. But the Catholic Church is somehow uniquely the target here.

    The main thing to keep in mind is that the kinds of conflicts that would supposedly force Roberts to recuse himself–if he did say that–are pretty rare. Meanwhile Hitchens is rather selective in his other accusations–including the fact that Schoenborn notwithstanding, the Church has hardly been a campaigner against evolution.

    I don’t know what the heck Cardinal Law has to do with any of this. Indict him or don’t. That’s not Roberts’ problem or anybody else’s on the Court.

    Hitchens is a brilliant writer who just goes wack on religion.

  8. bryan says:

    Uh, this is different from most churches how? All churches have moral codes and can throw out members if they’re flouted. But the Catholic Church is somehow uniquely the target here.

    Many protestant churches do not have explicit excommunication rites and rules. For instance, one can be kicked out of a specific baptist church by the members of that church, but go and join another church down the road and still be a “baptist.” As well, at least in the baptist variety, individual churches are independent of one another. There is no central rule-making authority – hence no “creeds” that baptists acknowledge in membership. Denominations make suggestions and pass resolutions that they agree upon, but none are binding upon the member churches.

    I’m not so sure about other faiths – lutheran, methodist, or presbyterian – which have more formalized authority structures.

    In short: it’s a lot different from other churches.

  9. 1. The explicitness of excommunication rites and rules, expelling rules or what have you does not seem pertinent, especially when you realize how rarely excommunication is enacted in the Catholic Church (besides which, technically speaking you actually excommunicates oneself by crossing certain bright lines).

    2. I’m aware that generally speaking Protestant churches do not have the kind of centralized authority as the Catholic Church. But I don’t see that being able to join another church–in the example you provide, under the same broad Baptist banner–alters the case. All Churches have rules, you violate some, you get thrown out of that church.

  10. bryan says:

    2. I’m aware that generally speaking Protestant churches do not have the kind of centralized authority as the Catholic Church. But I don’t see that being able to join another church—in the example you provide, under the same broad Baptist banner—alters the case. All Churches have rules, you violate some, you get thrown out of that church.

    I don’t see how you can’t comprehend the fact that each individual baptist church is a church unto itself, with all the rights and responsibilities of any *other* church. There is no central authority that sets standards that must be applied and practiced by all members. Therefore, to make the claim that the *Catholic Church* is the same as *every other church* is ludicrous on its face.

    Yes, all churches have rules, but not all churches operate under the assumption that what one man in Rome says is *the word of God* IS *the word of God* applicable to all members of that faith community – many millions around the world.

    That’s a substantial difference.

    And I did not even mention the aspect of soul competency or priesthood of all believers, a concept that is certainly different between the catholic church and protestants.

    Whether you “fail to see how joining another baptist church alters the case” doesn’t change the facts of the matter – not all churches operate under the centralized authority structure that the Catholic Church does. To say that “all churches” are the same and therefore Catholic dogma is not of concern is to ignore reality and theology.

  11. bryan says:

    besides which, technically speaking you actually excommunicates oneself by crossing certain bright lines).

    Unless I”m mistaken, catholics who are baptized into the faith are *always* considered catholics, until and unless they are excommunicated by the church. From my admittedly outside-looking-in understanding, I’ve always heard “once a catholic, always a catholic.”

  12. J Mann says:

    I don’t see a problem with a judge recusing himself in cases where his or her moral code is in irreconcilable conflict with the law. For example, if Judge Blackmun, for example, developed a belief that the death penalty was moral anathema but permitted by law, it might have been better to recuse himself rather than announcing that he would henceforth vote to reverse all death penalties, as he did.

    Certainly, from a conservative perspective, recusal is a better solution than assuming that if you personally are morally opposed to something, then it must be unconstitutional.

    The bigger, and legitimate question is whether Roberts recusal promise renders him an ineffective justice. If Roberts really plans to recuse himself from every death penalty and abortion case, he may not be the right guy for the job. That’s a totally legitimate question, and may be asked without reference to how horrible the Catholic Church is.

    On the other hand, if you argue that Roberts should not be on the court because Cardinal Law is a bad man, or because the 10 Commandments don’t forbid child abuse, I think you have edged over into anti-Catholic bigotry.