Lawprof Jonathan Turley notes that Roberts was caught off-guard by a question from Senator Durbin about what he would do if "if the law required a ruling that his church considers immoral":
Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself...I'm deeply impressed that Roberts answered the question and intrigued by its substance. I'd love to have a transcript of what went through his mind during that "long pause" before his answer. I would bet money that he thought about that Scalia speech about Catholic judges and the death penalty.
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."
Let's look at a key part of that speech:
Capital cases are much different from the other life-and-death issues that my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state of which I am, in a sense, the last instrument that is decreeing death, but rather private individuals whom the state has decided not to restrain.I think Roberts, during the pause, thought this through and fixed on the key point, which was Scalia's point: a ruling in favor of abortion rights is not an immoral ruling, even if abortions are immoral. It is only if he becomes "part of the machinery" -- as is the case with the death penalty -- that the immoral act of another is the judge's own immorality.
One may argue, as many do, that the society has a moral obligation to restrain them. That moral obligation may weigh heavily upon the voter and upon the legislator who enacts the laws, but a judge, I think, bears no moral guilt for the laws society has failed to enact.
My difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe – and no one believed for 200 years – that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter.
With the death penalty, on the other hand, I am part of the criminal law machinery that imposes death, which extends from the indictment to the jury conviction to rejection of the last appeal. I am aware of the ethical principle that one can give material cooperation to the immoral act of another when the evil that would attend failure to cooperate is even greater: for example, helping a burglar to tie up a householder where the alternative is that the burglar will kill the householder.
I doubt whether that doctrine is even applicable to the trial judges and jurors, who must themselves determine that the death sentence will be imposed. It seems to me those individuals are not merely engaged in material cooperation with someone else’s action, but are themselves decreeing, on behalf of the state, death.
The same is true of appellate judges. In those states where they are charged with re-weighing the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed, they are themselves decreeing death, whereas in the case of the federal system, the appellate judge merely determines that the sentence pronounced by the trial court is in accordance with law, perhaps the principle of material cooperation could be applied. But as I have said, that principle demands that the good deriving from the cooperation exceed the evil which is assisted. I find it hard to see how any appellate judge could find this condition to be met unless he believes retaining his seat on the bench, rather than resigning, is somehow essential to preservation of the society, which is of course absurd. As Charles de Gaulle is reported to have remarked when his aides told him he could not resign as president of France because he was the indispensable man: “Mon ami, the cemeteries are full of indispensable men.”
I pause at this point to call attention to the fact that, in my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty. He has, after all, taken an oath to apply those laws, and has been given no power to supplant them with rules of his own. Of course, if he feels strongly enough, he can go beyond mere resignation and lead a political campaign to abolish the death penalty, and if that fails, lead a revolution. But rewrite the laws he cannot do....
This dilemma, of course, need not be faced by proponents of the living Constitution who believe that it means what it ought to mean. If the death penalty is immoral, then it is surely unconstitutional, and one can continue to sit while nullifying the death penalty. You can see why the living Constitution has such attraction for us judges.
It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable, and I want to say a few words about why I believe it is....
Thus, Roberts' answer will not mean that he will need to recuse himself in abortion cases.