July 25, 2005

Did Judge Roberts just commit to recusing himself in abortion cases?

No, and here's why.

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...

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."
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.

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.

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....
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.

Thus, Roberts' answer will not mean that he will need to recuse himself in abortion cases.


Nigel Kearney said...

Surely he should completely disregard the views of his church. It's law, not politics.

What is the difference between an outcome that offends his religion and an outcome that he dislikes for some other reason?

What if police officers decided to 'recuse' themselves when called on to enfore a law they disagree with?

Unknown said...

The Constitution itself, in my opinion, has no inherently immoral content; and Christians are commanded to uphold the law of their land up until the point it requires a direct disobediance to God. Thus by upholding it, I think that a greater good is achieved even if individual cases achieve immoral results. I personally cannot think of a case that is likely to occur where Roberts would have to recuse himself.

On the other hand, let's suppose that by some insane occurrence, the Constitution were amended to permit murder by individual citizens. I don't think that a Christian judge could in good conscience swear to uphold that Constitution and would be forced to resign.

Also, if the situation that James states were to arise, then I agree that Catholics may be forced to resign---but only if the command of the church is incompatible with the Constitution. Thus if they were to say, "you must consistently rule against slavery," then I would say he's safe. If they were to say, "you must consistently rule against abortion," that would be quite difficult, because the Constitution as I read it specifically talks about people born or naturalized, not the unborn. So unless the law is amended, say, to naturalize the unborn (assuming such a finesse is constitutional), then a Catholic justice could not rule against a law permitting abortion (though he could still strike down Roe v. Wade, IMO, because it isn't legislated).

Unknown said...

Fair enough, James, which is why I said "murder" and not "killings" :) The church does not completely forbid the death penalty, for example; and assuming due process is given, neither does the Constitution. Nor does it forbid killing in the course of genuine self defense, if I understand correctly. But if the Constitution were to enshrine as legal killing that is currently considered murder, or even abortion, that's when I think the line would be crossed for a conscientious Catholic.

John Thacker said...


The Fourteenth Amendment's opening sentence is "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." (As an aside, there's interesting history suggesting that the children of illegal aliens were not originally believed to be "subject to the jurisidiction" of the US and thus were not intended to be granted citizenship by the 14th Amendment. Rather settled now, though.)

However, some important of the rest of the 14th Amendment refers only to "persons" in general, not citizens or persons "born or naturalized. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

I believe that the Court has ruled (though over the objections of at least Scalia and Thomas, IIRC), that this change in wording indicates that the Fourteen Amendment also means to extend equal protection, due process, and other rights to persons not citizens, to persons neither born nor naturalized in the United States. There have been some various cases regarding the rights of arrested illegal aliens, for example, in various sweeps that took place after the terrorist attacks September 11th. The question is whether "any person" is properly seen as restricted to the citizens discussed in the previous clause and previous sentence, or rather indicates a larger group of people to be not denied rights.

It would not necessarily take an enormous stretch, then, nor even an amendment, to rule that third or perhaps second trimester fetuses could be considered "persons" even if not citizens. One could easily draw upon certain advances in medical science, evidence of brain waves, ability to feel pain, ability to survive outside the womb with what is no longer so extraordinary but more routine medical care, etc. The rulings in Roe and Casey even provide some opening for this, if you read their texts.

Of course, that would be judicial activism of the sort that Justices Scalia and Thomas do not support. It would, however, be a line that a pro-life judge who otherwise shared some of the judicial philosophy of the left wing of the current Court could choose to take.

Unknown said...

Thank you for the explanation, John.

Neal said...

Actually, John, it is the 5th Amendment which recognizes a "person's" right to life:

"Article the seventh [Amendment V]

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The only matter left to the Court is the "definition" of a "person". In Roe v. Wade, as in Dred Scott, the Supremes got it wrong.

When the Founders extended the "legal protection" (Constitutional) to a "person" with regards to their enjoying "due process of law" when comes to their being deprived of "life, liberty, or property", they obviously had in mind a definition of "person" that encompassed "the whole human family" by virtue of the creation. After all, the Founding Fathers found "these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

The key is being "created" - both the African slave and the conceived human fetus have jumped the necessary hurdle of being "created" as members of "the whole human family" and therefor "endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." According to our Founders, government sole role "to secure these rights". In both Dred Scott and Roe, government instead became "destructive to these ends".

The only question is whether the Associate Justice nominee believes that "the laws of nature and of nature's God" trumps all human law, including the Constitution, as does, I believe, Associate Justice Clarence Thomas, or that there could never be any "Constitutional right" that does not "secure" an "unalienable right", as does, I believe, Associate Justice Antonin Scalia.

In other words, the document that "instituted among men" a government whose purpose is "to secure" for "the whole human family" under its jurisdiction the "unalienable rights" of "life, liberty, and the pursuit of happiness" could never permit said rights being deprived any individual without "due process of law".

kaspit said...

Greetings. Just linked to you in a brief item on the death penalty. Thanks.

(My blogger site is not my main blog.)