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A Catholic Judge in a Post-Liberal Age

October 27th, 2020 | 4 min read

By Gerald J. Russello

Judge Amy Coney Barrett’s nomination to the United States Supreme Court has once again raised the question of the role of Catholicism in American public life. Catholic judges are often in the position. But in interesting ways, she may represent a different kind of Catholic judge. In some ways, the nomination process and its larger cultural conversation have proceeded the expected way: opponents argue Catholic judges represent some sort of alien importation into American life, and Catholics assuring these potential adversaries that in fact Catholics can be good “American” citizens just like anyone else.

The high point of this kind of soft bigotry was perhaps the treatment of Antonin Scalia, where in a somewhat infamous essay, the Yale Law Journal attributed Justice Scalia’s judicial perspective to his “literalist,” “pre-Vatican II” worldview. In this sense, “originalism” fits within a very specific kind of story about Catholics in America. Since Catholic judges should just “apply the law,” as the argument goes, they can just leave messy moral questions to the voters. A Catholic judge can therefore rule on issues in a way that they may not have in a fully Catholic social system out of deference to established norms.

The judicial nomination process is only one aspect of the nation’s indigenous anti-Catholicism. Catholic intellectuals and cultural and political figures have long tried to demonstrate that Catholicism was compatible with the American pluralist, nondenominational constitutional structure. As far back as the 1860s, Orestes Brownson wrote that Catholics were in fact the most American because the natural law, as refracted through Thomism, was the surest foundation for the American order. John Courtney Murray, S.J., whose famous We Hold These Truths was published in 1960, argued that the Founders “built better than they knew.” On the other hand, politicians from John F. Kennedy, Jr. to Andrew Cuomo and Joe Biden have abjured, to varying degrees, ignoring the teachings of the church in order to appease a hostile audience. The change, however, is that Kennedy’s opponents were largely other Christians; now, they are the legions of the woke who declare Catholicism out of bounds.

Barrett’s nomination, both to the lower appellate court and now to the Supreme Court, follows that pattern. There was Senator Feinstein’s unconstitutional worries about the “dogma,” murmurs about handmaids and Barrett being a Scalia disciple. But there is an interesting twist this time around. In recent years, a number of influential and provocative writers have argued that in a sense, the critics are right: Catholicism is incompatible with current American liberalism, including how that liberalism is expressed in the law.

Patrick Deneen, for example, has argued that liberalism offers the choice between a depersonalized market, or a depersonalized state, neither of which is conducive to true human flourishing and is hostile to religious belief and practice. Law professor Adrian Vermeule has also disputed the bases of the American political order, in the sense that liberalism is not “neutral” but encodes moral norms and even a religious sensibility that are dangerous to Christianity in general and the Church’s political claims in particular. And Gladden Pappin has worked to develop social policy grounded in Catholic anthropology and the notion of the common good.

Barrett is an example not of the Scalia caricature of the 1980 or 1990s, but of the more modern Catholic engagement with the American liberal order. During her hearing, she noted that all judges have moral views that they must understand and deal with when judging cases, a further demolition of the liberal notion of “neutrality,” which too often means simply liberal values are the neutral ones. Her 1998 article, written with John Garvey when she was a law clerk, “Catholic Judges in Capital Cases,” expresses this tension and the careful thinking required on how a religious judge approaches her duty. Catholic social teaching since at least the pontificate of Pope St. John Paul II has been increasingly opposed to the judicial imposition of the death penalty. In his October 2020 encyclical Fratelli Tutti, Pope Francis confirmed that use of the death penalty is “inadmissible.”

In contrast, the Constitution, and the laws of various states, permit the imposition of the death penalty, either by a jury or by a judge sitting alone. How should a Catholic judge rule on this question? Justice Scalia did not recuse himself in death penalty cases, and criticized the penalty’s “sanctimonious” critics. In light of revisions to the Catechism stating that the cases that would warrant the death penalty should be “very rare, if not practically nonexistent,” he demurred.

The bedrock constitutional principle for Scalia is democracy, a part of his larger project against progressive elites arrogating to themselves through an expansive reading of the Constitution the power to determine our common life. Rather, in his constitutional vision, the people get to decide a wide range of issues, so long as they are not unconstitutional. The Constitution allows the death penalty; therefore, it is not the judge’s job to interpose his or her views on whether that penalty is permissible in some circumstances or all. If the judge had a moral opposition to the imposition of capital punishment, according to Scalia, that judge should resign.

Barrett seemingly takes a different view. For her, a judge may not simply follow the law’s permissible penalties, but nor must she simply resign at the first sight of a capital case. Rather, taking Catholic teaching as the baseline, Barrett maps the different roles a judge may play against the moral stricture against the death penalty. So according to Barrett, a judge must recuse herself if she were asked to actually order the death sentence, as a trial judge may be required to do. In other circumstances, an appellate judge may validly review a lower-court’s decision, even if the result may still be execution.

Garvey and Barrett closely examine principles such as cooperation with evil and how judges work to develop a nuanced approach that places the judge’s moral conscience at the center of the decision. In general, as they write, a Catholic must never provide formal cooperation with evil (where one shares evil intent with the wrongdoer), and may sometimes not even provide “material” cooperation (where one does not share that evil intent). That is true in every kind of case, not just death penalty cases.

Accordingly, Barrett’s judge is responsible for her own conscience first, and so must recuse where necessary, but Catholic teaching does not without careful application of prudential judgment, pre-decide how a judge should rule, or whether she should preside at all. But through the analysis provided in this article, Barrett provides a guide as to how a Catholic judge can be faithful both to Catholic teaching and her judicial role in a way neither her critics nor her supporters may fully appreciate. It is also a graceful reconciliation between the traditional common-law style of reasoning to particular cases with bedrock moral principles.