Mirror of Justice on "The rule of law and the Catholic judge"

Robert Araujo of MOJ discusses this timely subject here. In a word, a Catholic judge must "render unto Caesar what is Caesar's, and to God what is God's". He or she should also render unto the legislature or executive what is theirs, not pretend he can do their job for them:

any of us are teachers, and we spend hours explaining to ourselves and our students how the judge is often called to tackle the case in the context of the law’s ambiguity. But sometimes the law that seems to apply doesn’t simply have ambiguity, it probably does not address the issue at hand. It may not even apply, but there is the urge to do something to resolve the case and administer “justice.” So, what does the judge do? Some are tempted to fill in the gap by taking over the role of the legislator (which could include Constitutional amendments). Others may say that the matter is one that belongs not in the courts but before a coordinate branch of the government, i.e., it is a political question rather than a case or controversy.

When the temptation to be substitute for the coordinate branch prevails, I believe the rule of law suffers on several fronts. It suffers because someone or somebody (a judge or judges) is doing the work of someone else. Those of us on the sidelines begin to wonder if this is simply zeal to decide a case or to usurp the authority which properly belongs to someone else. In the context of the matter of “privacy,” I think a judge acts properly if the case involves a search of a person’s home or property. The Constitution addresses this sort of thing in the Fourth Amendment. The same text should also apply to a case in which the State invades the body of the person. This does not mean that the State must lose and the person must win. It does mean that there is a text that exists and this is what guides the judge, the citizen, and the enforcer alike.

Problems arise when a judge believes he need to meet justice by loosely "applying" a law unsuited to the case at hand. The people eventually realize they've been had. When cases can be settled only politically, a Judge that "resolves" them legally is rightly seen to usurp the authority of the legislature. These lawmakers answer to their constituents, but who do judges answer to. When was the last time a judge was impeached? When did said judge lose his seat? Has a Justice of SCOTUS ever been impeached or removed from the bench? This lack of accountability means people lose trust in the very law that legitimizes authority. When they're finished with that, they start building a pyre to burn what's left of the Rule of Law.

Mr. Araujo has advice for Catholic judges in light of this precarious scenario:

But let me make a suggestion about what should the Catholic judge do? If the text is clear but presents grave moral questions, the Catholic judge might be able to recuse himself or herself from the case. The judge can also resign to protect his or her conscience. There are still other alternatives. A Catholic judge, like any other, is called to be a virtuous person and official. Some of us have already talked a bit about virtues and judicial office. I’ll suggest once more that they are crucial to the manner in which any judge conducts the exercise of judicial office.

But there remains some guidance from a Catholic perspective that can contribute to what the Catholic judge does in those cases involving matters like abortion, marriage, and emerging cases involving biomedical and biotechnology. One source is John Paul II’s encyclical Evangelium Vitae Here. Another two are the complementary texts issued by the CDF on "Considerations regarding proposals to give legal recognition to unions between homosexual persons" (July 31, 2003) Here and the "Doctrinal Note on some questions regarding the participation of Catholics in political life" (January 16, 2003)

Catholic judges do not need to choose between their Faith and their work. They have the example of St. Thomas More should they ever face such a decision. However, as members of that Body of Christ that has helped to define and protect the Rule of Law, Catholic judges must do their part to be judges, not usurping legislators. They must set an example for their peers to follow. Should they let their light be seen by their brother judges, then perhaps the judicial activism that has so made straight the road of the Culture of Death will at last come to an end!

Don't hold your breath, now. Still, even less activism would be a welcome change. Bear the Light, your Honors! Bear the light!