Bainbridge at TCS on "Judging Faith"

Professor Bainbridge weighs in on Catholic Judges, their Faith and their Judicial practice in this Tech Central Station essay. After saluting those bloggers that have smacked down Hitchens' recent anti-Catholic screed, he addresses an issue raised by Reason magazine columnist Cathy Young. Here, he also addresses the "first principles" that he believes appropriately address Ms. Young's concerns:

Others, however, are raising the question in a more temperate way. Cathy Young writes in Reason, for example, that:

A candidate's or nominee's ideology should be fair game whether it's religious or secular in nature, whether it's rooted in conservative Catholicism or liberal feminism.

I think this is a legitimate point deserving a fair response.

Let's start with first principles. It seems clear to me that a judge may consider moral norms in making judicial decisions. As I explained in my article Social Propositions and Common Law Adjudication, however, judges may not look to their own moral values:

Any complex society needs an institution before which claims based on existing societal standards can be heard. In our society, that institution is the courts: "If the courts resolved disputes by reasoning from those moral norms and policies they think best, there would be no institution to which a member of the society could go to vindicate a claim of right based on existing standards." Second, since the judicial system is a peculiarly undemocratic institution, the legitimacy of the adjudicative process requires courts to look to "existing legal and social standards rather than those standards the court thinks best." Finally, prohibiting the courts from employing their personal standards makes legal reasoning fairer and more easily replicable by the profession. (Page 6)

Instead, judges may consider only those moral norms having substantial support in the relevant community. (See pages 7-10 of my article.)

Although my article focused on common law adjudication, I believe the same holds true with respect to constitutional and statutory interpretation.

Having established these principles, he then examines the actual conditions in which a Catholic Judge's face may come into conflict with these societal norms. Specifically, he sights Catholic Church teaching on formal and material cooperation with evil:

the Church distinguishes between formal and material cooperation with evil. Here's as good an explanation of the distinction as any:

Formal cooperation is when a person (the cooperator) first of all gives consent to the evil action of another (the actor). Here the cooperator shares the same intention as the actor. The cooperator also joins in the actual performance of the evil action or supplies the actor with the means of performing it. Essentially, he consents to and helps enact the sin. For example, using the example of abortion, a nurse who assists a doctor in performing an abortion and shares the same intention is formally cooperating with evil. A legislator who actively promotes abortion legislation enabling innocent human beings to perish is guilty of formal cooperation with evil. Formal cooperation with evil is always wrong, and the cooperator shares in the guilt of the sin of the actor.

Material cooperation is when the cooperator performs an action that itself is not evil, but in so doing helps the actor perform another evil action. The moral quality of material cooperation depends upon how close the act of the cooperator is to the evil action, and whether there is a proportionate reason for performing the action.

In 2004, then-Cardinal Ratzinger (Now Pope Benedict XVI), elaborated on the Note in his statement Worthiness to Receive Holy Communion: General Principles:

Regarding the grave sin of abortion or euthanasia, when a person's formal cooperation becomes manifest (understood, in the case of a Catholic politician, as his consistently campaigning and voting for permissive abortion and euthanasia laws), his Pastor should meet with him, instructing him about the Church's teaching, informing him that he is not to present himself for Holy Communion until he brings to an end the objective situation of sin, and warning him that he will otherwise be denied the Eucharist. ...

A Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion, if he were to deliberately vote for a candidate precisely because of the candidate's permissive stand on abortion and/or euthanasia. When a Catholic does not share a candidate's stand in favour of abortion and/or euthanasia, but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons.

In other words, even in the sphere of political activity, the difference between formal and material cooperation with evil can lead to differing results. A Catholic who has good reason to support a pro-"choice" candidate despite the candidate's views on abortion thus does not commit formal cooperation with evil and, accordingly, is free to do so without violating any moral precept of the Church.

I have elaborated on this distinction at some length, because it is crucial to understand that judicial decision making, even with respect to issues like abortion and euthanasia that raise moral questions under Church teaching, does not per se constitute formal cooperation with evil. This is important because it is only in those limited class of cases in which one's activity constitutes formal cooperation with evil that a judge who is a serious Catholic would be religiously obligated per se to put his faith-based beliefs ahead of, say, his views of precedent or socially accepted moral norms. (As we have seen, whether material cooperation requires one to do so depends on one's intent. The doctrine of double effect can be helpful in resolving such cases.)

Given that Catholic participation in civic life generally is barred only where one commits formal cooperation with evil, it should be clear that his apparently devout Catholicism would only pose concerns for Judge Roberts in a very small number of cases. And, in at least some of those cases, the teachings of the Church will coincide with moral norms sufficiently widely shared throughout the community and/or nation to satisfy the social support criterion required of moral norms proposed to be drawn upon in adjudication; in which case, the analysis above of the use of social norms in adjudication suggests there would be no objection to Judge Roberts basing his ruling on both the teachings of his faith and secular social norms widely held throughout society.

Of course, some will argue that the remaining cases where the teachings of the faith cannot be reconciled with the prevailing moral norms of society are the ones that really matter, which is a fair point. In my judgment, however, the possibility that such cases might arise does not disqualify Judge Roberts from serving on the Supreme Court. Instead, the appropriate way of handling such situations is on a case-by-case basis using well-established principles of judicial recusal.

Commentators that have questioned the appropriateness of Robert's "deeply held beliefts" to his future performance as a SCOTUS justice cite specific concerns. They note that Roberts' recusal could leave an equally divided court. They also express concern as to whether the Church would have a constitutionally undue influence, vis a vis separation of Church and State, on a faithful Catholic Justice such as Judge Roberts. Hitchens, in particular, expressed these concerns. Professor Bainbridge carefully addresses both of them here. He notes that there are few issues in which Catholic morality would conflict with societal norms that would serve as the baseline for all Justices, regardless of Faith. Furthermore, he reccommends that a Justice faced with such a conflict look to "well established principles of judicial recusal" to resolve such conflicts.

His prescription for the "problem" of a Catholic Justice calls the bluff of idealogues that used possible conflicts of interest related to Judge Roberts' Faith. They now have no cover to hide their Agenda behind. In order to continue obstructing Judge Roberts' nomination, they'll need to either undermine his Conservative support or else develop a legal "litmus test" for ideological correctness. Neither strategy offers a lot of promise.

Catholics can serve as Justices of any Court, including SCOTUS. It's time to put an end to the Anti-Catholic grumbling that says otherwise. If Reasonable critics of Judge Roberts have a problem with his legal philosophy, let them say so. Hiding behind concerns his Faith will compromise his tenure as Justice is intellectually dishonest. Let them oppose the man with a shred of dignity. If that isn't too much trouble!