Judges and Catholic teaching

Supreme Court Justice Antonin Scalia, probably the best known Catholic judge in the country, recently sat down for an interview with Tim Russert at MSNBC, saying among other things that his religion had “nothing at all” to do with strict interpretation of the Constitution.

Over at dotCommonweal, David Gibson started an interesting discussion about Scalia’s argument that there’s no such thing as a Catholic judge — at least for an “originalist” interpreter of the Constitution like himself. Scalia gave the example of the death penalty, which was topical in view of the fact that the Supreme Court recently upheld the legality of lethal injection. Scalia said the question of whether the death penalty is unconstitutional or not is a nonissue, explaining that no one ever considered it cruel and unusual punishment at the time the Constitution was adopted.

This exchange followed:

RUSSERT:  Is it different for Catholic legislators when the church will say you should not be voting for abortion rights, or the church feels this way on the issue of stem-cell research or the death penalty than it is for a Catholic judge?

SCALIA:  It may well be.  I’ve always been happy that I’m a judge.  And all I have to do is look at the law.  What does it say?  Tell the truth about what it says, and that’s my job.  It would be harder for me as a legislator.

Not everyone thinks the distinction between a legislator and a judge is so clear-cut when it comes to the responsibilities of Catholics in public life.

In 2000, Pope John Paul II told the International Union of Catholic Jurists that Catholic magistrates share in the mission to build a society that conforms to the demands of the Gospel. He warned against considering the law as something uninformed by faith:

“There are even cases in which the magistrate and the legislator take decisions independently of any moral value, as if positive law could serve as its own foundation and prescind from transcendent values.”

I asked one informed Vatican official whether the church viewed the moral responsibilities of a Catholic judge as significantly different from those of a Catholic legislator. He said no, not in the case of a constitutional court, which is often called on to make political decisions.

“If we’re telling politicians to respect the natural law, the obvious conclusion is that this would apply to a judge even more. The Constitution is not supreme over natural law,” he said.

This isn’t the first time Scalia has spoken about the relationship — or lack of it — between faith and constitutional law. He visited Rome in 1996 and gave a public address at the Pontifical Gregorian University, saying, among other things, that in a democracy questions like legal abortion should be decided by the will of the majority.

In a question-and-answer session at that event, he was asked several times about respect for natural law, and on each occasion he defended what he called “my very stingy view … of the role of natural law and Christianity in the governance of the state.” Even 12 years later, the text makes interesting reading.