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Nathaniel Romano, S.J.November 30, 2020
Judge Amy Coney Barrett holds her hand on the Bible as she is sworn in as an associate justice of the U.S. Supreme Court by Supreme Court Justice Clarence Thomas at the White House in Washington Oct. 26, 2020. (CNS photo/Tom Brenner, Reuters)

On the evening of Nov. 19, the United States government executed Orlando Cordia Hall. This was the eighth execution by the federal government this year, after a 17-year hiatus on executions at the federal level. Mr. Hall’s execution came only after the Supreme Court, over the dissent of three justices (Stephen Breyer, Sonia Sotomayor and Elena Kagan), dissolved an injunction issued by a federal trial court preventing the execution from going forward.

Almost immediately, online arguments erupted. Particular ire was aimed at the Catholic justices on the Supreme Court, especially the recently confirmed Amy Coney Barrett. Given the church’s clear teaching against the death penalty, some have suggested that Justice Barrett has acted contrary to church teaching; others, however, suggest there is room for disagreement, or that church teaching is inapposite for judges. Whatever the merits of the Hall case—and of the cases involving at least five more executions now scheduled before the end of the Trump administration (see an updated list here)—this action by the Supreme Court offers us a chance to explore the question of how we might expect a Catholic judge in a democratic and pluralist system to bring their faith into their public and governmental work.

Put starkly: The moral law prohibits what the civil law allows.

Put starkly: The moral law prohibits what the civil law allows. In his 2018 amendment to the Catechism of the Catholic Church and in his recent encyclical “Fratelli Tutti,” Pope Francis confirmed and strengthened decades of Catholic teaching on this topic. It is similarly clear that contemporary understandings hold the death penalty to be constitutional in the United States, at least when carried out in conformity with the law and other constitutional requirements. Given that Catholic moral theology does not include a “But Not in the United States” provision, there is a clear tension for Catholic judges.

The simplest resolutions to this tension are superficially attractive but raise their own problems. One could simply declare that the only response for any Catholic involved at any stage is to disrupt and shut down the system, to do all in their power to stop executions. Similarly, one could simply say that Catholic teaching is irrelevant for constitutional jurisprudence and thus divorce moral principles from legal ones. Both resolve the tension by removing one side of the equation. Neither is satisfactory.

Undoubtedly, we do not want judges to act immorally, but at the same time, we do not want them to replace legal analysis with personal moral conclusions, no matter how much we agree with them.

We do not want judges to act immorally, but at the same time, we do not want them to replace legal analysis with personal moral conclusions, no matter how much we agree with them.

Similarly, we recognize that no one acts, even in public, totally divorced from their moral principles, nor would we want them to. Fundamental principles shape our being, even if they do not supply all the answers. To ask a judge to ignore their moral principles asks them to engage in either artifice or deception. In the real world, Catholic judges—like judges of any religious, political or ideological disposition—must find a way to incorporate their religious convictions with the legal norms and constitutional provisions governing the actual cases before them.

Barrett on “Catholic Judges in Capital Cases”

This is not a question Justice Barrett is unfamiliar with. One of her earliest academic articles was one she co-authored with John Garvey (now president of the Catholic University of America) for the Marquette Law Review on the question of Catholic judges and the death penalty. The article can form a helpful lens as we explore these topics.

Justice Barrett and Mr. Garvey focus on the question of whether Catholic judges can legitimately participate in death penalty cases at all, given the church’s teaching. Although they are not theologians, their insights are helpful. They are asking the types of questions that individuals trained in their respective fields will ask and are seeking to apply their own faith commitments in a complicated professional environment. For any professional field, this is exactly the sort of analysis we need.

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Their analysis concludes, as it undoubtedly must, that faithful Catholic judges are “morally precluded from enforcing the death penalty.” But this is not the end of the matter. There is the question of specifics. Justice Barrett and Mr. Garvey write that Catholic judges absolutely should not enter a sentence of death, either on their own or in accord with a jury recommendation. But judges do more in death penalty cases than simply sentence defendants, and the authors conclude that at least some of these roles are permissible.

A capital case has many steps, and judges take on many different roles during the process. First come the preliminaries to any trial—evidentiary motions, motions to dismiss and the like. Then comes the trial itself, which, in capital cases, is bifurcated; a verdict of guilty must precede a separate sentencing trial. After the verdict and sentencing, there are numerous stages of review in appellate courts. For Justice Barrett and Mr. Garvey, the only clearly impermissible stage for a Catholic judge is the sentencing portion of a bifurcated trial. All other stages involve not the admission of the inadmissible but instead legal or factual questions tangential to that fundamental question.

This reasoning seems most plausible when applied to the pre-sentencing portions of a trial. Questions about what evidence is admissible, or whether there is sufficient evidence to even convict a defendant, do not involve the question of punishment at all. Yet, post-sentencing, during the process of appellate review, the punishment seems more fraught. After all, whatever the basis for the appeal, a judge’s rejection of it will lead inexorably to an execution.

Justice Barrett and Mr. Garvey acknowledge this fact. They further conclude that there is no clear answer to the question of the morality of the appellate judicial process in capital cases. For them, it must be judged on a case-by-case basis. Judges in most death penalty appeals are not asked to weigh the morality of the death penalty directly. Instead they are asked, “Did the lower courts and judges act in conformity with law?” Or they may be asked, “Is this death sentence consistent with constitutional norms?” There is a contrast between the sentencing judge, who orders an execution, and an appellate judge, who reviews that decision for legal propriety. The authors note that, at most, an appellate judge in these circumstances is limited simply to affirming a judgment or ordering the trial judge to redo their prior work; appellate judges in these cases could not simply order a non-capital sentence. This role, for Justice Barrett and Mr. Garvey, seems to be morally permissible (in the abstract, at least).

Justice Barrett and Mr. Garvey write that Catholic judges should not enter a sentence of death. But judges do more than simply sentence defendants, and the authors conclude that some of these roles are permissible.

They do acknowledge, however, that this does not resolve the moral question. The nuance involved in appellate review is often lost on non-experts. This can lead to the real scandal of it appearing that Catholic judges are allowing executions regardless of church teaching. If it appears that Catholic leaders (Catholic justices on the Supreme Court!) are endorsing the death penalty, then there seems to be room for Catholics who otherwise have to make judgments about capital punishment—jurors, voters, lawyers, governors or presidents—to likewise endorse it. So the question is not whether a judge is admitting the inadmissible (they may not be, given the particular case under review), but whether their actions lead others into sinful behavior. If so, then the moral question is not resolved by simply pointing to the specific legal questions under review.

For these reasons, Justice Barrett and Mr. Garvey conclude that the work of appellate judges cannot be easily resolved the way pre-sentencing or sentencing work can. It requires a case-by-case evaluation.

This is not a wholly satisfactory answer to the issues raised. Where it offers clear answers, such clarity is probably not needed; most would agree that a judge’s decision to admit testimony, even if it moves a capital case closer to verdict, is a morally neutral position. And the sight of a Catholic judge directly ordering someone to the execution chamber should give any of us who adhere to church teaching significant pause. The real question remains what to do with appellate judges, particularly when their faith is part of their public profile. The fact is, there may not be a clear answer.

The question of recusal

The questions raised in Mr. Hall’s appeal to the Supreme Court were technical and somewhat arcane. Did the government need to obtain a prescription in order to use the drugs with which they killed him? If so, did failure to obtain a prescription authorize a court to stop the execution? Reasonable minds can disagree on the answers to those questions. And these questions do not seem to have an appreciable moral valence in and of themselves.

At the same time, Mr. Hall is dead, killed by the government of the United States in the name of the people. His death is morally repugnant, an assault upon his dignity as a child of God, made in God’s own image, and upon the people in whose name it was done. It was an inadmissible act.

As Justice Barrett and Mr. Garvey noted, there is no simple resolution. A judge who imposes his or her own moral principles in these circumstances walks a fine line between upholding his or her faith and undermining the rule of law. We may cheer an end to the death penalty, but what about judges whose religion imposes objectionable views on sexuality, economics, abortion or democracy itself? At the same time, a judge who ignores personal moral principles is just this side of an amorality that will lead to the unbending reality of law untempered by mercy or justice. Neither can be accepted.

A judge who ignores personal moral principles is just this side of an amorality that will lead to the unbending reality of law untempered by mercy or justice.

Justice Barrett and Mr. Garvey do have one suggestion, and it can be expanded upon to perhaps offer a word of hope, if not total satisfaction. Their article focused on the question of recusal: When should judges not participate in cases? They concluded that American law does not require Catholic judges to recuse themselves in death penalty cases. (Their arguments are interesting, if beyond the scope of this essay.) Yet they conclude that a space exists for judges to make the choice to recuse. And they consider this to be a powerful and morally appropriate position to take.

“Judges,” they say, “cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.” Imagine the witness! Imagine Catholic justices declining to participate in capital cases. As a practical matter, it would have little effect; federal laws require a quorum of six Supreme Court justices. In the absence of a quorum, the court simply affirms the decision under review without precedential effect. But it would be the effect of Christ refusing to condemn the woman caught in adultery. It would be a profound witness to the country that might even force a reckoning in ways no papal document ever could.

And it seems this is the better way forward than accusing our sisters and brothers in Christ of bad faith. It is a better choice than trying to navigate which executions would cause scandal and which would not. It may even be a helpful lens for other controversial legal issues that have moral or religious implications. Alas, it might lead to challenges, of judges shirking their duty or even imposing their beliefs (to the extent one can impose something by not doing anything). Whatever else, though, it will be a sign and example that faith still has a meaningful role to play in our judicial system.

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