August 20, 2009
Why doesn't Dershowitz's question deserve an answer?
In fairness to Prof. Dershowitz, I do not think he is scolding Justice Scalia for, as Rick puts it, "not being more aggressive about incorporating the moral teachings of the Roman Catholic Church into the constitutional doctrines of the United States Supreme Court." Dershowitz is referring to Justice Scalia's assertion in First Things that he would have to resign from the bench if he was morally opposed to the death penalty. Back in 2002, Scalia wrote:
But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.
Dershowitz raising this does not suggest that Catholics must incorporate Church teachings into the Constitution in order to be good Catholics. Scalia's assertion focuses on the judge's duty to conscience in the face of a directly conflicting legal/professional obligation. I think Dershowitz's question is a valid one: if moral opposition to the death penalty requires resignation for a judge who is required to preside over the death penalty, why doesn't moral opposition to the killing of an innocent person (who appears at the habeas hearing with the wife he's accused of murdering) require resignation?
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