Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, July 27, 2005

Civil Disobedience and the Catholic Judge

There is at least one loose end that remains to be tied up from our discussion of the Catholic judge.  A few days ago I indicated that a Catholic judge called to implement an immoral law faced four options: apply the law as given, resign, recuse, or engage in civil disobedience.  One reader called the prospect of civil disobedience for a judge "absurd," and he may be right.  But I won't concede the point without a bit more exploration.

Let's suppose that a Catholic judge hears a motion from a minor seeking permission to obtain an abortion without parental consent.  The judge finds that there is not sufficient cause to grant permission, and denies the motion.  The appellate panel -- comprised of judges who consistently seek to maximize reproductive rights -- rules that the lower court abused its discretion and remands for further proceedings.  If the lower court now has no viable legal or factual basis on which to deny the motion, would Catholic legal theory deem it permissible for the judge to issue the following ruling?

Under state law as interpreted by the court of appeals in this case, this 15 year-old child is entitled to terminate the life of her unborn child without even notifying her parents, making a tragic situation even more tragic.  Such an outcome is not acceptable in a legal system that purports to value both family and life.  Here, the law acts to eviscerate both.  I cannot facilitate such an outcome.  The motion is denied.

The judge undoubtedly would be subject to sanction, and the appellate court would step in and grant the motion.  The system remains intact, but a strong message of dissent has been registered.  Recusal, by contrast, simply suggests that the judge has a personal hang-up or bias toward the case -- i.e., it's the judge's problem, not society's.  At a minimum, such an act of civil disobedience by a judge seems more consistent with the rule of law than a judge's instrumentalist manipulation of law to pursue her own moral or religious ends.  The former challenges the law overtly and can be addressed through established legal procedures, the latter subverts law covertly and corrodes the rule of law from the inside out.

I admit, scenarios justifying such acts are exceedingly rare (the Jim Crow South is another potential context), and depending on our view of Catholic legal theory, possibly non-existent.  It's fairly easy to see that deference to the rule of law is not an absolute value for Catholic legal theory in a place like Nazi Germany, where the rule had been thoroughly and irredeemably corrupted.  But in contexts where the rule of law, in broad terms, is still viable, are there any specific instances where the threat of injustice is so great that a judge would be justified in temporarily stepping out of her role as an agent of the law to become a (vocal) dissenter from the law?

Note that I'm not asking whether Catholic legal theory would ever require such a stance (I don't think it would), but whether such a stance is among the permissible options.  In other words, does Catholic legal theory's embrace of the rule of law forbid civil disobedience by a judge?


UPDATE: My friend and former colleague Michael Simons reminds me that in 1997, Judge Sprizzo (S.D.N.Y.) acquitted two abortion protestors in a self-confessed act of "judicial nullification."  Here's the story, along with Michael McConnell's perspective on the case. 

And Greg Kalscheur, S.J. recommends Robert Cover's Justice Accused: Antislavery and the Judicial Process (1975), in which Cover considers different judicial approaches to enforcing the Fugitive Slave Act.


Vischer, Rob | Permalink

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