Sunday, August 28, 2005
I appreciate Rick's response to my suggestion that Roberts might well face a conflict between his judgment about Roe/Casey as stare decisis versus his Catholic conscience. Like Rick, I'm not equipped to apply "cooperation with evil" principles to this particular situation (moral theologians out there, write and advise us!). But my initial reaction is to disagree with his argument that there's no reason to question Roberts on Catholicism because "I [Rick] do not see how it would, or even could, 'conflict with the fundamentals of [his] faith' for an appellate judge to decline to overrule a wrongly decided case, even one that has contributed to great evil."
Didn't Justice Kennedy do precisely that in Casey -- decline for stare decisis reasons to overrule the basic abortion right of Roe -- and hasn't he been excoriated for doing so as a Catholic? I strongly expect (although I don't have specific quotes to support it) that many of Kennedy's vocal critics think very much that he committed culpable cooperation with evil by upholding the basic holding of Roe.
Or is the Kennedy situation different because the Casey joint opinion also included some passages defnding Roe on its merits? That seems a very slender reed for distinguishing the two instances, since: (1) The stare decisis reasoning was clearly very important to the joint opinion's conclusion (the opinion several times referred to the author's potential "doubts" about the original correctness of Roe). (2) Whether the ruling rests on stare decisis or on the merits, in either case the justice votes to stand in the way of a law that seeks to prevent a very great evil (we're taking the great wrongness of abortion as a given, of course). Can stare decisis really be sufficient to allow the justuce to take such an active step preserving and defending a great injustice? Indeed, I would have thought that if there were any difference, stare decisis would be a less powerful justification for ruling to protect an evil than is the justification that the Constitution on the merits protects the evil. So I don't think it's implausible at all to think that a justice's commitment to stare decisis could be overridden by (and therefore is in potential conflict with) the fundamentals of the faith, especially on a matter such as this.
Again, I'm not saying that this stare-decisis possibility is enough to justify grilling Roberts about his Catholic conscience concerning abortion. (As I said before, there are many reasons to presume against such religion-related questions.) But I still think the issue is more complicated than Rick concludes.