Thursday, January 31, 2008
In the most recent issue of the Tulsa Law Review, Judge (and Professor) John Noonan has an article that "was adapted from remarks given at the Constitutional Day Lecture, University of Tulsa College of Law, Tulsa, Oklahoma, on September 20, 2006." The title & citation: The Religion of the Justice: Does It Affect Constitutional Decision Making?, 42 Tulsa Law Review 761 (2007). Read it!
Here are three excerpts:
"Brennan’s language in Eisenstadt on reproductive freedom was subsequently the foundation of Roe v. Wade, in which he joined. I have not understood how a Catholic or any judge who was guided by the terms of the Constitution could conscientiously do so. But obviously Catholic consciences differ. Brennan in Roe showed that they can differ on abortion. It is not, I think, the business of anyone to judge the conscience of another." 
"It is true that on the moral legitimacy of the death penalty Catholic teaching has changed. Once accepting it as a necessary prerogative of government, the Catholic Church under Pope John Paul II has taught that death can only be imposed in rare circumstances and not at all if the defendant can be securely imprisoned. There is a certain hesitancy in the teaching, whose logic leads to the conclusion that a state-sponsored execution is state-sponsored homicide; the pope and bishops do not denounce the government as guilty of murder but only plead for clemency. The doctrinal development is not complete. Yet I am glad never to have had to face a case where my vote would have confirmed the death sentence.
Justice Scalia, who seems reluctant to recognize the doctrinal change, has written that if it has really occurred, all Catholic judges should resign as incapable of carrying out the law. I read that statement as a rhetorical move. A federal judge rarely is asked to impose or to uphold a sentence of death. If the judge is conscientiously convinced that any taking of human life cannot be justified it is, I believe, his duty to disqualify himself if the law requires imposition of death. I do not think that a rare recusal carries with it a declaration of incompetence to function as a judge ninety-nine percent of the time." (766-67)
"Frankly, I find it difficult to understand the trust put in conscience when its
theological roots are cut. (I do not doubt the sincerity of the conscientious
atheist—only his explanation for his certainty.) But as long as there is a
consensus that conscience is key, I will no more quarrel with another’s
understanding of its power than I would judge the conscience of another. From
my perspective, it is this conviction at one’s inner core, uniting principles
and experience and empathy, that counts most in judging. It is here that the
religion of the judge—not just this or that particular precept but the whole
thrust of the judge’s commitment to God—can make a difference. To measure that
difference, however, belongs not to any human but to God. " (770)