Tuesday, July 03, 2018

"Orthodox" Catholic Judges and Roe v. Wade: A Comment on Coney & Garvey

Mark Tushnet

The following is exceptionally long and likely to be somewhere between controversial and incendiary, though I really don't take a position on the questions I attempt to lay out.

Twenty years ago Amy Coney, then a law clerk soon enter the legal academy, co-authored an article with her soon-to-be colleague John Garvey (now the President of Catholic University) concluding that “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty.” (The article is available at; I commented on the article at the time, calling it “splendid.” My comment is available at The article became the focus of some quite misleading discussion during Coney-Barrett’s confirmation hearings, and I think it worth attempting to lay out both the article’s argument and the questions one might legitimately raise based on the analysis. (Until re-reading my comment on the article, I didn’t remember that I had actually made a version of the argument that follows twenty years ago – so at least I can’t be accused of coming up with the argument for this very occasion. [Actually, I have to confess that, though I remembered attending the conference at which the article was initially presented, I hadn’t remembered that I published a comment on the article!])

Some preliminaries: (1) The article deals with the obligations of what the authors call (with a long footnote explaining their choice of terms) an “orthodox Catholic” in connection with capital punishment. They define “orthodoxy” as “faithful to the teaching of the church on the subject.” A fair amount of the article deals with the church’s teaching on capital punishment, which is complex and not unequivocal. The matter of current interest is the obligation of an orthodox Catholic in connection with abortion, where the Church’s teaching is clear and unequivocal; that removes one layer of complexity from the analysis. (2) The article argues, in my view quite correctly, that the mere fact that a judge is a Catholic is not the basis for a reasonable concern about the judge’s impartiality in death penalty cases, because the range of views among Catholics on the death penalty is rather wide. But, I think, the case is different when one knows – or has quite strong reasons to believe – that the judge is an orthodox Catholic on the matter of abortion.

The article draws upon long-standing Catholic moral teaching to distinguish between formal and material cooperation with evil. The authors define the former: “A person formally cooperates with another person’s immoral act when he shares in the immoral intention of the other.” In the article, the key example of formal cooperation is actually imposing a death sentence. “Material cooperation” occurs when an act “has the effect of helping a wrongdoer, where the cooperator does not share in the wrongdoer’s immoral intention.” The objection, among orthodox Catholics, to what relevant discussions called “complicity” with abortion by Catholic employers through provision of abortion-related medical care, rests on the view that such actions amount to material cooperation with evil. Coney and Garvey’s article identifies some examples of formal cooperation in connection with the death penalty, but devotes most of its analysis to questions about material cooperation.

Formal cooperation is always immoral, but an appellate judge will almost never be faced with the possibility of formally cooperating with abortion. The relevant category, then, is material cooperation. The article asserts, again consistent with Catholic moral teaching, that the morality of material cooperation depends upon the outcome of a “moral balancing test – weighing the importance of doing the act against the gravity of the evil, its proximity, the certainty that one’s act will contribute to it, and” – importantly, I think – “the danger of scandal to others.” “Scandal to others” occurs when the others see the believer’s actions and infer that the “wrongdoing is not so wrong,” thereby “provid[ing] material for rationalization and self-deception by people tempted to undertake the same sort of wrong.” (As I recall, my impression in 1998 was that the authors did not devote enough attention in their analysis the importance of “scandal to others.”)

The authors are uncertain that sitting as an appellate judge in a capital cases amounts to material cooperation with evil, but they conclude that sitting on capital cases heard on habeas corpus does not. So, for them, an orthodox Catholic judge should recuse himself/herself from imposing the death penalty but need not recuse in habeas cases, and they leave open the question about participating in direct appeals. They then examine whether the federal recusal statute requires the recusal of a Catholic judge, merely by virtue of his or her church membership, in death penalty cases and, as noted above, conclude that it does not.

So, what are the implications of the analysis for a judge who one knows is or has strong reasons to believe is an orthodox Catholic on the issue of abortion? I think the best line of inquiry involves the federal statute dealing with recusal based on concerns about the appearance of impartiality, which the authors discuss only in connection with a motion to recuse based solely on the judge’s religious affiliation. Is it reasonable to believe that an orthodox Catholic (in the relevant sense) would be subject to reasonable concerns about his or her impartiality in connection with actions that constitute material cooperation with evil?

The first cut at the problem, I think, is to note that such a judge could conclude from his or her examination of the relevant purely legal materials that Roe v. Wade was mistaken as a matter of law, and should be overruled. The judge’s views about material cooperation would play no role in his or her decision. The difficulty, though, is that the judge’s decision is observationally indistinguishable from one in which the judge concludes that, though the relevant purely legal materials support the reaffirmation of Roe v. Wade, the judge’s views on material cooperation require that, if she participates in the decision, he or she overrule Roe. This is what Coney and Garvey refer to as “cheating” about the implications of the purely legal materials – the judge’s religious views dictate an outcome inconsistent with that required by what the judge acknowledges to be the relevant purely legal materials. Under the circumstances, is it reasonable to find an appearance of partiality when an orthodox Catholic does not recuse from a case involving abortion?

Another complication: When the judge sits on such a case, he or she may have antecedently concluded that affirming Roe v. Wade based on the purely legal materials would not amount to giving material assistance to the evil of abortion. Suppose the (reasonable?) observer concludes that conscientious application of the moral balancing test leads to the conclusion that reaffirming Roe v. Wade would constitute giving material assistance: The evil is, from the orthodox Catholic’s point of view, extremely evil (maybe even the ultimate evil), and, though the evil is not at all proximate to the judge’s decision, that it will occur is nearly certain. And (for me) the issue of scandal is quite serious here: Others who see the orthodox Catholic judge affirming Roe v. Wade might conclude that abortion is not that wrong if even such a judge can go along with a decision allowing abortions. (For example, it might be – I think it is – that Justice Kennedy’s joining in the “plurality” opinion in Casey and Justice Brennan’s consistent position in abortion cases were scandalous in this technical sense even if they weren’t orthodox Catholics.) Is this analysis – which I personally think is correct (and different from the analysis of material cooperation in the administration of capital punishment, for appellate judges) – enough to support the observer’s inference that the judge cannot be impartial on the relevant questions (or at least that the judge’s participation raises reasonable questions about his or her impartiality)?

As I said at the outset, the discussion of the article during Judge Coney Barrett’s confirmation hearing was execrable because Senator Feinstein’s staff didn’t prepare her well, or because she disregarded or was unable to understand their advice about what precise questions were raised by the article. The article’s arguments are complex and subtle – and, again, “splendid” – and the confirmation process is almost certainly ill-suited to addressing arguments of that sort, particularly when what is at issue are the arguments’ implications for highly charged matters not directly addressed in the original article.

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