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 https://scholarship.law.nd.edu/law_faculty_scholarship/527/;
I commented on the article at the time, calling it “splendid.” My comment is available
at scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1445&context=mulr.)
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.