Several Facebook friends and others jumped on new Supreme Court Justice Amy Coney Barrett’s joining the majority of the court in lifting a stay of execution for Orlando Hall. He’d been sentenced to death in 1994 for kidnapping, raping, and murdering a sixteen-year-old girl by burying her alive. The appeal was his last chance to live. He died by lethal injection late Thursday night.
This, Barrett’s critics declared, showed she was not truly pro-life, because anyone truly pro-life wouldn’t approve an execution. And worse, not truly Catholic, because the Church definitively opposes capital punishment. And even worse than that, she knows it. Her own words condemn her. They quoted a line from a Marquette Law Review article she wrote in 1998 with then law professor John Garvey (now president of the Catholic University of America) when she was a new lawyer clerking for a judge on the U.S. Court of Appeals for the D.C. Circuit. It had the simple title “Catholic Judges in Capital Cases.”
The line, quoted by Elizabeth Bruenig in her New York Times column, said: “We believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death.”
It seems conclusive. But it isn’t. That’s not all she argued in the paper. Those words apply to judges trying capital cases. They don’t necessarily apply to judges (or justices) reviewing appeals — the thing she was doing in her first act as justice of the Supreme Court. In the next sentences, she and Garvey write: “Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving. There are parts of capital cases in which we think orthodox Catholic judges may participate — these include … collateral review of capital convictions.” The sentences quoted as a “gotcha!” don’t get her.
Here is Garvey and Barrett’s argument, in a carefully argued 22,000 word paper (including the 182 footnotes) with a remarkable number of qualifications, written almost as a proposal rather than as a definitive statement. The writers explore the question of judicial conscience in general, not just religious conviction, and spend almost half the paper trying to discern the conditions under which a judge can recuse himself from a case because he cannot agree with the law. They insist that “Judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.”
I’ll quote at length. The authors first describe the Church’s teaching and the ways it binds Catholics. “Against” and “completely” sum up their claims. But that doesn’t settle the matter — and this their eager critics miss — because judges participate in significantly different ways.
They then turn to the question of what Catholic judges should do in a nation that executes criminals. Distinguishing formal and material cooperation, they make a fine distinction. A Catholic judge can’t order the death penalty. But he might participate as a judge until required to proclaim the sentence. Then he must recuse himself.
Here is what Barrett’s critics miss. The article itself then takes up the question of what a Catholic judge might do on appeal. “Not everyone who plays a role in the system of capital punishment bears the same degree of guilt,” they write. “At one extreme is the sentencing judge who imposes a sentence of death … a role where the judge bears a primary responsibility for what happens to the criminal. At the other end is the Supreme Court justice who votes to deny certiorari to a state prisoner, condemned to death, whose last hope is to convince someone that the trial court improperly denied his suppression motion. Our instinct is to say that the Church’s teaching on capital punishment has little bearing on this last case.” (“Our instinct” is one of those qualifications I mentioned.)
The situation is significantly different for an judge hearing an appeal. He does not order the prisoner die. His only job in our system is to make sure those responsible for deciding decided rightly according to the law. “The court of appeals is directed to check for only a few defects. It must affirm the sentence unless it was ‘imposed under the influence of passion, prejudice, or any other arbitrary factor,’ or the evidence and other information (from the sentencing hearing) does not support the findings about aggravating and mitigating factors. These are fairly standard directions for review of fact-finding-ones that judges know how to follow.”
Two “rules of deference” make the decision even easier, more by-the-numbers. The court defers to the prosecution, which won the case, and to the jury that judged the credibility of witnesses because they were there. The judge “who declines to undo their work [that is, overturn a decision to apply the death penalty] has a good reason for standing by if he is respecting a lawful and otherwise useful and morally acceptable division of authority.”
“To affirm the sentence is not to approve it, but to say that the trial court did its job,” the authors explain. “What the court of appeals really decides is that the responsibility for life and death lies somewhere else. When the court of appeals finds an error it does not sentence the defendant itself. It ‘remand[s] the case for reconsideration.’ The appellate judge can thus say, we think rightly, that he does not intentionally direct or promote the defendant’s execution.”
Barrett and Garvey conclude: “Appellate review of a death sentence is not, then, a case of formal cooperation” and therefor not definitely wrong, and in some cases right. “From a moral point of view deciding an appeal is an act of material cooperation, not formal, and one where it is difficult to say what outcome is morally preferable,” as they put it later in the paper. The one objection they raise — but don’t settle — is the possibility of causing scandal, thereby possibly leading others to sin.
Barrett is not inconsistent in voting to vacate the stay of execution, as her critics leapt to claim. Nor is she betraying her pro-life convictions, as they also leapt to claim. Most importantly, she is not acting against the Church’s teaching. With Garvey, she worked out an idea of how Catholics could do the judicial work they had agreed to do — which we need them to do, unless we want a judicial system denuded of Catholic influence — and do it in obedience to their Church’s teaching. They worked out with great care what a Catholic should do in that broad grey area created by the gap between Catholic belief and the laws of a liberal, pluralist society, in which Catholics are called to participate as much as they can, but no more than they can.
It’s the same question of complicity with evil as whether a Catholic can vote for an ardently pro-choice candidate like Joe Biden. The simple fundamentalist answer is no more helpful here than it was there. You might disagree with Amy Coney Barrett and John Garvey, but only if you’ve thought about the matter as deeply as they did, and actually engage what they argued, rather than jumping on 40 words out of 22,000. It’s a hard question for Catholics, and one that’s only going to get harder, and we’re fortunate to have their contribution.
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