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<div>Catholic Judges in Capital Cases</div>
<div>Amy Coney Barrett, Notre Dame Law School</div>
<div>John H. Garvey</div>
<div>Whole thing is here <a href="https://scholarship.law.nd.edu/law_faculty_scholarship/527/"><font color="#0563C1"><u>https://scholarship.law.nd.edu/law_faculty_scholarship/527/</u></font></a></div>
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<div>I found the statements below particularly interesting and would love to discuss parallels with our thought:</div>
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<div>CATHOLIC JUDGES IN CAPITAL CASES</div>
<div> To anticipate our conclusion just briefly, 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. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving.</div>
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<div> In Catholic moral theology, there is an extensive literature on this subject, usually collected under the heading of cooperation with evil. Stated abstractly, these are cases where one person (“the cooperator”) gives physical or moral assistance to
another person (“the wrongdoer”) who is doing some immoral action. In judging the morality of the cooperator’s action, the most important distinction the Church draws is between what it calls formal and material cooperation. Here is a simile to help lawyers
think about the distinction. In first amendment law there are two “tracks” for judging government actions that sin against the freedom of speech. Track one is for cases where the government acts with a bad intention—where it restricts speech because it does
not like what is being said. (Imagine a law forbidding people to make jokes about the Vice President.) This kind of action is almost always unconstitutional. Track two is for cases where the government restricts speech unintentionally, in the course of doing
something else. (Imagine a law against littering applied to a politician distributing handbills.) This kind of action is sometimes unconstitutional and sometimes not. The courts will balance the law’s good effects against its impact on speech.</div>
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<div> Implicit in the Chief Justice’s observation are two reasons why we should not automatically disqualify judges for holding such views or convictions. One is that everyone has them. If we applied this criterion faithfully we would disqualify the entire
judiciary. The rule of necessity that allows judges to sit on cases about judicial compensation applies here too: better a flawed judge than no judge at all. The second is that the possession of convictions is not only inevitable, it is to some extent desirable.</div>
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<div>KT<br>
Joel Rich</div>
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