Faith-Based Justices

45 thoughts on Faith-Based Justices

1. Technically I am a Catholic, I’ve just recently gotten smart and became atheist. I judge your perverted religion all of the time.

   You know, I’m sure that writer would be very outraged if all five of those justices were Muslim, and living by their Muslim law to make that law. But of course, only Christianity is the true religion. Gag.

2. Imagine the outcry if a Muslim person in some position of power — a judge, a legislator, a business-owner — decided that he was going to impose (or require) his very conservative interpretation of Sharia law in all of his dealings.

   This is why half of the conservatives should be classed as clinically psychotic – what you suggest as a hyperthetical is what htey view as reality circa AD 2007, and is exactly why they support christian theocrats; to counter the muslim ones, who are also evil secular athiests trying to abolish god, when they’re not evil papists trying to make us all eat death cookies and abort all the babies.

   I remember once arguing with a paranoid schizophrenic freind of mine about getting professional help – and she was telling me about how the talking coyotes had given her contrary advice and why should she believe me (Seriously, it sounds made up but it gets worse because those talking coyotes had advised her to hook up with this fat ugly lazy slob of a guy – creating the stereotypical sitcom couple because she’s really good looking and smart as well as being mentally ill – the whole thing was almost too ludicrous to take seriously, until she tried to beat me to death with a frying pan) and I pointed out that even if coyotes could talk, you shouldn’t take their advice at face value because they’re known to be tricksters.

   And she accepted that, because quite frankly someone having a serious psychotic break is saner than these fruit loops.

3. and I pointed out that even if coyotes could talk, you shouldn’t take their advice at face value because they’re known to be tricksters.

   And she accepted that,

   ! well, hey, whatever works…

   and yeah, the people like Mr. Earnest Letter Writer are just…there aren’t enough desks in the world for all the dents i must put in my forehead

4. Stone piece is a bit of a stretch. He tries to extrapolate an awful lot from the fact that Roberts, Scalia, Thomas, Kennedy, & Alito are all Catholic. My guess is that it has nothing to do with Catholicsm vs. Protestantism or Judaism. You’ll find plenty of Protestants just as conservative (like the presidents who appointed them).

   I’m particularly struck by this comment:

   By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality.

   There’s only such a “fundamental difference” for the non-religious. Ultimately, I don’t think the Court’s decision was a particularly good one. But there are plenty of good arguments for the dissent without taking cheap shots at religion.

5. even if coyotes could talk, you shouldn’t take their advice at face value because they’re known to be tricksters.

   Can I keep you around for when I finally go off the deep end? I think you’re just what I need.

   Personally, I always wonder about people who are Non-Catholics, some of them always seem to think they have their own almighty right to judge us.

   There’s something ironic in that that we can’t judge the judges, but I don’t have the skill right now to finely shape a pun from it. 🙁

6. David Fryman says:

   My guess is that it has nothing to do with Catholicsm vs. Protestantism or Judaism. You’ll find plenty of Protestants just as conservative (like the presidents who appointed them).

   That’s not the point. Stone’s piece isn’t anti-Catholic. All he is doing is noting that the judges who made this decision happen to be Catholic, and that they based the decision on their private religious beliefs, not on legal precedent. As Jill’s commentary above makes very clear, the verdict would be equally outrageous if the 5 judges had been Muslim – or, for that matter, Protestant, Jain, Wiccan, Zoroastrian, or Scientologist. The point is that they acted in accordance with their personal beliefs, against legal precedent and, according to the evidence presented, the public good. And the question that was being put by the case was about the law and the public good, not about their personal beliefs.

   “By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality.”

   There’s only such a “fundamental difference” for the non-religious. Ultimately, I don’t think the Court’s decision was a particularly good one. But there are plenty of good arguments for the dissent without taking cheap shots at religion.
   Nothing here seems to me like a cheap shot at religion. Both Jill’s post and the Stone piece engage intelligently with the legal procedure. Furthermore, both are at pains to emphasise that the judges in question are of course entitled to their beliefs – they just take issue with how those beliefs are affecting their work.

   Anyway, there is a fundamental difference between morality and religion, at least as far as the US legal system is concerned. We are not talking about personal morality: of course, those who have a religion will find that it influences or, in some cases, entirely constructs their personal morality. We are talking about morality as regards the state. The US is a secular republic. That means that the moral values enshrined in its legal system are supposed to stand outside all religions. The judges of the Supreme Court are supposed to stand outside all religions, too, in as far as their work as judges of the Supreme Court goes. Which is the point that Stone’s anecdote about the Roe v Wade decision makes.

   If a similar case had come up in a state with an established religion – such as Iran, Cambodia, or the United Kingdom – there would be some weight to your point that religious belief and morality are inseparable in a legal context. Not much, though. In all of those states, and most other religious states (with the exception of the Vatican and Mount Athos), there is a lively debate about the extent to which religious authorities should be allowed to determine morality, and where exceptions to the dogma might be made.

   The US, though, is a secular democracy founded by a Declaration of Independence that specifically objects to the tyranny of an authority that “refused his Assent to Laws, the most wholesome and necessary for the public good.” On that basis, I would have thought that the sight of any one specific religion being permitted to apply its dogma to public policy, in the face of all reason and rational opinion, would be an affront to every citizen.

7. I remember having a similar discussion with someone about prayers in school. He kept insisting it was a good idea, and I finally said “Okay, great. Should the students bow down to Mecca at their desks, or should they all go down to the gym and do it there?”

   Man, did he ever freak out about that idea, which was entirely contrary to what he meant, of course.

   *sigh*

   Afterwards he wouldn’t talk to me because I was going to be a lawyer at the time and thus was learning to deliberately lie and twist words.

8. Sorry, religion and morality are not the same thing, your righteous indignation notwithstanding.

   Did you read the decision? Of course those men’s religion colored their judgment in this case. To say otherwise is, in my opinion, to be deliberately obtuse.

9. Anyway, there is a fundamental difference between morality and religion, at least as far as the US legal system is concerned… The US is a secular republic. That means that the moral values enshrined in its legal system are supposed to stand outside all religions.

   I disagree. The US is a pluralistic republic, not a secular one. The First Amendment provides that no single religious tradition may be elevated above any other and that religion may not be favored over non-religion. The obvious corollary is that non-religion may not be favored over religion. All values, religious and secular, are fair game in the public arena.

   Sorry, religion and morality are not the same thing, your righteous indignation notwithstanding.

   I’ll rephrase. As a religious person, I don’t distinguish between my morality and my religion.

10. My guess is that it has nothing to do with Catholicsm vs. Protestantism or Judaism. You’ll find plenty of Protestants just as conservative (like the presidents who appointed them).

    I do think this is a tangential issue, but from outside Christianity, there’s not all that much difference between catholics and protestants. Jewish law protects the life of the mother. Period. If we had had five jews on the court, of pretty much any denomination/observance level, and if they had made this particular decision on the basis of their personal faith, it would have been a different decision. Except that I can’t imagine jews who had chosen to devote their lives to understanding and applying civil law rather than jewish law (became lawyers rather than rabbis) failing to understand the importance and methods of separating the two — or if they did, I can’t imagine such being appointed to the Court.
    (It’s a tangential point, but I hate it whenever I see ‘judaism’ tossed in there, as if it’s just a minor but essentially identical variation of christianity. Or just included, even unconsciously, to point out that yes, the writer is aware that non-christians exist.)

11. This reminds me of the “Is Islam compatible with democracy?” debate a while back.

    Christianity most definitely demands a loyalty beyond one’s loyalty to the State. That can be a good thing (if the whole human race is my family, why the fuck do I care if someone has papers or not) and a bad thing (the above).

    However, the justices did take an oath on the BIBLE to uphold the Constitution, so it’s a bit of a Catch-22 for them if all they care about is “living their faith” in their public service. haha

12. The Court’s not supposed to pay attention to either morality or religion. They’re supposed to FIRST pay attention to the CONSTITUTION, and then if they must they can incorporate certain *moral* but not specifically religious beliefs. But the Constitution is the main issue here, along with judicial precedent. The problem with the justices is that they conflated either their religion or their personal morality (along with their misogyny) with the Constitution.

13. they can incorporate certain *moral* but not specifically religious beliefs

    Like what?

14. The First Amendment provides that no single religious tradition may be elevated above any other and that religion may not be favored over non-religion.

    That’s correct. That’s why people find it a little worrisome that the five judges who are all the same religion are the ones who ignored the Constitution and made a judgement based on their personal religious beliefs.

    If you’re a judge, you’re not allowed to decide that your personal religious beliefs are more important than the Constitution. That’s a bad, bad road to allow judges to go down.

15. The problem is that five justices made a decision about women’s health all about THEM. The procedure makes them uneasy, their morality calls for it, their fear of real life and the difficult choice and in the end others will suffer. The law is supposed to be about the Common weal but they made it about themselves. Those five old men need to give up the job because they simply do not have the stomach for it.

16. I remember once arguing with a paranoid schizophrenic freind of mine about getting professional help – and she was telling me about how the talking coyotes had given her contrary advice and why should she believe me (Seriously, it sounds made up but it gets worse because those talking coyotes had advised her to hook up with this fat ugly lazy slob of a guy – creating the stereotypical sitcom couple because she’s really good looking and smart as well as being mentally ill – the whole thing was almost too ludicrous to take seriously, until she tried to beat me to death with a frying pan) and I pointed out that even if coyotes could talk, you shouldn’t take their advice at face value because they’re known to be tricksters.

    That was the most hilarious thing I have read in awhile. Props.

17. I don’t think this is the correct criticism of the ruling. Ginsburg got it right.

    The fact of the matter is that Supreme Court justices are neither legally nor morally bound to precedent. Liberals like me applaud progressive decisions with no real precedent, like Brown vs. Board of Education that are based on substantive moral claims.

    The problem with the decision is the substantive moral view of the world presupposed by it.

    Insofar as the justices hold a moral view whereby the claims of justice are subservient to their own moral peculiarities, then they hold the wrong substantive view.

    It isn’t that the reasons might be based in a religious conception of right and wrong…it is that they provided BAD reasons.

    As a causal explanation for why they got it wrong, it might be an interesting route to take. But it isn’t a good argument THAT they got it wrong.

    (And, to preempt Zuzu-type misreadings of my posts, notice I am saying that the decision was a bad one. What I disagree with is the efficacy and cogency of one particular way to criticize the rulings.)

18. Insofar as the justices hold a moral view whereby the claims of justice are subservient to their own moral peculiarities, then they hold the wrong substantive view.

    It isn’t that the reasons might be based in a religious conception of right and wrong…it is that they provided BAD reasons.

    Well said. That’s pretty much where I was going as well.

19. I don’t think this is the correct criticism of the ruling. Ginsburg got it right.

    …can’t there be more than one correct criticism of the ruling?

    I think Ginsberg’s dissent was perfect, but Stone’s piece adds something, too. There doesn’t have to be a single “right way” to criticize this spectacularly poor decision.

20. ….um.

    Much as I find his argument interesting and compelling, this article is one of the most blatant examples of academic dishonesty I’ve ever encountered. I’m not sure how relevant that is to a blog post, but I feel compelled to point it out anyway. I know I’m not citing them properly myself; what shocked me was the fact that he stole the exact wording from her dissent without even giving a nod to where he got the ideas from.

    Here is an excerpt from Ginsburg’s dissent:

    According to the expert testimony plaintiffs introduced, the safety advantages of intact D&E are marked for women with certain medical conditions, for example, uterine scarring, bleeding disorders, heart disease, or compromised immune systems. See Carhart, 331 F. Supp. 2d, at 924 – 929, 1026 – 1027; National Abortion Federation, 330 F. Supp. 2d, at 472 – 473; Planned Parenthood, 320 F. Supp. 2d, at 992 – 994, 1001. Further, plaintiffs’ experts testified that intact D&E is significantly safer for women with certain pregnancy-related conditions, such as placenta previa and accreta, and for women carrying fetuses with certain abnormalities, such as severe hydrocephalus. (Ginsburg 10)

    Here is an excerpt from Stone’s article:

    The five justices in the majority in Gonzales have put at risk the health of women who suffer from heart disease, uterine scarring, bleeding disorders, compromised immune systems, and certain pregnancy-related conditions, such as placenta previa and accreta, as well as those women carrying fetuses with certain abnormalities, such as severe hydocephalus. In all of these circumstances, and many others, the use of the intact D & E is necessary to ensure the health of the woman. (Stone)

    And another excerpt from Ginsburg’s dissent:

    During the District Court trials, “numerous” “extraordinarily accomplished” and “very experienced” medical experts explained that, in certain circumstances and for certain women, intact D&E is safer than alternative procedures and necessary to protect women’s health.

    And, finally, another excerpt from Stone’s article:

    there is a clear medical consensus that in particular circumstances intact D & E is necessary to protect the heath of the woman; and there is a clear medical consensus that in particular circumstances intact D & E is safer than the alternative procedures.

    I can’t be the only one bothered by this.

21. Jill: Ginsburg was exactly right. Perfect. Right on target. I certainly think it looks like the Catholic judges let their Catholic beliefs affect theur ruling, but I’m reluctant to make that the main reason for crticizing the decision, because I can’t prove that they’ve let their religious beliefs affect their ruling.

    Ilina: Are you accusing Stone of plagiarizing Ginsburg’s writing, and doing so without proper attribution? That was my immediate reaction too. I quit reading his article about halfway thrrough because he comes across as lazy and dishonest. He hasn’t done a whole lot to support his “they did it on religious grounds” argument either.

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23. Jill: Ginsburg was exactly right. Perfect. Right on target.

    Well, yeah, I think so too and I never said otherwise. I’m just saying that more than one person can be right on this, and that it’s not an either-or between Ginsburg and Stone.

24. I love Professor Stone, but I have to admit I don’t get his argument. He starts with the standard criticism of Carhart (which is a fine one, so far as it goes), and then interjects an observation: these five guys, he says, are Catholics. Then he begins denouncing the mixing of religion and law.

    The inferential steps, though, from “I disagree with this decision” to “this decision was made on the following impermissible grounds: religion” are completely absent. They also don’t make very much sense when you consider the histories of some of these Justices. For example, Kennedy is an author of Casey, the decision that reaffirmed Roe in its essentials. If ever there were a time for a Catholic to jump ship on religious grounds, surely it would have been then. Or consider the death penalty cases, where Scalia and Thomas are regular dissenters from decisions that limit the death penalty. The official teaching of the Catholic Church (as Scalia, whose son is a priest, must surely know) is that the death penalty is wrong.

    In fact, Justice Scalia has gone on record many times saying that while he does not believe the Constitution guarantees abortion rights, neither does it prohibit them. A Catholic who believed that life begins at conception and ends at natural death might argue an abortion constitutes deprivation of life without due process of law; and yet, Scalia says it is a matter for state legislatures.

    My point is this. There’s just no evidence that the majority in Carhart was deciding for reasons outside the law. The problem is that the law in this area, “undue burden,” is not a legal principle; it is a vague standard that permits the Justices far too much discretion to become regulators of abortion. On a liberal Court, this will mean more abortion rights; on a more conservative or more deferential Court, however, it will mean fewer.

    Judicial discretion and judicial power are, historically, no friend to the progressive. “Substantive due process” was invoked first in the profoundly illiberal Dred Scott decision, and then repeatedly in the early FDR years to invalidate progressive labor legislation. Sure, there’s been a brief heyday in which the results have been pretty good for liberals, and when Bush had his Republican majority in Congress, Lawrence v. Texas must have looked pretty darn good. But it’s worth stopping, at times like these, to remember the fate of the original labor regulation laws.

25. Can you even imagine the column that Michelle Malkin would puke out?

    Imagine it? It writes itself?

    So, where are all the conservatives who pee themselves in fear when a liberal court does something “activist” like make shit up?

26. ….um.

    Much as I find his argument interesting and compelling, this article is one of the most blatant examples of academic dishonesty I’ve ever encountered.

    Ilina, I guess you’re trying to say that Stone plagiarized Ginsberg’s dissent? You can’t really “plagiarize” a judicial opinion. It might be a bit sloppy for Stone to have not cited it more precisely, but it’s not plagiarism in the sense that it would be if you were improperly using another scholar’s writing.

27. But there are plenty of good arguments for the dissent without taking cheap shots at religion.

    If a justice invokes religious morality where it is not warranted, criticizing such a misuse is not a “cheap shot.” It is a necessary critique.

    As a religious person, I don’t distinguish between my morality and my religion.

    And I hope that, in a non-religious setting such as an office, you do distinguish between your personal religious morality and whatever moral reasoning that you need to exercise when making decisions on behalf of a pluralistic group that includes the morality of many people of many faith paths. Do you structurally impose your observance of kosher cooking? Do you feel the need to “live your faith” by prohibiting other people from working on Sunday (or forcing them to work on Saturday, even if it is their sabbath observance)? The justices, in swearing an oath to their God to uphold the constitution, cannot reasonably think that in doing so they have a basic right to impose their religious beliefs upon the constitution. If they are incapable of discerning their religious moral beliefs with those of morality inherent in the constitution, then they have committed a sin and broken a commandment by bearing false witness under a sworn oath. Under their own religious morality, they should resign to be able, as my priest growing up exhorted me, to go forth and sin no more.

    It isn’t that the reasons might be based in a religious conception of right and wrong…it is that they provided BAD reasons.

    But if the BAD reasons are fundamentally religious in nature, why is it such a problem to point that out? Scalia has made speeches where he’s indicated that he doesn’t believe he needs to set aside his Catholicism when making decisions for people who are not Catholic. He may fig leaf his religious beliefs with a reliance on an intellectually dishonest “strict construction” argument, but it’s demonstrably a false argument, as demonstrated by other opinions he crafts without any regard for the lack of constitutional specificity. Alito’s writings when he worked at DoJ indicate that he sees subterfuge and intellectual dishonesty to be the best way to get rid of abortion without overturning Roe — why should we take at his word that he appropriately discerns what is a common moral position in a pluralistic culture with a specific constitutional bias towards personal freedoms and what is a personal moral position based in his religious beliefs?

    Certainly, there are other, more practical reasons to oppose this decision, but that the five Catholic judges used sloppy and religiously-based reasoning is not a reason that fails for lack of support.

28. this is tangential, and I cannot make it into a full and related thought right now, but as for SCOTUS justices, (and Presidents) taking their oath on the bible- it is neither fixed, nor required. In fact, Article VI of the Constitution says that “no religious Test shall ever be required as a Qualification to any Office or Public Trust under the United States”. Taking the oath on a bible is a tradition started by George Washington, John Quincy Adams took it on a law book, and Teddy Roosevelt used no book at all.
    The oath taken by the Supreme Court justices is (according to the Judiciary Act):
    “I, A. B., do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as , according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States. So help me God.”
    “So help me God” can be eliminated is the justice is taking this as an affirmation, rather then an oath.
    Just throwing that out there, to challenge some of the ways we think that about the inevitability of religion as part of our government roles.

29. hipparchia– That’s what I was saying. The wording was exactly the same, and no new information had been added from any other source.

    nausicaa– Why can’t you plagiarize a judicial opinion?

30. Jill,

    I think we need to make a distinction between different kinds of criticisms of the ruling.

    When one says, “They got the decision wrong BECAUSE they imposed their Catholic motivated moral views on the electorate.” Then I think they can mean two things:

    1) Using one’s substantive moral views rather than precedent is wrong such that even if they got the ruling right and based it on the right substantive morality, then the ruling would still be based on faulty reasoning.

    2) They got the substantive moral views wrong and the causal explanation for getting it wrong is their Catholic heritage.

    I think Stone switches between 1 and 2. 2 isn’t a criticism of the “ruling” per se, but a causal explanation for why they already got the ruling wrong. 2 seems correct to me. 1 does not.

31. nausicaa– Why can’t you plagiarize a judicial opinion?

    Litigation writing is different than other kinds of academic writing. When you write a brief as a lawyer, it’s not plagiarism if the judge takes your language directly without citing you. (In fact, that’s exactly what you want them to do!) Judges and lawyers can also take chunks of language and reasoning from other opinions and briefs and stick them in their own without crediting them. Sometimes you will credit the “original” authors, but it’s not required — you’d only do it if you want to invoke that court’s opinion as specific precedent.

    In any other context, this kind of borrowing would be plagiarism. But it’s definitely not plagiarism in litigation.

    When you’re doing non-litigation legal writing, like Stone’s it’s probably better for clarity’s sake to say where the language is coming from. But otherwise, closely paraphrasing a judge, the way Stone did, is definitely NOT plagiarism the same way it would be if he was paraphrasing so closely say, another law professor.

    (This is important to point out, since accusations of plagiarism are of course very serious.)

32. Ilina:

    The wording was exactly the same, and no new information had been added from any other source.

    ? Exactly the same? My screen must be fuzzy today.

33. It’s not just that they are Catholic. It’s that they were chosen because of their strong Catholic beliefs. This is particularly true of Alito, Scalia and Roberts.

    The thing is, there are very few skilled constitutional lawyers who are (a) against abortion rights and (b) not Catholic. That’s because in American society generally, there are very few educated people who are against abortion rights and not Catholic or fundamentalist Protestant. (Except for orthodox Jews, but orthodox Jews have peculiar beliefs in other ways.) And fundamentalist Protestants don’t participate in the mainstream intellectual legal tradition. There just isn’t any easy way to reconcile fundamentalist styles of intellectual debate and legal reasoning. Catholicism, on the other hand, has a long history of law and philosophy that fit in well with the secular legal tradition.

    So if your litmus test for a Supreme Court justice is someone who is (a) against abortion rights and (b) a competent constitutional scholar, the entire universe of acceptable candidates will be devout Catholics.

34. So if your litmus test for a Supreme Court justice is someone who is (a) against abortion rights and (b) a competent constitutional scholar, the entire universe of acceptable candidates will be devout Catholics.

    Just wait until Regent Law School gets its hooks into the judiciary!

35. ok, i’ll withdraw my accusation of plagiarism [i’m not especially opposed to plagiarism in many cases anyway].

    stone was writing for a popular audience, and a wide one. it’s an audience that’s expecting the author to have put some work into their thinking and writing beyond c&p. we can all do that. pundits who elevate them selves [or are elevated by someone else] above the unwashed masses are expected to try a little harder.

    for lack of a simple and brief citation, stone comes across here as intellectually lazy and/or intellectually dishonest.

36. Litigation writing is different than other kinds of academic writing. When you write a brief as a lawyer, it’s not plagiarism if the judge takes your language directly without citing you. (In fact, that’s exactly what you want them to do!) Judges and lawyers can also take chunks of language and reasoning from other opinions and briefs and stick them in their own without crediting them. Sometimes you will credit the “original” authors, but it’s not required — you’d only do it if you want to invoke that court’s opinion as specific precedent.

    In any other context, this kind of borrowing would be plagiarism. But it’s definitely not plagiarism in litigation.

    Really? I’m going to make myself sound like a dumb law student here, but I did not know this. I always assumed that you had to credit someone if you borrowed their exact words or their ideas. Crazy. You learn something new every day…

37. Jill-judges often ask counsel to draft findings of fact and conclusions of law for them. This is the rule not the exception, for example, in bankruptcy proceedings.
    Also, judges often have their clerks draft their opinions. I did it when I was a clerk. The opinion is published under the judge’s name. I was tickled pink to see an opinion written by me in the F Supp – it never occurred to me to think of it as the judge plagiarizing what I wrote.
    I have also copied chunks of briefs written by other lawyers in my firm or working for my client when I have had the same issue that the other lawyer had. Why should the client pay twice for work that has already been done?

38. Really? I’m going to make myself sound like a dumb law student here, but I did not know this. I always assumed that you had to credit someone if you borrowed their exact words or their ideas. Crazy. You learn something new every day…

    It’s all about the boilerplate, baby, but you have to wait until you graduate. Don’t do it in your seminar papers! And I guess there’s the danger that if identical briefs are submitted to the same judge, he or she might think you don’t really know what you’re talking about.

39. It’s all about the boilerplate, baby, but you have to wait until you graduate.

    And remember to be careful with your pronouns. It’s not fun trying to go through a brief that alternates between calling the plaintiff he and she.

40. The judge can pull directly from your brief, but you shouldn’t pull directly from the court’s opinion without citing it.

    It *is* copyrighted by West, after all. At least the headnotes are.

    The official teaching of the Catholic Church (as Scalia, whose son is a priest, must surely know) is that the death penalty is wrong.

    He’s on record as being very selective about stuff like that:

    Justice Antonin Scalia, a devout Catholic and one of the Supreme Court’s most conservative members, says that Catholic judges who follow current Vatican teachings against the death penalty should resign. Speaking at Georgetown University on February 4, Scalia said he strongly disagrees with the church’s relatively new shift to oppose capital punishment in nearly all cases.

    Scalia said a Catholic judge with moral concerns about the death penalty should resign because he or she would not in most states be upholding the laws that judges must swear to protect, according to the Associated Press.

    In a conference in Chicago January 25, the justice said similarly: “The choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring the duly enacted constitutional laws and sabotaging the death penalty.”

    That’s not to say he doesn’t rely on his Catholic faith to guide him in other decisions. Scalia is the king of cherry-picking, after all.

    The Vatican has long mucked around in politics, admonishing Catholic judges not to take part in divorce cases, death penalty cases, etc., and telling Catholic politicians outright that they are not to support certain issues, such as abortion or, most recently, same-sex marriage. Fortunately, most politicians — particularly in Italy — have told the Pope where to stick it.

    Thing about the Catholic Church, though, is that it’s not just a religion. The Vatican is a nation-state, albeit a small one. Its interference in the internal politics of other countries is just a hair more objectionable than the interference of, say, the head of the Anglican church.

    Oh, and Patrick? Bite me.

41. It *is* copyrighted by West, after all. At least the headnotes are.

42. While plagiarizing other court filings may be allowable in drafting court filings, plagiarism is never acceptable in scholarly writing. But Stone’s blog post is neither. He is simply summarizing the court decision and its impact. Except for the last two paragraphs, all of the material he’s drawing upon comes from the court decision. And his second paragraph draws the line between the majority’s supporting facts and the dissent’s supporting facts:
    In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.
    Pinpoint cites or even footnotes are no more appropriate in a blog post than they are in a letter to the New York Times. The source of his material is clear. Stone gets a pass.

43. It *is* copyrighted by West, after all. At least the headnotes are.

    Meant to say… the words of judicial opinions aren’t owned by West! Opinions are public domain, which West recognizes — their copyright at the bottom of the opinions says “(C) 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.” The electronic database format West puts them in, and any original summaries or analysis, is all they can hope to copyright, I believe. (I’m no IP lawyer – I’m not even sure how to spell copywrite.)

    I agree that you usually shouldn’t take chunks of opinions without citing them, but that’s more because you should be analyzing the argument for your own case than because you’re plagiarizing.

    /ending disrail — sorry!/

44. zuzu,

    Interesting stuff regarding Justice Scalia and the death penalty. Well, he’s hardly the first practicing Catholic to disagree with the Vatican about something; and we are all, Catholic or not, self serving far more than we admit. Still, I hope his son sets him straight. (“Fr. Scalia.” Indeed.)

    One thing, though:

    Thing about the Catholic Church, though, is that it’s not just a religion. The Vatican is a nation-state, albeit a small one. Its interference in the internal politics of other countries is just a hair more objectionable than the interference of, say, the head of the Anglican church.

    They told this to Kennedy, of course. The condemnation of Catholics as having two loyalties, having pledged fealty to the head of another state, and so on, is about as old as Protestantism. It’s true that Catholics believe they have a higher moral duty than to the state. But so does nearly everyone, right? If the state told me to participate in someone’s execution (even if via a duly enacted, prospective, general law) I would hope that I’d refuse and face the penalty. You can have that same hope based on religion or based on some other form of moral reasoning, though.

    That is: everyone believes that “the state” and “what’s just/right/moral” are not coextensive. The state fucks up sometimes. A lot of the time. And so anyone who believes they stand independent of the state and can criticize it is on firm ground, but they too serve a master besides the state: their conscience.

    The worst atrocities in history, I might add, haven’t come from people serving “two masters” or other such slurs. The worst atrocities we’ve faced (genocide and certain horrific acts of war) come from too much fealty to the state. Anyone who wants to put their moral compass before their loyalty to Dubya is okay by me.

45. They told this to Kennedy, of course. The condemnation of Catholics as having two loyalties, having pledged fealty to the head of another state, and so on, is about as old as Protestantism. It’s true that Catholics believe they have a higher moral duty than to the state. But so does nearly everyone, right? If the state told me to participate in someone’s execution (even if via a duly enacted, prospective, general law) I would hope that I’d refuse and face the penalty. You can have that same hope based on religion or based on some other form of moral reasoning, though.

    You forget Kennedy’s response: that in matters of the state, his faith was secondary to his sworn responsibility to uphold the Constitution. Which is the right answer. And apparently something the five Catholic Justices did not put into practice, judging by their abandonment of all previous conceptions of precedent.

    And for all your insinuations that I’m adding to the “two masters” perception of Catholics, note that I said that the VATICAN has a problem with mucking around in the internal politics of other nations by putting pressure on Catholic politicians to conform to Church teachings in their public careers. Or did you miss where the issue of whether John Kerry could take Communion became a huge sticking point during the last Presidential election while not one word was said about Giuliani or Schwarzenegger?

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