Why Supreme Court Justice Antonin Scalia Should Resign

Catholic legal scholar and conservative Obama supporter Douglas Kmiec writes how the Pope’s recent statement that Catholic theology obligates legislators and judges to work to undermine abortion law all but requires Justice Scalia to resign.

The Pope’s statement, made as part of Speaker Nancy Pelosi’s visit — which goes further than the Church’s previous statements on the subject — was:

“His Holiness,” the statement read, “took the opportunity to speak of the requirements of the natural moral law and the church’s consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.”

So the Pope just called upon judges to be — horrors! — activist judges and create, rather than interpret, law. For a “strict constitutionalist” like Scalia — or his Catholic conservative colleagues John Roberts, Samuel Alito and Clarence Thomas — the very idea is supposed to be an anaethma.

Kmiec notes that in a 2002 essay that Scalia wrote:

a judge, I think, bears no moral guilt for the laws society has failed to enact”

His problem with Roe v. Wade, supposedly, is a legal one — he believes that it is not a Constitutionally protected act but a states-rights issue (supposedly). While his technical opposition to Roe v. Wade on constitutional grounds might seem to square with the Church’s opposition to the decision and its new charge to the faithful to use their positions to enact anti-abortion laws, Kmiec disagrees.

No doubt Justice Scalia would insist that since abortion is not in the constitutional text, disavowing an abortion right would square Scalia and the other Catholic jurists with the Church. But not so fast; Justice Scalia says abortion can be legislatively permitted or not as the people choose, and he will enforce whatever is democratically chosen. That’s hardly what the Church is hoping from Catholic jurists, is it?

Yeah, doing the right thing for the wrong reasons doesn’t exactly square you with God, if I recall correctly.

Kmiec argues that the Pope’s new charge to Catholic judges should obligate Scalia to resign for two big reasons:

1. That his moral responsibilities to the Church are now in direct conflict with his oath to uphold the Constitution.

If the Holy Father is pointedly telling not only President Obama and Congresswoman Pelosi but also judges that they all must use their offices to undo the legal protection for abortion, how is this consistent with their judicial oath, or with the fact that the Constitution in Article VI puts religious belief off-limits for selection or qualification for office, including judicial office?

2. When discussing the Church’s opposition to the death penalty — a punishment allowed by the Constitution that Scalia has promised to uphold and swears he wants to strictly interpret — Scalia said:

“[I]n my view, the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty – and if that fails, lead a revolution. But rewrite the laws he cannot do.”

If abortion is the law of the land, Kmiec is arguing, and the Catholic Church is ordering him to “supplant” that law with “rules of his own,” then by Scalia’s own logic, he should resign.

Both of those, Kmiec implies, should additionally apply to Roberts, Alito and Thomas, if we’re going to get all strict and Constitutional about it.

So, the ball’s in Justice Scalia’s court. He’s got his marching orders from the Pope — the very thing that caused so many non-Catholics to be concerned about the wisdom of electing a Catholic to the Presidency way back in in 1960 — and those from the Constitution he’s sworn to protect. Is he going to follow Benedict and his own judgment and “lead a political campaign to abolish” abortion? Or is he going to ignore his strict constitutionalist principles and legislate from the bench? Increasingly, the Church seems to be giving American Catholics less and less of a choice (and encouraging them to pay that forward).