Everything Old is New Again -- The Return of Catholic Advocacy for Judicial Activism to End the Death Penalty

Okay. This time will DEFINITELY be my last post here. But just had to acknowledge one last thing on my almost blogiversary.

Two days from today, Saturday, 7 March, will be the 10th anniversary of this blog. The very first substantive post on this blog was about capital punishment. To be precise, it was about the then recent Supreme Court ruling in Roper v. Simmons, which held that it was cruel and unusual punishment in violation of the 8th Amendment to the U.S. Constitution to execute those who have been convicted of committing murder prior to their 18th birthday. The effect of the Roper decision was to abolish the juvenile death penalty in at least 19 states.

In that post, I acknowledged my opposition to the juvenile death penalty (which has now become an opposition to all forms of capital punishment). However, I also noted the troubling aspect of many anti-death-penalty Catholics hailing the Roper decision as a positive thing. While I agreed with the desired outcome of abolishing capital punishment for those who had committed murder before reaching the age of majority, I warned against the impulse of looking to the judicial branch to implement our agendas:

Catholics who are opposed to capital punishment in general, or who, like me, are opposed to the juvenile death penalty in particular, may be tempted to hail the Court’s Roper decision as a favorable development. Indeed, the U.S. Conference of Catholic Bishops on March 2 stated that it was “very encouraged that the United States Supreme Court has recognized that executing juvenile offenders is indeed cruel and unusual.” However, notwithstanding the desirable result, I would like to warn Catholics against viewing the Court’s decision in too positive a light, as the Court’s majority, in reaching its holding, relied on reasoning that could lead to outcomes that are problematic for Catholics.

First, it must be noted that what the Court did in Roper was, in my view, an abusive exercise of judicial fiat by unelected and life-tenured judges, who usurped what should be the function of the duly elected and politically accountable legislative branch of government. The majority on the Court ignored the views of the electorate on this issue and read its own policy preferences into the Constitution in order to create a constitutional right that was never there before. In doing so, the Court’s ruling flies in the face of over 200 years of 8th Amendment jurisprudence, and is at odds with the Court’s own previous ruling 15 years earlier in Stanford v. Kentucky, which held that the death penalty for minors was NOT unconstitutional. Amazingly, the Court essentially concluded, as pointed out by Justice Antonin Scalia in his dissenting opinion, “that the meaning of our Constitution has changed over the past 15 years – not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.”

This type of activist judicial lawmaking is essentially the same thing the Court did in creating (out of whole cloth) a constitutional right to abortion in Roe v. Wade, as well as in recently striking down laws banning the practice of partial birth abortion. Those Catholics who think the Court acted properly in abolishing the juvenile death penalty in the Roper decision, should not be surprised when the Court uses that same judicial fiat to rule in a manner opposed by Catholics, such as it did in Roe and subsequent abortion-related cases.

I also noted the troubling trend of the Court's increasing reliance upon foreign precedence and the potential ill effects that might have in the arena of creating additional "rights" -- some of which would undermine Catholic views of the family -- out of whole cloth.

Next, I noted the troubling acceptance of the Court's ruling by people who ought to know better:

Again, I realize that many Catholics, despite the concerns I have raised, will nevertheless be tempted to rejoice at the result of the Roper ruling, as evidenced by the positive statement coming from the Bishops’ Conference. I have corresponded with other Catholics who, although troubled by the Court’s reasoning, believe that the “legal technicalities” of the Roper decision should be ignored because the result was just. I would caution Catholics, however, to keep in mind that such good ends cannot justify improper means. And, in my view, running roughshod over the rule of law, as the Roper Court has done, in order to reach a particular desired result simply cannot be justified.

Finally, I concluded with a quote from A Man for All Seasons, and applied it as a warning for what was likely to come from an acceptance of raw judicial activism:

Roper: So now you'd give the Devil benefit of law! 

More: Yes. What would you do? Cut a great road through the law to get after the Devil? 

Roper: I'd cut down every law in England to do that! 

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake. 

Sir Thomas More’s admonition to Roper should serve as a warning and a reminder to Catholics that the activist Court that sides with us in this particular instance is the same activist Court that is likely in the future (as it has in the past) to “turn round on us” and use its increasingly strident activism to decide cases contrary to our Catholic values.

Now, fast forward 10 years, and along comes this joint editorial from "the national Catholic journals":

National Catholic Journals Unite: ‘Capital Punishment Must End’ 

Joint Editorial of America, National Catholic Register, National Catholic Reporter, and Our Sunday Visitor

Next month, the U.S. Supreme Court will hear arguments in Glossip v. Gross, a case out of Oklahoma that challenges the most widely used lethal injection protocol as being cruel and unusual punishment.

The court took up the case in January after a year of three high-profile, problematic executions in three states. The court will likely issue a ruling by June. Our hope is that it will hasten the end of the death penalty in the United States.

[...]

We, the editors of four Catholic journals — America, National Catholic Register, National Catholic Reporter and Our Sunday Visitor — urge the readers of our diverse publications and the whole U.S. Catholic community and all people of faith to stand with us and say, “Capital punishment must end.”

[...]

The Supreme Court has agreed with Archbishop Coakley and will consider the issue. We join our bishops in hoping the Court will reach the conclusion that it is time for our nation to embody its commitment to the right-to-life by abolishing the death penalty once and for all.

Read more: http://www.ncregister.com/daily-news/national-catholic-journals-unite-capital-punishment-must-end/#ixzz3TWgEeACO

So, here we go again. I can understand America's and National Catholic Reporter's affinity for judicial activism, since those publications have never been averse to the Court's using its raw power to push agenda items to which those editorials staffs are friendly. But National Catholic Register and Our Sunday Visitor should know better. They have seen the pro-life and pro-family causes burned time and time again by unelected, life-tenured, activist judges.

The editors at National Catholic Register did feel the need to at least provide an explanation, although they avoided discussing the problematic stance of urging the Court to engage in raw judicial tyranny. My response in the comments to the Register's statement was as follows:

I oppose capital punishment. I want it to be abolished.
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BUT the remedy for which the national Catholic journals are advocating is a recipe for judicial tyranny. You are asking for unelected life-tenured judges to usurp a power unto themselves that they do not have—to find something in the Constitution that simply is not there (although they are certainly not shy about doing so when it comes to declaring a constitutional right to abortion on demand and same-sex “marriage”).
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In fact, you are asking the Supreme Court to find “unconstitutional” something that is explicitly provided for in the Constitution. The Constitution itself, by its terms, validates the “constitutionality” of capital punishment by making it the penalty for treason. How can something be “unconstitutional” when it is called for by the Constitution? What this editorial proposes is for the Supreme Court to ignore the clear language of the Constitution and substitute the judges’ own personal policy preferences.
***
Yes, capital punishment should be abolished, but not by judges who, by doing so, would be making up the law, not following it. Instead, we should be advocating the abolition of the death penalty to those in the elected branches in the state and federal governments who are empowered to act in this regard. It is in the lawmaking branches across the nation—in the legislatures and executive branches—that we should be looking to for action. Movement in the right direction is already happening in several states throughout the nation, as this editorial acknowledges.

Well, that's all I have to say on the matter. Just thought it interesting to see this "joint editorial" encouraging the Supreme Court to abolish capital punishment almost 10 years to the day after I published my first blog post on exactly the same topic.

Thanks for a great 10 years. Goodbye.

UPDATE (6 March 2015)
Pat Archbold, writing at National Catholic Register, takes issue with the publication's advocacy of judicial tyranny, citing the same concerns I have cited here and that I cited 10 years ago in response to the Roper decision. (Hat tip: Paul Z at The American Catholic)