The following is an exchange with a colleague about Dershowitz’s attack on Scalia regarding the death penalty for an innocent defendant (that Scalia betrayed his Catholicism). 

My colleague’s response:

Although I cannot, of course, speak for the Justice himself, I do think that I have managed to stumble upon a worthy response to Dershowitz’s attack.  Here goes.

For starters, one must distinguish (under traditional Catholic moral theology) between active cooperation in doing evil, versus merely failing to intervene in order to do some good.  The former is ordinarily prohibited; the latter is rarely mandated.

In the death penalty hypo set forth by Scalia, it would not be the Supreme Court ordering any particular individual to his or her death.  Rather, for the Supreme Court, we have instead the question of whether the Supreme Court ought to intervene in order to supercede some other court’s imposition of capital punishment.  Thus, I do not see here any question regarding active cooperation with evil, but rather simply the failure to intervene in order to do some good.  As stated, the obligation to so intervene is rarely mandated.

Moreover, Aquinas teaches that all of us must act within the limits of our authority – even when it comes to doing good:

If the judge knows that man who has been convicted by false witnesses, is innocent he must, like Daniel, examine the witnesses with great care, so as to find a motive for acquitting the innocent: but if he cannot do this he should remit him for judgment by a higher tribunal. If even this is impossible, he does not sin if he pronounce sentence in accordance with the evidence, for it is not he that puts the innocent man to death, but they who stated him to be guilty. He that carries out the sentence of the judge who has condemned an innocent man, if the sentence contains an inexcusable error, he should not obey, else there would be an excuse for the executions of the martyrs: if however it contain no manifest injustice, he does not has no right to discuss the judgment of his superior; nor is it he who slays the innocent man, but the judge whose minister he is.

Aquinas, Summa Theologica, II-II, q 64 art. 6, rep. ob. 3 (“Mirror of Justice” blog).

As Scalia sees it, under our federalist system, and under his interpretation of the constitution, the Supreme Court does not possess the authority to set aside a death penalty sentence in a situation where the defendant has had a fair trial.  Thus, even if he were inclined to intervene to “do good” here to spare an innocent man or woman his or her life, he is simply not authorized to do so.  An effort to go beyond his authority to achieve such a noteworthy aim would violate the fundamental natural law principle that the ends may not be used to justify the means.

Scalia has articulated the very same approach with regard to the issue of abortion, as he has made clear in several statements and audiences.  He believes that Roe v. Wade is bad law not because the constitution is a “pro-life” document, but rather because he interprets the constitution as being silent on the question of abortion.  For that reason he has said that he would uphold, and not strike down, a state law protecting a “women’s right to choose,” for he sees himself as unauthorized to act on the question of abortion one way or another.

Again, one could argue that as a professed Catholic, Scalia ought to do whatever he can to abolish or limit the practice of abortion.  But, again, Aquinas teaches that one ought not act beyond one’s authority – even to accomplish a perceived good.  This would justify Scalia’s “hands off” policy towards state abortion law.

Thus, although condemning an innocent man or woman to death certainly violates Catholic teaching (as does the procuring of an abortion), the Supreme Court is not actively cooperating with these “evils,” but rather merely failing to intervene to stop them.  Moreover, this failure to intervene is not, in Scalia’s mind, mandated by the Supreme Court’s limited authority within our federalist system of government.

In short, then, it would seem as though Scalia’s jurisprudence is consistent with the Catholic natural law tradition.

* * * * *

My reply:

Many thanks for an extremely thoughtful comment.

I was not comfortable with Dershowitz’s reference to Scalia’s religion.  Just as the Devil can cite Scripture, every religious person can interpret religious doctrine in a way that is consistent with a particular point of view.  I don’t mean that in a cynical way, but simply in recognition of the fact that there are so many denominations, sects, branches, and orders – all interpreting the same or similar texts, often in radically different ways.  I have no doubt that there are many Jews who support capital punishment, just as there are many who oppose it.  Also, many who would concur with Aquinas’ analysis, just as there are many who would oppose it.

But let’s apply Aquinas to Scalia.  As you say with reference to Aquinas, one ought not act “beyond one’s authority.”  In addition, Aquinas said that the judge should exercise “great care” in attempting to free the innocent man.  Only if the judge “cannot” succeed in freeing the innocent man – only if doing so is “impossible” – does the judge not sin.

The question then becomes whether it was “impossible” for Scalia to vote to free the innocent man within the bounds of his authority.  Only then would he be escaping sin.

Scalia opposes using the Due Process Clause to limit the states’ use of punitive damages in tort cases.  See, e.g., BMW of North America v. Gore, 116 S. Ct. 1589 (1996) (Scalia, J., dissenting).  Nevertheless, in a later case he recognized that he had the discretion, on the basis of stare decisis, to limit the punitive damages against Exxon for a major oil spill, and he voted to do so even though he continued to believe that the holding was in error.  Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2634 (2008) (Scalia, J., concurring).

Moreover, Scalia has recognized that the Supreme Court has an established “death is different” jurisprudence.  He disapproves of it, but he recognizes it as stare decisis.  In addition, the Court has held that it is a violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment to put someone in jail for the “crime” of being addicted to drugs, analogizing it to the cruel and unusual punishment of putting someone in jail for a single day for the “crime” of having a common cold.  Robinson v. California, 82 S.Ct. 1417, 1421 (1962).

Accordingly, it would not have been “impossible” for Scalia, to vote to free the innocent man.  All he would have had to do would have been to exercise his admitted power, through stare decisis, to recognize that death is different, that saving a life is therefore more important than saving a corporation money (when, indeed, Exxon was not innocent), and that it is cruel and unusual punishment to put a man to death for the “crime” of having had a fair trial.

According to Aquinas, therefore, since Scalia failed to exercise great care, within his authority, to save an innocent human life, he sinned against Church doctrine.  More important, entirely apart from religious doctrine, he failed as a human being and as a Supreme Court Justice.  [To view Scalia’s dissent in full, click here.]

By: Monroe Freedman, Hofstra Law