The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for August, 2009

Scalia and Death of the Innocent

Posted by judicialethicsforum on Tuesday, August, 25, 2009

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

Posted in Judicial Ethics Generally | 1 Comment »

Pro se litigants

Posted by graycynthia on Wednesday, August, 19, 2009

In a recent judicial discipline decision, the Louisiana Supreme Court gave a persuasive description of the importance of respectful judicial demeanor in the courtroom, particularly in cases involving pro se litigants. In re Ellender (Louisiana Supreme Court July 1, 2009). Based on a statement of stipulated uncontested material facts and stipulated conclusions of law, the Court suspended a judge for 30 days without pay for his treatment of the petition at a hearing on a petition for protection from abuse for suggesting that the pleading alleging domestic abuse was inconsequential, suggesting approval of the infliction of severe corporal punishment on a child, and acknowledging he did not appropriately address the father’s statement about whipping his child.

Most of the current justices on the court have experience on the trial bench so they understand the challenges faced by trial court judges.

Judges are called upon to render difficult decisions in sensitive and emotional matters. . . . Often a judge’s patience is tested when simultaneously confronted with crowded dockets to be managed and countless difficult decisions to be made. Litigants occasionally lash out at the judge if their side does not prevail, inappropriately casting aspersions on the judge. . . .

In donning the judicial robe, judges are not suddenly cloaked with faultlessness. Thus, judges cannot be subjected to discipline merely because someone mistakes decisiveness, forcefulness, or sternness for a lack of patience, dignity, or courtesy.

However, the justices were also able to empathize with those on the other side of the bench.

Being in court is a common occurrence for judges, but for litigants, especially pro se litigants, a courtroom appearance can be an immensely difficult experience. Litigants appear before judges to have their disputes resolved. Judges serve the public, in part, by setting an example in how to resolve these disputes in a patient, dignified, and courteous manner. If a judge acts belligerently, those before the judge believe belligerence is acceptable. Judges have an opportunity to teach by example and demonstrate those attributes which all should strive to possess.

* * * The lack of patience exhibited in this matter prevented a full consideration of the legitimacy of the allegations in the pleading, especially considering some of the complaints in the pleading were not addressed before the matter was summarily dismissed. There was a potential risk of serious harm stemming from this judicial misconduct in that the complainant was seeking protective relief from threatened violence in a domestic matter. Mrs. Warren appeared before Judge Ellender, unrepresented by counsel, asking the court for protection based on allegations of domestic abuse. The record is clear that Judge Ellender not only failed to treat this matter seriously, but he also acted in a condescending and demeaning manner toward Mrs. Warren and treated her with a lack of patience. While such behavior should not be tolerated with respect to any litigant, or attorney, the impact on domestic abuse litigants, and others who allege a need for the court’s protection, can be devastating.

Posted in Canon 2, Canon 3 | Leave a Comment »

Call for Papers

Posted by graycynthia on Wednesday, August, 5, 2009

The Drake Law Review and the American Judicature Society are pleased to announce the Seventh Annual American Judicature Society-Drake Law Review Symposium Issue:  The State of Recusal: Judicial Disqualification, Due Process, and the Public’s Post-Caperton Perception of the Integrity of the Justice System.

The United States Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. settled that due process requires an objective analysis of the question of judicial impartiality.   However, like most Supreme Court decisions, it raised as many questions as it answered.   Most obviously, the Caperton decision raised questions about the effects of judicial campaign spending on judges’ perceived and actual impartiality.  In addition, Caperton presents questions about the role of federal courts in ensuring impartiality in state courts.  And at the deepest level, the debate about judicial disqualification raises questions about due process guarantees in the context of elected judiciaries.   The debate over judicial disqualification should be broadened in light of these issues.   The Drake Law Review is seeking articles that address issues implicated by judicial disqualification, including, but not limited to, the following considerations:

• The First Amendment implications of the decision in Caperton;

• How state courts should implement the holding in Caperton in their codes of judicial conduct;

• The answers to Chief Justice Roberts’s 40 questions;

• The balance between the various competing values implicated by judicial disqualification;

• Issues relating to standards and procedures for judicial disqualification;

• The unique challenges relating to judicial disqualification in small jurisdictions and on appellate courts;

• The effect of judicial disqualification on the popular legitimacy of the judicial system.

Articles from all backgrounds will be considered, from academic evaluations of the law to empirical studies on judicial disqualification rules and procedures.   The Drake Law Review invites you to participate in this collaboration by submitting an article to be published in this highly regarded issue of the Review.   If you would like to participate in this unique collaborative effort, please contact the Editor in Chief of the Drake Law Review as soon as possible.   All general topic proposals must be submitted by December 4, 2009.   The deadline for completed articles is January 29, 2010.   Final decisions regarding publication are made by the Drake Law Review.  Drake Law Review, 2507 University Avenue Des Moines, Iowa 50311 Phone: (515) 271-2930; Fax: (515) 271-4926; email:;

Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »