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Cardinal Donald Wuerl, archbishop of Washington, speaks with U.S. Supreme Court Chief Justice John Roberts on the steps of the Cathedral of St. Matthew the Apostle after the 60th annual Red Mass in Washington on Sunday Sept. 30, 2012. Roberts was educated in Catholic institutions. (AP file photo)
Cardinal Donald Wuerl, archbishop of Washington, speaks with U.S. Supreme Court Chief Justice John Roberts on the steps of the Cathedral of St. Matthew the Apostle after the 60th annual Red Mass in Washington on Sunday Sept. 30, 2012. Roberts was educated in Catholic institutions. (AP file photo)

Pope’s death penalty message is for small audience

By Noah Feldman
Bloomberg Opinion

When Pope Francis makes a point of saying that the death penalty is immoral under all circumstances, and adds the condemnation to the official Catholic catechism, whom is he talking to?

According to Amnesty International, the top five executing countries in the world last year were China, Iran, Saudi Arabia, Iraq and Pakistan. One of those is communist and four are Muslim. So the odds are that Francis, in an announcement last Thursday, was talking to No. 8 on the list, the only country in the world that has a significant, influential Catholic population yet still executes people: the United States of America.

To be more precise, Francis isn’t directing his message at liberal American Catholics who already work against capital punishment, like Sister Helen Prejean, the anti-death-penalty activist made famous by her book “Dead Man Walking.”

The pope is talking to conservative American Catholics, people who take seriously the church’s teaching against abortion but either support capital punishment or are doing nothing against it.

That includes conservative Catholic legislators, who could be working and voting for abolition at the state or federal level.

More important, Francis’s message is directed at the conservative Catholic Supreme Court justices, of whom there are three at the moment, with a fourth, Judge Brett Kavanaugh, likely to be confirmed in the next few months.

Chief Justice John Roberts and Justice Clarence Thomas were educated in Catholic institutions, and along with Justice Samuel Alito they take their religion very seriously. All attended the Red Mass convened by the Archbishop of Washington before the start of the term last October, alongside Justice Anthony Kennedy, who has now stepped down. (Justice Neil Gorsuch was raised Catholic and attended the same Catholic prep school as Kavanaugh, but in Colorado worshiped at an Episcopal church.)

No one should expect that Francis’ announcement will turn the justices into death penalty opponents. For one thing, conservative justices in theory take the view that it is appropriate for them to defer to federal and state laws. Seen from this traditional restraint angle, these justices don’t “support” capital punishment. They choose to view it as constitutionally permissible.

For another, the justices aren’t necessarily different from other conservative American Catholics, plenty of whom still support capital punishment.

Yet over the long term, the Catholic Church’s official position against capital punishment will inevitably affect Americans in the pews — particularly those likely to join the judiciary.

Witness the anguished 1998 law review article co-written by then-professor, now judge Amy Coney Barrett, who was on President Donald Trump’s Supreme Court short list. Barrett’s article has been wildly misrepresented by liberals in the hopes of discrediting the conservative Barrett.

But if you read it, you’ll see that it struggles with the right course of action for believing Catholic judges who necessarily reject the death penalty as immoral by virtue of their religious beliefs. Ultimately, Barrett and co-author John Garvey suggest that it may be appropriate for a believing Catholic judge to recuse herself from death penalty cases because she cannot morally sentence someone to death.

Notice that this perspective is very different from that of the late Justice Antonin Scalia, for whom Barrett clerked. Scalia was more or less a pre-Vatican II Catholic. He was highly skeptical of what he perceived as liberalizing changes in the church, which would probably have included the church’s rejection of capital punishment. You can be pretty sure that Scalia wasn’t kept up nights by the worry that he might be violating the church’s teachings in death penalty cases.

Barrett, however, is not only a more consistent Catholic than Scalia was but also belongs to a different generation, born and raised entirely after Vatican II. For this generation, contradictions between the church’s death penalty teachings and U.S. practice need to be taken seriously.

The addition of the death penalty condemnation to the catechism is also important for this reason. It means that the children and grandchildren of today’s Catholic justices will go to Sunday school and hear that the death penalty is wrong – while their parents and grandparents continue to uphold it.

The upshot is that while we shouldn’t expect any immediate changes as the result of Francis’s initiative, we should expect eventual effects on the attitudes of American conservative Catholics toward the death penalty.

Francis seems to consider the issue urgent. But the Catholic Church thinks in terms of centuries and millenniums. It can wait.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.



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