Yeah, I'm with you. Anthony Kennedy took part in the greatest sham in SCOTUS history when he co-authored the abomination that was Casey, but if he was motivated by his (albeit incorrect) interpretation of what the Constitution and precedent warrent, then it doesn't seem he's committed a grave sin. Pro-abort politicians who continue to defend the legality of abortion are much more culpable. Kennedy is not arguing that abortion should be legal, only that precedent entails the Court to continue to uphold Roe's central holding. Again, he's wrong in his opinion, but it's still not on the order of personally favoring legal abortion.
I'm concerned that Catholics on both the left and right seem to think that Catholics on the Court should ignore the Constitution and base their decisions on Catholic social teaching. As you say, this would only serve to bolster Schumer and company's position.
Publius and Paul,
You guys know I'm generally in agreement with you on Court-related matters, but Tony Kennedy should have been promptly shown the door of the Church upon his voting to reaffirm Roe.
He's the one who ignored the Constitution. And based on the information that has come out since, he apparently did it precisely to keep abortion legal.
Besides, we know based on his opinions in Lawrence and Roper that Kennedy's so-called "respect for precedence" extends only so far as his personal preferences allow.
If Kennedy voted to to reaffirm Roe, not just because he believed it was the right cource of action take as a constitutional matter, but because he wanted to preserve the legality of abortion, that does change things. Of course, such an action would be troubling not just from a Catholic standpoint, but we all know that. But it's not quite possible to prove what motivated Kennedy to vote as he did.
I still think there can be a difference between judicial and legislative intent. Theoretically, it's possible to oppose abortion but still believe that it's protected by the Constitution. Yes, that's wrong, but it's not quite the same thing as affirmatively believing that abortion should remain legal, and casting votes to so secure its continued legality.
Think of it this way. Imagine a pre-Griswold world. Then imagine that a case is brought before the Court where one side is trying to strike down a state law that permits the sale of contraception. Now, I think we all here would agree that such a law would not be unconstitutional, and a Catholic Justice, acting according to the Constitution, would have to vote to uphold such a law. Should said Justice be barred from receiving Communion?
I know that situations are not completely analogous, but I hope it makes the point of what I'm getting at. On Vox-Nova, MM was mocking our position by stating that we believe that morality doesn't matter to Justices - it only matters to legislators. But isn't that, in a sense, right? Justices are bound by the Constitution, and thus constrained in what they may or may not be. Legislators have an open canvass, so to speak.
Now I feel completely icky from defending Kennedy.
The question though isn't what would be politically expedient or what would make orthodox Christians feel good about themselves. The real question is what would be good for Justice Kennedy, since excommunication is always directed at the correction of the person.
Isn't excommunication also directed at the prevention of scandal?
Isn't excommunication also directed at the prevention of scandal?
Not "also" as I understand it, as if that purpose were of equal importance to the correction of the guilty party, but secondarily yes, to wit:
While not vindictive, excommunication is the Church's most serious penalty, its chief purpose being the correction of the guilty. This correction takes the form of exclusion from the spiritual benefits of the Church as a society and Mystical Body of Christ. Excommunication directly affects only the individual, who does not cease thereby to be a Christian, owing to the indelible character of Baptism. A secondary purpose of excommunication may be said to be the spiritual protection of the faithful. (Emphasis mine).
So after the question of what is objectively good for Justice Kennedy has been addressed, considerations like scandal can be taken into consideration in the light of and subordinate to that primary concern. But punishment is never about primarily its public or "deterrent" effects: to treat punishment as primarily (even as one primary reason among several coequal reasons) about its public or "deterrent" effects is to treat the punished person as an object to make a point, and it is always wrong to treat a person as an object.
The real question is what would be good for Justice Kennedy, since excommunication is always directed at the correction of the person.
I agree, and I am coming at it from the point of view of giving Kennedy the benefit of the doubt. Because he is a Justice, it's difficult, if not impossible, to discern the true intent of his soul. Denying him the sacrament would seem to be an injustice to him. When it comes to legislators who advocate on behalf of abortion rights, that's a different matter. To me, denial of Communion is not about making a political point - at least not for anything but the most secondary of reasons.
The reason I bring up politics in this matter is simply to point out differing circumstances.
I agree, and I am coming at it from the point of view of giving Kennedy the benefit of the doubt.
It is not at all obvious to me that there is any difference between a judge and an elected representative on the point. A positivist judge will claim and perhaps even believe (despite its internal incoherence) that he is merely carrying out predetermined positive law which he has no authority to contravene through personal opinion; a positivist legislator will claim and perhaps even believe (despite its internal incoherence) that he is merely carrying out the predetermined positive will of the people he represents which he has no authority to contravene through personal opinion.
Mind you I don't buy either story, since I think positivism is bunk. But it is fundamentally unjust to give judges the benefit of the doubt as possible positivists (or as engaging in material cooperation with evil under a good intention, for that matter) and to not give legislators that same benefit of the doubt. There isn't anything intrinsic to the one role versus the other that warrants a penalty for adopting a certain metaphysic in the one case but not in the other, it seems to me.
a positivist legislator will claim and perhaps even believe (despite its internal incoherence) that he is merely carrying out the predetermined positive will of the people he represents which he has no authority to contravene through personal opinion.
That's a good point, and one that I considered as I was writing my replies. A legislator still has an out insofar as he can claim that he is acting solely on the will of the people. Of course that leads to a whole different set of questions on the nature of representation and the moral culpability of legislators who act as mirrors rather than agents, but we'll leave that aside.
The more I reflect on this debate it seems that our responses will be shaped by our own theories of government. Those of us who believe that Supreme Court Justices ought to interpret the Constitution according to an originalist understanding, AND that legislators ought to be Burkean agents that vote based on their own personal deliberation might argue that legislators are freer to act and as such more susceptible to being denied the sacraments. You raise an alternative scenario that puts them on a more even plane. It's a tough dilemma to muddle through.
I guess this is why I should be glad I'm not a Bishop.
The more I reflect on this debate it seems that our responses will be shaped by our own theories of government.
Yes, exactly, and on our moral meta-theories with respect to governance: e.g. on the extent to which one believes a theory of government to be exculpatory (I tend to think that it isn't), on how one views acts involving cooperation with evil (e.g. does explicitly issuing a wicked decree constitute formal cooperation with evil independent of one's theory of government - I tend to think that it does), etc.
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