Jurists, Journalists, & Judicial Activism

This doesn’t come as any particular surprise, I suppose. Doug Kmiec writes in Time magazine about the pope’s recent meeting with Nancy Pelosi, and he clearly prefers the politics of the latter. Perhaps the problem is that he reads—and misreads—too much politically into the Vatican’s report of the meeting, which was not a political rewriting of legislation procedures but, in the Vatican’s words, a call to “all Catholics, and especially legislators, jurists, and those responsible for the common good of society, to work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.”

Kmiec interprets this statement as a condemnation of “originalist” judges and a plea for what First Things once condemned as the judicial usurpation of politics:

As a lifelong Catholic, Pelosi could not feign surprise at being called upon by the Church to use her gift for persuasion to restrict abortion legislatively, or at least not to be its advocate. But until now, the Church had not formally instructed judges in a similar fashion. As written, the Pope’s statement has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists and perhaps all other Catholics who sit on the bench in the lower federal and state courts . . . .

To get a sense of just how sharp a break with the past this is, all one has to do is take a look at what Supreme Court Justice Antonin Scalia, himself a Roman Catholic, wrote in 2002 in an essay in First Things . “[Abortion involves] . . . private individuals whom the state has decided not to restrain. One may argue (as many do) that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws society has failed to enact,” he wrote. “Thus, my difficulty with Roe v. Wade is a legal rather than a moral one . . . . If a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.”

There’s a thought-provoking discussion of this article here , with many good points made about the proper context (and even precise wording) of the Vatican’s report.

Yes, it would have helped had the Vatican written its statement a bit more judiciously. But Kmiec’s reading is a cleverly simplistic stretch. To put it briefly, he first assumes that jurists means judges and not the broader category of lawyers—those with thorough knowledge of law. Additionally, “Kmiec wrongly interprets the papal statement as putting jurists and legislators in the same category so that their responsibilities about protecting human life must be exercised in the same way”; actively opposing abortion, in other words, does not entail judicial activism. Finally, by implying that the pope supports such activism—strongly opposed by our pro-life justices today—Kmiec casts him as a politically ignorant extremist blindly ostracizing his pro-life justices.

Of course, if Kmiec et al. were really serious about opposing judicial activism and restoring the proper balance of political power, they might be singing to a different tune .