On Time’s website, law professor Douglas Kmiec ponders the Holy See Press Office’s statement about Pope Benedict XVI’s recent meeting with Nancy Pelosi:
His Holiness took the opportunity to speak of the requirements of the natural moral law and the Church’s consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in co-operation 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.
(Emphasis added.) According to Kmiec, “If you read it carefully, the statement is actually quite radical—perhaps unintentionally so” and by the “moral duties” it places on “Catholic judges to work against abortion” “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.”
I question whether Kmiec’s reading is actually a careful one. For starters, Kmiec assumes that the term “jurists” is equivalent to “judges”. I claim no familiarity with continental legal systems, but I’m not surprised to discover that Wikipedia states: “In most of Continental Europe any person who possesses a degree in law is called a jurist.” If that’s correct, the statement is better read as setting forth the moral duties that Catholic lawyers (and law-school graduates) have. Judges, of course, also have law degrees, but it would be unnatural to read a general statement about the duties that lawyers have as necessarily applying to judges—all the more so to those exercising judicial power in a system of separated powers, as opposed, say, to administrative judges. (Another illustration of the point that the general directive need not apply to those whose station in life renders it inapplicable: Consider a cloistered monk who has a law degree.)
Even if the statement does apply to American judges, all it says is that “jurists” should “work in co-operation 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 turns this into an “admonition to ‘jurists’ to undertake an activist, law-changing role”. But the statement doesn’t compel that reading. If one understands the judicial interpretation of laws to be part of the creation of a system of laws, then the statement would permit American judges to play their proper role (which includes not inventing constitutional “rights” to abortion).
And, of course, as Kmiec acknowledges (even as he refers to “the statement on abortion that Pope Benedict issued”), the Press Office statement is only that—a Press Office statement, one occasioned by Nancy Pelosi’s visit and undoubtedly carefully reviewed for that purpose. All the less reason to imagine that it represents some sort of “sharp break with the past” on the duties of Catholic judges.
[Cross-posted on The Corner]