They’ve both responded, sort of, and they both still don’t get it. The fact that there are hypothetical cases in which obeying the law could force a judge to commit an unjust act–and thus the judge might be morally required to recuse himself, resign, or commit judicial disobedience from the bench–doesn’t get the Sullivans where they think it does.
First of all, the hypothetical concession is one that any serious moral analysis of the enterprise of judging would have to make. It’s not a problem specific to Catholics. Presumably judges of any faith or none could, in theory, find themselves in situations where recusal, resignation, or civil disobedience would be in order. Let’s say our judge believes (rightly) that slavery, abortion, and torture are wrong, and is hearing a case in which the sound interpretation of a validly enacted, constitutional law would require the judge to order a woman to have an abortion, or be tortured, or returned to a condition of slavery. Do the Sullivans consider it obvious that in this hypothetical case, the only option before a judge would be to obey a law that forces the judge to act unjustly?
Second, the hypothetical concession doesn’t have the practical import that the Sullivans need it to. Amy Sullivan is simply wrong to say–and basically to ignore my reasons for denying–that a Catholic judge may not treat Roe as a binding precedent. (Her latest formulation would require the denial of communion to Samuel Alito and William Pryor. That’s absurd, and the reason it would not be done in a million years has nothing to do with Church “politicking” and everything to do with the fact that the Church is capable of making distinctions that, though they elude her, are in truth “elementary.”) And Andrew Sullivan is simply wrong to say that “[i]n Benedict’s church, on critical Constitutional questions, we might face five recusals in abortion cases” (hysteria his).
A re-affirmation of Roe based on the sincere view that abortion rights are really in the Constitution or that precedent is binding wouldn’t be formal cooperation with evil. That’s not a judgment call. Formal cooperation with evil entails joining in willing the evil. A judge re-affirming Roe on the above grounds does not will that the law treat the unborn unjustly by excluding them from protection. He may sincerely regret that the law does that. He may wish that the precedent had not been decided the way it had been, or that precedent were less binding in our system than he thinks it is, or that the Constitution had been written differently, or that the Constitution should be amended. But he sees himself as below the law and bound to follow it, just as any citizen is, and not as a lawmaker.
Now if the justice re-affirmed Roe not because he thought he had this kind of obligation to do so, but because he thought that injustice to human fetuses is unimportant, or that abortion rights are morally valuable, or what have you, that would be a different story–as it would if the justice’s justification in terms of precedent were merely a pretext for these real but unspoken motives. The justice would be obligated to search his conscience–which includes searching whether his conscience was rightly formed–to make sure he really was doing the right thing. (He would also, of course, be morally obligated to make sure that he had reasoned soundly about how binding the precedents really were and had not made a sincere but terrible mistake.)
The Sullivans may want to be able to label their opponents simple-minded “fundamentalists,” but that doesn’t mean that we have to live down to the label, or accept their account of our ideas as our own.