Judges and excommunication

Yesterday, in United States v. Windsor, a 5-4 majority of the Supreme Court struck down the Defense of Marriage Act, 1 a federal law which prevented one or more states imposing a redefinition of marriage upon other states or the federal government, via the full faith and credit clause or via federal statutes that presuppose the traditional state-law definition of marrage. We have been fighting some fires at work and so, having had no time to read the case, I have no comment on it. I will, however, comment on the proper analytical framework that is called for in assessing this post at Rorate, which wonders aloud whether Justice Kennedy, who authored Windsor (and also Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996)), and one assumes the other Catholic justice in the majority, Sotomayor, should be excommunicated.

Federal judges are not politicians; if the analytical framework under which excommunication should be considered for politicians applies to them at all, it does not apply so cleanly as it does to legislators. But that is where we must begin. Generally-speaking, a Catholic politician who publicly acts at odds with the Church’s teaching is subject to excommunication by their competent ecclesiastical superiors. 2 If I were the Governor of Indiana, for example, I should expect to be excommunicated if I should refuse to exercise my discretionary authority to grant a requested commutation of a death sentence. 3 Bishops, however, must use great care in exercising this responsibility, because “the path from sound doctrine to sound policy is not always straight, short, and well-lit.” 4 Presumably for this reason, they generally demur.

If one does not agree that public servants are ever subject to excommunication for public acts, then of course the answer to the question of excommunicating judges must be “no.” But even if one does agree with it, the answer is not necessarily “yes.” Justice Kennedy routinely votes to uphold gay rights, and Justice Scalia routinely votes to uphold the death penalty, but it does not follow from the fact that the subjects and beneficiaries of those decisions are at odds with the Church’s teaching that Kennedy or Scalia are violating the Church’s teaching. Judges are not legislators; they are not charged with making the law but announcing it, and to the extent that they confine their behavior to their proper lawsaying role, they are not susceptible to ecclesiastical censure.

It may be helpful to take a slight tangent to more thoroughly explain the distinction just made.

I would make a distinction between the lawgiving role, the lawsaying role, and the discretionary role. The judicial role is, with a few exceptions, a lawsaying role, in which the judge announces what the law is. 5 The judicial power is nevertheless awesome and mighty, and judges can abuse it. Judges are supposed to announce the law, but sometimes, they make the law; there’s an entire school of thought, the so-called “Legal Realists,” who a century ago threw up their hands in exasperation and concluded that it was so difficult to announce the law that “the judge may as well just make it up” = “the judge ought to just make it up.”

The Realists were nuts but they were onto something: Sometimes judges make law. Even I would be hard-pressed to disagree entirely with the quintessentially Realist Richard Posner that “[i]f a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice.” But the constellation of such cases are far more limited than Posner thinks, and the materials available for giving a judicial answer rather than a quasi-legislative answer are almost always available. 6 And then, of course, there are fields in which judges do in a very real sense make the law rather than announce it—admiralty is a traditionally judge-made field, and antitrust has been so long the preserve of judge-made law that I don’t know that anyone still resists. 7 And on a smaller scale, judges do make law when, for example, they create prophylactic rules and doctrinal fences (the exclusionary rule, for instance, or Bivens) that safeguard violations of received legal rules that would otherwise evade legal protection. 8

All this to say: The judicial role is (generally) a lawsaying role, but that does not mean that every judicial act comports with that role. A judge who gives a judicial answer, as she ought, is not on the hook. But a judge who gives a legislative answer, and thus exercises a lawgiving role, especially when he ought not, may well be on the hook. (Mutatis mutandis, the same thing goes for Governors: To the extent that their function is more-or-less a fiduciary of state law, a Governor is probably not on the hook. But to the extent that their exercise of power involves their discretionary role, they are on the hook.)

Let us now circle back to Justices Scalia and Kennedy.

Scalia is a more straightforward example. Scalia decides cases based on what the Constitution and laws of the United States say on the matter at hand; he is simply a fiduciary for the decisions made by others, as reflected in the texts and traditions before the court. (I realize that legally-minded readers will raise eyebrows at that claim, which is admittedly facile, but the details need not detain us.) The Church has a teaching on whether the death penalty should be used, but it has (and could have) no teaching on whether the Constitution of the United States forbids its use, and, as a Justice, Scalia is almost invariably asked to decide questions of the second kind, not the first.

A straightforward example at the other end of the scale might be Justice Douglas. William O. Douglas decided cases based on what the Constitution and laws of the United States ought to say about the subject at hand; he may have worn a robe, but he wasn’t a judge and seemed impatient at the need for any pretense to do so. 9  It takes no subtlety to say that Douglas, had he been a Catholic, could have been subject to excommunication, because, by acting as a legislator rather than a judge, he was in fact making law not applying the law made by others.

Kennedy lies somewhere in between these extremes. If one asked Kennedy, I have no doubt that he would say that he is simply applying the law as he understands it. But ignorance isn’t a defense. There is no serious argument that the Constitution decides this case; were that not already apparent, Scalia demolished the idea at oral argument. Ted Olson is one of the greatest oral advocates of recent memory, 10 and he had no answer.  To rule otherwise is to make law, not announce the law that already existed. Were I Kennedy’s ordinary, I would be tempted to excommunicate him, because I am satisfied, having followed his decisions for more than a decade, that Kennedy assumes a lawgiving role not a lawsaying role, at least in cases such as these. But the case is somewhere short of clear, and I certainly would not bemoan Kennedy’s ordinary if he should take a contrary view. These questions inevitably involve discretion and judgment, and I defer to the judgment of Kennedy’s bishop. I write only to clarify the proper analytical framework in which an answer should be sought.


  1. 110 Stat. 2419 (1996).
  2. Cf. Revealed preference and the peril of interest capture, 1 MPA 7 (2012); The mismatch, 1 MPA 75.
  3. See Ind. Const., Art. V, § 17.
  4. In re the firearms debate, 3 MPA __ (2013).
  5. I do not deny that the declaratory theory of law has become outré, but the difference between a conservative and a liberal is that I will defend an idea that I think is right even if I am the last person on Earth to believe it, and he will defend an idea that he thinks is right even if he is the first person on Earth to believe it. The “legal realist” critique of the declaratory theory runs something like this: Law on the page of a statute book is abstract, and every case is different, and the law is not really imposed until it is applied to the specifics of a concrete case, and thus the judge really “makes” the law by imposing it, and this especially so if a statute is ambiguous between meaning A and meaning B, in which case the judge creates the law by collapsing the ambiguity. But that cannot be right; it is at war with the idea of ex post facto laws, and it is absurd to think that the man who opens Dr. Schrödinger’s box is a cat-killer.
  6. And if they are not, the judge is not obligated to pretend otherwise. Cf. Frank Easterbrook, Foreign Sources and the American Constitution, 30 Harv. J. of L. & PP. 223, 226-27 (2006).
  7. See, e.g., Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256 (1979); Herbert Hovenkamp, The Antitrust Enterprise 44 (2005).
  8. Cf. Judicial conservatism and the Obamacare cases, 2 MPA __, __ (2012); Roger Roots, The Originalist Case for the Fourth Amendment Exclusionary Rule,
  9. Cf. Robert Woodward, The Brethren 48 (1979).
  10. The roll of honor includes John G. Roberts, Ted Olson, Paul Clement, and Maureen Mahoney.