By: Gregory A. Kalscheur, S.J.
Does the desire to avoid culpable cooperation in moral evil make
the conscientious Catholic judge unfit for judicial service in a
constitutional system that will inevitably bring before the judge
cases that implicate a host of issues as to which the Church offers
moral teaching? Confused answers to this question reflect a
larger confusion which often accompanies contemporary discussion of
questions related to Catholic participation in public life. The
confusion stems in large part from a failure to recognize that
Catholics participate in public life in different ways that give
them different sorts of public roles. This Essay tries to bring
clarity to the confusion by focusing attention on one of those
public roles, that of the judge. The analytical framework for
exploring possible conflicts between the demands of the law and the
demands of the judge’s conscience is provided by the principle of
cooperation with evil. Applying that traditional principle of moral
theology, I conclude that there are not likely to be many
situations in which a Catholic Supreme Court justice’s fidelity to
his or her conscience might require the justice to refuse to
fulfill their judicial duties in a particular case. Indeed, it is
more likely to be trial court judges who will face the most
difficult questions of cooperation with moral evil.