TUESDAY, JANUARY 12, 2021 ORDER IN PENDING CASE 20-A124 MONTGOMERY, LISA M. V. WATSON, WARDEN, ET AL. The application for stay of execution of sentence of death presented to Justice Barrett and by her referred to the Court is denied. Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application.
Lisa Montgomery was executed the next day, the first woman to be executed by the federal government since 1973. Over dissents by Sonia Sotomayor and Stephen Breyer that the Supreme Court has, in Sotomayor's words, promoted an "expedited spree of executions" the Trump administration executed 13 after a 17 year hiatus in federal executions. Breyer observed in his dissent that there was a substantial question of whether Montgomery, a victim of childhood abuse who had committed a bizarre and brutal stabbing of a pregnant woman, understood now "the fact, meaning, or significance of the execution".Many have noted that former Notre Dame law professor, now Associate Justice Amy Coney Barrett and then professor, now Catholic University President John Garvey - prominent Catholic lawyers - had opined in 1998 that
"While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating."
But adherence to Catechismal doctrine posed no obstacle to the five Catholic Justices denying a stay of execution to three death row prisoners executed in the last week of the Trump presidency. Garvey and Coney (now Barrett) - wrote in 1998 that Catholic Judges “are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty,” but “[t]hey are also obliged to adhere to their church's teaching on moral matters.”
Twenty three years later Amy Coney, now Justice, Barrett found herself voting against every request for a stay of execution but one in her first months on the Supreme Court. In that period the Trump administration carried out an unprecedented spate of federal executions. Her only objection was to Alabama's refusal to provide a Muslim spiritual adviser to a doomed man. Even the plea of Lisa Montgomery - a severely mentally damaged woman who had carried out a deranged slaying - did not cause Barrett to either recuse or vote to stay execution.
What happened during those twenty three years since she declared that a Catholic judge should recuse? Since Barrett penned the words above her Church markedly tightened its stance against the death penalty, essentially finding no grounds for government to execute a prisoner no matter how heinous their crime. Yet despite that Barrett - a member of a conservative highly observant movement within the Catholic Church - did not take her own advice. Why?
Two strands lead me to the conclusion that she and her fellow political conservatives on the Court were able to rationalize their own personal policy preferences - which depart from their Church's catechismal prohibition. One possibility is that the judges embraced a rationale like that offered by the conservative Harvard Journal of Law and Public Policy editor Ryan M. Proctor. In his 2019 article `Catholic Judges Have No Obligation to Recuse Themselves in Capital Cases' Proctor found a route to reject the Catechism by framing it as a personal choice by Pope Francis. The prohibition, Proctor argued, is inconsistent with `Catholic history, tradition, scripture and the Magisterium'. Therefore adherence to recently embraced doctrine may not be demanded.
Another possibility is that the considerations of complicity discussed by Boston College theologian/law professor Cathleen Kaveny allowed similar room to participate in a legal process which carries out a death sentence not permitted by the Catechetical teaching. Motivated by a personal belief or preference to find legitimate capital punishment the casuistical considerations regarding complicity which she had 23 years earlier found obligatory now provided room for Barrett and her fellow conservative co-religionists to act on their own jurisprudential preferences:
How close to evil can one get without being contaminated by it? What does it mean to be tainted by evil? What are the implications for the agent, for her future actions, and for the society in which she lives? In my view, these questions can only begin to be addressed with an approach that holds together reflections upon the act, the acting agent, and the normative vision of the community in which the agent’s actions are intelligible.
Such considerations make possible personal choices of conscience which depart from Church doctrinal commands. Such personal interpretive choices are common. Thus many Catholics find no contradiction between a personal choice against abortion and a refusal to demand that others make the same choice. That choice Catholic conservatives find intolerable, while retributive executions are untroubling.
- GWC
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