Palm Beach Post

USA: Scalia vs. pope on death penalty

Opinion

Tom Blackburn, 

Well, I waited for the eruption over Justice Antonin Scalia's comments on the pope and the death penalty, and it never came.

I expected one after the justice said he disagrees with Pope John Paul II on capital punishment and that, as The Associated Press clipped his remarks, a Catholic judge who agrees with the pope should get off the bench. Presumably, to make room for judges with a blood lust.

Columnist Jimmy Breslin shot back that when Justice Scalia, a Catholic, goes to church, "he doesn't notice the crucifix over the altar." Newsday on Long Island editorially sided mildly with the pope. Florida Catholic editor Steve Paradis, in a signed column, took respectful issue, and got back some disrespectful letters taking issue with him.

Some conservative columnists weighed in against the abuse they perceive their justice took from the other side. I can't find the abuse on the Web, and they didn't name names.

 An old rule holds that Supreme Court members are to be heard from but not seen. Ignoring that tradition, Justice Scalia appeared in 2 public forums, the University of Chicago Divinity School on Jan. 25 and, a week later, at Georgetown University. In Chicago, he put it this way: "The choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty."

 Bringing in sabotage changes the proposition from one that's disputable to one no one can argue with. But he didn't accuse any sitting judges of sabotage, which renders that part of his argument highly theoretical.

 As political news, it wasn't so much "man bites dog" as "man contemplates biting dog." He wasn't saying that scorn for the current understanding of the Constitution on any given issue disqualifies judges. To say that, he would have had to resign the first time he was on the losing end of a decision. His argument, rather, was with Pope John Paul for pulling opposition to capital punishment out of what Justice Scalia sees as thin air.

 Citing (selected) Scripture and several long-dead saints, he said, "No authority that I know of denies the 2,000-year-old tradition of the church approving capital punishment."

 But one authority does. The pope. The tradition, as he explains it, was that the church allowed capital punishment to protect society. Now, the pope argues, society is protected by, for example, life sentences and doesn't need to kill. Since capital punishment is taking a life, what's no longer needed no longer should be allowed.

 This is such a weird idea that most of the world considers the countries that still conduct executions -- the United States, China, Saudi Arabia -- to be somewhat barbaric. The countries that have abandoned the death penalty -- including Vatican City -- had it at one time but saw conditions change. Any judge might be persuaded they are right and still carry out his duties with a heavier heart.

 Justice Scalia, however, does not hold with "the development of doctrine" in religion or constitutional law. The phrase, which comes from Cardinal John Henry Newman, for whom the high school is named, reflects that when conditions change, analyses have to change or become irrelevant.

 What Justice Scalia calls "approving" of the death penalty is a misstatement. Allowing it under then-existing conditions was not approval. Unless the church preferred conversion to retribution as a rule, there would be no point to Jesus Christ. Caesar Augustus would do just as well.

 The Catholic bishops seemed to be strangely quiet while Justice Scalia's attack on their position was being fiercely justified in conservative organs. But they acted eloquently through their Catholic Campaign for Human Development. A week after the justice's Georgetown appearance, they gave $530,500 to 16 organizations that inform the public about criminal justice issues and seek legislative repeal of the death penalty.