Death penalty showdown: The Pope vs. the Supreme Court

Story highlights

  • Paul Callan notes most members of the high court are Catholic
  • Those who favor death penalty need to respect Pope's views but are free to disagree, he says
  • Even pro-death penalty Antonin Scalia predicts court may soon put end to executions, he says

Paul Callan is a CNN legal analyst, a former homicide prosecutor and media law professor. He is of counsel to two law firms: Edelman & Edelman PC and Callan, Koster, Brady & Nagler LLP. The opinions expressed in this commentary are his.

(CNN)When Pope Francis gave the first address by a leader of the Catholic Church to a joint meeting of the U.S. Congress on Thursday, the most important members of his audience may have been the representatives of yet another branch of government, the justices of the Supreme Court.

Paul Callan
The Pope, who by Catholic doctrine may claim infallibility in matters of faith and morals, has staked out a position diametrically opposed to the position of the U.S. Supreme Court on the matters of the death penalty, same-sex marriage and abortion.
He has described capital punishment as inhumane and an impermissible device to "foster vengeance," has been quoted as referring to same-sex marriage as an "anthropological regression" and describes "abortion and infanticide" as "unspeakable crimes."
    Unlike the executive branch led by a Protestant president, and the Congress, in which less than a third of the members are Roman Catholics, six Roman Catholic justices hold a majority of the court's nine seats. These six -- Samuel Alito, Anthony Kennedy, John Roberts, Antonin Scalia, Sonia Sotomayor and Clarence Thomas -- would constitute a voting majority of the court in the event that they agreed on the hot-button social issues of the day. In fact, they rarely do.
    No other branch of government concentrates Roman Catholic representation in such a clear majority. On controversial social matters, the Catholics on the court traditionally split on ideological grounds, with Roberts, Alito, Scalia and Thomas generally voting for the conservative position while Sotomayor votes for the liberal or "progressive" position. Kennedy is often the court's decisive swing vote.
    With respect to the death penalty, an issue where swinging only one or two of the conservative Catholic justices to an anti-death penalty position could make a critical difference, possibly permanently ending the practice of execution in the United States, the Pope's most important targets of opportunity failed to appear for the address. Notably absent were Scalia, Thomas and Alito, staunch death penalty supporters who are quite public about their Catholic faith and what it has meant to them.
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    It would have been interesting to see the reaction of the court's most outspoken "originalist" and death penalty supporter, Scalia, as the Pope highlighted his opposition to the death penalty with a reference to the golden rule, stating:
    "... This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation."
    Undoubtedly the court's Catholic justices anticipated the Pope's anti-death penalty references, given the letter he sent to the International Commission Against the Death Penalty in March in which he noted: "It is an offense to the inviolability of life and to the dignity of the human person which contradicts God's plan for man and for society and his merciful justice, and it fails to conform to any just purpose of punishment. ... It does not render justice to the victims, but rather foments revenge."
    They may, however, have been more surprised by another doctrine the Pope hinted at in his congressional debut: He also opposes life sentences and solitary confinement of the imprisoned. Goodbye Supermax for terrorists if the Pope's wishes are implemented.
    In the end, Scalia will undoubtedly withhold from the Holy Father the customary blast of his acerbic wit that is so often directed at other justices who oppose his originalist view of the U.S. Constitution.
    Not only would such an attack be sacrilegious but quite futile in accomplishing his goal of preserving the death penalty. Yet even Scalia sees the handwriting on the wall that the court may soon order an end to the death penalty. In a recent speech to students at Rhodes College, he is reported to have told students he would not be "surprised" by the overturning of the death penalty.
    While the Pope spreads his message of peace, love and life during his American tour, the Catholic justices of the court can be happy about one thing: They will not be excommunicated for their deviation from the Pope's position of opposition to the death penalty. Pope Francis has never formally invoked the doctrine of papal infallibility as he must to bind all Catholics to his views regarding the death penalty and other prison policies. This has been done only twice in papal history, both times on doctrines pertaining to Mary, the mother of Jesus (the Immaculate Conception and the Assumption).
    In the absence of a clear statement from the Pope invoking the infallibility of his anti-death penalty position, the doctrine remains his personal opinion -- deemed worthy of respect but not unquestioning obedience.
    Scalia and the other Catholic justices who join him can remain true to their originalist vision of the Founding Fathers rather than the Holy Father's kinder view -- unless perhaps his prowess as a minister and successor to the Seat of Peter has moved them in an entirely different direction.