Should Amy Coney Barrett join the U.S. Supreme Court, one may wonder how her religious beliefs might be balanced against her duty to uphold the Constitution – particularly when it comes to capital punishment cases.
In 1998, Coney Barrett authored a legal paper entitled, “Catholic Judges in Capital Cases,” which concludes with seemingly opposite claims. She writes the Catholic judge should “conform their own behavior to the Church’s standard,” but further argues that “judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge.”
Coney Barrett was just 26 years old at the time of this publication and barely a lawyer, let alone a judge. But her present position on this same matter – should Catholic judges take the Church or the Constitution as their primary compass in matters of the law? – is even less clear and must be considered by anyone who wishes to understand her possible future role on the Supreme Court.
Her early statements do seem to suggest she once believed that Catholic judges might need to recuse themselves on issues where the “Church’s standard” conflict with the tenets and precedents of the legal system. It remains an open question as to what sort of issue would create such a conflict in the mind of Coney Barrett.
In the recent Catechism of 2018, the Catholic Church took an emphatic position against capital punishment and called for its complete abolition. Does Coney Barrett share her church’s position? What else might influence her decisions on the issue?
Coney Barrett is an originalist, and as such she must turn to the Constitution itself for direction on such matters. Article III of the Constitution, which describes the role of the Supreme Court, provides no guidance on the moral perspective of judges beyond specifying that they must exhibit “good behavior.” How might such a vague imperative play out in the context of specific questions before the Supreme Court, and in Coney Barrett’s case in particular?
The issue of capital punishment provides an urgent and salient case-in-point. While the Pope stands against capital punishment, conservative politicians may expect Coney Barrett to uphold its use in the U.S. As a 7th Circuit judge, she has voted to allow executions to proceed. As an originalist, Coney Barrett might respect the plain language of the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The problem with the cruelty prohibition in capital punishment has been the difficulty of the definition. What we understand to be cruel has evolved in a way commensurate with the maturation of civil society. The public now objects to drawing and quartering as a method of execution, for example. Hanging also seems no longer acceptable, but other methods including electrocution, the gas chamber and the firing squad seem to be reemerging, and we continue to struggle to understand the meaning of cruelty in the context of capital punishment.
Executed inmates would no doubt report their death as cruel but as a practical matter, cruelty determination is actually the responsibility of the witness to execution. We are asked to engage our empathy as we consider what we see. Empathy is itself problematic in that two people witnessing the same execution may give very different accounts.
Since 1977, lethal injection has satisfied a public desire to perform execution in a fashion that outwardly passes the cruelty test. Execution in America is intended to be an expression of our civil respect for the rule of law and not a ghoulish display of bloody revenge. Lethal injection is intended to be a method to produce near instant death through the induction of sleep leading to death. To die in one’s sleep surely cannot be cruel?
Recent autopsy evidence, however, has revealed something in lethal injection that was previously unrecognized. In the great majority of cases, the lungs show a pattern of destructive injury consistent with pulmonary edema: the lungs are full of frothy fluid.
Inmates are not dying in their sleep but in fact are gasping and drowning to death. We intuitively understand that death by drowning must be terrifying. Even a small sip of water accidentally introduced into the trachea by careless swallowing produces great pain and distress. It is reported that water boarding, a recognized form of torture, is akin to the experience of drowning. Lethal injection is death by water boarding.
Cruelty is ultimately a judgment on motive, not method. Now that we know the consequence of the method, continued judicial support of lethal injection reveals a court that acts with cruelty and defiles the plain language of the Eighth Amendment.
In July 2019, the federal government indicated its intention to restart capital punishment after a nearly two-decade hiatus. Since then, seven executions by lethal injection have been carried out by the federal government. More federal executions are scheduled.
If Coney Barrett takes a seat on the Supreme Court, her professed moral rudder, drawn from her Catholic faith, must direct her to reject capital punishment.
If her faith no longer guides her on this issue, her support of Constitutional originalism should direct her to reject lethal injection, as it is unambiguously cruel.
On this urgent issue, if not others, moralities of faith — such as Coney Barrett’s Catholicism — and originalist interpretation of the Constitution lead to the same place. Given her avowed allegiances, any other position would be hypocritical.
Joel Zivot, MD, is at Emory University School of Medicine in Atlanta. His clinical expertise and research interests include care of critically ill patients in the OR and ICU, education, and scholarly work in bioethics, the anthropology of conflict resolution, pharmaco-economics, and a variety of topics related to anesthesiology/critical care monitoring and practice.
Source: MedicalNewsToday.com
