Ramesh Ponnuru continues the discussion between us and the Sullivans:
... Amy Sullivan is simply wrong to say--and basically to ignore my reasons for denying--that a Catholic judge may not treat Roe as a binding precedent. (Her latest formulation would require the denial of communion to Samuel Alito and William Pryor. That's absurd, and the reason it would not be done in a million years has nothing to do with Church "politicking" and everything to do with the fact that the Church is capable of making distinctions that, though they elude her, are in truth "elementary.") And Andrew Sullivan is simply wrong to say that "[i]n Benedict's church, on critical Constitutional questions, we might face five recusals in abortion cases" (hysteria his).
A re-affirmation of Roe based on the sincere view that abortion rights are really in the Constitution or that precedent is binding wouldn't be formal cooperation with evil. That's not a judgment call. Formal cooperation with evil entails joining in willing the evil. A judge re-affirming Roe on the above grounds does not will that the law treat the unborn unjustly by excluding them from protection. He may sincerely regret that the law does that. He may wish that the precedent had not been decided the way it had been, or that precedent were less binding in our system than he thinks it is, or that the Constitution had been written differently, or that the Constitution should be amended. But he sees himself as below the law and bound to follow it, just as any citizen is, and not as a lawmaker.
As I explained below, I basically agree:
... there was a plausible argument that Justice Kennedy's reliance on stare decisis rendered his decision at most material cooperation with evil, which is not per se banned. As commenter Max oput it: "a judge that is bound by the law to rule a certain way is not 'formally cooperating with evil.'"
Ramesh's structural argument strikes me as an even better one, since it's easy to overstate the claims of stare decisis.
