Does the desire to avoid culpable cooperation in moral evil make the conscientious Catholic judge unfit for judicial service in a constitutional system that will inevitably bring before the judge cases that implicate a host of issues as to which the Church offers moral teaching? Confused answers to this question reflect a larger confusion which often accompanies contemporary discussion of questions related to Catholic participation in public life. The confusion stems in large part from a failure to recognize that Catholics participate in public life in different ways that give them different sorts of public roles. This Essay tries to bring clarity to the confusion by focusing attention on one of those public roles, that of the judge. The analytical framework for exploring possible conflicts between the demands of the law and the demands of the judge’s conscience is provided by the principle of cooperation with evil. Applying that traditional principle of moral theology, I conclude that there are not likely to be many situations in which a Catholic Supreme Court justice’s fidelity to his or her conscience might require the justice to refuse to fulfill their judicial duties in a particular case. Indeed, it is more likely to be trial court judges who will face the most difficult questions of cooperation with moral evil.
Gregory A. Kalscheur S.J.. "Catholics in Public Life: Judges, Legislators, and Voters." Journal of Catholic Legal Studies 46, (2007): 211-258.