Religion & Law

In response to Rob -- whose question would certainly "deserve an answer", even if Prof. Dershowitz's did not -- who asks, "if moral opposition to the death penalty requires resignation for a judge who is required to preside over the death penalty, why doesn't moral opposition to the killing of an innocent person (who appears at the habeas hearing with the wife he's accused of murdering) require resignation?", two quick thoughts. 

First, I think Justice Scalia is mistaken (and I said so, I recall, at the same event where he gave the speech from which Rob quotes) if he thinks that "moral opposition to the death penalty [necessarily] requires resignation" for a judge.  It depends.  (John Garvey and Amy Coney Barrett have a very helpful law-review article on this subject, as does Ed Hartnett.)  Second, Justice Scalia probably believes that exceedingly unlikely that he would ever be put in the position of having to provide the vote that would result in (even though it would not require) the execution of a person known (and believed by Scalia) to be innocent.  Perhaps, if he had to cast such a vote -- if he believed both that he lacked the power to stop the execution and that the person in question was innocent -- he would, and should, resign.